Opinion: When Judges And Lawyers Are Oil And Water
For the past decade or so, not a single case of mine has been assigned to U.S. District Court Judge Robert N. Chatigny. That's because he's filled out a form, deposited it in the clerk of the court's office, and provided notice that he has a conflict of some sort involving me. I am assuming it's just that he doesn't like me, as I tried cases before him long before he decided he could not do his job with me in his courtroom.
Half a dozen years or so after my banishment, I filed a Freedom of Information Act request for any information about why the judge had shut the door to his courtroom to me. Wouldn't you know it, such documents are exempt from disclosure. So I muddle along in the courts, wondering what this super secret document says about me, offended, modestly, that one of the privileges of a lifetime appointment is the power to hide your pettiness deep in a clerk's file.
But I harbor no grudge, or, at least, not much of a grudge. Truth be told, I never much cared to appear in Judge Chatigny's courtroom; it always felt like being fitted for a coffin on prom night. We were oil and water, the judge and I. I'd look at him on the bench and think, now there's a fellow with the repressed fury of a man who knew he'd never teach elementary school as a nun.
And what of the long list of lawyers who are conflicted out of appearing before U.S. District Judge Vanessa Bryant? Those who opposed her confirmation to the bench are permanently conflicted out of appearing before her. I've actually heard rumors about criminal defense lawyers with cases assigned to her shopping around for co-counsel, looking to bring lawyers on her conflict list into their cases so as to force a change of judge.
So let's face it: Some lawyers don't like some judges, and some judges don't like some lawyers. It happens. It's no big deal. I say we recognize that in a trade devoted to conflict, a profession that rewards pugnacious louts like me, we recognize in some formal, institutional manner the fact that some pairings of lawyers and judges just aren't meant to be. I am proposing a one-strike policy.
Under this regime, once a case has been assigned to a judge, the lawyers involved get up to 10 days to move for a change of courtroom. The movant needn't give a reason. They'd exercise the same prerogative Judge Chatigny exercises with his confidential conflicts list.
Of course, things would be more difficult in the state courts, where cases float from judge to judge like a barhop at closing time. But the rule could be made to work. Lawyers would get one strike per case — you might not like the judge assigned to hear your summary judgment motion, but you might want to save that strike for trial. This is a far more honest way to manage personality conflicts than bringing on folks the sight of whom will make a judge transfer a case.
Justice isn't cheapened by admitting that some folks rub us the wrong way.
I generally like most of the judges, and most of the lawyers, I deal with in this state. But there are exceptions. Why just the other day, after the conclusion of proceedings in a case, a lawyer I know, but dislike, came up to me with hand outstretched.
"No, thanks," I said.