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Indiana Judges Association: Law, time and judgment are shared responsibilities

February 11, 2015

IJA-Dreyer-DavidWhen New York City claimed 20-30 inches of snow were coming (and got less than 10), I was reminded of so many lawyers who claim three days for their case (but only use one). All of us on the bench or bar tailor our talents toward forming our best judgments. Such a responsibility necessarily includes the talented due consideration of time. How does time fit in with our judgment, practice, and profession?

Abraham Lincoln once said, “A lawyer’s time and advice are his stock in trade.” But did he really ever have to keep time sheets or run a courthouse calendar? Today, one’s Facebook status would rack up the “Likes” in thousands by simply posting, “Does anyone feel like there is not enough time to do everything?” Surely this is not a new problem. We should find a plethora of time-honored thinkers throughout history who can help us understand why we often feel that time is – well – short, so to speak. Let us turn first to great minds and philosophers:

“Time is the most unknown of all unknown things.” – Aristotle

“Time is an illusion.” – Albert Einstein

Well, this is not what we should be hoping. Our responsibility is to make time a tool for our practice and not some beasts of burden out of us. But if we look elsewhere in antiquity for more practical considerations of time, we only find views such as:

“Time is a game played beautifully by children.” – Heraclitus

If we follow this idea to a contemporary children’s expert:

“How did it get so late so soon?” – Dr. Seuss

But now we may be getting somewhere. We all lose track of time, as we say, and therefore, our perspective on our cases. This is obviously a human trait, knowable or not. But we lawyers and judges cannot always afford such luxuries in our system of justice.

The National Center for State Courts reports that state court mandatory case management rules are increasing. The NCSC’s Model Standards prescribe all civil matters be disposed within a year, and 98 percent of all felony criminal matters within a year, so state court systems are feeling the pressure of time more and more. Indiana has no overall mandatory disposition standards for judges, except some specific trial rule provisions regarding motion rulings, motions to reconsider, motions to correct errors, etc. The United States federal courts are similarly monitored by disposition guidelines. Donald Rumsfeld, Barack Obama, and the poet E.E. Cummings have all said at one time or another that “Democracy is a messy business.” We might say just as assuredly that justice is a messy business. How do we meet a mandatory matrix in a messy business?

Judges constantly juggle interests and equities among competing parties. This quality of judging is sometimes more important than legal acumen. For example, the merits of a lawyer’s reasoning may not make any difference if it does not reach the judge on time. But the messy justice of a particular case may not (or cannot) be accomplished if a judge does not allow late worthy considerations, or have such discretion. After all, the 21st-century person is now besieged by time assaults like no rule-drafter could ever imagine. That is why we have new computer and mobile apps like RescueTime (keeps you away from social media addiction), My Minutes (budget tasks and it tells you what to do), and, of course, Eternity Time Log (balances work, sleep, and play).

On the other hand, we legal-system stewards need strict deadlines. We need to define when a pleading is due, when it is deemed filed and when it has to be ruled upon. The inevitable drama, then, approaches as we consider pleadings by email (that are delivered to spam or blocked by a server somewhere), by faxes from different time zones, and probably even by text messaging. I await the first pleading by Twitter.

Access is an important value in our law, so some say flexibility and inclusiveness should determine time. This is where, why and how the use of time becomes crucial. If sincere time considerations are not part of our profession, then we may not be practicing law, but only part of the law – the academic part. The practice requires the full range of professional skills because the practice brings the full range of professional challenges – and issues beyond more narrow legal questions. When a judge asks how far off to set a trial or how long to set a hearing, lawyers should be prepared with a prudent answer, not the New York City weatherman time assessment. Judges should set cases according to practical experience, i.e. how many cases get settled and continued, and allow responsible calendar stacking or other scheduling tools.

Everyone knows this, of course, within the bounds of professional responsibility. Our history is replete with examples of lawyers who will overstate time for hourly billing reasons, and inconsiderate judges who sometimes care little about the time of others. But we carry a debt – we have the honor of leading the American legal profession – a historical phenomenon like no other on Earth. We accordingly owe everyone – lawyers, clients and the public we all serve. We carry a duty to use time efficiently, properly, and which is then used humanely.

“Time is a created thing. To say ‘I don’t have time,’ is like saying, ‘I don’t want to.’”– Lao Tzu

Abe Lincoln would not have it any other way.•

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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.

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