Utah Bar Journal

“Perhaps this will refresh your memory.”
Ten Ways to Reduce Judicial Stress
by Judge Steven Wallace

For many years I kept before me on the bench, out of the sight of litigants, my favorite James Thurber cartoon. It is a courtroom scene, the judge on the bench, a witness on the stand, and the cross-examining lawyer, sternly pointing to a kangaroo he has in tow and facing the witness, saying: “Perhaps this will refresh your memory.”

In the cartoon, the judge has a “Now what?” expression on his face and you just know that he’s churning inside, wondering when the chief judge is going to transfer him back to probate. Of course, the whole thing is nonsensical and trying to make sense of it is part of the amusement Thurber planned. But for a real life judge, making sense of what the real lawyers are doing in a very real courtroom, at times, may stretch a jurist’s very finite anti-stress capacity.

A judge needs a way to cope with everyday stressors such as lawyers with kangaroos and other adversarial shenanigans. In his or her battle against the demands of a very important, powerful job, many of the same stress-reduction techniques can be utilized that are available to other high octane professionals. Some of what follows are generally recognized stress combatants. Some are more judicially oriented than not. But all of the ten methods included here have one thing in common: the opposite of each causes stress.

Exercise Regularly
Perhaps the most important anti-stress remedy available to a judge, as with anyone else, is regular (if not daily) exercise. Visit your physician, find out what sort of fitness program is recommended for you, then – as they say – just do it.

What’s important here is to find a way to make this a part of your routine, like brushing your teeth. The hardest part is dealing with the common rationalizations not to do it: I’m too tired, it’s too late, it’s too dark, it’s too cold (hot), I don’t have time, or whatever. The list can be endless. But whether it’s a thirty minute walk, a jog around the park, or a treadmill in chambers, the stress-relieving benefits of aerobic exercise are well-documented.

Because I’m a morning person, I typically exercise as the day begins. Years ago, I jogged during lunch time. I have also used pre-dinner runs to work the day’s stressors off, shedding courtroom frustrations and docket distractions like so many noxious microorganisms.

You need to apply the single-minded dedication that you brought to bear on getting to where you are professionally and make regular exercise something you can’t live without.

Get Sufficient Sleep
Everyone needs their rest, and hard-working professionals in demanding, mentally-taxing jobs need it most of all. It shouldn’t take too much effort to figure out what your minimum daily requirement is. Most of us need at least seven or eight hours of sleep per day. Perhaps there are some present-day Churchills out there who can get by with less. In any event, as with exercise, the physical and psychic benefits of sleep are not open to question. In fact, we have learned that the former promotes the latter. Just make sure that, if you exercise at the end of the day, you leave at least three hours before you go to bed.

A well-rested judge is a patient, understanding judge. On the other hand, a tired or strung-out judge is not someone any lawyer or litigant ought to have to suffer. Getting a good night’s sleep will enhance your ability to deal with stress and add to your life span as a direct result.

Control Your Docket
This is one of those things that’s easier said than done and, certainly, the subject for a whole other article. See Eight Rules for Judicial Time Management, Judicature Vol 91, No. 2, Sept-Oct 2007, by the author. Simply put, a judge needs to employ time management skills in controlling his or her calendar or risk being buried by it. Now, that’s stress.

Just as “it’s too cold” is a poor rationalization for not exercising, “I have too many cases” is a poor rationalization for losing control of one’s docket. If you start on time, work a full day, don’t feel compelled to quit at five, and keep the pressure on the lawyers to close cases, you’ll have made great gains toward not letting the number of pending cases bog you down.

If you set aside time every day to work on the stacks of files on your desk, if you don’t talk too much while on the bench, if you don’t let the lawyers run the show, and if you minimize continuances, you’ll be amazed how many cases you can close every week.

Once you have control of your docket, you have control over one of the biggest stressors in a judge’s life. A judge, after all, is supposed to be in control. But it takes application and courage and a common sense recognition that continuance requests are not your friend. It’s a fair bet that the judge who most readily grants continuances requests that lack good cause has the highest case count in the courthouse.

Actually, I have always found it amazing how readily a denial of a requested delay results in a case resolution. Perhaps that is a function of how infrequently continuance requests are grounded in real necessity. Perhaps it reflects back-against-the-wall case negotiation. In any event, the judge’s docket gets managed and – as a result – the judge’s stress level remains under control as well.

Decide, Then Move On
Incredibly, there are judges who shy away from making decisions. Just like the claustrophobic elevator operator, perhaps someone has been miscast. It has always both amused and annoyed me when I’ve seen fellow judges who seem to avoid looking across the bench at lawyers and litigants and deciding a case eyeball-to-eyeball. “I’ll take it under advisement,” the judge says, intending to mail them a decision.

Perhaps this is one of the reasons that experienced trial lawyers often transition so well into judgeships. They are used to the pressure of the courtroom and the constant, spur-of-the-moment decision-making process.

There’s no reason why a trial level judge should not be able to make decisions in the courtroom, look the parties in the eye, and tell them who won and who lost. “Motion to suppress is granted.” Unless he or she does not know whether it should be granted or denied, but that is a whole other issue.

The great baseball pitcher Satchel Paige once said: “Don’t look back, something might be gaining on you.” That philosophy has a valid application to judging and the decision-making process. Decide, then move on. Your stress level will benefit from it.

If In Doubt, Don’t
The other side of the coin is another truism: a judge should not feel compelled to decide if he or she has some substantive doubt regarding what the decision ought to be. There are times when one needs to think about it, or do a little research on one’s own (not that the lawyers would ever fail to provide the court with applicable, up-to-date law), or perhaps even take some additional evidence or testimony.

Stress is a natural result from feeling forced to make a decision without an adequate comfort level. People’s lives often weigh in the balance, after all. If a judge needs to take some additional time before gaining a reasonable foothold on the proper path to take, that extra effort is justified for everyone’s sake, including the stress level of the judge.

Sometimes, once the evidence and the argument have been presented and the lawyers and litigants look toward the judge, awaiting the judgment, one feels pressured to satisfy that expectation. And I’ve already proffered Rule 4, which urges decisions to be made, but that should not push a judge into making a ruling about which he or she is not fully certain. The point is, stress-wise, harboring doubt after a decision is made is not healthy for a judge.

Keep Current in the Law
To avoid the kind of tentativeness that can intrude on the decision-making process, a judge must keep current in the law. While no one can be expected to know it all, it is a given that the lawyers cannot always be depended upon to assist the court in steering without mishap through the myriad of issues that present themselves in a busy courtroom. Without a firm base in current law regarding the most oft-occurring common substantive, procedural and evidentiary matters, a judge’s decision-making comfort level can go down and his or her stress level can go up.

Even when a judge keeps current, of course, the vast quantity of material does not lend itself to immediate recall on the spur of the moment when an objection is raised or a procedure questioned. One way to maintain a tip-of-the-finger reference is a courtroom notebook, with tabbed dividers denoting subjects to which one can flip when needing to check on a recent case or a general rule. This notebook can be continually updated as one keeps current, adding whatever points of law one suspects may be encountered in the courtroom.

The Importance of Lawyers and Judges in American Life

by Judge Dale A. Kimball
EDITOR’S NOTE: The following is Judge Kimball’s Keynote Address, given at the Utah State Bar Summer Convention in San Diego, California on July 7, 2011. We thank Judge Kimball for agreeing to let us share his speech with you here.

This is a beautiful place. I am happy and honored to be giving this speech this morning. The title of my address is: “The Importance of Lawyers and Judges in American Life.” You will, of course, note from that cleverly broad title that I can speak today about anything I choose. Let me admit that my remarks may be somewhat biased because I have now been a Federal Judge for a long time, perhaps too long. Evidence of that may be that on a very cold day this past spring, I realized as I was walking past Judge Benson’s courtroom on the way to the elevator to go home that, instead of my overcoat, I had put on my robe over my suit.

by J. Frederic Voros, Jr.

After nearly two decades as an appellate lawyer, I was appointed to the Utah Court of Appeals. I now see the appellate process from the opposite point of view. I went from a producer of briefs and a consumer of opinions to a consumer of briefs and a producer of opinions; from a persuader to a target of others’ persuasion; from interrogatee to interrogator in oral argument. This shift in perspective has raised to my level of consciousness this thought: to persuade a judge, as to catch a thief, you must think like one.

Report from 7500 Feet
by Justice Michael J. Wilkins

The National Conference of Commissioners on Uniform State Laws (who?) met in Big Sky, Montana in July. Big Sky is a ski resort town with beautiful mountains, about one third of the charm of Utah’s ski areas, and very very thin air. Oh, and no directional signs for finding the hotels. Even my computerized guidance system gave up about three miles short of the target. “No further guidance will be provided,” she said. With raindrops the size of small fists hitting my windshield and overwhelming my wipers, I eventually blundered my way into the Big Sky Ski Resort area at 7500 feet. The hotels and resort buildings all face the mountains, and frame a breathtaking view (literally). They also occupy nearly all of the available flat ground. Parking is an issue. I recommend the SmartCar for your visit. I, of course, drove the Sequoia (a large SUV of Japanese ancestry that has yet to adjust adequately to the fuel price crisis). The drive from Salt Lake took a mere 6 hours. I had arrived for my first annual conference of the NCCUSL, also known as the Uniform Law Commission.

Statements of Material Fact: Increasing Effectiveness and Avoiding Pitfalls

by Judge Anthony B. Quinn and Joanna E. Miller

Utah Rule of Civil Procedure 7, is a precise rule with clear consequences for noncompliance. However, the current practice with respect to rule 7 is anything but clear or precise. From a trial court’s perspective there are two explanations for this lack of clarity: Utah attorneys have become adept at avoiding the intention of the rule and Utah appellate decisions have not been clear about the discretion a trial court has to deem facts admitted for a failure to comply with the rule. This article seeks to clarify the purpose of rule 7, to outline the appellate confusion about its application and to present at least one judge’s view of how the rule should operate.

Senior Attorneys for Low-Income Litigants
by Judge Sam McVey

I hope to generate a discussion in the Bar Journal and elsewhere of new ideas addressing an old problem – providing legal representation to litigants who can’t afford attorneys and aren’t among the few who get help from Legal Services, Legal Aid, or attorneys who do pro bono work.

What I Know Now that I Wish I Had Known When I Was Practicing
by Judge Royal I. Hansen

In the company of Judges Terry Christiansen, Stephen Roth, Robert Adkins, Elizabeth Lindsley, Dane Nolan and Christine Decker and Commissioner Michelle Tack, I sit in the state's newest courthouse, located in West Jordan. It is the second largest state judicial complex and represents a consolidation of the Salt Lake County suburban courts. The second floor is dedicated to the Juvenile Court and the third floor houses the District Court. Courts in Sandy, Murray and West Valley have been closed. The West Jordan Division is a full service court. It has county-wide civil and geographical criminal jurisdiction, including the South Valley Felony Drug Court.

First Impressions
by Judge Carolyn B. McHugh

"Knowledge and timber shouldn't be
much used till they are seasoned."

Oliver Wendell Holmes
The Autocrat of the Breakfast Table, 1858

Because I agree with Justice Holmes and will not have been on the bench for a year until August 1, 2006, I am somewhat reluctant to share any "pearls of wisdom" at this early juncture. At the urging of my colleague and the Bar Journal's "judicial advisor," Judge Orme, I have acquiesced. There is, however, one advantage to being a rookie. I still identify strongly with those of you on the other side of the bench and am eager to provide whatever information you might find helpful. Thus, I have included my answers to the questions most frequently asked since I made this transition and have also added some observations that might help you to be a more effective appellate advocate.

Lessons from Kindergarten
by Justice Jill N. Parrish

EDITOR'S NOTE: Justice Parrish delivered these remarks on October 12, 2005 at the Admissions Ceremony for new inductees to the Utah State Bar.

Congratulations on passing the bar exam! You now have permission to practice what you've spent the last three years learning. You've proven that you can retain material not only long enough to pass a final exam, but long enough to convince the Bar Examiners (and all of us) that you are, in fact, qualified to practice law.

Learning Professionalism and Civility - Thoughts for New Members of the Bar

by Judge Derek P. Pullan

Every day, I am grateful for attorneys who have a clear view of the law, and are willing to impart that knowledge to me. In the legal profession, seeing things clearly does not come without sacrifice. I am regularly the beneficiary of your long hours of research, reading, and disciplined thought. Those who venture into the vast legal landscape know that the demands of the journey are real. Thank you for your conscientious work on behalf of your clients and the courts.

Remember, for Every Case Won at Oral Argument, the Other Side Loses

by Justice Michael J. Wilkins

As I sat through another oral argument before the Utah Supreme Court last month, I began to wonder if I could list the characteristics that differentiate the most successful advocates before our court from the least successful. I smiled to myself, and thought, "Well, the first characteristic is that they don't let me drift off mentally when they are at the podium." After the calendar concluded, I jotted down a few thoughts for my own amusement. As the list developed on paper, I realized that these were suggestions that I wish someone had given me when I was still on the other side of the bench. They apply nearly as well to the trial courts, and seem only common sense to me now that I have been privileged to participate in the court's side of appellate arguments for ten years. I offer them to you for what use you may be able to make of them.

Author; Justice Michael J. Wilkins, Utah Supreme Court

In an effort to enhance both the daily experience of lawyers, and the reputation of the bar as a whole, the Utah Supreme Court has recently joined a growing number of jurisdictions by adopting standards of professionalism and civility applicable to all members of the Bar, and to those lawyers who appear in our courts from other jurisdictions. These standards are not yet mandatory, but the Court anticipates judges throughout the state will begin educating counsel appearing in their courts on these standards when conduct needs improvement.

Someone I care about has recently admitted to a long-standing addiction that threatens to ruin a marriage "made in heaven," an extraordinary career, and, indeed, not just a life, but many lives. This person, like many lawyers, has always enjoyed a reputation for competence, skill, and personal strength: someone who "has it all together." By acknowledging addiction and seeking therapy, this person is facing loss of all the carefully constructed ways in which the addiction has allowed pain to be suppressed, self-doubt and anxiety to be held at bay, and a fundamental sense of inner emptiness to be assuaged, albeit temporarily and at great and constant risk. There are no guarantees this person will get well, but there is, for the first time in years, some hope. And the alternatives are pretty limited: illness, professional disaster, divorce, degradation, and death.

A few years ago, while attending the National Judicial College, I met a judge from another state who was lamenting the fact that he was running for reelection and, upon returning home, had to raise a great deal of money. His jurisdiction covered three rural counties. I asked him how much money he needed to raise, and he replied, "Well over a hundred thousand dollars." I asked him where in the world he would get that amount of money, and he replied, "Well, principally from the local banks, farm implement dealers, and large farmers." I then asked what happens when one of those appeared in his courtroom as a party. He replied, "Well, it makes it pretty tough." I wondered at the time what kind of justice was served in that jurisdiction when the judge, obligated and sworn to uphold and apply the law, was subject to such pressure.

EDITOR'S NOTE: The following remarks were made by Judge Kimball on May 1, 2003, at the annual Law Day Luncheon sponsored by the Utah State Bar's Young Lawyers Division. Judge Kimball has graciously permitted his remarks to be reprinted here.

I have been asked to share with the Utah Bar my perspectives on courtroom practices of successful lawyers, especially those that I appreciate as a trial judge. My emphasis is not on techniques but more on behavior or conduct. As I do so, I really have in mind the younger members of our profession. Thus, I hope that the more seasoned in our profession will forgive me if, at times, I state the obvious. I will begin with some general observations, and then I will focus my comments on motion practice, trial practice, professionalism, and civility.

I am retiring after sixteen years as a trial judge in Cedar City. There are new attorneys who only know legal terms from law school. I am writing this article to provide them insight into what some of those terms really mean, and to give some other observations.

My class at the University of Utah was the first after the end of World War II. We started in September 1945, just one month after the war ended in the Pacific. There were sixty of us, fifty-nine men and one woman - Lucy Redd. By the time we graduated in the spring of 1948, there were only about thirty of us left, including Lucy. In that graduating class were also James E. Faust, Glenn Hanni, Wilford Kirton, Earl Tanner, Maurice Richards, and Verl Ritchie, just to name a few.

Introduction
The seven founding judges of the new Utah Court of Appeals took their oaths of office on January 17, 1987. Utah became the thirty-seventh state to organize a court of appeals. The first was Ohio in 1851 and the last was Mississippi in 1995.2 In 2004, Nevadans will vote on the formation of a state appellate court.3 Our initial judges and limited staff were required to expend enormous effort to simultaneously set up the court, begin processing one-half of the Supreme Court's one-thousand case backlog and take on new filings. In order to survive and succeed, the judges adopted the motto, "We Are Driven."

As I stand on the top of Angel's Landing in Zion National Park there are spectacular views in every direction. I can look north, up the canyon to the Temple of Sinawava, south down the canyon, east across the canyon to the Great White Throne, or west to the treacherous trail over which I just came. As I consider this "View from the Bench," I feel somewhat the same way. From my perspective early in the transition from lawyer to judge, I can look back down the canyon, reflecting on the almost 21 years in the practice which are still fresh on my mind, or up the canyon towards what I hope will be a long and productive career on the bench. Maybe a little of both will be in order for this article.

A high degree of intelligence, patriotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people, the legislative assembly shall make provision for the establishment and maintenance of a system of public schools . . . .

Section 147, Constitution of North Dakota

EDITOR'S NOTE: In 1987, Anne Stirba was named the Utah State Bar's Outstanding Young Lawyer of the Year. This summer, the Bar honored her as Judge of the Year. In the span of years in between, she served as an administrative law judge, Assistant U.S. Attorney, and Third District Court Judge. She served terms as a Bar Commissioner and member of the Judicial Council. During most of that time, she also fought a quiet and determined battle against cancer, which could not kill her professionalism, devotion to family and friends, or keen sense of humor, but eventually took her life. The following remarks were made by Justice Christine Durham and Judge Tyrone Medley at Judge Stirba's funeral, held on July 19, 2001. Justice Durham and Judge Medley have graciously permitted them to be reprinted here.

Swapping stories of outrageous conduct is a favorite lawyer pastime. I remember as a young lawyer being regaled with tales of one prominent litigator in particular. One of his favorite tactics was to mouth obscenities at the opposing lawyers as he walked back to counsel table after examining a witness. By the time he turned around to again face the judge and jury he was the very model of decorum and solemnity.

Editor's Note: The following remarks were made by Judge J. Thomas Greene at the Federal Bar Association's Annual Litigation Practice Seminar, held on November 3, 2000. He has graciously permitted them to be reprinted here.

by Judge Gregory K. Orme, Utah Court of Appeals

Editor’s note: Except as otherwise noted, the views expressed are those of the author and not the Utah Court of Appeals; any other judge thereof, past or present; any other person, real or fictional; or Major League Baseball.

Many years ago, I wrote a column for the Salt Lake County Bar & Bench Bulletin called "De Minimis," borrowed from the well-worn (but blatantly untrue) Latin adage,"De minimis non curat lex" - roughly,"The law does not deal with trifles." It permitted me to spend just a paragraph or two on a comparatively small matter. The idea, at least, was that even though each topic was not worth a whole column, taken together, they might be. I want to follow that same format in this article, using that term loosely, and mention just a few little things. (Some might call many of these"pet peeves," but that sounds so negative.)