Coming out on the short end of an important ruling by a trial court, lawyers, like normal people, often reach for an excuse. The sting of losing is perhaps most often soothed by finding fault with the judge.
“It was a long call I sat through before our case was heard, and it seemed like today was a day you did not want to be representing a defendant before Judge Arbitrary.”
“The bailiff told me the judge’s wife must’ve burnt his toast this morning, and I believe it. From the moment he took the bench, Judge Capricious was spitting fire and wasn’t listening to me or anyone else.”
“Judge Random was all riled up from the previous case, and she was in no mood to hear another complicated argument.”
“Serves me right for scheduling this hearing the Monday after the Super Bowl. I should have known Judge Quirky would be in a mood after the Packers got blown out.”
Just as slumping batters seem to grouse about an umpire’s strike zone more than the league leaders, perhaps it’s a bit too easy for unsuccessful advocates to blame moodiness — or worse — in the judge who rules against them.
More than most places, losing litigants in Cook County often dredge up the classic rationale that the fix was in. The rampant judicial corruption of the 1980s exposed by Operation Greylord fueled the suspicions of many unsuccessful advocates during that long, lonely walk back to the office.
After all, viewing a loss (or an impending one) as evidence of a rigged system has gained traction of late at the highest levels.
Before sentencing the last of the 15 Cook County judges convicted as part of Greylord, U.S. District Judge James Alesia found back in 1989: “There were two John J. McDonnells, one the public servant, and the other the secret man who was a corrupt judge who sold his office for greed.”
More than 25 years later, some dissatisfied lawyers remain prone to believing that their judge was channeling the secret Judge McDonnells.
For those who don’t remember Greylord but still want to blame the bench when a ruling goes astray, the case of Judge Joseph Boeckmann, ripped from today’s headlines, is worth a look.
The Greylord defendants may have looked virtuous compared to Boeckmann, who presided over traffic and misdemeanor cases in Cross County, Ark., before he was indicted last week by a federal grand jury in Little Rock.
The former judge was charged with handing out lighter sentences or dismissing cases in exchange for nude photos or sexual favors from defendants. Dating to his years as a prosecutor, some men even accused Boeckmann of spanking them with a paddle and then photographing their red skin in exchange for money.
Highly publicized cases such as these are sure easy to invoke when receiving an unexpectedly “bad” decision, even though actual judicial corruption is, of course, extraordinarily rare. The true number of “fixed” cases is probably on par with the number of fraudulent voters.
Does that mean lawyers must begin to look inward upon receipt of adverse rulings and allow for the possibility that such rulings may actually comprise fair, objective or even correct judgments? Fortunately, no such extreme measures are necessary.
In the nick of time, a new study arrives, suggesting that judicial moodiness cannot be discounted when a lawyer is forced to return to the office empty-handed.
Two researchers down at Louisiana State University studied more than 8,200 judicial decisions handed down by 207 judges sitting in Louisiana’s juvenile courts from 1996 to 2012 and found that when LSU’s football team was upset, harsher sentences were handed down in the week following the game.
Sentences increased by about 35 days following an unexpected loss, and by 63 days when the Tigers lost while ranked in the Top 10. Further, if the judge attended LSU as an undergraduate, the unfortunate juvenile could expect 74 extra days.
The two LSU economists conducting the study titled “Emotional Judges and Unlucky Juveniles,” Ozkan Eren and Naci Molan, just issued their NBER Working Paper No. 22611 in September.
With the lock certain flawlessness of the briefing and brilliance of the oral argument leaving no need to shoulder the blame for losing a motion that should have been won, experienced practitioners looking to point fingers may now wish to familiarize themselves with the judge’s level of fervor for her alma mater as well as the team’s schedule.
While the judicial corruption angle has been vastly overplayed, this new study suggests that a replacement client relations play may be found by scheduling a formidable hearing during the immediate aftermath of an unexpected loss to the patsy team the judge’s school scheduled for homecoming.