It has long been said that, “A good lawyer knows the law; a great lawyer knows the judge.”  This saying could not be more true in the everyday practice of law, but perhaps not for the reason most people first think of.  In my experience, judges rarely rule based upon particular relationships or preferences for particular legal counsel or parties.  Of course this is a vast generalization and I’m sure that somewhere in the democratic world this happens from time to time, but I strongly believe that it is a rare occurrence.  Judges, although human, strive on a regular basis to be unbiased toward individual litigants or criminal defendants.  What does happen, however, is that judges, out of a concern for “general fairness”, will sometimes deviate from a strict application of the law where it doesn’t seem to “make common sense.”

The above saying does not aim to say that most judges are biased toward those that they know.  More aptly, it seeks to make the bold statement that judges are indeed human.  Judges are in fact human, and are shaped by experiences they have had in early development all the way to adulthood.  They have particular values and political beliefs.  They have certain ways of doing things that are peculiar to his or her particular court.  And–this one is the most counter-intuitive of them all: judges have feelings, too.

The training and experiences an individual lawyer goes through in preparation to become a judicial officer seeks to remove him or herself from that human condition, and to make him or her into an objective thinker.  The abstract quality society seeks to instill in lawyers and judges  is referred to as a “cognitive” decision making process.  Most individuals as a general rule are “affective” thinkers.  This simply means that most people use the right side of their brains to make decisions.  These people are typically emotional, creative, and interested in people rather than legal issues.  They often view hearings and trials as human dramas rather than about abstract issues.  Cognitive thinkers, on the other hand, are thought to reason with the left side of their brains.  This thinker is more interested in abstract issues than people, enjoys waiting and not deciding until all of the evidence is received, and uses inductive reasoning to reach an eventual logical decision.  That being said, no person is entirely “cognitive” nor “affective”; rather, every person is some combination of both, and a continuum is probably a better perspective than a strict “one way or the other” answer to which type of thinker a particular person is.  For obvious reasons, most judges tend to be more cognitive thinkers; again, however, this is a matter of degree.  Each judge has a varying mix of both types of thought pattern, and can be influenced by a variety of factors when making a decision based on who he or she is.

So what does all of this mean?  A judge can only import the “human element” if he or she has discretion to do so.

Well, this philosophical fight has been waged over many centuries.  Its centers around the clash between two jurisprudential schools of thought known as “legal realism” and “legal formalism”.  “Legal formalism” is probably what most people think of when they imagine how a judge thinks.  “Judicial formalism” is the idea that all questions of policy have been–and should be–made by the legislature alone.  Legal formalism, above all, seeks to enforce what the law actually says, rather than what it could or should say.  It is a theory that the law is a set of rules and principles independent of other political and social institutions.  This theory is most famously put forward by the United States Supreme Court Justice Antonin Scalia.

In contrast, “legal realism” is the concept that the law, as a maleable and pliable body of guidelines, should be enforced creatively and liberally in order that the law serves good public policy and social interests.  Legal realists see the legal world as a means to promote justice and the protection of human rights.  Legal realists often believe that judges should develop and update law incrementally because they, as the closest branch in touch with economic, social, and technological realities, should and can adapt the law accordingly to meet those needs.  They often believe judges should have broad discretion and decide matters on an individual basis, because legislatures are infamous for being slow or innate to act to such pressures for change.

In my experience as a relatively young lawyer, I have been frustrated at times that it seems that most trial court judges more closely resemble legal realists than legal formalists.  I sincerely believe this to be true, but it may not be judges simply preferring one judicial philosophy over the other.  Rather, I think it arises out of practical needs that are present in the courtrooms of today.

It is rarely the case that the law completely favors one side over the other.  There is usually a legal argument to be made on both sides of any given issue.  The law will generally lean one way, however, and I have found that the legal strength of a case is less important than the given facts of the case.  In my experience with local judges, the facts often determine the outcome of cases rather than the law; that is, I have had many situations and cases where the law is stacked on my side to one degree or another, and my client still received an unfavorable result.  Conversely, I found myself scratching my head at results where I had a disadvantage according to the law, but where I achieved a victory for my client based upon favorable facts.  I believe this is because most trial court judges are legal realists.

I believe that trial court judges are more often legal realists for a variety of reasons.  First and foremost, I believe that their overburdened court dockets force this into local courtrooms.  Judges are often put into situations where they must act quickly to move through the vast number of cases in their respective courts.  They often “split the baby in half” as an expedient way of disposing of particular issues.  They don’t have time to sift through voluminous briefs that lawyers are infamous for writing, and they frankly aren’t afforded the time to devote the amount of time a cognitive approach to a common legal dispute would require.  It is much easier and efficient for judges to dispose of cases quickly, by doing what they feel is the best outcome for the parties before the court, without regard to complex legal concepts.  They have a general understanding of the many bodies of law, and have a working knowledge of the basic concepts which guides their day-to-day decision making.   They are not interested in being published in the Yale Law Review for their ingenious thoughts or opinion on an original issue.  They simply want to get through the day, and be able to sleep with the decisions they rendered from the bench.

Appellate court judges, on the other hand, tend to focus on the more abstract legal principles.  This is because first, they have never met the litigants.  Second, they are not under the same pressure that trial court judges are to act quickly to clear a docket.  Third, the decisions they render are often cited by future cases as precedent to guide them in application of the law, so thorough legal reasoning is necessary to prevent injustice in future decisions.  For these reasons, I believe I have experienced a greater success in appellate courts where the law favors my side, rather than the facts.

Law schools across the country explain this distinction, but not as it applies to local courtrooms.  Law students tend to enter the profession thinking that making the correct arguments and using the correct “magical language” will achieve for their clients a more favorable result as judges robotically apply the law.  As the lawyer becomes more seasoned, however, the lawyer learns that making the human arguments at the trial court level is often more productive than wielding the expertise he or she gained in law school.  Counter-intuitive, I know, but it doesn’t change the fact that this is the way things are.  Simply knowing this can be a powerful tool in persuading judges in getting more favorable results for your clients.