TRIGGER WARNING: Graphic unpleasant judicial imagery ahead.
Why do judicial chambers have bathrooms? Because judges use them.
One of my first comments when I discovered Judge Kopf’s blog, Hercules and the Umpire, was that the judge could be “awkward.” It’s not that Judge Kopf was saying anything that others don’t say, but that he was Judge Kopf. As lawprof Rick Hasen points out at every possible opportunity, plain talk by a judge is “inappropriate.” It is undignified.
In response, Judge Kopf has taken the position that Hasen needs to grow up. Judges are people. The position of judge is an office. They use bathrooms. Just like lawprofs. Just like lawyers. Just like everyone.
All of this came to mind as I listened to a podcast this morning. The questions asked were fairly banal, but the responses were so official, so pompous, so pretentious. I hated it, not because I disagreed with it but because of what it reflects of the profession. Damn, how badly do we all feel this compulsion to be pretentious in our public face? Are we nothing more than stuffed shirts?
Sure, when I’m in court, I adhere to the rules of decorum, both because I take what I do there with the utmost seriousness, and because I believe that courts should maintain a level of gravitas consistent with their purpose. People often confuse what’s said and done on blawgs with what happens in the courtroom. It’s inane. This is the internet. Get over it.
One of the foremost criticisms of blawgs, and me in particular, is stridency of my writing. I say what I mean, sometimes in stark language and often with a hint of sarcasm. No, it is not dignified. No, it isn’t meant to be. Think of it as the difference between speaking on the record in court, and having a beer with some guys after court is done for the day.
But there is yet another level of discomfort that keeps a lot of lawyers, most lawyers, from speaking freely. They fear their words being used against them. They fear they might say the wrong thing, or have their words taken out of context and used to make them look . . . unprofessional. They fear that the world might realize they aren’t the very official version of themselves they want the world to believe they are.
Some years ago, when I was still willing to waste my time going to board meetings for bar associations, an issue came up that struck close to the heart of our work as criminal defense lawyers. The proposition offered us a chance to take a stand in the interests of our clients and ourselves, but doing so would piss off people in power. The stench of fear in the room was overwhelming.
“Oh no,” my fellow criminal defense lawyers muttered. “We couldn’t possibly do something like that,” they whispered in unison as they wrung their hands. “The judges would be so angry with us; they wouldn’t like us.”
Guess what? They don’t like us. They never liked us. They aren’t going to like us. Criminal defense lawyers are a thorn in their side, the grit that keeps the wheels of justice from spinning smoothly. So you can kiss their judicial butts as they smack us and our clients around, for fear that they won’t invite you to their party when they need another political donation, or take a stand.
I expressed my position to the group. It was put up for a vote. I lost. Big time. They turned their heads away from me, fearful that if they even looked at me from the corner of their eye, they would turn to stone.
The problem wasn’t that they necessarily disagreed with me, or what I sought to accomplish, but that taking action to do so would ruin the pretense of respectability lawyers worked so hard to create. Even within our own, where we surely knew that we weren’t quite as dignified as we wanted others to think, the idea that we would be honest in order to achieve something that mattered at the expense of our image, our carefully crafted pretense, was too scary to consider.
To this day, my good pal Dick Barbuto (who goes by the handle “the blind guy” here) and I reminisce about when he was president of the NYSACDL. The Office of Court Administration notified the defense bar that we would no longer be admitted to courthouses by merely showing our securepass, but would have to go through the metal detectors like our clients. Prosecutors would still get a bye and heartwarming wave.
Dick sent a letter explaining that OCA could take the new policy and shove it; we were officers of the court and demanded to be treated as such. Under no circumstances would we accept lesser treatment than prosecutors. And if anybody wanted to go to war over this, we were ready to fight.
What Dick and I laugh about is that no one knew he, as president, sent the letter. We were the “executive committee” and made an executive decision. Had it gone to the board, it would have taken six months and ended, at best, in some tepid “pretty please be nice to us” letter. We were not about to let that happen, and knew only too well how the board was utterly gutless. The policy was reversed the next day, and nobody was the wiser by the way.
If the vulgarity of rough lawyer language, actual opinions, commitment to a purpose to serve our clients and the occasional image of a judge using the bathroom in chambers upsets you, then you would have loved the very official and officious effort to speak in the overly dignified tones that so many lawyers confuse with professionalism.
It’s a mask we wear to pretend that we are something we’re not. We do the “dignity” thing in court because our duty is serious, our responsibility demands that we respect the decorum of the courtroom to best serve our clients. And indeed, we do it with the utmost sincerity there, as adhering to appropriate courtroom decorum inures to our clients’ benefit.
But let’s not pretend we’re not human. And let’s not confuse the phony pretentiousness of trying to appear unduly dignified with professionalism. Pretense doesn’t make you a professional. Putting your client’s interest ahead of your own does. And if you’re so caught up with trying to appear dignified that it impairs your ability to express strong views in support of what we do, who we serve, then you’re only fooling yourself when you think that makes you look like a lawyer.
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Jökulhlaup!
Your guild needs a drink of the cool fresh waters before things get out of hand.
I got nothing here but stomping feet and the rowdy section cheers that keep the section gate keepers up top on edge.
Guilt out the guild. Pack of wuss puss anyway?
Represent!
The cheap seats love the intermission and we go pee sometimes too. But we can still smuggle in case coolers via “known” grounds keepers “under and up.”.
“And if you’re so caught up with trying to appear dignified that it impairs your ability to express strong views in support of what we do, who we serve, then you’re only fooling yourself when you think that makes you look like a lawyer.”
The bar exam should really be some sort of test of “this”. If you don’t pass, you should be banished to do real estate closings or some other such banal work.
That’s a lot of real estate lawyers. A lot.
Surf the jökulhlaup?
It is intense and no one will notice other than than those living in the town that happened to be in the wrong valley.
Anyway, for what it is worth last time and not the first…Your guild gets paid the extra dollar to read carefully, write even more carefully, and speak when need be.
How cool is that?
Let your hair down.
Surf!
Not everyone has the “zappa” but well past a few of you know where your “zappa” is and have some “frank” to lay down in the back pages.
Go ahead. Go alias even it’s 3075.
https://m.youtube.com/watch?v=JIoBBKfOGg0
Prosecutors here go through the metal detectors. I remember complaining about when I worked for the state, and one of the bailiffs explained there’s no way to ascertain if you weren’t fired the previous evening and are now hungry for revenge.
Some people like wearing suits, carrying fancy leather legal pad holders and using archaic language in addressing the court. It’s like a play to them. I’ve never been particularly bothered by the farce that we’re not horny, hungry animals just because we choke ourselves with a neck tie. We’re no more or less human than our client wearing jail blues and chained to a half dozen other similar men in the jury box during cattle call.
When I first started practicing, we walked into courthouses. All of us, lawyer and client alike, because it was a public building and we were, if nothing else, the public. There was no government versus us. We had no official lawyer ID cards proving we weren’t terrorists. We were just people.
It’s all different now, and the message is clear: the government no longer trusts the people. As if we have something to prove to our public servants.
That’s a really interesting and instructive comment. I never realized how much everything has changed as the “us vs. them” culture of officialdom has evolved.
This is part of what frames my reference. Some argue that things have changed, and indeed, there were moments along the way where things did change. The crack epidemic in the late 80s, for example, gave rise to far more violence and threat of violence than existed before. But the movement of “us v. them,” or official mistrust of the public and acceptance of rules in furtherance of security that impaired liberty only moves in one direction, greater restrictions on liberty. It creates a self-perpetuating sense of the need and normalcy for security, as people can’t conceive of a time when we lived without them.
This is one of the reasons we fight as hard as we do to stop new laws and rules that limit freedom, knowing that it’s easy to fall into the hole of the “new normal” of fear and restricted civil rights, and awfully hard, if not impossible, to ever go back.
As you know, I practice in Central California. My cases take me into the courthouses in about six or seven different counties on a fairly regular basis. That’s six or seven of California’s most conservative counties.
As you noted about the ratcheting effect: we recently had several courthouses significantly toughen up security. (For example, they now insist on x-raying our wallets! We can still pass our belts, and ink pens, and other things that could hide weapons, along to them on the side of the metal detector after removing it from our person so that we can theoretically clear it without setting off alarms.)
When I asked what had happened, the interesting excuse given was that they were merely trying to bring their practices into line with courthouses in other counties.
The thing is, though, Fresno (already the toughest ) increased security supposedly to bring themselves into alignment with Tulare (still the least intrusive for lawyers), and Merced. Merced, which is still just slightly less intrusive than Fresno, increased their security because of Fresno; Fresno then increased their security more because of Merced.
At least, that’s what I was told.
Truth is, I don’t think there’s any rhyme or reason to it.
And, btw, in Madera County, deputy DAs still enter the courthouse via their own entrance, from what I understand, because their offices are in that building. Defense attorneys get exactly the same screening as the general public: we are equal criminals together.
And yet, in the entire history of all these counties, the only act of violence by an attorney of which I’m aware occurred when a disgruntled DDA set the courthouse on fire…
…in Madera.
SHG,
Because I am an Article III judge, my poop is perfumed. Look it up. It is in the Constitution. Never, ever, again imply that I am just like real folks. That stinks.
All the best.
RGK
I can’t even…
Except that the perfume is “Eau de Poop”, so a distinction without a difference.
Oh, and in case you want to know the factual basis for my assertion; my previous job included helping an elderly retired judge with his incontinence protection. Pro tip: if you ever have to do this, never ever use the word d**p*r.
Dear Ms. Krone,
Thank you for the helpful tip. But, upon reflection, I suppose that depends.
All the best.
RGK
Your Honor,
Depends would be the only appropriate brand for a legal professional.
The two of you have turned my blawg into toilet humor. I hope you’re proud of yourselves.
Perhaps Poo Purri is provided.
http://www.youtube.com/watch?v=ZKLnhuzh9uY
The vid skewers pompous and pretentious so well that perhaps an exception to the link rule is warranted.
[Ed. Note: Special dispensation granted. This was a winner.]
As a lawyer, blogs like yours with sharp writing, unvarnished opinions and occasional helpings of delightful snark provide a relief and respite from what is (still) the general social norm set for our guild.
We work in a profession where our customers have frightfully little information. In fairness, it is very difficult for an outsider to have any sense at all of who or what makes one lawyer better or worse than another except at the extreme edges.
Instead we (collectively) have a long and deep tradition of using ‘signaling’ at every opportunity to replace actual consumer information. Some is subtle, some loud and some simply obnoxious. Virtually all is fakeable and ultimately noise, from non-court dress codes, to lavish offices, to ‘SuperLawyer’ nonsense. In reality, all of this form over substance, and constant, appearance based risk aversion is terribly inefficient. Phony pretentiousness is ultimately just (bad) advertising. I’ll gladly take more raw realness from any corners of the profession, but wouldn’t generally expect much from the law professoriat, especially with the current unraveling of their particular imperial togs.
As public personas go, a combination of being self-aggrandizing blowhards to the public, while trembling like mice at the fear of offending anyone, ever (especially if in a position of perceived power) is pretty unappealing. Thanks for swimming against the current.
Thanks, but I see it as more than just (bad) advertising. How many lawyers are unwilling to risk the possibility of pissing off a judge to save a client? Pretentiousness has some very real consequences.
Agreed. My main outside litigator is a former journeyman plumber for a reason.
How did he manage the pay cut?