Legal Writing for Legal Reading!

Judges are People Too (unfortunately?)

People come to court rightfully expecting an unbiased judge who will review their cases thoroughly and logically using established, known, and predicable laws and legal principles.  Unfortunately, judges are just as human as the rest of us and, aside from human error, what often happens is that people encounter judges who, right before arriving in court, got into a fight with their spouse, or got into a traffic jam, or were up all night with a baby, or spilled coffee on their pants before robing, or heard a particularly bad/exacerbating/annoying/&c case right before one’s own, or what have you.  Just as frequently, people encounter judges who had a great breakfast before taking the bench, or received a nice awaited call from their son or daughter, or hit all of the lights on the way to court, or had a great cup of coffee, or had good night of sleep is now feeling refreshed, and what have you, right before taking the bench.  Similarly, some judges are nice, easy going, and understanding while others are short tempered, crotchety, or impatient.  Who knows?  Being just as human as anyone else, judges, though generally unintentionally, bring their lives, experiences, moods, preferences, and feelings to the bench along with their law books and training.  Although precautions are taken, ultimately there is no way around the fact that the judge making decisions in a particular case is just as human as the parties and lawyers in front of him.

One of the cases I was handling recently saw the variables a judge can bring first hand.  I represented a party to a finalized divorce who was owed alimony (and other monies).  The other ex-spouse (“ex-spouse”) was to pay my client a certain sum of money each month over given period of time in order to repay my client for sums taken and kept during the marriage.  The payments just described were part of a contract (i.e.: a Property Settlement Agreement) and enshrined into law as a Court Order.  No one disputed the legitimacy of the contract or Order.

As it turns out, the ex-spouse did not make any of the payments owed.  My client, being understanding and not wishing to litigate, tried to work with his ex-spouse on the payments, especially as the ex-spouse’s income declined for a few months (though it was restored eventually).  Frustrated that nothing was paid, my client, using me as his attorney, filed a petition for enforcement of the contract.

A hearing was held on the above-mentioned petition.  The judge at the hearing found that the ex-spouse made none of the payments required under the contract.  I thought this meant victory for me and my client.  Instead, the judge inquired into the ex-spouse’s “ability to pay” on the contract.  I argued that this was irrelevant; a contract is a contract and my client is owed funds from the ex-spouse, especially as they were in lieu of a formal marital property division.  The judge was unpersuaded and scheduled a follow up hearing for the ex-spouse to present complete records regarding her income and expenses.

The above-mentioned follow up hearing was before a different judge.  It did not appear that the new judge was aware of why the case was rescheduled and began the hearing asking me to make argument on behalf of my client’s underlying Petition.  I did so and my argument was quickly followed up with argument from opposing counsel on the ex-spouse’s ability to pay and an attempt to present the records requested by the first judge.  The new judge was befuddled and wondered why ability to pay was even being discussed.  I chimed in, agreeing of course, arguing that the language and obligations in the contract is/are clear and that the ex-spouse is obliged to fulfill them by remitting to my client what was owed.  The new judge asked the ex-spouse if not having the “ability to pay” shielded her from having to pay her rent/mortgage, utility bills, credit cards, or any other contract.  Of course, the ex-spouse responded in the negative, which led the judge to rhetorically wonder why an ability to pay (or lack thereof) was relevant for the contract at issue in the hearing (implying that it was not relevant).

Ultimately my client won the case but I did not write this piece to toot my own horn and show off my trial advocacy skills.  Indeed, I thought the case was pretty straight forward.  I wrote this piece to demonstrate that the very same case, with the very same facts, and the very same applicable law, was presented to two different judges.  One judge was sympathetic to the ex-spouse and inquired into “ability to pay” and was seeking a way to soften or reduce the ex-spouse’s obligation to my client under the contract.  The second judge thought the case was rather black and white and as there was no disagreement on the legitimacy of the contract and the obligations contained therein, then the ex-spouse was obliged to fulfill her end of the contract at pain of sanctions and Court enforcement of the contract.

I have no idea why the two judges were so different in their approach.  What I can say is that they reflect the different approaches to cases and facts and laws that different people may, can, and often do have.  Unfortunately, no matter how “good” or “righteous” of a case one may have, or how good or skilled a lawyer one may hire, the judge one faces, and how that judge approaches the case, may, and often does, determine whether one’s case is successful.    This is important to keep in mind when thinking about litigating.  One of the insights attorneys often have is knowing the tendencies of judges based on their experience with judges in prior trials, hearings, and/or cases.  This insight is invaluable when making litigation, tactical, and settlement decisions and ought to be heeded.

Our legal system is facilitated, controlled, and designed by people and, for better or for worse, our legal system is also subject to the benefit and foibles of those same people.  It is best to keep that in mind when litigating.

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