The Joy of Circuit Riding
Lawyers ought to be required to ride circuit, to travel to different regions of the country and appear in courts and before judges they do not know. The forms of justice aren’t rigid and ossified. Justice, if that is what we truly do in a courtroom, comes in many forms. There just isn’t only one way of doing things.
I am reminded of this by the presence just now in Connecticut of visiting federal judges. We no longer have anywhere near a full complement of federal judges on the bench in Connecticut. Death, illness and elevation to the appellate court have thinned the ranks. The result is backlog and delay. Visiting judges from other regions are circulating through the state, hearing cases.
I was before Tucker Melancon not long ago. He’s become a regular here in Connecticut. Although he was appointed to serve in Louisiana, he now maintains permanent chambers in New York, and he is in Connecticut often. Appearing before him proves that region matters: Judge Melancon brings a gentlemanly style to the proceedings different in tone to the normally polite, though brusque, manner of New England.
My first trial before him was exhausting. It was not that the facts or law were so complex, they were not: the case was a straightforward police misconduct case tried against an adversary I know well. What was different was the sense of what I shall call, for lack of a better term, courtliness. I felt as though I were being wooed by he judge, urged to come reason together, to lower my guard and reach for some better version of myself.
Of course, I could stand the pressure of all that politeness for only so long. By trial’s end, I had reverted to form, and was sparring with the judge, and, I dare say, my own shadow. Some habits are hard to break.
In truth, the South scares me. When I travel there, I am always amazed at how singsongy nice everyone is. It is almost as though folks work extra hard to appear to be kind. In my crabby northern way, I see this as the legacy of the Civil War: Sure, we’ll humor the carpetbaggers, but don’t forget for a moment we’ve got a gun in the car. Smile or we’ll shoot once the light goes dim, or so it feels to me.
I will be in trial before Judge Melancon again and soon. I find myself preparing myself as much for the assault of his good manners as I do for the glib cross-examinations of my adversary.
In sharp contrast to the singsong sweetness of the South, stands Manhattan’s no-nonsense brutality. When I stood before Judge Juan Merchan on behalf of a client not long ago, I could not help but tremor every so slightly. New York judges seem to feast on lawyers. I’ve twice seen New York lawyers dressed down by New York judges in ways that mortified me. Judge Merchan is all business, and he makes it clear that he has little tolerance for the sort of monkey business that sometimes makes court more fun that it is supposed to be. Traveling into Manhattan to handle a case always makes me feel like someone’s somewhat slow Uncle Ernie, summoned in from hustings to celebrate a holiday.
We negotiated a plea deal to resolve the case before Judge Merchan, and almost everything about how the negotiations take place, how the plea is taken, how judgment is to be imposed, differs from Connecticut practice. Spotting these differences made clear both how immaterial differences in procedure can be, and how important are the rights guaranteed by the federal Constitution.
I’ll be appearing in a California court soon on a new case, a whole new world. I recall many years ago trying a case in Northern California and feeling lost from time to time. It was as though the judge were speaking a foreign language. I hope I understand the next judge I meet there a little better.
I say traveling outside your comfort zone makes you a better lawyer. It forces you to listen, to separate the important from mere matters of form, to focus on the merits of your case and to take nothing for granted. Rather than erect barriers to the multi-district practice of law, we ought to lower them. Indeed, I’ll go one step further: Make circuit rides of us all.
Reprinted courtesy of the Connecticut Law Tribune.