Recently, I was reading excerpts of Judge Dunkleman’s decision in the Vail golf course suit and, probably, like many of you who read the article in the Daily, I thought, “Damn, he’s smart!” Now, I didn’t say if I agreed with the decision or not; I’ll hold that to myself as my office here is generally to educate, not to opine.
Anyway, I thought, “Yep, the 5th Judicial District snagged another smart one!”
Then I got to thinking, “Why are judges so smart; how do they know so much?” And I figured, more likely than not, most folks not working the coal mines of the law don’t know. In fact, they may from time to time be flat-out astonished at how judges can know so much about so many different things.
They Do ... But They Don’t
OK, here’s a little secret: they don’t. OK, they do ... but they don’t.
Give me just a sec and I’ll explain.
Although, admittedly, we’ve been over this ground before in this column, allow me a brief moment to summarize. Law consists, in the main, of three components: The facts of a particular matter, statutory law which is created by the legislature and “common law” which is composed of case law reaching back to time immemorial and which comprises “precedent.” “Precedent” means, essentially, “Something a lot like our current facts happened before and when it did, here’s what we decided then.” Although prior rulings can be modified, amended, “distinguished” (that is, differences and “distinctions” are carved out), and sometimes thrown overboard (think Brown vs. Board of Education as but one example), precedent creates a road map of prior judicial reasoning.
How Do They Do It?
So the question all this raises is, “How is a body possibly to know all of this?” How can one person (the judge) hold in his brain 500 or so years of common law decisions, thousands upon countless statutes, an equal number of rules and regulations, the particular facts of the 500 or so cases she is juggling at any particular moment and, add to that, subjects as varied as criminal law, intellectual property law, animal rights and taxation?
Well, the plain answer is a judge cannot. Simply, who could?
OK, so first there is the fact that all this stuff is written down and there is a well-developed system that all lawyers learn about to access it. Certainly that helps. If I — or a judge — want to get up to speed about a particular subject, we do a little research. And law schools, and years of practice, have informed us where to look and how to get to the good stuff quickly.
But, as huckster Ron Popeil, was so fond of saying, “But wait, there’s more!” Here’s a special insight. Remember when I said, “They don’t, but they do, but they don’t”? Here’s what I meant: lawyers teach them.
Yup. That’s right. A significant part of lawyering is to teach the judge who is “sitting” on the case. (Hey, it’s just an expression; judges “sit” on a case, not literally, but figuratively which derives from the judiciary being referred to as “the bench” and, clearly, one most times “sits” on a bench. But I digress ...)
Expectations To Teach
Now in no way do I mean it pejoratively when I say that lawyers “teach” the judges but ... um ... they do. And that is what is expected of them.
When a lawyer writes a brief (which we’ll define as a written statement arguing or advocating a certain aspect of a case), he/she has two jobs. One job is to persuade — to try and win the judge over to the position she is advancing. And the second is to educate. Similarly, when a lawyer appears before a judge to argue a position, his/her task is the same: educate and persuade. The judge needs to clearly understand the facts, comprehend the applicable law and “get” how the second is tied inexorably to the first. A good lawyer is a good and patient teacher.
As I noted before, judges are, by necessity, kings and queens of multitasking. They’ve got hundreds of cases to simultaneously juggle and, not only is each case dear to whoever has brought it or is defending it, but each one has about a zillion moving parts. What’s more, most judges are, by both design and by necessity, “generalists,” by which I mean they welcome all comers, handling disputes as varied as human endeavor. One day may bring a construction dispute, the next a divorce case and the next a rancher’s grazing controversy.
No human being I have ever met could possibly handle all that without a little help.
Forms Of Help
So the “help” a judge gets comes in several forms: first, and foremost, are the lawyers who have the luxury the judges don’t have of being fully immersed in and devoted to the case; next come the research attorneys who work for the court and help the judges sort out the lawyer’s advocacy from overreaching or, sometimes, what is pure fiction; third are the resources of the judges themselves. What does their experience, training and “gut” tell them? Together this “society” of law is what makes judges so smart.
Often, by the way, what the judge ultimately writes when it comes time to render an opinion is “borrowed” verbatim from one tidbit or another that one of the lawyers has written. But this is far from plagiarism; this is, stated simply, how the system is supposed to work. When the judge has been persuaded, there is no harm in saying so. In essence, the judge is saying, “Attorney So-and-so was right, when she brought this matter to the court’s attention.”
How do judges know so much? Well first, they’re smart and they’re committed. But second, as Hillary was fond of saying, “It takes a village.” In this case, the industrious and fascinating village of the law.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.