Character opportunities — judges and senility

Judges often play a part in mystery and crime fiction — and of course, in my day job. So naturally, this headline caught my attention: “9th Circuit addresses senility among federal judges head on.” (I read the report in the Missoulian, but it appears to have originally come from the Associated Press.)

Mental competence of state and federal judges is a critical issue, and with an aging population on the bench, one that’s getting more attention. This article describes the approach the 9th and 10th circuits are taking, and gives a few examples. Some states have mandatory retirement ages, unlike the federal system. Many states have judicial assistance programs, where judges can get help with emotional problems, addictions, and — if they recognize the problem — competence issues. Lawyers and lay people — often, a judge’s staff — can also report concerns to professionals who can then assess and intervene.

What opportunities for conflict and crisis can you give your characters — judges, lawyers, clerks, probation officers and law enforcement officers, litigants, families?

One More Reason I Love Justice Breyer

From NPR’s Morning Edition, Book News:

  • “Supreme Court Justice Stephen Breyer speaks about Marcel Proust and how reading fiction can engender empathy in a wide-ranging French interview in La Revue des Deux Mondes,which was translated into English and published in The New York Review of Books. Breyer says that: “Reading makes a judge capable of projecting himself into the lives of others, lives that have nothing in common with his own, even lives in completely different eras or cultures. And this empathy, this ability to envision the practical consequences on one’s contemporaries of a law or a legal decision, seems to me to [be] a crucial quality in a judge.””

Lawyers’ and Judicial Assistance programs

One of the smartest suggestions from my very smart editor at Quill Driver Books, Kent Sorsky, was to expand the section in Books, Crooks & Counselors called “Thinking Like a Judge.” People are fascinated by judges, he told me, and want to know more about how they decide to become judges, how they make their decisions, and how it feels. He was right – quite a few readers have told me so. And since starting this blog, I’ve tried to highlight some of the challenges and pitfalls judges face.

Many state bars have Lawyers’ Assistance Programs (LAP), to help lawyers deal – confidentially – with addictions, mental health issues, excessive stress, suicide prevention, and retirement planning. Here’s the description of Montana’s program and a link to the American Bar Association’s Commission on assistance programs.

The success of LAPs has also led to Judicial Assistance Services, aimed at helping judges, who because of their positions, may face different stressors with fewer options for help. Judges are lawyers, of course, but a judge with an alcohol problem, for example, may not want to attend the local AA meeting and risk seeing people whom he or she has sentenced to attend AA, or who may appear in court as lawyers or as defendants in cases stemming from their own alcohol-related legal problems.

Lawyers, law firm or court staff, and outsiders can call these programs – confidentially – for advice on dealing with an impaired professional. LAP counselors can then reach out to the lawyer or judge, if appropriate. It can be hard to tell whether opposing counsel is impaired, or just hard to work with. I’ve never made such a call – I considered it once, but the other lawyer announced his retirement for medical reasons during the case, resolving my concern.

How can you use such problems to increase tension – and plot options – for your characters?

A Day in the Life of a Judge

A Seattle judge who drew national attention — some of it pretty nasty — after a sex offender he decided not to jail for failure to register kidnapped and raped a woman,  allowed a Seattle Times reporter to spend the day with him on the bench, watching and listening as he made his decisions. 105 decisions, few of them easy. “Sometimes I will be wrong,” Judge Ron Kessler said.

Reporter Christine Clarridge wrote “Kessler isn’t naive. He knows that defendants can and do lie, that defense attorneys want their clients released under nearly any circumstance and prosecutors are bound to warn of the worst outcomes.

But Kessler is also aware that some defendants may have every right to remain free pending trial and that some may even be innocent.

“Every judge has to confront the element of risk,” he said. “That’s what we do.””

I only wish this story from the Seattle Times were longer and more detailed, but I think writers will find the view from the bench eye-opening.

How to Tell a Judge He (or She) Screwed Up

My guest today is retired judge Bill Hopkins, author of Courting Murder, published in OCtober 2012 by Southeast Missouri University Press. 

“When Judge Rosswell Carew makes the gruesome discovery of two corpses on a riverbank in the Missouri Ozarks, he’s plunged into a storm of deadly secrets that threaten both him and his fiancée, Tina Parkmore. Unsatisfied with the way the authorities are conducting the investigation, Rosswell, who’s always nurtured a secret desire to be a detective, teams up with an ex-con, Ollie Groton, to solve the case before the killer can murder again. Rosswell uncovers a maze of crimes so tangled that he must fight his way to a solution or die trying.”

(The information in this blog is drawn from The Honorable Robert W. Gettleman’s article in the American Bar Association’s Section of Litigation’s Practice Essentials articles, available online here, and from my twenty years on the trial bench and five years as an administrative law judge.)

“I’m going to tell you how to diplomatically tell a judge that he (that’s used as an inclusive pronoun) has screwed up. You can use this information in your writing when you want your character–whether it’s a judge, lawyer, or party to the lawsuit–to realize that something bad has gone wrong during a lawsuit.

This article covers only criminal jury trials.

If you use the methods outlined here, you’ll no doubt get fewer nasty letters from lawyers complaining that you’ve mangled the legal system, but this information is being given as is, with all faults, and there are no warranties, express or implied. (I’ve been waiting years to use that useless phrase.)

Know your stuff. I’ve made my share of errors and have received nasty reviews from appellate courts. But your judge should know his stuff. If he makes a mistake on the admission of evidence, then you must do your homework and find out what the correct ruling would be. Let’s say that your jurisdiction does not allow a spouse to testify against the other spouse. The prosecutor in your case has a wife that’s dying to spill the beans on her husband (the defendant). The defendant objects but the court (that’s what lawyers call the judge when they’re trying to be nice) allows it. You will have to learn about privileged communications in your state and why the judge’s ruling is wrong.

Ask for a sidebar. That’s when the judge and lawyers discuss something out of the hearing of the jury but in front of the jury. Juries are human and when you do that, the jury will think that what just happened (i.e., the error the judge made) is a lot more important than it really is. If you want your character to bring attention to the error, have him ask for a sidebar. If you want him to minimize the error, have him ask for a short recess.

Your character must always be respectful towards the judge, regardless of what kind of idiot you have sitting on the bench. Once a judge makes a ruling in the courtroom, all argument ceases, unlike what I’ve witnessed in television shows, movies, and books. Muttering and eye rolling doesn’t impress the judge, much less continued arguing.

If the error is that the judge sustained an objection to a question that is clearly okay to ask, then have your character rephrase the question. If your character is the prosecutor and he asks, “Officer, was the defendant drunk?” and the defendant’s objection is sustained, have the prosecutor start over. “Officer, did you have reason to believe the defendant had consumed alcohol?” And so on.

Always make a record. One of the best things I learned in judges’ college–yes, there really are such things–was to make a record. If your character wants a bloody iron pipe entered into evidence and the court sustains the other party’s objection, then he should make an offer of proof. (This is often done outside the hearing of the jury.) The lawyer who wants the pipe entered into evidence will have a chance to show and tell the judge why the pipe should be entered into evidence. Unless your character is the prosecutor (most of the time, a prosecutor can’t appeal a not guilty verdict) and the judge still refuses, then, assuming your character is convicted, he will have a record to show the court of appeals.

Writers are constantly asking me legal questions for their stories. I’m happy to answer them, but the best answer is usually, “Ask a lawyer or judge in your area.” If you live in a big city, that may be a bit harder than living in a rural area where people are more likely to know each other. But, for example, if you live in a big city, go visit the courthouse and watch a few criminal jury trials. If you’re polite and have a business card showing the judge or a lawyer that you’re a writer, they may be willing to answer hypothetical questions.”


Bill Hopkins is retired after beginning his legal career in 1971 and serving as a private attorney, prosecuting attorney, an administrative law judge, and a trial court judge, all in Missouri. His poems, short stories, and non-fiction have appeared in many different publications. He’s had several short plays produced. A book of collected poetry, Moving Into Forever, is available on Amazon. Bill is a member of Mystery Writers of America, Dramatists Guild, Horror Writers Association, Missouri Writers Guild, and Sisters In Crime. Bill is also a photographer who has sold work in the United States, Canada, and Europe. He and his wife, Sharon (a mortgage banker who is also a published writer), live in Marble Hill, Missouri, with their dogs and cat. Besides writing, Bill and Sharon are involved in collecting and restoring Camaros. Courting Murder is his first mystery novel.

Thinking Like a Judge

Although judges tend to be secondary characters in the novels they appear in, readers and writers alike are fascinated by them. Books, Crooks & Counselors includes a chapter on thinking like a judge, and I’ve continued to get questions about how judges might rule or respond in particular situations.

So today I’m linking to an issue of The Montana Lawyer, the monthly magazine published by the Montana State Bar, that highlighted the careers of two prominent Montana judges who died late last year, and some aspects of their jobs that bothered, motivated, and cheered them. The article on state Supreme Court Justice John Harrison starts on p. 5, and a former law clerk’s appreciation of Judge Joe Gary starts on p. 14. 


 (Image of the original Flathead County, Montana courthouse, now the main county office building, from the Montana Historical Society.)