Columns
Talk Is Cheap (& Better)
Gentle Reader, you may recall last week’s column that set out the general philosophy of the Posey Circuit Court: “Talking is better than fighting”. Or, more generally, resolving conflicts instead of exacerbating them is what courts should do and the earlier the better.
Over twenty years ago my staff and I were searching for ways to ease the pain of Posey County families involved in divorce cases. At that time, my court reporter Synda Waters had the main responsibility for domestic relations matters in the Posey Circuit Court. With Synda’s help and the input of the rest of the court staff we initiated the procedure we still use today to attempt to assuage the fear, anger and frustration of couples who managed to once fall in love but for myriad reasons must now apply to the Court to untangle themselves.
The most salient feature we noted in many of these cases was people refused to talk to one another. Pride, disgust, jealousy, etc., etc., etc., prevented once loving couples from communicating with each other and, therefore, from any real chance of solving their problems.
Other sticking points were often lack of money and almost every case took too long. We decided we needed a faster, cheaper, less traumatic system of getting divorcing couples to where they could get on with their new lives even though they might still be tethered to their old ones, say for example, because of children or ongoing businesses.
We knew that statistically practically every court case resulted in some form of settlement. So we sought a procedure that would help couples settle their cases by themselves inexpensively and as close as possible to when the case was filed. Talking to one another at the beginning of the case as opposed to avoiding contact until later during an expensive and lengthy trial appeared to us to offer a better opportunity to set aside pride and discuss problems. The court-ordered Pre-pre-trial method was born.
Couples who had ceased communicating during their marriage were encouraged and facilitated by the Court to meet and attempt to resolve their conflicts. What we found was that once couples discussed their problems, often with the help of a court-appointed mediator, they could usually settle their case on their own. This simple, inexpensive procedure usually results in cases being resolved, children being better cared for, money being saved and families being able to maintain civil relationships even after the divorce.
A similar procedure is employed in most cases in the Posey Circuit Court although, of course, not every case is settled early and sometimes problems never get solved. However, I suggest Posey County is a more pleasant place for all of us to live when people with what they may have once thought were intractable problems sit down and work them out on their own.
As I have occasionally explained to warring couples who find it difficult to talk to one another and instead decide to come into Court spoiling for a fight, they can either have some stranger, me for example, decide their futures or they can do it themselves quicker, cheaper and better.
All God’s Judges Got Robes
Each fall for the past several years I have helped teach an Internet course on continuing education to judges. The National Judicial College located in Reno, Nevada organizes the six-week curriculum and selects members of the NJC faculty to teach judges from across America and even some foreign countries. Each weekly segment is led by one faculty member who is assisted by five others. My assigned area is Court Management. The course is supervised by two full-time staff members of the college who operate the complexities of the technology required by the participation of judges by computer and telephone from numerous far-flung locations. Joseph Sawyer and Danielle Harris of the NJC are in charge of the course and tasked with the “cat-herding” job of running both those judges who take the classes and we judges who teach it.
When I think about continuing education for judges I get an image of mothers from New York to Hawaii sending off their little judges dressed in black robes and equipped with new gavels embossed with the admonition: “Don’t Hit Anyone”. Before I was an attorney and had to deal with judges and before I became a judge and had to deal with other judges I never gave a thought as to how judges learn to be judges. Until reality struck me, I just assumed judges knew what they were doing the moment they began to decide the fates of those who were brought to court by law and life. Oh, if that were so!
However, since that is definitely not so, we need places to teach judges how to judge the same as we need to teach electricians not to touch a hot 220 line. The National Judicial College where judges who have already made numerous errors can teach other judges how to avoid them is one such place. The NJC states its mission as “Pursuing education | innovation | advancing justice with the support of individuals and organizations dedicated to preserving and improving the rule of law”.
In the teaching of Court Management I suggest a judge first think about what purposes she/he wants their court to accomplish; what is the desired mission? If a pioneer were going from St. Louis to Colorado he might paint a slogan (mission statement) on his wagon, “Pike’s Peak or Bust!”. He really does not plan to live on Pike’s Peak but the mantra can help him stay focused when a wagon wheel comes off in Kansas.
About thirty years ago members of my staff gave a great deal of thought to our purposes as a court. We were not unhappy with the court’s direction back then but we wondered if there were better ways to manage the Posey Circuit Court. So my long-time Court Reporter, Katrina Mann, my Chief Probation Officer, Rodney Fetcher, another long-time Court Reporter, Kristie Hoffman, another long-time Probation Officer, Mark Funkhouser, my then Court Administrator, Sam Blankenship, and I brainstormed for weeks about what our goals should be and how we could accomplish them.
Short-term, mid-range and long-term elements of planning, strategy, operation, record keeping and innovation were considered. We sought and received important input from the attorneys and other office holders. What we concluded we wanted the Posey Circuit Court to do was to help make Posey County, Indiana a better place to live by helping to resolve instead of exacerbating problems between and among our citizens who needed the court’s services.
We slowly and incrementally instituted a system of resolving conflicts in which the most important actors are the people who are in conflict; say a divorcing couple with children. Our Mission Statement guides us but it is only a guide, not an immutable law. For now I will set forth the Mission Statement then in future columns discuss the “Devil in the Details” of how we actually strive to attain our goals.
Mission Statement of the Posey Circuit Court
The mission of the Posey Circuit Court is to help create a community in which individuals, families, and entities are encouraged and facilitated to resolve legal problems among themselves and to provide a forum in which legal issues that are not privately disposed of are fairly and efficiently decided according to applicable law in an atmosphere of mutual respect and positive innovation.
Over the years there has been a great deal of tweaking of our approach as new staff members have supported the main goals of conflict resolution and helping Posey County citizens repair their relationships. You are already aware this is a work in progress. Perhaps next week we can begin to flesh out the bones of our theory.
A School For Judges
No matter what kind of job we have we had to learn how to do it. My first job, at age ten, was mowing our neighbor’s yard. I learned it from my older brother who taught me by putting me behind a mechanical push mower in the heat of an Oklahoma summer. At first the yard looked about as rough as I was treated. However, by sweat and repetition I was eventually able to make our neighbor’s yard look passable and collect my share of the one dollar we made.
On the job training is a time-honored method of teaching one to do a job. It is probably not the best system for learning such jobs as judging. You would not want to seek justice from a judge whose only prior training to be a judge was mowing yards.
Besides OJT, we have school classrooms where we study everything from Shop to Algebra. Such general education might be of some use if a judge’s first case happened to involve a lawsuit over a poorly crafted footstool but otherwise not so much.
Then we might send our future judges to Law Schools where general principles of law and critical analyses are droned into their heads. But such amorphous concepts will not mean much to you if your first day in court is also the judge’s.
So, Jim, I hear you asking, how do we avoid having judges whose only preparation for sending their fellow human beings to jail or taking their children away is mowing yards, sleeping through Algebra or listening to law professors? Here is how.
We actually require our judges to continuously attend classes in judging and, fortunately, these classes are usually taught by experienced judges who have already made the mistakes they try to help new judges avoid. One of those judge schools is the National Judicial College in Reno, Nevada. I first attended NJC in 1986 and first served as a member of the NJC faculty more than twenty years ago.
Indiana and almost every other state have their own systems of judicial training and education. The NJC has judges from every state and many foreign countries who attend.
Over the years I have taught and helped teach judges from the U.S.A., Palestine, Ukraine, Russia and several other countries. Currently, along with fellow faculty judges from Mississippi, Colorado, Indiana, Tennessee and Maryland I have been engaged in teaching an Internet course to judges from several states. This allows the faculty judges and the student judges to remain in their courts while still being involved in continuing adult education.
In my opinion, the education new judges, and even experienced judges, receive from such a system of judges teaching judges is better than simply electing or appointing a new judge and hoping for the best.
Connections
Father George Rapp of Pennsylvania and Robert Owen of New Lanark, Scotland each hoped their visions for Mankind would manifest in New Harmony, Indiana. Rapp’s vision involving Christ’s Second Coming and Owen’s involving a world without any traditional religions look different but have similar dreams at their base. A world without private property ownership was one of the major goals for both.
I will leave an analysis of Rapp’s grand plans to the theologians. As to Owen’s, I defer to the philosophers but will refer to Robert Owen, A View of Society and Other Writings edited by Gregory Glaeys who is a Professor of History at Royal University of London and a recognized authority on Robert Owen.
According to Glaeys, Robert Owen (1771-1858) was one of the greatest British social reformers and was a pioneer in schemes for humane factory management, the eight-hour workday and the education of the poor. Owen even now remains respected as a pioneer socialist, feminist and advocate of an ecological approach to industry and urban life.
One of the most interesting ironies of the connections between the philosophies of Rapp and Owen and New Lanark and New Harmony is that the clergy was one of Owen’s fiercest opponents. Yet elements of Rapp’s Christian thought and Owen’s abhorrence of Christianity and all other organized religions intertwine, especially their mutual calls for a new world order and disdain for economic competition and individualism. Perhaps that was why and how Owen and Rapp knew of one another and what led to Owen in New Lanark, Scotland buying Rapp’s town of New Harmony, Indiana.
Glaeys describes that transaction as follows:
“In 1825 he (Owen) purchased a ready-made community set on 20,000 acres in southern Indiana from a pietistic German sect, the Rappites. At New Harmony he spent about 40,000 pounds (about $240,000) or four fifths of his New Lanark fortune in a fruitless effort to organize a disparate group of about 800 radicals, freethinkers, backwoodsmen and scientists.”
p. xvi
Unfortunately, too many of the 800 thought Owen’s utopian concept simply meant they could do nothing and Owen would support them. These ingrates had ample reason for this attitude based on Owen’s own creed as set forth in his Manifesto:
“Individual and national competition and contest are the best modes (under the then existing circumstances) by which wealth can be created and distributed.
….
But it is obtained by creating and calling into full action, the most inferior feelings, the meanest faculties, the worst passions, and the most injurious vices which can be cultivated in human nature.”
p. 358
Owen sought a system of production and distribution that called for “…[T]he least labour to all members of a society, and especially with the least amount of unhealthy and disagreeable employment.”
Well, Gentle Reader, you can probably see how such an experiment might turn out. You are right. In about two years Owen’s heaven on earth was more akin to Purgatory. And Owen’s insistence on a strict compliance to his principles on his terms did not engender enthusiastic compliance. Or as the ancient Greeks might have observed, hubris is a mortal flaw.
There is so much more to Robert Owen and the symbiotic relationship between New Lanark, Scotland and New Harmony, Indiana than can be crammed within a few newspaper columns. However if you care to hang around awhile I plan to cram some stuff into my next few epistles.
But before the following weeks’ offerings, I must address last week’s column thanks to our friend and Robert Owen authority, Linda Warrum from New Harmony. Linda read last week’s column and offered some advice. First, Linda, thanks for reading Gavel Gamut; you have doubled my audience. Secondly, thanks for pointing out not all of Robert Owen’s children were given the middle name of Dale and Father Rapp’s group were not German Lutherans but Pietists who, “…[E]mphasized personal piety over religious formality and the orthodoxy of the Lutheran Church.” It was nice of Linda to both read Gavel Gamut and respond.
You Can Go Home Again
Those of you who have had the pleasure of visiting New Harmony, Indiana and those of us privileged to live there know its Anglo-Saxon origins include a huge debt to Robert Owen of New Lanark, Scotland. Owen made his fortune milling textiles and yarn in New Lanark and used a great deal of his money to buy New Harmony from the German Lutheran community led by Father George Rapp. Owen based his dream for mankind on the non-religious philosophies of the Enlightenment. The influences of both the Rappites and Owenites have been deeply woven into the two unique experiments that resulted in today’s New Harmony.
Peg and I were somewhat aware of Robert Owen and his progressive policies on fair treatment for his employees in the New Lanark mills. But frankly, I had always thought the true Owen visionary was Robert’s son, Robert Dale Owen, who was a United States Congressman, a delegate to Indiana’s 1850-1852 Constitutional Convention and a passionate advocate for Women’s Rights and the abolition of slavery. Of course, Robert Dale was a visionary but Peg and I discovered when we visited New Lanark, Scotland two weeks ago that the origin of the son’s great passions was from the father.
All of Robert Owen’s children were given the middle name of “Dale” which was their mother’s maiden name. Caroline nee Dale Owen’s father, David Dale, was himself an innovator in methods of textile production. Robert Owen married the boss’s daughter and eventually owned controlling interest in the New Lanark mills which continue to produce great quantities of yarn today.
Some of you know Peg is an excellent knitter whose felted hats, mittens, purses and other creations are much sought after. Of course, she can only create one item at a time and her efforts to teach me “knit” from “purl” and “cast off” have been a great disappointment to her. However, New Lanark with its cornucopia of colors and textures was, forgive me Robert, heavenly. The manager of the gift shop in New Lanark was so impressed and excited by the photos of Peg’s creations Peg showed her she wants Peg to make items for the shop. We will soon be receiving a huge shipment of New Lanark yarn in New Harmony.
It also made us feel as if we were returning to New Lanark instead of visiting it for the first time when we were housed in “The New Harmony Suite” at the New Lanark Hotel. It was marvelous and felt like home.
When Peg and I toured the beautiful areas of New Lanark it was an almost mystical feeling. New Lanark is certainly different from New Harmony but it felt comfortable and somehow reassuring. New Lanark’s buildings reminded us of the dormitories, Granary and other structures in New Harmony. The River Clyde that powered David Dale’s original mill rushes through the town and is integral to its character much as the Wabash River is to New Harmony. But the connections between the two small towns, both of which have produced much original thought, are much more direct and concrete than merely emotional.
Robert and Caroline Owen’s large brick home is right beside the working factory. When Peg and I entered the home it felt much as the brick homes in New Harmony today. But it was the full New Harmony homage set out in the basement that showed without need for explanation the almost two hundred years of cultural intertwining between New Lanark, Scotland and New Harmony, Indiana. The numerous documents and photographs concerning New Harmony and especially the continuously running video portrayal of the contributions back and forth made Peg and me feel as if we had just sat down for coffee with our friends at Sara’s Harmony Way coffee shop in New Harmony.
So it appears to Peg and me and to other friends of ours from New Harmony, such as Nathan and Jeanne Maudlin who have also been to New Lanark and strongly recommended we put it on our Scotland vacation itinerary, that Thomas Wolfe’s melancholy lament may be wrong. Perhaps “you can go home again” if you are from New Harmony and go to New Lanark.
The Constitutional Convention and Cable News
The Constitutional Convention was held in Philadelphia in 1787. The delegates kept the proceedings secret to avoid, “licentious publications of their proceedings.” James Madison, the Father of the Constitution, stated that no Constitution would have ever been adopted if the debates had been public. Remarkably, for four months the secrecy was maintained.
Can you imagine the motives CNN, FOX and MSNBC would have projected upon George Washington, et. al.? No delegate would have escaped the allegations of lying or even treason to the Revolution.
But inside the Convention the fifty-five delegates, half of whom were lawyers, debated the most volatile issues of the day. Slavery, whether we would have one-man-one-vote or an electoral college, large states versus small states, foreign attachments, the establishment of courts, provision for national defense and many others. How did they do it?
Of course, I do not know. However, I am pretty sure no one was called a liar for stating his views and no one was ascribed venal motives. Most likely George Washington as the presiding officer of the Convention made sure each delegate had an opportunity to present his views and everyone else had an opportunity to respond.
Maybe it is because I am a judge and once practiced law but it seems likely to me the Constitutional Convention proceeded much as a court case. First an issue would be brought up, States’ Rights for example, then each delegate who wished to would state his position. Then, after extensive but civilized debate a vote would be taken.
This time honored approach to resolving controversies has served the legal system and America well for over two hundred years. First define the issues for resolution, a criminal trial for example, then allow each side to fully present their views without threats or name-calling.
I humbly suggest this same respectful approach will work in every conversation from government to individuals. Shouting down or using force to prevent those one disagrees with from speaking will not result in the kind of result we achieved in 1787.
As I was writing this column I received an email and an attachment from my friend Jerry Wade of New Harmony, Indiana who used to live in New York City and who still subscribes to the New York Times.
Jerry must have been really bored recently because he has obviously been following my column about our country’s increasingly uncivil discourse. Jerry sent me an article by Bret Stephens that appeared as an opinion editorial in The Times. It contained an excellent analysis of the current climate surrounding “Freedom of Speech”, a.k.a., “If you don’t agree with me, you must be crazy!”
I will share a small portion of Stephens’ article with you.
“We disagree about racial issues, bathroom policy, health care laws and, of course, the 45th president. We express our disagreements in radio and cable rants in ways that are increasingly virulent; street and campus protests that are increasingly violent; and personal conversations that are increasingly embittering.”
Stephens does suggest a solution:
“… [T]o disagree well you must first understand well. You have to read deeply, listen carefully, watch closely. You need to grant your adversary moral respect; give him the intellectual benefit of doubt; have sympathy for his motives and participate empathically with his line of reasoning. And you need to allow for the possibility that you might yet be persuaded of what he has to say.”
In other words, to have productive intellectual discourse we have to first concentrate on being civil.