Archived Story

LaBre: Judge assumed to be a ‘reasonable man’

Published 5:21pm Thursday, December 6, 2012

LaBre on Law

By WILLIAM L. LABRE, J.D.

Special to Leader Publications

Her case was coming up for trial, and she was nervous. Scared stiff, actually.

“All right,” I said, “you need to calm down. If you’re this nervous with me, you’ll be a mess when you get on the stand.”

“I KNOW!” and she began to cry and tremble. I passed the Kleenex across the desk, and, after a few minutes, she looked up and said: “I’m sorry. I just can’t help it. I get so scared when I think about being up there, all alone, with the judge, the other lawyer and his nasty client, and all of those other people in the courtroom looking at me. And I’m scared that I’ll lose this case!”

Then she stared to cry some more.

After she calmed down the second time I said: “We need to talk about you being so upset.”

“In your case, as is true in almost all cases, there’s no ‘black and white.’ If it was ‘black and white,’ you could file a ‘Motion for Summary Disposition,’ and the judge could decide the case based on the admissible documentary evidence which you file. But your case isn’t that simple. That’s why you’re going to have a trial.

The Judge needs to see and hear the witnesses and, from their testimony, decide who wins.”

“That’s why I’m so scared!” she said.

“I understand. But what I want you to learn is that the judge will determine the truth by not only what you say, but by how you say it. That’s called you ‘demeanor.’

The way you speak, the way you look, your body language, your facial expressions, all of those things together is what makes a person believable, credible, when they’re on the stand.

“If the judge should think that everything is ‘drama,’ rather than ‘truth,’ then the judge has the right to discount your testimony partially or completely.

“I remember a case I tried 30 years ago. When the judge was giving his opinion, he discussed the testimony of a key witness.

“Then he said: ‘Having heard this witness’ testimony, I find it incredible and unworthy of belief. I discount it in its entirety.’ When I heard the judge say that, I thought: ‘Oh Well; there that goes.’”

“How can a judge do that?” she asked.

“Easy,” I replied. “Think of it this way. When you’re listening to an advertisement, or a politician, or someone a a party whom you don’t know, you make the same kind of decisions all the time. You might think that the person is honest, or you might think that the person looks shifty. You might think that the person changes the story depending on the audience, and decide that the person is untruthful. We all do that.”

“Yes, but doesn’t the fact that I’m under oath change that?”

“Sure.”

Then I smiled, and said: “If a judge is convinced that you’re intentionally lying, he can refer the case to the prosecutor for consideration of a prosecution for perjury. That rarely happens, though.

“Usually, you just lose if the judge doesn’t believe you.”

“I don’t think that a judge should be able to do that! Who does he think he is, anyway?”

“He’s the one who will judge your case, that’s who.”

“But just because I cry a lot, that doesn’t mean that I’m a liar.”

“For some judges, you’re absolutely right; for some judges, you’re absolutely wrong. Depends on the judge.”

“If judges are so different, how is that reasonable?”

“Well,” I said, “the law often speaks about the ‘reasonable man’ standard. What that means in practice, though, is this: When you elect a judge, that judge is ‘the reasonable man.’”

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