Thursday, December 31, 2015

Coloring books, case law, and the Devil’s Dictionary

Ambrose Bierce
In my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield), I discussed how the police indoctrinate kids at a young age through “Deputy Friendly.”  The good deputy’s message is clear: the police are your friends and they’re here to help.  Conversely, I lamented, early education excludes anything that runs contrary to that pro-government theme.  If you doubt that, try to imagine anyone teaching young people about how the police are permitted to lie to us, how we have the right to tell them to “pound sand” when they want us to talk, and how we can demand the presence of an attorney to gum-up the government machinery.  (Hard to visualize such an education, isn’t it?)  But as successful as Deputy Friendly has been indoctrinating America’s youth, I think the judiciary has just topped him with the publication of Learning about Judges: A Coloring Book.

That’s right: a coloring book for kids to learn about Illinois judges and the court system.  And what does the coloring book teach?  One of my favorite pages states that “All types of people are judges.  The only important thing is that they are fair and honest.”  Too bad the coloring book fails to give a counterexample, such as the case of a former Illinois judge who took bribes from defendants in exchange for lenient sentences, while at the same time sentencing non-bribing defendants to harsher sentences (including death) to maintain his tough-on-crime image.  Now that’s called a win-win-win, kids.  And it’s a great lesson in economics, politics, law, and literary flair — all rolled into a single batch of chocolately cookie goodness.  (“A case combining two men scheduled to die at the hands of the State with the corrupt judge who sentenced them creates a toxic mix[,]” which the kids can read about by clicking this link.)     

Another page of the coloring book states that “The judge listens to everyone and decides how to solve the problem.”  It then shows two happy litigants shaking hands in front of the smiling judge.  Now this is just flat-out wrong.  What are the little cherubs to think when they later appear in a courtroom for the first time and the judge, far from smiling, actually screams at them or their counsel?  Worse yet, if one thing is as certain as death and taxes it’s that when the litigation finally ends many years and thousands of dollars later, at least one (and probably both) of the litigants will be upset, angry, outraged, or possibly even scarred for life. 

I think a much better teaching method is to introduce the youngsters to Ambrose Bierce, an American icon and author of the Devil’s Dictionary.  Mr. Bierce paints a different — and infinitely more realistic — picture of judges and the court system.  And the kids only have to learn three simple definitions:

judge, n., A person who is always interfering in disputes in which he has no personal interest.

LITIGANT, n.,  A person about to give up his skin for the hope of retaining his bones.

And my personal favorite,

Litigation, n., A machine which you go into as a pig and come out of as a sausage.

I know that actual case law — even when it takes the form of gripping literature — and Ambrose Bierce’s Devil’s Dictionary are not as fun as coloring between the lines.  But don’t we owe it to future generations to give them a more balanced perspective?  C’mon, think of the children. 

2 comments:

  1. Michael
    Great post -- but be on your guard, as you well know, the free speech rights of lawyers are severely constrained -- mustn't shake up public confidence.

    All the same, check out at least one modest attempt at reform:


    Margaret Tarkington on, "A Free Speech Right to Impugn Judicial Integrity in Court Proceedings." Abstract:

    "Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is entitled to little, if any, constitutional protection.


    "In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, Professor Tarkington examines why a free speech right to impugn judicial integrity must be recognized for attorneys - even, and perhaps especially, when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and other rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right in the attorney preserves litigants’ access to courts and due process rights. These rights belonging to litigants are all but lost where attorneys are punished for or chilled from asserting them in court proceedings. Previous scholarly arguments - which are based on analogies to other areas of limited First Amendment protection - fail to account for the protection of the underlying rights of litigants, the role of attorneys in our adversary system, and the constitutionally-required role of the judicial branch. Importantly, the judiciary does not need to punish attorney speech impugning judicial integrity in order to protect its legitimate interests in the just adjudication of cases. In fact, by curbing speech in the presentation of claims, the judiciary undermines its own role and responsibility in remedying constitutional violations and providing fair proceedings."

    -- We can dream!


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  2. Mo, this is absolutely bizarre! It's a case of "the law clearly says X, but we'll 'interpret' it to say Y." For example, rule 8.2 and its comment (at least in Wisconsin) ACTUALLY says this: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the
    qualifications or integrity of a judge . . . Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice." So the rule, consistent with the right of free speech, prohibits only a very limited type of speech, e.g., false statements. But the things those courts were disciplining lawyers for were much, much broader. Who dreams this stuff up? Absolutely unreal.

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