Judge Posner retires

Judge Posner of the Seventh Circuit is retiring.  Has retired.  Most would probably characterize him as a conservative.  That is troubling and superficial because he was simply a good and conscientious judge.  And that is the highest praise for any judge. http://chicagolawbulletin.com/Articles/2017/09/01/retirement-9-1-17   http://www.law.com/sites/almstaff/2017/09/04/a-judge-who-speaks-his-mind-richard-posners-greatest-quips/?et=editorial&bu=Law.com&cn=20170905&src=EMC-Email&pt=ALM%20Morning%20Minute

The characterization of judges as liberal or conservative is timely with me because I am hosting a meet-and-greet this week for a friend who is running for a Nashville judgeship.  Judicial elections make me – and probably most lawyers – cringe.  When voting for a legislative or executive candidate, I want a person who will advocate for issues that are important to me.  Unfortunately, we often fall back of the labels – “liberal” or “conservative” – rather than doing the hard work of addressing specific issues.  Nonetheless, the point is that I expect legislative and executive candidates to tell me their positions on issues during the campaign.  I use that information about positions they would take in the future as grounds to decide how to vote.

Switch over to judicial elections and I almost want something opposite.  I don’t want a candidate who states his or her position on legal issues during a campaign.  I want a candidate who is smart and respectful and willing to take the time and do the hard work to consider the issues as they are presented.  Not tell me how they will rule before the case even comes before them.

In anticipation of my meet-and-greet party, I have been trying to come up with a list of qualifications or qualities that I want to see in a judicial candidate.  Here is a first stab at that list.  They are not in any particular order of importance.   But they all boil down to an environment in which everyone feels like they get a fair shake on a level playing field.

  1.  Works hard.  Judges may have better hours than lawyers in law firms, but they still have work to do and deadlines to meet.   I want judges who will read the briefs and listen to the evidence and do any additional research (or assign that research to a clerk) necessary to reach a decision.  I want judges who will spend just as much time and attention on deciding a case as that judge did writing briefs in private practice.
  2. Respects the lawyers.  This is a little personal.  The last time I was in court, I had to ask a judge to revise one of my jury instructions that he had previously approved.  I had thought about the other side’s objections and decided the instruction should be changed to avoid problems on appeal.  The judge said he had already given me the instruction I requested and I should “stop beating a dead horse.”  Well, I had to keep beating that dead horse to protect my clients’ interests, so I did.  Lawyers have jobs to do, and, within reason, judges need to let the lawyers do their jobs.
  3. Respect everybody’s time.  Courtroom time is so expensive!  I really appreciate judges who work to minimize the time that lawyers sit in a courtroom with nothing to do.  Remember the old days of docket calls?  It was a great time for lawyers to socialize, but many clients could not afford to support that social time at today’s hourly rates.
  4. Respects the rule of law. My friend is running for a trial court judgeship, where she generally will be applying existing law, not making new law.  When trial court judges deviate from existing law and apply what they think the law should be, they waste everyone’s time with unnecessary appeals.  This is where the “liberal” or “conservative” labels are especially inappropriate for trial court judgeships.  If you want to push a liberal or conservative agenda, do it in another branch of government.
  5. Understands litigants’ interests.  Every litigant thinks he or she has a good case and is looking to the court to make things right.  At the same time, at least one litigant in every case is going to be disappointed. The trial court can’t fix that, but can render rulings that lawyers can explain to their clients.  This also goes back to those labels; if a judge is labeled as “liberal” or “conservative,” litigants (and, unfortunately, their lawyers) may blame that label for losing the case, without focusing on the merits or lack thereof.  That leads to a feeling that the judicial system is not a level playing field at all.
  6. Has litigation experience – good and bad cases, good and bad opponents, good and bad judges.  Cases they won and should have lost as well as cases they lost that they should have won.  Litigation experience necessarily requires time, so judicial candidates with the requisite experience may not be spring chickens.  While youth may be important in a legislative to executive branch election, youth generally does not make a good judge. This experience is critical to my other required qualities for a judicial candidate.



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