When Judges have "empathy"

[Doug1943]

An acquaintance of mine sent me this, his personal experience, which I thought might prove of interest to others. It takes the argument about judges and "empathy" away from a sterile dispute over abstractions, and looks at what can happen in actual practice.

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Perhaps I should explain something about judges with "empathy" and why that statement hits a hot button for me.

In my professional work I occasionally act as an Expert Witness in lawsuits that involve rubber products. One of the lawsuits on which I worked was about a suit against a major rubber company for making an inferior product.

A small company in the West had come to them with samples of hose they were already buying, and specifications for the hose, and asked if the big rubber company could make an equivalent or better product. They said sure, did a development project, came up with a slightly better hose, according to all the test criteria that were specified by the customer.

The hose was to be used for radiant heating, buried in flooring with hot water/glycol circulating through it. The little Western company had been doing this business for a few years, using the old hose, with no problems.

Still, the big rubber company very carefully told them, orally, in reports, and on every purchase order acknowledgment, that they were not expert in this kind of application, and were selling the hose as a specified product, with absolutely no guarantees of performance and a hold harmless legal position.

Their customer wanted to offer a 20 yr warranty for the hose, and asked the rubber company to agree to support that. The rubber company said no, absolutely not, no way, don't even THINK of such a thing. The little company went ahead and sold the hose with a 20 year warranty.

It turned out that the guys using the hose didn't really understand what long term use might do to the hose, especially if the system was not designed right and ran extra hot, or if the heating fluid wasn't flushed regularly and then developed a concentration of metal ions that catalyzed chemical attack on the hose material.

So eventually some homes experienced failures, which entailed very costly repairs to very expensive houses owned by very rich people. Lawsuits arose in bunches, in amounts that exceeded by far the total worth of the installing company.

So... the lawsuits were broadened to include the "deep pockets" big rubber company. Who had done nothing wrong and been very careful to make sure they didn't do anything wrong. (And to whom the installing company was in debt to over a million dollars.)

Long story short, the case ended up in a federal court in Cleveland.

The judge was a Clinton appointee, who had been a lifelong consumer rights activist. And this guy did everything remotely possible to slant the whole case against the big rubber company, because he knew it was the only way any of the plaintiffs would ever get money for their damaged floors.

It was the most dramatic lesson I ever got in the absolute power of the judge in the courtroom, as he refused to let the rubber company use the evidence of their communications with the installing company about their lack of understanding of the use conditions and therefore their disavowal of all responsibility for long term performance.

He interfered with the judicial process in various subtle and not so subtle ways to favor the presentations of those suing, and impair the presentations of the rubber company being sued. I was totally blown away watching all this.

In the end, we won the case, in large part because the president of the installing company was put on the stand and turned a 2 hour testimony into a 6 hour testimony by being so slimy and ducking around every question asked of him repeatedly. The jury saw through this and hated the guy.

And in part because in my testimony, which was extremely damaging to the other side, their attorney, who had attended the Pit Bull school of law, came after me so nastily and was allowed by the judge to abuse me personally, to the point where I made an official protest in front of judge and jury (every lawyer in the room went into shock, including the ones I was working for).

Then we had a sidebar in which my arguments about not being allowed to tell the truth forced the judge to allow my testimony to continue to clear up the smears the lawyer had tried to put on me. The jury then resented my being abused, gave credence to my testimony, and hated that lawyer. So we won. The judge turned white when the verdict came in, and remained visibly upset for the rest of the formalities.

He had a hell of a lot of empathy for the poor people who got screwed by the heating company using the wrong stuff, and in fact, so did I, and I visited a lot of those homes and met those people.

But the rubber company didn't do anything wrong, and to penalize them for a couple hundred million dollars would have been a blow to their stockholders, who included a lot of their own hardworking line employees. He was fully prepared to manipulate the legal process to push the verdict he wanted, because of his empathy for the homeowners.

So you see why this topic arouses a lot of concern on my part. Judges should be publicly and privately devoted to the idea of understanding their own biases, and working hard to minimize their effects on how that judge looks at the evidence and the law to reach a conclusion.

And any judge, male/female, straight/gay, white, brown, red, black, or purple, Catholic, Protestant, Buddhist, or agnostic, who seems to say they will cheerfully apply their biases instead of trying to hold them back, makes me very nervous.

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[The Scotsman]

.............ah the American courts!

I'm pretty sure they have a good insurance company that has nice broad shoulders and can carry the burden of such judgements....... and then up their premiums ........... and reinsure the loss.........

Its all a game designed to keep lawyers feeling important.

 

[top gun]

This whole problem with the word "empathy" is becoming very tired & tedious.

EVERY judge has a unique and individual mindset just like every other person does. What you might see as leaning one way another will see as being fair. Every case is different and you're not talking about any particular discriminating verdict a judge has made... you're talking about court room PROCEDURE.

I too have been called as a professional witness in cases involving the value of antique & custom automobiles. And I too was "grilled" and talked down to by the other side to try and undermine my credibility. That's exactly how lawsuits almost always go.

And I too wanted to interject other personal professional opinions above and beyond what was actually being asked to more explain my reasoning.

And I too was disallowed by the judge after objection from the other side.

BUT NONE OF THAT MEANS THE PROCEDURE BY THE JUDGE WASN'T CORRECT. It's the job of your sides counsel to develop a legally viable way to get the testimony in he or she wants in. In your case there could have been issues of "was this the ONLY correspondence between the parties" or any number of other reasons.

There are reasons why things are only admitted in in certain ways. And as you admit after the issue reached a certain plateau THE JUDGE DID LET YOUR STATEMENTS IN.

And even more than that you did go on to win your case.

I understand your frustration because this type of thing is frustrating... I've been there.

But I could cite a bunch of different procedures & rules that seem meaningless or unfair but actually in some cases make huge differences... hence sometimes things are not allowed in. For instance in general a copy of a document holds no power in the presence of it's original. If there are differences the original is generally considered the binding document even though it's possible either could have been altered in some way.

But this is all legal ease talk when we should just all be honest and say EVERYONE has empithy... just not always as much for the same things. That's how it becomes a "political" issue in the first place.

If the judge is predisposed... has "empathy" for big business that's the same exact thing, but in that case just slightly more open minded to hearing that sides position. Happens every day.

The law is often not 100% completely black & white because legal cases are not 100% black & white. Judges often have a legal split decision in their cases and credibility of witnesses or credibility of documents creates their tipping point. Their tipping point in those cases is about how they feel about the case themselves from what they've seen, heard & how they interpreted that.

And seriously in the case of Judge Sotomayor all this ridiculous panties in a bunch Republican whining when boiled is this... she is said to have "empathy" also known as caring for PEOPLE, or putting the true, just and fair needs of PEOPLE under consideration in her judgments.

If that's the problem then we need a lot more problems like that. She'll make a fine Justice.

 

[pocketfullofshells]

Its clear the Right wants new robot judges

 

[Doug1943]

Of course, a judge can have "empathy" with the rich, and twist the law in their favor.

But the rule of law should exclude twisting the law for either side, when it comes to a lawsuit like this. Either the rubber company were responsible for the failed tubing, or they were not. The judge's political leanings should not enter the case.

 

[top gun]

Its clear the Right wants new robot judges

Yes I agree... but I hear the leader of the Republicant Party Druggie Limbaugh has already made it crystal clear... R2D2 being so short is probably a closet Mexican and C3PO is gay... so they're out!

Is the Right cracking you up flailing around like this as much as they are me... I mean seriously... they've flew past mad to just plain comical!

 

[top gun]

Of course, a judge can have "empathy" with the rich, and twist the law in their favor.

But the rule of law should exclude twisting the law for either side, when it comes to a lawsuit like this. Either the rubber company were responsible for the failed tubing, or they were not. The judge's political leanings should not enter the case.

I understand what you're saying.

But it just life... everybody has there own personal mindset. You have to admit ALL lawsuits are not black & white. Sometimes it comes down to credibility and credibility is judged by the presiding judge on what he or she believes.

That's all Judge Sotomayor is saying and the Right is trying to character assassinate her for just being real.

On your case maybe the judge had seen this company lie in court in the past or any number of other things that would cause him to be more sceptically than usual. I don't know enough about the case to say.

No one would dispute that if there's a hard legal rule it should be followed. But the truth is that in the end your evidence WAS let in and you DID win your case.

If that's a terrible situation due to extreme "empathy" prejudice... it appears that still works out OK.


Anyway... glad for you that you won your case.