Murray, William S

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 43 Number 3 Article 1 1967 Through the Looking Glass or How to Be a Judge in Ten Easy Lessons William S. Murray Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Murray, William S. (1967) "Through the Looking Glass or How to Be a Judge in Ten Easy Lessons," North Dakota Law Review: Vol. 43 : No. 3 , Article 1. Available at: https://commons.und.edu/ndlr/vol43/iss3/1 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. THROUGH THE LOOKING GLASS ORHOW TO BE A JUDGE IN TENEASY LESSONSWILLIAM S. MURRAY*Certain themes persist in the folklore of different cultures onfar distant parts of the earth.Among these are the "werewolf" or "vampire" themes; and(most pertinent to us here) the transposition of a person througha mirror or "looking-glass" into a new world, wherein everythingis reversed. Aside from science-fiction, the most notable example,in this context, has been the immortal work of Lewis Carroll, ofabout a century ago, entitled:Alice in Wonderland, or Through the Looking-Glass.In Carroll's work, we read that:In another moment, Alice was through the glass, and hadjumped lightly down into the Looking-glass room.At that point, Alice had gotten through the mirror and into anew world, in which everything was reversed, and strange, andall values and judgments were reversed.In many natural and biological processes, this sort of thingdoes occur. It is called metamorphosis and the best example isthat of the homely grub or chrysalis turning into a butterflySo it is for a trial lawyer suddenly becoming an appellate judge.On about two days' notice, this happened to me on March 30, 1966,and this new status continued for nine months. At the end of theterm, the butterfly turned back into a grub. (The "Cinderella"theme, which likewise exists in many foreign cultures, need not beelaborated on here, as the two things are quite parallel.)* Attorney at law, Bismarck, North Dakota, former Associate Justice, North DakotaSupreme Court.NORTH DAKOTA LAW REVIEWTo get down to brass tacks, I think it would be useful for thetrial Bar, to know how it looks from the other side of the mirror,where everything is weirdly reversed, so that left becomes right,dark becomes light, and where that which was previously obscurebecomes either more certain, or paradoxically, even more obscure.I think we owe a duty to our Bar to draw aside the sombercurtain of mystery, which hangs before the procedures of our appel-late court. This dark curtain has hung for me, through over aquarter of century of practice before this court, and, m some res-pects, it should be drawn aside.Some things, in our Supreme Court, should not be publi-cized. One of the obvious ones is: Which Justice has the decisionassigned to him? I do not think, either, that anyone outside theCourt should know who it is that is for or against a certain point,until the time that the opinion is issued.In a representative form of government, we accept the prin-ciple of secrecy of the ballot, and this works for, rather thanagainst, the true democracy There is a place for secrecy in ourform of government, if a limited one. In the Germany of Hitler,namely the Third Reich, the secrecy of the ballot was violated, andit is violated today m any Communist countryI make this comment only to explain that complete publicityand knowledge, of inner government functions, often does not workfor the benefit of our form of government, and we do not neces-sarily believe in it.I now note that this Supreme Court does have Rules, and thatthey are contained at the back of Volume 76 of North Dakota Reports.They are often contained in the Directory of Attorneys, and thelast one so containing them is the issue of 1965. I think the lawyersshould read these Rules, and I know now that many of them donot do so.Some things in these Rules create problems. For instance, Ithink it takes a marvel of semantic hair-splitting to determine thedifference between "Facts" and "Ultimate Facts." In this regard,we must remember that, during the Middle Ages, lengthy debateswere held upon the question of: "How many angels can danceupon the head of a pin?"It is probable that a revision of the Rules of the Supreme Courtwill come forth in the next year or so. Meanwhile, they are there,and attorneys should understand and abide by them. In this world,we have to have rules.For instance, there is a very good reason for giving a structuraloutline, or form, for an attorney's brief, by prescribing the form,How To BE A JUDGEin these Rules. In this connection, any trial attorney who becomesa member of the Court, will quickly see that he was previouslyderelict in following the rules. I think attorney's briefs could bemuch better than they are. Some lawyers seem to have a talentfor this, and I have marveled at the fine organization shown in somebriefs - and I am cynical and critical, I imagine.The same thing goes, for arguments. Some attorneys seem tohave a faculty of explaining the facts in a very simple way It ismuch harder to do things right, in the short way, than the longway - appellate judges have learned this.One nearly unique feature in our North Dakota practice doesnot receive enough attention.This is the provision for a trial de novo, which was originallypassed as Chapter 82, Session Laws of 1893,1 and was sponsoredby a Fargo attorney, Seth Newman. Hence, the common designa-tion is "The Newman Law "This apparent deviation from normal appellate court functionswas sustained by our Supreme Court m the case of Christianson vFarmers Warehouse Association.2This "Newman Law" places the North Dakota Supreme Court,in a sense, in the role of a jury I am quite sure that many attorneysdo not appreciate this fact. It is unlikely that it will ever be re-pealed. Therefore, attorneys on appeal on a "trial de novo" caseshould recognize (which obviously many do not do) that there isa complete review of the facts on this type of appeal from a non-jury (court) case.In such a situation, I think the attorneys should most carefullydraft their briefs and their arguments which will thereby be moredirected to the facts than would be the case in most appellatejurisdictions.I would not want to adopt the theory that: "The Supreme Courtdoes not know anything." (This suggestion has been made, I imagine,in the past, in an era of more vigorous attorneys than now )However, I think the appellate attorney should proceed on thisprecise basis - that it is his duty to tell the court what he knowsabout his case, what the record shows, and that he wants to politelyilluminate the dark caverns of their minds.On another tack, I think attorneys should not make any as-sumption about which Justice has the case, which assumption isbased upon questions asked. The Justice to whom the opinion isassigned - and it was assigned in advance - may be as silent1. See N.D. Cent. Code § 28-27-32 (1960).2. 5 N.D. 438, 63 N.W.2d 893 (1895).NORTH DAKOTA LAW REVIEWas the Sphinx of Egypt during the oral argument. And I would notworry, either, about raising any other inference, based upon ques-tions or lack of questions, by a Justice or the Justices. I thinkattorneys should welcome questions. I believe the most discour-aging situation is to argue a case with great vehemence before aCourt and then sense an aura of stagnation or apathy up there onthe appellate bench.As a sort on interregnum or non sequitur, I would like to ad-monish the younger members of the Bar not to get "cold feet" inarguing before the Court - this is something I have sensed attimes. Your inexperience factor may work in your favor, as muchas against you. No member of the Court will worry about yourinexperience. They were all young once, too. As an officer of theCourt, you deserve and will get their respect and attention as theyhave yours.Now, I think the Bar should know just what does go on whenthe Justices file back out of the Court into their conference chamberThe cases have been assigned in rotation and it is known whichJustice has the decision.A preliminary discussion is held at this time, which probably isnot very long, but may be. There will be many discussions laterBut the Justice to whom the case is assigned will thereafterretreat to his lair to work on the case.Ultimately, this Justice will cause copies of his opinion to bedistributed to the other Justices, and they normally have days towork at it, and pick at it. The word "pick-at" is a slang phraseused to describe minor criticisms of the opinion. Major criticismsinvolve lengthy, subsequent conferences.Within the deliberative and opinion-writing phase of our NorthDakota Supreme Court, corrections and discussions are virile andvigorous. I know nothing of other courts; but there have been noone-judge opinions in this Court, during my brief time, nor duringthe time which I specifically examined retrospectively through whatI learned up there. I think this relates to a misconception whichI had as a trial attorney, and this misconception was just exactlywhat the word means.I want to mention now, the office of Chief Justice. I think thereis a developing trend to recognize the Chief Justice as someoneother than merely the Justice who sits at the center of the bench,by virtue rotationally of his term status.There are inherently definite administrative and supervisory re-sponsibilities in this position, and they are gradually becoming morerecognized and used.426How To BE A JUDGEMany states distinctly elect a Chief Justice, pay him more, andprovide him with more administrative assistance. The necessaryconstitutional and statutory changes to accomplish this, are thingswe must aim for The Bar generally does not realize the constantcalls for additional time and administrative functions, that descendupon the Chief Justice.At times, there are dissenting opinions. There are also specialconcurring opinions.This is a difficult thing to evaluate, and this question can onlybe considered in the light of real trial and appellate experience.This thing is: Should there be more dissents, or more unanimity,in a given court? I have continually examined the decisions ofthe recent United States Supreme Court, for example, and think thatthere are too many rambling and hair-splitting dissents and con-curring opinions. This is a quite subjective observation. But I wouldnot want our Court to follow in this path. A Court should decidethings. If they have the diligence and energy to sit down and thrashit out, then they should do this. This is done in the Court here.Through the processes of our form of government, we shouldultimately get a divergence of opinion on our State Supreme Court.This is right. We do not want five people who all believe the sameway The more divergence that exists in personal, psychological,and political attitudes, the better This is the core of our system ofgovernment.In this connection, I am very sure that the public at large doesnot need to worry about "political" decisions by our highest court.As an attorney, I have practiced repeatedly before the Court on thistype of case, and I think I know We all realize that, in a priortime in North Dakota, when politics were more vigorous and par-tisan than now, the public might have had this idea or suspicion.But there is surely no grounds for it now, as of the period thathave practiced before the Court, which means since the year 1939.Near the close of my short term, one of my colleagues jokedwith me by saying that he supposed I would tell in this articlewhat he, Judge A, said to Judge B, on such and such a conference.This was a deliberately facetious remark, given and taken with thespirit of humor It does, however, have a serious aspect, as itproves that: (1) Any judge should have, and ours do, a sense ofhumor and not take himself too seriously, and (2) that courts asentities are permanent and continuing in nature, that they do notrelate to the nature or characteristics of individual judges; so thatthe fire that might flare at discussion of a decision by appellatejudges is a good thing for attorneys to know about, so that they;427NORTH DAKOTA LAW REVIEWknow nothing is "cut-and-dried" up there.My time on this Court has convinced me that North Dakotaattorneys are very good and that they will compare favorably withthe Bar of any other jurisdiction.Through many years of experience in military and civilian ac-tivities, I have been able to observe the lawyers from other states.I think our Bar comes out very well in comparison.Having been perched on this Bench with some air of temporary,black-robed omnipotence for nine months gave me more time toconfirm that which I already knew, m this regard.83. The writer strongly recommends the reading of two articles. They are: Burr, Pro-cedure in the North Dakota Supreme Court, PROcEEDINOS OF A'NiUAL MEETINa OF STATEBAR ASSOCIATION 1941 Pearce, Appellate Procedure, REPORT OF SECTIONAL ASSEMBLIES,STATE BAR ASSOCIATION MEETING 1958.

Through the Looking Glass or How to Be a Judge in Ten Easy Lessons

https://commons.und.edu/cgi/viewcontent.cgi?article=2833&amp;context=ndlr

Through the Looking Glass or How to Be a Judge in Ten Easy Lessons

Abstract

Similar works

Full text

Available Versions

UND Scholarly Commons (University of North Dakota)