Kentucky Lawyer

An “overspeaking” judge

10 Mac Swinford sition, forget the problems and deep emotions of the attorneys who are practicing before them. There have been instances, I know, in which the judge seems to feel that the bench is a stage from which he, as chief actor in the drama of the trial, must perform as a wit or a tyrant. There have been judges who have become obsessed with a desire to be “characters” and have indulged in witticisms or abuses that are fitting neither the dignity of the office nor the stature of the personality that temporarily occupies it. The story is told of an occasion in the trial of an important lawsuit when the judge in a fit of anger, sharply and without ecuse, severely rebuked one of the attorneys . The lawyer then turned his back on the court and walked toward the door of the courtroom. The judge called out, “Sir, are you trying to show your contempt for the court?” “No, Your Honor, I’m trying to conceal it,” was the reply. An “overspeaking” judge Sir Francis Bacon in his essay on the judiciary said: “An overspeaking judge is no well-tuned cymbal.” Those of our profession who occupy the bench should be constantly aware of this striking metaphor. It is very tempting at times for a judge to make witty or sarcastic remarks to the delight of the spectators; however, a judge should always remember that such speech is beneath the dignity of the court and always at the epense of someone who cannot answer back. The situation is something like that of a boer who hits a handcuffed opponent. Repartee can 11 Kentucky Lawyer be delightful and stimulating when the participants are on a common footing, but it is contemptible when one of them must yield to authority. I have tried always to avoid this sort of thing; however , on one occasion at Bowling Green, I fell into it. Judge Robert M. Coleman, one of the best lawyers in Western Kentucky and a highly ethical practitioner, was making his final argument in a case that had etended over eight days. Judge Coleman had been speaking about thirty minutes of the forty-five minutes allotted him. He remarked to the jury that he knew they were tired and he wasn’t going to prolong his argument. He then turned to the bench and asked, “Judge, how long have I been talking?” “Too long,” I replied without thinking. This remark from the bench got a laugh from the audience and I epect agreement from the jurors, but it was inecusable in me and I felt embarrassed at the slip. I immediately apologized to Judge Coleman and assured the jury that my remark was not only inappropriate but untrue as well, for the gentleman still had fifteen minutes in which to conclude his speech. According to law or instructions While, generally speaking, judges are shielded from the real sentiments of those before them in the courtroom, there are occasions when the truth comes from the naive. A friend of mine serving on the federal bench in a neighboring state has told me of an eperience he had with a juror. At the conclusion of the evidence and arguments he had charged the jury on the law of the case and sent it ...