How to survive the tyrant Judge (part 1 of 3)

PART 1: Understanding the self

I preach endlessly that it all begins with you.

We’re afraid of judges because they’re power-persons, which harkens back to our experiences with our first power-persons – usually a parent. Most often we don’t understand that psychic connection while we stand miserable and quaking before His Honor. Instead of a judge the psychic eye sees a raging father or a scolding mother. The psychic memory has not forgotten the child’s helplessness before such a power-person. Nor has the survival instinct let the psychic mind forget that should the child be cast out, the child will face the ultimate horror—death. And what if the judge should reject us?

We are introduced at an early age to the relationship between power and helplessness.  Beyond the fear of the parent power-person we are taught to fear the ever-watching God—the ultimate power. Why do judges peer down on us from on high? Why do the remnants of ancient belief systems still have us “praying” to his Honor? From the earliest times we learn the art of beseeching that is often gilded with resentment—the deaf, unresponsive God of Job. And always we long for our own power.

At a recent seminar conducted at Trial Lawyers College, participants were asked to complete any unfinished business they might have with a parent, living or dead—one participant taking on the role of the child, another the parent and the two reversing roles as necessary to permit the full story to emerge. The results of such exercises are universally astounding. The participants are touched in deep places, some to weeping, some to silence and others to anger. But none leave the exercise unmoved. Why, I have wondered, is there such a high quotient of parent-child conflict?

My own supposition, formed empirically over the years, is that more children than we suspect have been abused. I am defining abuse from the child’s perspective of powerlessness. To the child, abuse feels like the inexorable, assertion of raw, undeserved power. It may include perceived unjust punishment, deprivation or a sense of abandonment directed to a child who is unable to fight back or to protect himself or herself. It is the painful exercise of power by often innocent parents that imposes injury.

Parents are not equipped to judge their conduct through the eyes of the child. No courses are offered for Parenting 101. Often abuse grows out of the parent’s own experienced abuse as a child—so the biblical admonition that “the sins of the father are visited upon the child.” Some parents who feel powerless themselves are the first to exercise unwarranted power over their children. The abused child, as I have defined him or her will become the lawyer most likely to be abused by the judge.

“The abused child, as I have defined him or her will become the lawyer most likely to be abused by the judge.”

At the above mentioned seminar I was drawn to a young woman, a beginning lawyer, who presented herself as childlike. She had a small, sad, perpetual smile on her face, and if I shut my eyes and listened, her voice sounded like that of a five or six-year-old. Physically she looked like a little girl with a chubby body and a round doll-like face. Naturally she was adored and protected by the other participants at the seminar. She had had limited experience in the courtroom. But the few cases she’d tried before several judges left her with the impression that judges were kind and helpful. I thought, yes, who but a sadist bent on injuring children could possibly treat such a child with anything but kindness. I found myself wanting to protect her, and this lawyer, still as child, was taken under the wings of the judge, the same judge, I discovered, who had been the judge from hell for another participant in the same seminar.

My own parents were often bewildered as to how to deal with their rambunctious, raucous, rebellious offspring. I was never spanked nor sent to a corner. I do not remember any particular punishment at all. When those mutinous adolescent years came along my parents simply threw up their hands in surrender, and I left home at sixteen to conquer the world, which I viewed as a probability. I rebelled against the strict, religious teaching of my mother and absorbed the anger of my father against the “upper crust,” the moneyed class, who, were represented by the callus authority of his employers. I loved my father and hated the boss, that malevolence on high who could abuse that good, brave man. Early on I saw authority as the enemy and vowed never to be captured by power, and, of course, that included the power of the judge. My life with judges has not always been easy.

I have never heard a judge admonish a lawyer, “I am not your father, Mr. Jones. I am the judge.” Nor have I met a lawyer who has walked into the courtroom saying, “Remember, this man is not my father or my mother, this is not my father’s boss nor some heartless, demanding teacher. The relationship of judge and lawyer rolls on, year after year, the judge as the power-person, the lawyer as child, the lawyer struggling in the courtroom against the power of the judge and neither understanding much about the seeds of their relationship.

COMING SOON, Part 2 of 3: “The Dangerous Disease of Power”

19 responses to “How to survive the tyrant Judge (part 1 of 3)

  1. The fear of rejection from someone in a position of power over you can be quite frightening. But, and I hope that I’m not spoiling anything in part 2 and 3, a few years ago I was told by my father that I had changed his opinions as a child simply by talking (or sometimes arguing) with him.

    So not only does the parent (or judge) have power, but the child (lawyer) as well has power. This power is by no means inferior to the one wielded by a parent, and in some cases can have a profound impact on both parties.

    The trick is to have the courage to talk about it.

  2. Great post, and interesting comment by Jade. When my son was young, our agreement was that he would follow my rules–until he could convince me that I was wrong. I had to endure countless hours of arguments, but he learned to think through the consequences of his actions in order to (eventually) convince me that he was responsible enough that I should change the rule. Several friends told me that this inspired them to use the same technique with their children.

  3. Gerry, you have also often said that caring is contagious, and I think that this rule applies to judges as well as jurors. I have sometimes tried cases where the judge starts out being difficult, but suddenly something happens during the middle of the trial. The judge sees that the lawyer believes in his client and is also well prepared. Suddenly the judge, like the lawyer, wants to see the client obtain justice. After that happens, a new courtroom dynamic is in place – and then, more often than not, justice is delivered.

  4. When a relationship deteriorates to a certain point of destruction between lawyer and judge, with possible harm to the client’s cause, sometimes it is best for both parties to avoid each other by mutual agreement. One technique is for a friend or another lawyer to handle cases involving that judge. Sometimes, it is easiest to avoid a destructive confrontation that to simply self destruct. Also, real harm to the client is possible when the relationship between lawyer and judge becomes excessively hostile.

    I understand the theory of “psycho-drama” and attempting to deal with power relationships. This does not always work.

    Jon Katz has sometimes proposed theories of Zen meditation and being like water and deflecting the blow or aborbing the blow without harm rather that being like a rock and getting crushed. Of course, I am paraphrazing his asian philosophy and I don’t necessary agree with every idea he has either.

    Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Attorney at Law, Tulsa, Oklahoma

  5. “aborbing” should be “absorbing” the blow

  6. Mr. Spence:

    I’ve only recently found your nascent blog, and I’ve been eagerly going back through the posts. What a treasure. Your musings and aphorisms communicate both humility and confidence, and have a ring of basic honesty that’s indefinable, yet unmistakable. I’m sorry to say I haven’t read any of your books, but that unfortunate fact will be remedied soon.

    I’ve long understood that the attorney’s art of argumentation is too often cynically mischaracterized (and unfortunately, mis-practiced) as fundamentally deceptive and equivocal. It’s a real pleasure to read prominent jurists such as yourself forcefully contradicting this cliche. Some of the most noble and intellectually satisfying reasoning in all of history is found in legal transcripts and opinions.

    In the following paragraphs, I’ll attempt to submit a sound argument for the assertion that just as methodological naturalism progressively improves the quality of our physical lives, so does empathetic argumentation improve the quality of our lives as social beings. Furthermore, I’ll argue that you and one of your colleagues are legitimate sources of inspiration for those seeking to spread the ideal of empathetic argumentation.

    (Not that you need a lecture from some random Internet surfer on these subjects; it’s more an expression of solidarity.)

    While I’m not an attorney myself, I’ve been an ardent student of rhetoric and informal logic for most of my 36 years, and I have a deep understanding that truly strong positions are not based on misdirection or confusion, or even on pure logic, but rather on compelling narratives built around sound reasoning; the best narratives incorporating some sort of substantive connection with humanity. Empathetic arguments.

    It’s true that I believe that analysis of an argument is best served by an essentially reductionist approach. It’s certainly beneficial to break an argument down into its fundamentals, identifying its constituent syllogisms and potential fallacies, etc.

    But it’s also obviously important not to indiscriminately ignore the existential components of an argument, or make the mistake of reducing them down to simple discrete elements. Often, as the law wisely recognizes, these have to be treated instead as complex functions, e.g. mitigating factors. To properly analyze an argument with existential implications, we must empathize with the relevant parties.

    That’s why (abandoning the hand-waving of metaphysical ethics in favor of practicality) we don’t simply say, “lying is bad.” We require context in order to pass judgment. Call them agents, actors, parties, or humans: we need to know more about them before we can decide what their actions truly mean; before we can judge them. Again, our analysis must incorporate empathy.

    While many deontologists and other philosophers might disagree with the preceding assertions, I’m not interested in metaphysical theorizing, but rather in the practical application of reason. And I think most reasonable people agree with the basic premises above. So I simply state my argument thus:

    Premise 1: Existential issues are ragged and complex; never simple.

    Premise 2: Proper analysis of arguments with existential implications incorporates their necessarily ragged and complex components.

    Conclusion: In order to formulate sound arguments with existential implications, you must endeavor to incorporate all of their attendant raggedness and complexity.

    That is, if it’s necessary to consider all of the relevant complex human issues when evaluating an argument with existential implications, it logically follows that it’s most effective to incorporate all of the relevant complex human issues when constructing an argument with existential implications.

    As a corollary, which further supports the assertion of effectiveness, an argument can be reasonably assailed on the extent to which it omits relevant existential issues. For example, “The new coal-fired power plant will provide 500 local jobs, therefore we should support it.” This argument might fall to any of a number of omitted existential considerations, including unstated health concerns, environmental impact, etc., and is unlikely to move the discussion forward in any meaningful way. Unless your intention is to mislead or otherwise deceive. In which case you’re relying on the stupidity of your opponent, not a sound argument.

    Which brings me to the summation of my first point: The extent to which our social discourse is healthy is directly related to the extent to which we incorporate empathy into our argumentation. This applies to every occasion for human interaction, from the courtroom to the living room.

    Now for my second argument:

    I was thrilled so many years ago to watch you and Vincent Bugliosi square-off in that UK docu-trial of Lee Harvey Oswald. I believe you both did a tremendous service to U.S. history, and to the ideal of empathetic argumentation.

    The two of you presented, what seemed to my legal layman’s eye, thorough and compelling cases for your positions. And while your presentations of the physical evidence and manifold other contributions were important, what finally made your cases indubitably thorough were your determined efforts to humanize the arguments. It wasn’t just about trajectories and arrest records and credible alibis. It was also largely about meaning, the establishment of which requires complex human context. I interpret your closing remarks, defining the jury as a collective mind, full of the knowledge of its collective and varied experience, as a reference to this endeavor.

    In fact, rather than see the final outcome of that trial as a “loss” for the defense, I see the jury’s confidence in their findings as a testament to the strength and sound reasoning of both sides, including your combined dedication to humanizing your arguments. Had they found either of your cases sloppy, deceptive, fundamentally fallacious, or lacking empathy, I don’t believe we would have seen such strength in their convictions.

    Furthermore, by Bugliosi’s express admission, the experience of preparing for that trial inspired him to write his 1600-page self-described “magnum opus” _Reclaiming History_, which I think makes yet another invaluable contribution to U.S. history, and again, to the ideal of empathetic argumentation. In addition to its seemingly exhaustive coverage of the facts of the case, it also drives home the idea that when considering arguments about humanity, empathetic rational thought should prevail not only over the smoke-and-mirrors of bare emotion, superstition, and fantasy, but also over the equally pernicious trap of pure de-contextualized reason.

    The essential arguments in Bugliosi’s book always contain human components; ones that he takes pains to explore in great detail. He attempts to explicate the complexities of personalities and inter-relationships as far as possible, obviously working from the understanding that at the very least his respect for the humanity of his subjects is inextricably linked to the acceptance of his arguments.

    And we know Bugliosi’s aforementioned work wasn’t inspired merely by his participation in the trial. As he mentions many times in the book, it was his anticipation of facing your widely-lauded skills that drove him to dig more deeply into the case than he might have otherwise. Mr. Bugliosi very clearly expresses a sincere admiration for your abilities as a defense attorney. And not just for your raw rhetorical skills and legal aptitude, but also for your attention to empathy. In his own words, from page 6 of his endnotes:

    “Spence is someone I have a lot of respect for, not only because he’s the best criminal defense attorney and plaintiffs lawyer in the country, but because he’s a man of compassion for the little guy, as I am.”

    Which brings me to the final point of this atrociously long comment. The ability to spot logical fallacies, rhetorical skills, the ability to construct sound syllogisms: All of these are important tools for effective argumentation. But as I stated before, the most effective arguments are ones that also find some essential part of their structure in what it means to be human. In reading about your career, the career of Mr. Bugliosi, and examining the sort of nexus provided by the Oswald docu-trial, I find you both to be exemplars of this ideal of empathetic argumentation.

    And however sycophantic (or pretentious) this diatribe might seem, it’s really just a personal expression of the hope that people everywhere, lawyers and otherwise, of whatever generation, can learn by your example.

    Reason as applied to practical arguments about real human beings shouldn’t be wielded like a rusty knife, indiscriminately chopping bait. Whether constructing or assailing such arguments, the soundness of our positions depends at least as much on our ability to identify and address the full extent of their humanity as it does on any point of logic.

    I look forward to more of your posts.

    W. in Virginia

  7. Judges are a little like yard dogs. Their courtroom is like the back yard they live in. They bark really loud when someone they are afraid of approaches their yard and if you don’t do something to calm them down once you get in the yard; they’ll bite. How to calm them down? Stay calm and assertive and respectful and don’t challenge them until they are calm too. Now, if the judge is crooked, he ain’t a dog he’s a crocodile with a brain about that same side and you need to get the he’ll away if you can or if you can’t, you got to slay him.

  8. I meant with a brain about the same size as a crocodile and get the hell out.

  9. one more thing to remember: don’t get mad at the yard dog for being afraid, after all he doesn’t get out much. And don’t hate the croc either just get away from him (or her) or kill the croc (appellate courts can sometimes be a useful weapon); after all its just a croc who by some quirk of the universe gets called Your Honor.

  10. I mentioned blogging to one of the lawyers I met, and he said it’s a waste of time and something done by artsy, poets, who want to talk in poetical themes like saying “I feel cloudy, or I feel sunny, or today was a banna split.” He obviously does not blog and apparently does not realize the tremendous power of the internet to communicate, educate, improve, change, market, over-come obstacles, research, and succeed in life. I did not argue with him. I sometimes think this is still a secret to some lawyers who are all about making money and over-look the importance of trying to improve your performance in the court room and to improve yourself as a human being. I sometimes laugh when I think of the commercial with Bill Curtis that says something like . . . “they discovered the internet.” The internet is not a secret, but for some people it is. Blogging in not a waste of time.
    Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Attorney at Law, Tulsa, Oklahoma

  11. should be blogging is not a waste of time. oops

  12. Over the years I have found that “bad” judges live in fear of being up-staged; shown-up by smart lawyers. As long as we don’t surprise them, they can actually be easier to appear before than the so-called “good” judges. The real problem lies not so much with the judge who is protecting his/her ego. We know that person and we can can deal with that person. But what do we do about the person we don’t know — the stealth juror who lies to get on our cases, only to sabotage them. How do we discern that person?

  13. As a guest once said to Stephen Colbert on his program: “Well, you’re kind of a miracle of consistency”…

    Thankfully, so – too – are you, Gerry. 🙂

    P.S. For all you Colbert fans: The guest was David Hajdu, who appeared on the show on June 11, 2008

  14. Pingback: How to survive the tyrant Judge (part 3 of 3) « Gerry Spence’s Blog

  15. Paw Paw,

    The new judge in my county likes throwing hammers with no consequence. I am soo tempted to have him recuse himself on cases that were active while he was at the D.A.’s office but then that was the old me…

    I don’t know how to handle him? I need your help or else I am going to take him on mano a mano and well his kung fu is greater than my kung fu. I don’t like sharing a toilet with a bunkie…

    I left you a thank you on my blog…


  16. Remy, if you haven’t already done so, read the remaining two parts of my essay on the tyrant judge.

    I would be of little service to you to give you advise from afar on a judge I have never seen and do not know. But, in truth, a judge you might get along with wonderfully might be my worst nightmare. So it is with any relationship.

    But, if he was involved in any of your cases as a D.A. he would seem to be on thin ice to stay skating there. Ask him nicely, but in writing, to step down.



  18. Amanda, read parts two and three. Gerry

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