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Judge David Dreyer: Law is about people, emotion and all

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Indiana Lawyer Commentary

IJA-Dreyer-DavidMy daughter lives in Oregon but she never calls. But the other night she did text. Of course I did not find it until later, and it simply reported in plain terms the largest historical event of her young adult life. No glee, no joy, just a simple statement about what happened in Pakistan. But I have not been able to stop thinking what made it so important to contact her parents.

I am reminded of two different times when, as a practicing lawyer, I was conducting a direct examination. One time years ago, it was a routine uncontested divorce final hearing – no problems, no issues. But when I simply asked, “Is your marriage irretrievably broken?” (required legal talk), my client stopped, looked down, and struggled to answer through bitter, grieving tears – I never saw this coming. I had to help her from the courtroom. Some years later, I was questioning a young witness during the Mike Tyson grand jury investigation. When I asked her about her observations of the victim the day after the rape, she stopped and suddenly ran out of the room sobbing. Again, I did not see this coming, and I spent the next hour consoling this young person who had such strong unrealized feelings that could not be suppressed.

We lawyers and judges are privileged, whether we like it or not, to powerful and unpredictable human emotions. “Law is about people,” someone once said. And people are everywhere in the law – even corporations are made up of shareholders and employees. There are landowners, spouses, injured plaintiffs, witnesses, court staff, etc. One of my most moving experiences as a judge occurred one afternoon in an almost empty courtroom, with just me, a lawyer, a court reporter, and a woman who had lost her son in a car accident. It was an uncontested damages hearing for a default judgment, and the grieving mother had to briefly describe her pain and suffering for the record to justify the uncollectible judgment. Who was I to whom she had to justify her grief? As I watched, I felt so utterly unworthy to share such a dignified moment with such a noble person. Again, I did not see it coming. After the brief hearing, I came down, hugged her, and thanked her for doing something so difficult. Indeed, the law is an entirely human enterprise.

Judges are humans, too, and can also sometimes be confidantes and consolers. I have had more than one instance in my 14 judicial years when lawyers (men and women) shared personal and professional problems in my office with tears and worry. But nothing is so weighty as the conflict and concern that arises when a lawyer faces a tough case – and the burden gets to them when they don’t see it coming.

So why are so many lawyers unhappy if there is so much rich human experience bounding about? Experts generally point to several factors which usually become reported as too much hard work, too little gratification, and the overall sense that one will never do anything like Atticus Finch, or even one of those guys on “Law & Order.” To which we must say, “So what?” Unhappiness does not spring from a lack of experiences, but rather a lack of appreciation when they come our way so unexpectedly. When I find myself surprised because I didn’t see something coming, that is an epiphany of sorts. I can realize that my work then allows me to perhaps share – a time, a solution, a promise to work forward – that is unique to that case and to that person, whether that person is a corporation or a grieving mom.

So when we are faced with that occasional uncivil moment with a judge, opposing counsel, even a colleague at the firm, we will do well to allow them to be human. Our trained logic and reason may get us only so far, because as Blaise Pascal famously observed, “The heart has reasons that Reason does not know.” It is not trite to think that the merits of a common courtesy, a handshake, a pat on the back, a soft word of conciliation are just as important as any legal argument. It is those times that may make our profession a rewarding one, whether you are a judge, lawyer, party, witness, whatever – just as long as you are a human, it would seem. In fact, we should resolve to look for those moments, because they may come when we don’t see them coming – like a late-night text from a daughter far away.•

__________

The Hon. David J. Dreyer
has served on the Marion Superior Court since 1997. He is a former board member of the Indiana Judges Association. The opinions expressed in this column are the author’s.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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