On exasperated judges

This short opinion by United States District Judge Vanessa Gilmore, bemoaning the parties’ “whiny letters” and chastising counsel to “Please stop trying to become my least favorite lawyers” has been making the rounds over the past couple of weeks. It is noteworthy because judges do not normally write like this, either in style or substance. They may think it–judges are human, after all–but to put it in an opinion for the world to see adds a dramatic, and intentional, touch.

This is not the first judicial opinion to call out the attorneys for conduct or argument that the judge finds annoying. Used judiciously (no pun intended), an occasional sprinkling of exasperation in an opinion can be very effective. It humanizes the judge–who among us hasn’t experienced the frustration of someone wasting our time?–and it underscores the judge’s role as guardian of the court system and the legal process. As the most visible members of the court system, judges must often police the system’s other users and remind them of professional and community standards. A carefully considered dose of exasperation can do the trick.

Here is an example of what I mean: In this 2017 opinion rejecting a proffered plea deal between the federal government and a corporate criminal defendant, U.S. District Judge William Young began:

Let’s see if I’ve got this straight.

Period. End of paragraph. Not the standard way to begin an opinion, to be sure. But that line (and a few others similar in tone) perfectly captured the court’s incredulity at the parties’ proposal. It also captured the court’s belief that allowing the specific form of corporate plea deal proposed by the parties would be detrimental to the public. Despite the occasional bits of snark, the opinion plainly speaks not just for its author but for the community that the law is intended to protect.

But it is also easy to go too far. As a law student, I read with amazement the colorful beatdowns of seemingly incompetent and evasive lawyers by U.S. District Judge Samuel Kent. No infraction or argument was too small to avoid Judge Kent’s notice. He berated counsel for drafting pleadings as if written in crayon, and mocked others for seeking to transfer the case out of Texas. His opinions were sarcastic and funny, but they were also cruel, and unnecessarily so. Rather than raising the bar for legal practitioners, they ridiculed the legal profession itself. (Judge Kent’s final coup de grace was his impeachment and imprisonment in 2009 for sexually abusing two female employees.)

Expressions of judicial exasperation can be uplifting, humanizing, or debasing. At their best, they identify the judge as a human being possessing better-than-average wisdom and professionalism, if not infinite patience. At their worst, they reveal the judge to be all too human and unable to conceal contempt.

It is difficult to always be the adult in the room, especially in this age where many of our most prominent citizens are prone to public tantrums. But always being the adult is the essence of the judicial role. Judge Gilmore’s order may elicit a certain amount of personal sympathy among her readers, but it does little to advance respect for the judiciary as a whole.

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