Norm Pattis ()
Rumor has it that new federal judges are required to read a secret copy of a cult classic among jurists. Although the author of the text is unknown, it’s title is known: It’s called “The Fear of Lawyering.” Some say it’s loosely modeled after Erica Jong’s “Fear of Flying,” although I myself doubt it. Perhaps I am simply unable to associate the long robes of justice with Jong’s libidinal hijinks.
Of course, this is just a rumor. But there is circumstantial evidence that some judges, perhaps new judges most of all, have a fear of lawyers. Why else the attitude that seems to regard lawyers in the well of court as akin to monkeys in a zoo, monkeys in need of a cage, lest they run rampant throughout the courtroom and soil the very carpet of justice?
“I just needed to make sure you actually exist,” the caller said. He was a member of the New York bar, who had traveled recently to Connecticut to try a case in federal court. The judge in that case informed the lawyers of what he told me was “The Pattis Rule.” It involves restrictions on when and where lawyers may stand in the court during presentation of their case.
An eponymous rule? I couldn’t tell whether to be flattered. I have not appeared in front of this judge in a jury trial for many years now, so I can’t recall the source of the rule. I don’t think I ever tap-danced on the jury rail, or otherwise elbowed a jury foreman as I took a seat among the jurors to get a better look at some prevaricating witness.
Just the other day another solon sat in justice’s control tower. We were being briefed on the idiosyncratic tics that would govern this particular runway. It wasn’t all that onerous a list of dos and don’ts, although it made me uncomfortable that the judge was looking at me through most of this orientation on manners.
I did stand to object, however, when a shocker was revealed: We were to have 30 minutes for closing arguments. A mere 1,800 seconds did not seem like much, so I asked for more. It took more work than it should have to get all of 45 minutes to plead for my client’s liberty.
I know that attention spans have decreased in the digital age, but requiring that the 140-character ethos of Twitterdom be the standard for closing arguments seems a bit much. Sure, we can’t play Clarence Darrow and argue for hours. Those days are gone. But rationing closing arguments and tethering them to such a niggardly timepiece is simply insulting.
What trend does this reflect?
As I watch the judge conduct voir dire — permission to address the panel by the lawyers was, of course, denied — I saw the fear of lawyering in action. Do judges really think we advocates are evil magicians, capable of seducing jurors if permitted to speak?
But the coup de grace came during trial itself.
A witness muttered something at the tail end of an answer, some prejudicial swipe at my client that was inconsistent with the court’s prior rulings on what was admissible.
“May we approach, judge,” I said, rising, as I was told I must, from my seat. I wanted to alert the court to my objection without drawing attention to the issue I wanted to raise.
“No,” the judge said, abruptly, without snapping his head back toward the witness. I was slapped. I renewed the request. Again denied.
A few minutes later, at a sidebar the judge requested, I raised the issue I had earlier asked to discuss.
“I didn’t hear the witness say that,” the judge said. Both the prosecutor and I did hear it, however. I asked the judge to consider trusting us. I told him I would not ask to approach for exercise’s sake.
Why this fear of lawyers? Aren’t we all officers of the same court? Don’t lawyers, like judges, have a role in the presentation of evidence? Of course, we do. Sure, we need to be restrained from time to time. But don’t apply too tight a leash, judge. Justice doesn’t require it, even if that occult classic,”The Fear of Lawyering,” does.•