It is not a coincidence that David Letterman, Kurt Vonnegut and James Dean all grew up within miles of one another. Sharing a common apprehension of the status quo, they all approached their artistic careers with healthy skepticism and creative energy. Drawing upon Mr. Letterman’s famous comic premise – the Top Ten List – we judges and lawyers would do well to take a similar look at our professional selves. So, for what it’s worth, see this judge’s Top Ten legal quotes, starting with No. 1 (and explanations). Of course, very few of them were said by lawyers.
1. “Justice may be blind, but she has very sophisticated listening devices.” – Edgar Argo, cartoonist
A trial judge often resembles a basketball referee, except there (usually) is no arguing after the call is made. But trial judges find themselves working in the gray margins, watching, listening, keeping an eye on the proceedings to make sure the case is resolved fairly and properly, no matter who “wins.” But fairness sometimes demands listening between the lines, ignoring a mistake, or a missed objection. Finding the intangible substance of a case means a judge might have to consider something off the record or outside the record, while maintaining fair consideration. The ability to balance such elements is an integral, and unavoidable, part of true judging.
2. “Who gets the bird, the hunter or the dog?” – John L. Lewis, union leader
When a decision is made by a court, it is instructive to wonder who actually made it – the lawyer or the judge? A case is brought by the attorneys, and it is their ideas that are argued, it seems. So the substance of the decision is arguably created and born more from counsel than the jurist. On the other hand, there are many instances when judges do create from whole cloth. When the parties overlook, or avoid, pertinent questions and applicable authority, the judge’s job is to make an original ruling independent of the papers and arguments. All in all, the real creator of a ruling depends on how well the lawyers, and the judge, are steeped in the case. Hopefully, it is most often a joint product.
3. “The least amount of judging we can do, the better off we are.” – Michael J. Fox, actor
I always admire the great effect of the “no call” in sports, and the great discretion needed to do it. Sometimes, it is better for a court to just do nothing, especially in the middle of long trial testimony with repetitive objections that amount to lawyers actually correcting each other rather than needing a judge’s guidance. During jury trials, I assume the fewer rulings I make, the better for everybody. During opening or closing statements, I never rule on the rare objection – it’s not evidence anyway, and why create confusion?
4. “A judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times.” – Lord Chief Justice Parker, 18th century England
We should presume that Lord Parker was not kidding. In the 1700’s, it was probably necessary to explain things over and over again. On the third or fourth day of trial, it was probably prudent to again make sure the court remembered everything that had been said over the previous three or four days. At the end of the trial, it may have been the right thing to write a long summary of the evidence for the court to read. Unfortunately, 300 years have made less difference than we should have hoped. Patience is never a virtue is such circumstances, but most judges nevertheless exercise it for the benefit of lawyers and parties. At such times, counsel’s brevity can be the soul of wisdom – and persuasion.
5. “The life of the law has not been logic, it has been experience.” – Oliver Wendell Holmes Jr., The Common Law (1880)
This famous statement by the preeminent Supreme Court Justice was actually written 20 years before he was on the Supreme Court. Scholars will tell you that it shows the foundation of “legal positivism” or some such droll academic theory. For us judges and lawyers, it is a great reminder that lawyering is a balance between the principle and the pragmatic. It is literally impossible to write an appellate decision to match every case that comes after, or to find cases to resolve every issue at trial. Lawyering is always most gratifying when most creative.
6. “But more than anything else, we have learned that legal assistance for the poor, when properly provided, is one of the most constructive ways to help them help themselves.” – President Richard M. Nixon, 1974
History would ascribe irony to this example, but it nevertheless shows a great idea that breaks beyond the idealistic surface. Equal access to justice is not a charity but has a positive substantive impact for everyone – it keeps the system intact.
7. “This is a court of law, young man, not a court of justice.” – Oliver Wendell Holmes Jr. during oral argument
Holmes again earns a place for exceptional quotes, this time appearing seemingly sarcastic. As a well-known pragmatist, he seems to be “correcting” counsel as they ask for justice, but making his point that there is a distinction between the static letter of the law and its dynamic practice.
8. PRECEDENT, n. In law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. – Ambrose Bierce, The Devil’s Dictionary
9. “Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.” – Clarence Darrow
Lawyers have a hard time believing that judges don’t judge appearances or penalize for mistakes – but it’s true. Sometimes bad lawyers win cases because the judge knows more than the lawyer. What matters is what’s right, not always who’s best.
10. “In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.” – Albert Einstein
Sometimes the best legal issues are found in the most mundane matters – and the least interesting questions besiege large high-profile cases. My favorite case involved a habitual traffic offender because it was a complicated issue of due process. As lawyers and judges, we cannot, and do not, differentiate about the importance of anyone’s claim. We are always obliged to help, counsel, and solve problems, no matter whom. Accordingly, we maintain the great American system of justice.•
• Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.