By Hon. (Ret.) Ken E. Adair
Judges Are Just as Afraid
Video Transcribed: Hello, my name is Ken Adair and I am a people’s lawyer and a retired judge here in Oklahoma. Today, I want to talk about judges and fear. Years ago, when I was a young lawyer and I was a public defender, I had a judge threatened to jail me in front of six of my clients on a misdemeanor plea docket.
And my life was threatened that day because of it. It was a circumstance that was beyond my control. I was filling out plea forms with some of my clients that had missed their appointments to come to fill out plea forms. Was not allowed to do it in the courtroom, and I was sitting literally inches away from the front door of the courtroom, finishing up my plea forms at the end of the docket. I was put at the end of the docket by the assistant district attorney.
And when the judge got to the end of the docket and I was not in the courtroom, he said he was going to send a jailer to get me and left the courtroom, left the courthouse an hour before lunch, just left me sitting there. And I had a client that cussed me and called me an eff-up and said I effed up his case and that if he went to jail, he was going to eff kill me, which is the consequence of what happens when judges lose control and they say and do things that they seem judicial and powerful, but ultimately are inappropriate and dangerous. And I wrote a letter to the district judges, and I tried to get that judge fired because my bread and butter, and my stock and trade, was my reputation.
Now I was a contract public defender at the time, so I still had a private practice. And he had attacked me, rather dramatically, in front of six of my clients. And he almost got fired. And because I had a reputation of never missing court, always being ready, always having my paperwork immaculately done, and I had a reputation for being a good young lawyer.
Now, that judge and I became very close over the years. I think he ultimately figured out who I was and respected the fact that I stood up to him, but this issue was important because one of the district judges called me in and he says, “Kenny, there are two types of judges that you’ll encounter.
Those that were substantial before they became a judge, and those that were not substantial before they became a judge.” And the ones that were substantial, lawyers do not have anything to prove, and they will spend their entire judicial career being judges and reading the briefs and the motions and being good judges. And the judges that were less significant as lawyers will spend their judicial careers trying to prove how significant they are.
And what I came to learn was, is that judges primarily are afraid. And oftentimes, they’re the most afraid person in the courtroom. They’re terrified. And they come in there and they assume the role. And I know that. I remember the first day on the bench when I was a district judge and I had a child support docket, and I had taken two semesters of improv in Norman, Oklahoma from a guy a couple of years before.
And he had moved to Austin, Texas, and I got home that day on a Tuesday and I called my friend in Austin, Texas. And I said, “Tyler, I just finished my first paid improv gig and it was a hoot, and I think I did really well.” And he goes, “Oh really? What did you do?” And I said, “I put on a black robe and I stood in front of a courtroom at the bench and pretended to be a judge and everybody bought it.”
And that’s not to be disrespectful to the office, but you have to understand that everybody that goes to the bench was your colleague. And a lot of those judges weren’t fit to be your colleague. Many of those judges weren’t fit to carry your briefcase.
Many of them were quite substantial, but not all of them were substantial. And judges are afraid to appear stupid. They’re afraid to appear weak, uninformed, incompetent. And so they do things to act judicial, like threatening to jail a lawyer in front of six of his clients or limiting voir dire.
And I’ve asked dozens of judges… not dozens. I’ve asked a dozen judges, “Why do you limit voir dire?” “Well, it’s for judicial economy.” Well, if it’s not just, how’s it the judicial economy? It’s not just, it’s unjust.
Have you had experience with lawyers abusing voir dire? Abusing the length of the opening statement or closing arguments? The answer is no because they never let them get to that point. And I submit to you, that a lot of judges do that because it seems judicial and they don’t want to appear not judicial because they’re afraid.
Now, what do you do with that information, that judges are afraid of? Not all judges. Some judges are quite competent and confident. And even those judges, at times, become afraid because they get a very complex case and they’re afraid to get it wrong. They’re always conscientious. And even the great judges sometimes are afraid.
So, what do you do with that knowledge that judges are often afraid of? Well, you need to recognize that. You need to recognize that sometimes when you’re dealing with an obstinate judge or you’re dealing with an unreasonable judge, or you’re dealing with a judge that’s embarrassed because they didn’t read the brief, you can either lean into that and make them feel stupid, which is what they’re afraid of looking like or appearing. They don’t want to appear stupid, so make them look stupid, they’re going to blow upon you.
They’re going to brace. What you do instead is you do things like this. You offer, “Well, judge, if I may try to clarify, maybe I didn’t word that argument as artfully as I should have. And if I may try to explain that.” And make it your mistake, because your job is ultimately not to win the argument, but to get the information and the argument to the judge in a way that it will be embraced and received.
So, this is a little bit heavy and it’s a little bit hard to talk about, and I’ll probably talk about it some more at one point. Recognize the absolute truth that many times that the judge is the most terrified person in the courtroom unless you’ve got a death penalty case with a death penalty defendant, and I’ve been there and I can assure you, my client was more afraid than the judge was. But other than that, keep that in mind. And when you feel tempted to bow upon a judge and get argumentative with a judge, just recognize that they’re afraid, most of the time.
I hope this has been helpful. If you have any questions, be sure and comment on this video. This has been Oklahoma trial attorney Ken Adair. If you are looking for co-counsel services in Oklahoma or an experienced jury consultant, visit trial.win.