Part I: Universal Judicial Truths

Foreword
Let me introduce myself. My name is David Michael Gersten. My Grandfather was a judge. My Father was a judge. I, too, am a judge. Having been around judges all of my life, they do not scare me. They do not intimidate me. Yet, many people are fascinated by judges. Why? This article will address some of the universal truths about judges that many people (including judges) think, but would never dare say and will help you understand the nature of the beast you are dealing with.

Let’s start with my family. As a child, I remember people calling my Grandfather “Judge.” I did not know what that name meant. Why did they seek his favor? He was only Poppa Joe, didn’t they know that?

And then there was my father. Why did he want to be a judge when he had a very successful law practice? Why would he seek a reduction in pay and take on this great responsibility? What is so special about being a judge?

Well, starting at age twenty nine, and now after twenty five years on the bench as a trial court and appellate judge, I know. Being a judge is simply the best job in the world of law. What could be more rewarding than to know that every day, you do good, do right, make a difference and positively affect the lives of many human beings. Life is good . . . if you are a judge.

Let me take you, the gentle reader, into the mind of the judge. It will be a running series that will expose the good and the bad . . . the soft underbelly of the judiciary. I will guide you through the inner workings of a judge’s mind and some of the immutable truths of judging. Let us explore what you know to be true but are probably afraid to say. Are you ready?

Universal Truth # 1: All Judges Have a Big Ego
This will not come as a surprise to you, the NASJE readership. How many of you have received phone calls, letters, or emails from judges who think the world revolves around them and whose needs come before anyone or anything?

This is not to say that all judges complain. Or, that all judges are obnoxious, mean, irascible or otherwise hard to deal with. It is to say, however, that most judges expect that, “Their will, will be done.”

Query? How many judges have you worked with that take the word “no” gently? How many judges have been known to say, “I’m Judge So and So” in order to get something quicker, or more favorable?

The underlying concept is that it takes an ego to presume that you have the ability to sit in judgment of another human being. Compound that with the fact that once you become a judge, all of your jokes are funny and all of your old war stories immediately become interesting. Once you get used to your ego being stroked, you begin to feel entitled to more. It is a vicious cycle that has led more than one judge into troublesome waters.

Universal Truth # 2: All Judges Want to be Right
No judge that I have known or heard about has woken up in the morning and said, “Yep, today I think I’m gonna be wrong.” This concept underlies the truism that all judges want to be right.

Remember Universal Truth # 1 that already establishes that all judges think rather highly of themselves. Combine that with this Universal Truth that judges truly want to be right . . . all of the time. After all, isn’t that what being a judge is supposed to be all about? Getting it right comes with the job description. You are the judge and you are very smart and you know what you are doing. Therefore, what you do is right. Besides, a judge is on the side of justice. Though it may be the judge’s concept of justice, it is the side of justice nonetheless.

Now, the appellate judge has a much more difficult task in always being right. It takes a majority of the votes to decide which opinion is right and which is the dissent. The appellate judge needs at least one vote in his favor to be right. Without a vote(s), the appellate judge is the dissent. And let’s face it; the dissent is plain wrong because if it were right, it would be the majority. Compound this problem with a clash of Universal Truths #1 and #2 and it can make for some interesting dynamics found only on a collegial court, for example, the U.S. Supreme Court . . . eh?

Query? How many have heard a judge say, “I know that I am wrong, but I’m going to be wrong anyhow?” Or, how many of you have heard a judge say, “I am sure that I am wrong?” You just don’t hear those words.

In the rarest of cases, the judge may say, “it is possible that my ruling MAY be incorrect but I would hope that the appellate court would revisit this issue.” This is a political statement that could be framed in such a way that the appellate court may indeed revisit the issue because the lower court judge was, after all, right.

Universal Truth # 3: All Judges Have an Agenda
If you ever want to aggravate a judge, or if you ever want to get the hair on the back of a judge’s neck to stand upright, ask them if they have an agenda when they don their robes and walk in the courtroom. My odds are 99 to 1 that the judge will bristle at the thought and then promptly dismiss the concept. If you change the question to, “Judge, do you have a point of view on the bench?”, then you may get a milder response of “perhaps.” But, the judge will say that they try their best to leave their beliefs outside the courtroom.

The judge will dismiss the concept because they are judges and judges come into the courtroom without any preconceived notions, biases, and predispositions or anything other than cold neutrality. I say Balderdash!

Judges are human beings (in spite of the fact that some judge’s spouses call them “judge” when they first walk into their home). It is presumptuous to believe that a judge is no longer a human being on the bench and that they can truly leave their feelings, inner workings and soul behind. It just cannot be.

Basically, judges cannot help being who they are. Their view is always egocentric and based around their views of right, wrong, proper, ugly, fair, etc. Basically, I call it, “The world according to Judgie.”

Query? Here is the following question that I have posed to more than two thousand judges, lawyers and law students (future judges):

You are a judge in a jurisdiction where physical custody of minor children can only be awarded to one parent. The law does not recognize concepts of shared, rotating or joint custody. After a two week trial you have determined that both parents are equally good parents. They have similar parenting skills, jobs, income and religious beliefs. They have a 3 year old girl and there is no tender years doctrine in the jurisdiction. Which parent gets the child?

If the past is any predictor of the future, then most judges (usually 80+%) will award custody to the mom. This question is a rather simple, yet graphic example of how the underlying bias of a judge can affect his or her decision. This bias is impossible to leave outside the courtroom.

One thing to consider, however, is that if a judge truly follows the law, then the bias can be filtered out and the law will dictate the result. This is preferable to the amorphous and gossamer-like dictates of the judge’s agenda.

Conclusion
In the end, we all have to realize that judges are human. That is a good thing. It is good because we operate in a world of humans and a system that has been devised by humans. Anything less, would deprive the litigants, court staff and even NASJE members of a person with warm blood and feelings to sit on a case and pronounce judgment. These feelings are the substance we often need in order to receive a just and fair result. A side effect of having someone with these feelings is the set of characteristics outlined in this article that come with the territory. Understanding what makes judges tick can help in appreciating them. Fratres conjurati.

Judge David M. Gersten has served as an appellate court judge since 1989, having previously served at both tiers of the trial courts since 1980. Judge Gersten served as the Associate Dean for the Florida College of Advanced Judicial Studies and is currently a faculty member lecturing on: Alimony, Domestic Violence, UCCJEA, Enforcement of Non-U.S. Judgments, Collegiality, Bio-Ethics, Constitutional Law, Criminal Issues, and Civil Issues. He also serves as faculty for the National Judicial College, Reno, Nevada, and is an Adjunct Professor at St. Thomas University School of Law. Judge Gersten has published articles on a variety of legal topics. His publications include: Matthew Bender: "Florida Civil Practice Guide" (1994-present); Reviewer, Florida Forms of Jury Instruction (1990 to present); The Florida Bar Journal: "Evidentiary Trends in Domestic Violence" (1998); "The Doctrine of Lis Pendens: The Need For A Balance" (1995); Special Report: Legal Ethics in Florida, "A Consensus of Morality In Ethics - Toward A Comprehensive Code of Professional Ethics" (1991); "Manifest Necessity - A Trial Judge's Responsibility to Assure Justice" (1989).

Copyright 1999-2012, National Association of State Judicial Educators
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