Robbins: How do judges know so much?
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Every now and then, there will be a story in the news about some complex legal matter and the judge will render a decision that makes you think, “Damn, s/he’s smart!”
But then maybe your next thought might be, “How did judges get so smart; how do they know so much about so much?”
Okay, here’s a little secret — no disrespect intended: They don’t. Okay, 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, permit 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 the “common law,” which is composed of case law reaching back to time immemorial and which comprises “precedent.” “Precedent” in turn 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” carved out), and sometimes thrown entirely overboard, precedent creates a roadmap of prior judicial reasoning.
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So the question all this raises is, “How is it possible to know all of this?” How can one person (the judge) hold in his/her brain 500 or so years of common law decisions, thousands upon countless thousands of 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, added 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?
Okay, so first, all this stuff is written down and there is a well-developed system all lawyers learn about in order to access it. Certainly that gives the judge at least a toehold. If I — or a judge — wants 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 infomercial hustler Ron Popeil was so fond of saying, “But wait, there’s more!” So 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.
Now, I in no way mean it pejoratively when I say that lawyers “teach” the judges but … um … well, they do. And that is precisely 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), s/he has two jobs. The first job is to persuade, and the second is to educate. Similarly, when a lawyer appears before a judge to argue a position, his 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 joined at the hips to the first. A good lawyer is a good and patient teacher.
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 whomever brought it or is defending it, but each one has about a zillion moving parts. What’s more, most judges are, both by design and by necessity, “generalists,” by which I mean they welcome all comers, handling disputes as varied as human endeavor itself. One day may bring a construction dispute, the next a divorce case, and the next a rancher’s grazing or water rights dispute.
No human being I have ever met could possibly handle all that without a little help.
So the “help” a judge gets comes in several forms: first, and if not 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 suss out lawyers’ advocacy from overstatement or pure fiction and; third are the resources of the judge him or herself. What does his experience, training, and his “gut” advise him? Together this “society” of law is what makes judges so dang smart.
Often, by the way, what the judge ultimately writes when it comes time to render an opinion is “borrowed” verbatim from what one or other of the lawyers or another wrote. 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 s/he brought this matter to the court’s attention.”
How do judges know so much? Well first, most of them are really smart and they are committed to the craft of justice. But second, as Hillary was fond of saying, “It takes a village.” In this case, the “village” and community of 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 Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels are available at fine booksellers; the latest, “Falling,” was published in November.
