Dear Editor,
I would like suggestions on how to wake the snoozing judge. I’d like to think I’m not the only boring attorney in Utah. I understand why judges snooze. But each case is important to the litigant and it’s frustrating to make an important point I know will not be heard. I’d be interested to hear from attorneys and from judges. I’ve seen the problem in more than one county, but since my practice is pretty geographically limited, I’d rather not be identified.
Anonymous
The Board of Editors asked Judge Gregory K. Orme, the Bar Journal’s judicial advisor, to respond to this letter. His response follows, and the views expressed are solely his own:
I’m not going to answer with a defense, a denial, or a rationalization. And I’ll skip the part about some judges closing their eyes as part of a deep concentration technique. I actually have no reason to doubt the accuracy of the writer’s observation. And my guess is he or she is talking about the same judges I have observed nodding off in meetings and at conferences. In that setting, it is embarrassing, impolite and unprofessional. In the courtroom, it is downright unethical. See, e.g., In the Matter of Carpenter, 17 P.3d 91 (Arizona 2001) (judge removed from office for, inter alia, sleeping on the bench, despite claim he suffered from narcolepsy); Public Admonition of Kleimann (Texas State Commission on Judicial Conduct March 1, 2002) (judge admonished for repeatedly sleeping while on the bench, the commission noting that “sleeping on the bench erodes public confidence in the judiciary by sending the message that the judge lacks concern for the proceedings at hand and for the judge’s duties under the law”); Committee Report and Stipulations (Coffey) (New Hampshire Judicial Conduct Committee August 23, 2006) (in stipulated informal resolution of complaints of sleeping leveled against judge who happened to be a member of the conduct committee, special investigatory panel had observed that judge’s conduct would not qualify as sleeping, “as that term is generally understood,” but that it believed credible reports of her head falling forward or to the side as she obviously fought to stay awake would support finding of ethical violation because of appearance of impropriety). But see In the Matter of Cothren, No. 28 (Alabama Court of the Judiciary January 22, 1998) (in reprimanding and suspending judge for other ethical violations, Court of the Judiciary imposed no sanction on the judge for dozing off on bench in view of the judge’s sleep apnea and another medical condition, for which he had been treated in the past).
I would hope this letter could serve as, well, a wake-up call to judges with a tendency to nod off from time to time. Judges, if this is your problem, get more sleep; see a doctor (there are now sleep specialists); pop some NoDoz; take more breaks; drink as many caffeinated beverages as it takes; stand at the bench (citing, perhaps, your lower back pain); acknowledge your problem and invite counsel to be vigilant in calling any lapses to your attention. Whatever it takes! You’re not going to tolerate lawyers snoozing away at counsel table or a juror catching up on his rest during trial. You simply must hold yourself to the same standard.
Attorneys, while I’d probably let an isolated, momentary nod go, you need to deal with a judge who repeatedly dozes off in court and seems disinclined to do anything about it as you would any other ethical violation committed by a judge in your presence.
A little harsh? Does it seem I may have woken up on the wrong side of the bed – or the bench? Then the reader is directed to the essay by Learned Ham, later in this issue, for his unique spin on the question. Finally, I wish to acknowledge Cynthia Gray, Director of the American Judicature Society’s Center for Judicial Ethics, who provided me with the specific cases cited above.