James M. Redwine

Case In Point

Common Law Is Common Sense

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There are two general categories of American law: Civil Law (statutes and other written rules), and Common Law (case decisions or judge-made law). Civil law normally comes from a legislative body such as Congress and is published in the form of statues. Common Law is derived from precedent, that is, deciding a current legal controversy by referring to how similar controversies have been resolved by judges in the past. Another way of looking at Common Law is thinking about how we all learn things from our parents, in other words, benefitting from their good and bad experiences which they share with us.

If you should be among that select few who regularly read this column you may recall a couple of weeks ago we were considering the Common Law/Common Sense guidance set forth by some of my fellow alumni and alumnae of the National Judicial College in Reno, Nevada. I find I have learned more from the wisdom of my fellow judges than any classroom. You probably feel the same way about how you have relied on the good and bad experiences of others to help you repeat or avoid similar situations.

Following are a few more “Common Laws” taken from an article in Case In Point, the NJC 2017-2018 publication concerning, Things Judges Wish They Had Known BEFORE They Took The Bench:

“Part of a judge’s developed skill, especially a rural judge, is having a feel for whether or not a particular case will actually go to trial. This helps immensely with case scheduling, jury summoning and with the possibility of a judge getting a good night’s sleep almost every night. I finally concluded that a lesson could be learned from the occupation of circus ringmaster.”
Hon. Jess B. Clanton, Jr. (Ret.), 12th Judicial District, Oklahoma;

“How much this job would change how I view the world. I had spent 30 years as a police officer prior to being appointed, and I thought I had a good view of the world. This job made me step back and really look at everything-everything I did, everything I posted, everything I said to friends and how I acted in public and around my family. I really wanted people to look at me and respect me for the job I was doing. In doing so, I had to step up and make sure I was worthy.”
Hon. Kevin L Wilson, Justice of the Peace Court, Kent County, Delaware;

“How hard it is to be firm and uphold the values and rules when the person in front of you has been so beaten down by life that it makes it feel like you are kicking a poor wounded animal. … Somewhere in the middle you have to find justice.”
Hon. Jeanette L. Umphress, Municipal Court of Yuma County, Arizona;

“You are only as good as your worst hearing.”
Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One; and,

“Never, NEVER go on the bench with a full bladder!”
Hon. Peter H. Wolf, Superior Court, District of Columbia

Judicial Lodestones & Amulets

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The National Judicial College teaches thousands of judges. As a faculty member for 22 years I have learned a great deal more than I have taught. The student judges’ collective experience and wisdom have often been what I have looked to when I was not sure where else to turn with a difficult situation.

For instance, when I feel myself getting angry at someone in front of me, say a recalcitrant spouse in a divorce, an unfeeling defendant in a child molesting case or an attorney whose style is of the button-pushing genre, I remind myself of what Socrates said:

“A judge’s duty is to do justice, not make a present of it.”

In other words, the power I can wield is not Jim Redwine’s power; it belongs to the people.

And when a problem such as lack of resources or a need for courthouse renovation becomes so severe people are denied justice I remind myself of what Robert Kennedy said:

“Some look at things and ask ‘Why?’, I dream of what things could be and ask, ‘Why not?’”

Or more prosaically, my quote the National Judicial College just published in their magazine, Case In Point, page 35:

“It’s better to go ahead and do good than to fear the lack of authority.”

The NJC collected such guidelines from 50 judges from all over America for the most recent edition. I find several of their thoughts helpful both for judges and those who may need a judge. The college asked us for brief statements of, “What we wish we had known before we became judges”. I will set forth a few.

“That I was giving up my individual identity. Your personal opinions and views are restricted in context at all times. Pretty soon you can begin to forget who you are.”
Judge Jan Satterfield, 13th district Court, KS

“The job doesn’t pay enough to be a jerk! Mistakes in applying law or reviewing facts are expected. Arrogance from the bench is inexcusable. Litigants will often decide how all judges act from their contact with you. Don’t get us a bad review.”
Judge Gregory D. Smith, Municipal Court, TN

“That folks would really believe that my court would be just like Judge Judy’s show.”
Judge Cynthia L. Brewer, Chancery Court, MS

“How dangerous it is to walk down stairs in a robe!”
Judge Stephen D. Hill, Kansas Court of Appeals

Perhaps we can look at some other gems of judicial learning later.