Sunday, April 16, 2017

When Justice Sleeps

Back in the day, I was called upon to "second chair" a trial in Circuit Court. The circumstances were intriguing and the facts of the case were complex. It was a medical malpractice case in which a partner in my law firm, Deborah Smoot, was defending a physician. There were multiple live witnesses, complex legal issues, and I was a young lawyer eager to be involved. 

Although several witnesses appeared live at that trial, there were some experts that were not available. Of course the jury could read the deposition transcripts of those witnesses that were placed in evidence. However, Attorney Smoot thought it best for the jury to hear the testimony. The practice was to read the depositions to them. To make that reading experience more interesting, I was called to the witness stand. Ms. Smoot read the questions and I read the answers. As I recall, I was three different experts during that trial. 

The experience has stuck with me over the years. I had been coached on reading, and encouraged to make eye contact with the jurors as I read. Because of this, sitting in the witness box, I was somewhat turned toward the jury on my left, looking at Ms. Smoot periodically towards my right (standing near the end of the jury box), and the judge was just behind me. 

I recall being several pages into one of the depositions when a strange noise crept into my consciousness. A dull, low-pitched sound coming from behind me. I was focused on my role as Dr. "Something," and it took several pages of this incessant noise before I comprehended that someone was snoring. I am not sure if that realization came from my accumulating cognitive recognition, or if it was because over time the snoring seemed to become louder. I wish I were joking about this. 

The snoring came to an abrupt stop when the attorney for the plaintiff rose with an "objection your honor . . ." I do not recall the basis of that objection, but as I recall it the judge made a ruling without any pause or indication that he had not been with us all along. I recall the "objection your honor" interruption being employed more than once that day in the face of recurrent snoring. At the time, I frankly wondered how anyone could sleep through anything as compelling as my reading. 

Attorney Smoot left that law firm, and opened a practice of her own. Within a few years, she was involved in an automobile accident and passed. As I write this, I realize that I have not thought of her in a number of years, of her advice and support when I was a young attorney full of ideas and ambitions, and lacking the kind of practical experience that only an engaged mentor can provide. She was a good mentor, the kind for which every young attorney should hope.

That trial experience came back to me when I recently saw an article about a Texas judge who was filmed sleeping during a hearing. As United Airlines has reminded us recently, we must all Assume Everyone is Watching us (and recording on their phones). According to a blog post, Judge Larry Craddock slept through the testimony in a case about a suicidal teenager. The story says that people in the hearing unsuccessfully "tried all of the polite ways of nudging the judge out of his sleep like coughing and moving around books loudly." Apparently, no one thought of the more blatant "objection your honor" approach. According to the Daily Mail, the judge "slept through a quarter of the three-day hearing." 

In the digital age, with a video recorder in every cell phone, the judge was confronted with video evidence of his snooze. He resigned and apologized. He noted that his drowsiness resulted from medication he was using. The Daily Mail reported that this was not the judge's first instance of falling asleep during proceedings. 

It is also not the only instance of alleged snoozing in the courtroom. WorldNetDaily reported that a U.S. Supreme Court justice dozed during oral arguments. In her defense, an witness noted that "the subject matter was extremely technical,” and the justice used the "bench as a pillow." I do not recall the judge in my trial actually putting his head down to snooze, but perhaps that is a privilege reserved for Supreme Court Justices?

An Australian physician has published a paper about judicial sleepiness. He noted that "in 10 cases, judicial sleepiness resulted in a retrial and, in up to 5 cases, resulted in dismissal or retirement of the judge." The doctor's conclusion is that "judicial sleepiness is not uncommon and is viewed negatively." He added that generally "sleepiness-related errors occur predominantly during exposure to monotonous activity." 

What can we learn from these anecdotes? It is critical that a judge remain conscious and focused on the matter at hand. People wait extensively for the opportunity to tell their story and seek redress. Judges owe it to those people to be alert, attentive, and engaged. Whether one is a supreme court justice or not, there is no excuse for politely ignoring a sleeping, or otherwise inattentive judge. 

That material being presented is technical, or repetitive, or otherwise is no excuse. All of the evidence presented at trial is relevant, pertinent, and critical. That is why the attorney is presenting it. If the evidence were otherwise, then the opposing attorney(s) would certainly object ("irrelevant," "cumulative," etc.). If such an objection is well-taken, and sustained, then questioning may be adjusted and the matter moves along. But in the absence of such an objection, the evidence is relevant, pertinent, and critical. In a workers' compensation proceeding, with no jury, it is particularly critical for the judge to remain attentive; to both hear and fully understand the evidence. 

Another lesson might be in dealing with an outlier situation. What should parties do when a judge is inattentive or asleep? In some instances, noise may be effective. However, the attempts in this regard were ineffective in the Texas situation. Perhaps interrupting the proceedings with a firm "objection your honor . . ." will do the trick. Perhaps it is best to request a recess, and maybe everyone involved will benefit from the opportunity to arise and move around some? Should the parties video the judge? That is a difficult question. Undoubtedly, that course was effective in Texas. However, various states may have laws regarding recording someone without consent. However, it may be difficult to contend one has an expectation of privacy in a public judicial proceeding.

In any event, attorneys and parties might face such a challenge. How to regain attention in the moment (that trial, that witness, that argument) is one issue. How to deal with a pattern of behavior over time may be a larger issue. In that larger context, parties owe it to the system to report inattentive behavior that is recurrent or persistent. Systems cannot address situations that are not reported. Certainly, there may be reluctance, but that should be overcome. Bad behavior should be reported so that it can be addressed. 

We owe full attention and respect to the people that appear before us. Hey! Wake up, this post is over. Get back to work. 

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