by Judge Robert B. Foster
Voice of the Judiciary
This past December 30th marked the first anniversary of my taking the oath as a Justice of the Land Court. Now that I’m no longer a rookie judge, it’s a good time to reflect on my first year on the bench.
First, let me answer the two questions everyone asks. Yes, there is a gavel on the bench, but I’ve never used it. No, the court didn’t give me a robe; I bought it myself, online. Very quickly, I learned to hike it up when I sit down so I don’t get it caught under the wheel of my chair. It took me longer to learn the Court’s internal procedures and to navigate the route to our courtrooms. The Land Court staff was enormously helpful and patient in guiding me through these equally difficult mazes. I especially appreciate their many subtle, face-saving hints, such as, “No, judge, that’s the elevator for the prisoners!”
What I never fully appreciated until I joined the bench, though, was the paradox at the heart of judging. I am constrained by the law—no matter what I think, I am legally, ethically, and morally bound to follow the law as stated in our statutes and interpreted by the SJC and Appeals Court, and to apply that law to the facts of the case to the best of my ability. At the same time, in every case I must make decisions, for the most part unreviewable, for which there is no other guide but my knowledge guided by my experience—for lack of a better word, my judgment. More often than not, these decisions test that judgment, and I am left to do my best, knowing that a decision is necessary, even if it is not the one that others might make or that even I might make with more experience.
It is with this paradox that I most need the lawyers’ help. I always try to remember that lawyers are before me because they are helping clients who believe they have been wronged. At the same time, lawyers should know that they are my partners in our common pursuit of justice. I’m fully aware that how the law applies to the facts is not often self-evident. Like every judge, I rely on the lawyers for well-written, well-researched briefs that educate me about the case. I need the lawyers to bring to my attention all applicable law, including contrary cases, and all relevant facts, even the unfavorable ones. The lawyer’s job is to show me the path through all the facts and the law, good and bad, to the result the lawyer is seeking.
Oral argument is as important to me as the briefs. On motions to dismiss or for summary judgment, I use the oral argument to test the limits of each side’s position and to give one side the chance to respond to the other side’s arguments. I look for where the parties agree so that I can identify what’s really disputed. But where oral argument is especially important is in helping me with the “judgment” decisions, for which there are always considerations beyond a reading of the law. This is where the lawyer’s advocacy skills really come into play. I need the lawyers to make sure that I’m taking into account all the considerations important to their clients when I make a decision.
To that end, allow me to provide some advice, based on my entire fourteen months on the bench. The lawyer’s presence and behavior in court has a profound effect on the proceedings. This is especially true at trial, where counsel is, in effect, the surrogate for the party, and where the lawyers and I are interacting over the course of several days. It is important to remember that, like the Eye of Sauron, “I see you.” I see every eye roll in response to an opponent’s argument, every shrug in response to a sustained objection, every whisper to co-counsel in response to disbelieved testimony. I especially notice the demeanor and behavior of counsel towards the witness and towards opposing counsel. I’m happy to say that the vast majority of the lawyers before me show real courtesy and civility to each other and to witnesses. But the lawyer’s demeanor goes deeper than civility.
Many lawyers, it seems to me, advocate from anger. This is natural—after all, the lawyer is here because her client, whether plaintiff or defendant, claims to have been wronged by the actions of the other side. The lawyer wants me to understand, even to feel the injustice done to her client. The most direct way to communicate this injustice, many lawyers believe, is to express the anger that their clients naturally feel at being in court.
This approach, while understandable, is ultimately self-defeating. Anger begets anger, and interferes with reaching a just outcome, either negotiated among the parties or issued by the judge. My experience has been that the most effective lawyers advocate from a position, dare I say it, of joy. They express joy at the opportunity to present their clients’ stories and to convince me of the justice of their cause. This is not some new age inner bliss; it is the fierce joy of battle. These lawyers relish the give and take, and embrace the role of partner with the court in reaching the right outcome for their clients. Advocating from joy does not mean shying away from one’s position; the most zealous and vigorous advocates in my court have been the joyous ones. In enjoying their advocacy, they give emotional support to their position. They invite, rather than insist, that the judge join them in looking favorably on their clients. They lead the judge to the conclusion that ruling for their clients is necessary to follow justice.
At my swearing in, I quoted those words of Moses: “Justice, justice shalt thou follow.” My rookie year has convinced me more than ever that this is our task, to follow justice. It is the work of a lifetime, both for me as a judge and for the lawyers appearing before me. But it is one we all should pursue with joy. As the saying goes, it is not incumbent upon us to finish the task, but neither are we free to desist from doing it.
Robert Foster is a Justice of the Massachusetts Land Court. Before his 2011 appointment, he practiced with Rackemann, Sawyer & Brewster, P.C. He is a graduate of Haverford College and Harvard Law School.