Dear Nick and Dear Nora

Dear Pinky and Dear Spike

About Your Divorce

[Letter #28]

 Dear Nick and Nora:

Dear Pinky and Spike:

It’s been fourteen months since your sensational separation. You haven’t yet entered the eighteen- to thirty-six-month window during which you and your case will be ripe for settlement. For now, you and your case are quiescent, or inactive.

 At the moment there’s nothing I need to say to you, so I’m writing about the way your judge has been affected by your divorce. The resulting dynamics are complex, but we’ll gain valuable insight by focusing on your case.

Good Judging

 I admired the way Judge Maryland handled your hearing, and I concluded that she was an excellent judge. I thought she might have the courage and the energy to reverse the continual decline of family law practice I’ve observed over the past twenty years.

 But, as you’ll see, Judge Maryland’s determination to make a difference took a big personal toll on her, and she succumbed in a way that strikes me as especially craven. I can’t justify what she did, but I can explain both her actions and why the other judges have not been willing to do what she set out to do.

 Our Shame

 Because we were funnier than our teachers, the three of us spent a lot of time – together – in the principal’s office. It started in fifth grade and got continually worse through junior high. By high school I started to feel the emotional effect of being kicked out of (or excluded from) class; I know you both did, too. We eventually learned to let the teachers be the funny ones, and they stopped telling us to get out of their classrooms. (I’ve since learned that sending a student “to the principal’s office” is an attempt to discipline with shame. By “shame,” I mean the exclusion from or the fear of exclusion from one’s group or tribe.)[1]

 A Good Judge Pays a Price

 We want judges to perform as Judge Maryland did at your hearing. We want them to stand up to lawyers who are unprofessional, who inflame a case, and who enrage the parties to generate high fees for themselves. As you’ll see, judges can pay a price for being good. Judge Maryland incurred the wrath of a Murder[2] of divorce lawyers; their retribution was to shame her for being a good judge.

 When Judge Maryland is assigned to a case, and one of the lawyers challenges her on the ground that she can’t be impartial because of her prejudice toward him, Judge Maryland is given a chance to disqualify herself from the case or to insist that she isn’t prejudiced. A “second judge” from another county is assigned to rule on whether Judge Maryland is or is not prejudiced against the lawyer. Since two or three of these challenges were made every week, Judge Maryland was continually “on trial” for her alleged prejudice.

 The fact that she is frequently challenged for cause automatically excludes her from that group of judges who are rarely or never challenged for cause. All or nearly all the good judges belong to the group.

 Each of these challenges came with a different “second judge.” It’s a “trial” where judges are judging judges so the outcome is predictable.[3] However, if just one of the “second judges” rules against Judge Maryland, it means that another judge has found that she is prejudiced against the challenging lawyer and that she lacks the self-awareness to know when she can’t be impartial.  She immediately loses her membership in another group of judges who are either not prejudiced toward a party or lawyer in the case or who have enough self-awareness to know when they can’t be impartial. The group from which she’s excluded will include all of the “good judges” on her bench. This would be shame by actual exclusion, and it could lead to generalized doubts within the bench and bar about her ability to properly perform the duties of a judge.[4]

 The Effect of Shame

 The only way I can estimate the effect of these actions on Judge Maryland is to imagine how it would be for me. I would want to do as she did in your case – and I would want to continue to work in the same way even if I were mobbed by a Murder of divorce lawyers and even if it became apparent that if I didn’t change my ways, I was likely to lose my job. If I could maintain such an attitude, it would be, in part, because I acquired some immunity against the effect of mild shame by hanging out with you two troublemakers.

 How often do you think the typical superior court judge was sent to the principal’s office? “Never” is a good guess. People who want to enforce rules (judges) are generally people who conform to them. One of the primary reasons people abide by rules is the fear of exclusion – shame.

 Do you think adults who were never sent to the principal’s office are more or less affected by the fear of exclusion than those who were frequently excluded from the classroom for failure to comply with the norm?

 The question can answer itself. I ask it because the most charitable explanation I can think of for Judge Maryland’s utter surrender is that she is seen by others as a good person, and she sees herself this way as well; she’s a welcomed and valued member of every group she belongs to. Because she’s always rightfully perceived herself as a thoroughly “good person,” she’s especially susceptible to shame in the form of both actual exclusion and the fear of exclusion.

 In the next letter I’ll tell you exactly how she gave up on being a good judge – after I report some interesting stuff I’ve learned about Judicial Misbehavior: what judges do to get themselves in trouble, how often it happens, and what’s done about it. I need to give a full explanation of what the Murder did to her, because it’s background you need to understand her behavior.

 From the two of you, no news is good news.

 Your oldest and best friend,

 Bucky

— Brian H. Burke is a Certified Family Law Specialist practicing Family Law & Mediation in Santa Barbara

 [1]Exclusion from a “primitive” tribe would probably be a death sentence. I’ve heard recently an aphorism to the effect that your family (or home) is a place you can go and they have to let you stay. I think for most people the possibility of being “disowned” by family is too awful to consider except in the very abstract.

  [2] The “poetic” noun to describe a bunch of crows is a “Murder.” When crows protect their nests against an intruder, the Murder “mobs” its target. I began to apply this terminology to divorce lawyers in the last letter. My editor feels strongly that “Murder” should begin with a lower case “m;” I feel almost as strongly that as used here the Murder of Divorce Lawyers refers to a specific entity and should therefore be treated like a proper noun. This Extended Version of Letter #28 includes all of the wise corrections made to my original draft and also the content that was mercilessly slashed over my objection in the editing process.

 Professor Kevin J. McGowan, an ornithologist at Cornell University, is constructing an informative and funny website at http://www.birds.cornell.edu/crows/crowfaq.htm.

 [3] Here’s an analogy that’s instructive but not compelling. Suppose a judge has always been an A student. She wants to be a “A judge” which would be measured by the way the bench and bar perceive her competence. If she were to become the subject of frequent challenges for cause, no matter how good she was in other aspects of being a judge, those challenges (even if they were all ruled unfounded) were prevent her from being an “A judge;” at best she could be a “B judge.”

  [4] She’s a judge being judged by a judge, and what goes around comes around, so does she have anything to worry about? Put yourself in her place. She smacks down a lawyer behaving badly. Later, that lawyer takes what she said in court and shows that she was critical of him personally. She had never seen the guy before, but could see that he was doing some bad work and she called him on it. He doesn’t want to change how he practices law because he does okay with it in other courtrooms. So he’s trying to bully her off the case. Would you feel prejudice toward this man? If you didn’t answer “yes” I did, so Judge Maryland might have trouble with either you or me or both of us. She knows it because she’d have trouble with another judge in her position who said he wasn’t prejudiced toward this lawyer.