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Indiana Judges Association: Clarity can come with certain costs

May 20, 2015

IJA-Dreyer-David2015 is a banner year for this writer: 60 years old, 30 years married, 25 years in the same house, 35 years as a lawyer, and 15 years this month in my current judge assignment – general civil jurisdiction in a large urban city/county/state capitol. (Fifteen is the crystal anniversary, if you are interested.)

So, naturally, my staff and I will have a party. Friends and colleagues will visit. Pleasant conversation will abound, and we will all go on to the next thing in our lives. But before one moves on too quickly, there are always observations that come to mind, especially when there are more than 2,000 cases a year to observe (at least in our court).

Judges are decidedly impartial, but not necessarily unequivocally impartial. As human beings, we probably have favorites at times, like anybody else. But the peculiar act of judging renders us incapable of acting upon our favorites, so different cases sometimes present different levels of impartial effort. There are actually times when a judge may want one side to win/lose for various reasons – likes/dislikes a lawyer, sympathetic/unsympathetic to a party, bothered by the law of the case, etc. When the judge renders a ruling, it is unlikely that these views can actually be set aside. But it is likely that the judge can and will ignore them. During my total time as a judge (more than 18 years), I made lots of decisions I did not prefer and moved on. The professional ideal of impartiality is literally sacred. Our system cannot operate without it, of course. But that does not mean there are not costs.

Listening is the most important, and perhaps most difficult, judicial trait. Judges have to reach through as much daily noise in their heads as anybody, let alone controlling the rhetoric in hearings and briefs. Similarly, we have to be willing to work hard on issues that may not seem as crucial as counsel believe. That is not always our decision to make – if the parties need a decision, it is the judge’s duty to make one. Eventually, some judges realize it is sometimes better to admit mistakes and reconsider rulings. This can be a kind of Socratic wisdom, that is, knowing what you don’t know. So a general kind of wisdom can be earned by appreciating what one has learned: It’s all in the balance, and judges are all about balance.

Time has its ways. Coach John Wooden once said, “If you don’t have time to do it right, when will you have time to do it over?” Almost two decades on the bench have shown me the value of taking the time to try to do it right. The cost of that commitment can be longer work hours sometimes, changed friendships after an adverse ruling, public disapproval on higher-profile cases, or the public statement that the trial court is officially wrong (e.g., Court of Appeals reversal). The most difficulty for some judges comes when we understand no one may ever know when we do our best work. In such cases, the lawyers may both be unhappy and move on to the next thing. The parties may not exactly understand what the court decided or why. For trial judges, a case may not be appealed because the court made the right decision in a complicated case, so there is no significant public record.

The best lawyers are those that care the most about their clients (no matter the size of the case), their colleagues and the profession. They are always the hardest working as well. The best judges are those who care most about the cases, no matter how “important” or not. Great issues are rarely related to the “great” cases and vice versa. We know all cases are important because we try to solve the problems of people. What is most clear to me: Service, like virtue, is its own reward; and good judging, like beauty, is its own excuse for being, regardless of the consequences or the subject matter of the case. We judges will always understand this, no matter the cost.•

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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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