Judge should read "Mistakes Were Made" and "Sway"...
I get an occasional publication from the California State Bar section for solo firms. (I actually only joined it so I could get access to the regs for paralegals because I was teaching "Paralegal Studies" at ITT Tech. A joy I will not go into here.)
I always read these pubs, because I am always curious to know what the legal profession is up to, even when I am mostly avoiding DOING what they are up to.
The most recent issue has an article called "Trial Courts have Limited Power to Order Mediation". The point of the story seems to be that there are judges ordering mediation they do not have statutory authority to order. (Of course, as the article is written by an attorney, it is unclear...)
But what most struck me was the assertion that the attorneys who found that a judge has mistakenly/inappropriately ordered them to mediation dared not say as much to the judge. "Because counsel will not won any points for reminding judges about Rule 3.891...they should agree... notwithstanding the inappropriateness of the order" the author writes. Or they should BOTH disagree "jointly in very understated terms" so the "bench officer's displeasure will be evenly distributed."
(Note the best interest of the client nowhere appears, here.)
I have had judges say as much-- that they do not want counsel to tell them they are wrong. I had a judge say that he disliked it when counsel began a sentence "With all due respect..." because it meant the attorney was going to say s/he disagreed with the judge.
Now think about this--first off it is the JOB of counsel to argue for his/her client within the bounds of the law--so someone is pretty much always DUTY BOUND to respectfully disagree with a ruling. It is an ethical duty!
But worse yet, the fact is that judges, in the cases discussed by this article, are FLAT OUT WRONG--on the law. And instead of being happy to be corrected when they are wrong, they are (apparently universally) going to hold it against the fool who dares speak the truth to their power. (I used to have toi do this as an intervenor in civil cases, for subrogation of Labor Code liens. The judges had not clue one about the Labor Code,and it as my duty to defend these liens... But I did what I had to do.)
I feel like writing to the author of this article and say "It is a good think we have found away to make sure our judges are so wise--otherwise it would be a terrible thing they can never admit to being wrong."
But if these judges were mandated to read the books which I read recently,and to which I referred in my title (and which I blogged about)--or the studies upon which both books were based-- they would know that being too invested in an opinion is often unwise, and defending a wrong position can be deadly. They MIGHT have some humility. But instead, they seem to feel they have a right to be wrong. I find this frightening.
I have wondered about the experiment with the twenty dollar bill which is auctioned--but the final two bidders must pay their bids. (They have paid as much as $240.) What makes those two individuals lock themselves into self destructive bids while everyone else watches. Why those two? Is there a gender distribution?
In any case, the real point is we know FAR TOO LITTLE about why people defend being "right" when they are wrong--but judges should be highly aware of how this works.
I wish. I guess we can hope that in (unethically) caving in to judges who have no idea where their power ends, some attorneys manage to have these mediations work!