The joke of a bully

A retired lawyer who is my age and who has a lot of experience in the federal courts corresponded with me. He is very thoughtful.

He hated the post on women and attire in the courtroom. Alluding to an old New Yorker magazine article, my correspondent referred to my attempt at humor as “the joke of a bully.”* He emphasized the inherent inequality of the power dynamic between yours truly and the lawyers who are the subject of this blog or the lawyers who interact with this blog. As an example, the writer stated that I need only read the “fawning” responses I receive from lawyers as evidence of this inequality. My correspondent has a very important point.

How can I expect a worthwhile exchange, when I will always be the “judge” and the subject/reader/commentator will almost always be someone who is not a judge?  Since the power dynamic is inherently and immutably unequal, is this blog’s striving for a humorous, transparent, honest and legally realistic exchange doomed?  I need to think hard on these questions.

RGK

*New Yorker, Talk of The Town, p. 3 (January 9, 1926) (“It is disappointing to note that judges on the benches continue trying to be funny. It seems to be a growing abuse. Schoolboys have to laugh when the headmaster makes a joke, and similarly the courtroom always has to chortle with the judge. Humor, however, is rarely the gift of the legal mind; and almost universally the joke from the bench is the joke of a bully.”)

 

40 responses

  1. RGK: “As an example, the writer stated that I need only read the “fawning” responses I receive from lawyers as evidence of this inequality.

    He obviously hasn’t read my comments. :) If there is anyone who more steadfastly refuses to kiss a judge’s ass, it is me.

  2. Judge Kopf,
    I think your learned friend’s point is interesting, but misplaced. You are not a bully on this forum, and being a bully is not inherent in posting blogs merely because you happen to have another job as an article III judge. A headmaster may (intentionally or unintentionally) force students to agree with his points because he has the power to impact their grades and day-to-day lives. You do not have any power resembling that on this blog. The most you can do is ban us. But a question remains about whether we, as readers, think you have that power. I don’t think you do personally, and I’m not intimidated by it.

    I’m going to stick with the headmaster analogy throughout this post because I think it cleanly illustrates that a bully has to have power (or perceived power) to successfully impact the target.

    Out in the “real world” (I use that term in quotes because I have personally found that interactions online are just as real as those in the ‘real world’) you are an article III judge. There, you do have power over people, and may directly impact their conduct by threatening or holding them in contempt. But here, you are a writer and we are readers. You may have the power in real life, but your readers have anonymity. To do anything against any of us, you would first have to find out who we are, and in most cases, that would be difficult. Then you would have to figure out how in the heck you could actually get us in trouble with the local authorities. That’s the beautiful thing about the internet. In real life, you are a judge, but here, any power you have over your readers is imaginary. You cannot hold us in contempt, nor can you effectively threaten us with sanctions or local discipline. So the first part of the headmaster bully analogy is out.

    But there’s also the equally relevant question of whether we think you have power and whether it influences our ability to have an intellectual dialogue on the subjects your post.

    This question is more difficult. The best answer I can give is the traditional lawyer “it depends.” It depends on two things: whether we believe you have the power to harm us (whether true or not) and whether your title elicits extra deference from us.

    First, the question of whether we believe you have the power to harm us. Any regular reader of your blog will notice the kindness and deference you give opinions that are not like your own. You do not belittle someone for having a different opinion than you. You take time to intelligently respond to comments on your blog posts, no matter whether they are friends or strangers. These actions do not match up to the bullying image your learned friend has described. Now, the problem with this analogy (as I’m sure you noticed during the recent spat) is that people who react strongly to issues such as that tend not to be regular readers. Those people might feel threatened. Frankly, there’s not much you can do about that, because they want to feel threatened. But personally, having been with this blog for almost as long as its been around, I can say that I have not felt intimidated or threatened by any post you have made. I discount posts that appear that way (such as the post referred to above) as a mistake in communication, because I have not seen you manifest hostile attitudes before nor after.

    Second and more insidious is whether we give you extra deference because of your title. I’m guilty of this to a certain extent. I can only answer for myself on this issue because I don’t know how others think.

    I always begin my posts with “Judge Kopf” because I believe it is a term of respect for your accomplishments and the content of this blog. I probably view posts by you more positively than I would posts from another person, partially because of your title, but also because I know that you are a good writer, and a good person. I cannot separate these out in my mind to any reasonable degree.

    But I’ll tell you this. My mother once told me when I was a little snob of a teenager that I was so arrogant that that she was the only one who didn’t have to prove herself to me, and that even my dad had to prove he was useful. That’s probably true, as uncomfortable as it is for me to admit it, and I don’t know if it’s changed too much over time. I don’t respect people merely because of titles (and fortunately for me, under our constitution, I don’t have to!)

    When working on appeals, I see some judges in trial transcripts that I would love to meet in real life, because their personality jumps off the page at me. I also see some judges that I would describe as curmudgeonly old bullies who need to go find another job and stop making problems for their colleagues (and us lawyers) on appeal. I don’t want to meet those judges or have anything to do with them, and it would probably show in my attitude if they had a blog.

    In short, I think that titles are nice, but the content is much more important to me in terms of credibility. I don’t think the headmaster analogy stands up to proper analysis, but I can’t speak for others views on this. Hope this is useful to you.

    Southern Law Student

  3. I see you as a person, and I enjoy the look into your thoughts. My judge was not forthcoming, so while I’ve seen aspects if your job up close it’s interesting to hear more. And I enjoy your writing style.
    As a woman and an attorney, I’m not disturbed by those comments. And while you are a judge, you’re a part of my life only in that I choose to read you from time to time. That position does not hold much power over me.
    I am wishing all the best for you, and sending my version of prayers your way.

  4. And here I thought I was agreeing with your wit and insight!

    Your correspondent has a good point. In the courtroom, there’s certainly a power imbalance that makes most people — or at least me — inclined to laugh at a judge’s jokes and agree as much as possible without entirely compromising their cases. When I’ve been a spectator, it can be uncomfortable to watch.

    But here, I don’t really have any reason to stay on your good side relating to your status as a judge. I don’t practice before you, and you wouldn’t know if I did (I doubt there’s much to be cleaned from my thumbnail photo). I leave comments in the first place not because you’re a judge but because you and your other readers are a pleasure to engage with – except, I suppose, that the fodder for your posts comes from your judgely experiences. Personally, I generally don’t leave comments on any kind of blog (or other social media posting) unless they’re at least partially positive; that’s just how I roll, as the kids say.

    The “fawning” comment made me laugh a little bit — on that post??

    • Ah, my thumbnail picture doesn’t show up at all on my comments, just in the reply-box as I type. I could be anyone who finds homonyms amusing!

    • Chocolatetort,
      Yeah I wondered about the fawning comment too. I think that comment may have been from someone who is not a regular reader of the blog, and viewed that post through skewed lenses.

  5. I went to a CLE recently where a judge made some typical Houston v. Dallas jokes, which seemed pretty harmless to me. The audience really didn’t laugh, though. Afterwards, I got a very serious lecture about how this “joke” tactic violated the rules of rhetoric and was a display of insecurity–a confident speaker wouldn’t feel the need to make jokes. Attorneys aren’t funny people, I was told, and shouldn’t make jokes. Yet, every time I remember this lecture, I laugh.

    I think it’s a mistake to paint human interaction in such broad strokes. Yes, the discussion here is probably somewhat tainted by everyone’s differing status and life experience. But, isn’t conversation always? And does that make it invaluable? Even if posters might be influenced by your status and experience as a judge, isn’t that a good thing since you actually do have a lot of experience in this area? I think that you should just accept this fact and move on. I doubt many people are writing their posts to curry favor. You’ve done a great job making yourself human. And regardless of all the social dynamics that may or may not lead an individual to comment in a certain way, many comments make good points that are worth thinking about. Doesn’t this blog make you think about things? It makes me think about things. I think that’s valuable.

  6. A regular guideline I give all new attorneys before their first court apperance is that only one person is allowed to make jokes in the courtroom, and that’s the judge. That rule does not apply for a blog, so joke-bully away with a clear heart. And get well soon.

    • I once had the pleasure of watching opposing counsel make a joke to a judge about fabricating evidence. The judge did not seem quite as amused as I was (and I admit, I was amused for all the wrong reasons).

  7. I’m not an attorney standing before your bench. I’m not even a citizen of your district. I didn’t read your post because you have power over me. And, I agreed with it because it was right, not because I had to. While the humour may have been a little edgier that my general preferences, it was still a powerful tool to make your point and get your post read. Your post would not have been shared on the BBC if it had simply been a “Dress Code for my Courtroom.”

    The message you shared NEEDS to be shared in our culture. You did so effectively. No one has to read your blog – and as “Anonymous” commented – those who feel they are under your power can always disagree anonymously.

    Unfortunately, we live in a culture in which authenticity has been all but banned. I appreciate your honest & straightforward comments.

  8. One of the reasons that this blog has had such an impact is that it effects some much-needed demystification of the judiciary, and the judiciary is not pleased by that. When I appeared before a federal judge for the first time, around 1979, I was scared s…less. But as time went on, I realized that they were not smarter than me (well…a few were), but just that they knew a senator or two and had gone to a good law school. Now that i am older than some of them, I can still respect them for their intellect and sense of fairness, but they are just colleagues to me. And I respect them because that’s how I behave in general toward everyone, and I expect respect in return. When, for example, I argue a motion and then five minutes later, the judge reads his already-written decision into the record, i am furious, because I have been disrespected and my time has been wasted…even if I win.

    As far as I am concerned, then, on this blog you are just a colleague. But I wouldn’t be rude to a colleague, a judge, a waiter in a restaurant, or the clerk who sells me a train ticket. So you’re not that special….

    All the best, and hopes for your speedy recovery.

    Richard

    • Richard,
      I like your comments, but I’m curious about one thing. Have members of the judiciary spoken out about this demystification? I’ve been under the impression that most of the negative comments on the blog have not come from judicial sources.

      • Members of the judiciary who are not named Scalia and Thomas do not speak out in general about anything. They’re not supposed to, and the reason that I have no respect for those two is that when they speak out, it’s to advance right-wing political views. When Judge Kopf writes, he is just trying to explain what he does and why, and I respect him greatly for that. Even though I disagree with his politics most of the time, he is clearly a man of generous spirit.

      • SLS,

        I am going to be very frank.

        I think most of the federal judiciary finds my blog to be worrisome, embarrassing or wildly inappropriate. There are some good reasons for this reaction. Federal judges care deeply about the institution of the federal judiciary. Because federal judges are constantly attacked from all angles, and particularly from the political branches of government, a blog such as mine can be easily used as fodder for attack. Federal judges as a rule have one rule when it comes to speaking or writing about the federal judiciary: First, do no harm. That’s not a bad a rule incidentally given the vicious climate in which we function.

        As for demystification of the federal judiciary, I think most judges think that mythology (to the extent it is favorable) is a good thing. I hold a different perspective, obviously, but I am in the decided minority. For what it is worth, Judge Posner’s academic work founded upon an empirical approach, conducted while he is a judge, shows us what judges really do. He is a giant intellectually, and his studies of what judges actually do serve to deflate judicial mythology whether that mythology is favorable or not. Posner deserves a prize! As you may recall, I have blogged about Judge Posner’s work. See, for example, here

        Finally, whether federal judges know me or not, they have given me a pass. Generally, they have just ignored the blog. To be absolutely clear, I have never received any pressure from my superiors (my chief judge, the chief judge of the Circuit, or otherwise) to shut up or tone down. My chief, Laurie Smith Camp, has, on the contrary, been very supportive, although I know she shudders from time to time.

        Hope this is responsive.

        RGK

  9. Judge, your point is sound. I come from a position of deep respect for the institution of which I am as much a part as you, so I often fail to consider the political vandals who would rather trash the place for their own agendas. But this is why I have no respect for those judges who obviously have a political agenda, as for example in the recent indefensible McCutcheon decision. They are also engaged in trashing the place, but from the inside, a far more dangerous place. You, on the other hand, are actually showing us what judges do, and why they do it, a true public service.

  10. Judge,

    As you know, I have at times felt that the blog was awkward, and the comments at times fawning. I have also watched you take some dubious risks, given your seat. All told, this blog and your willingness to take those risks, as well as the heat that comes with them, has done more to humanize the judiciary than anything I’ve seen in my years of practice.

    With the good comes the bad, but the good (and your willingness to tolerate an awful lot of hostility and disagreement, especially from me) far outweighs the bad. I think this blog has been enormously beneficial to the law, the judiciary and you personally, and I, for one, would be far poorer with it.

    Best,
    Scott

    • Scott,

      Coming from you, the law blogger I respect more than any other (including, most especially, the brains at VC), your note leaves me speechless. Well, not quite: Here’s to many more duels in the future.

      All the best.

      RGK

  11. okay you can have my lunch money! happy now? :).

    all kidding aside, I enjoy your column from a few states away and wouldn’t want it any other way. give to me straight. :).

  12. Your ability to vocalize transparently has been a benefit to Me! I am a true Humanitarian & you have been Yourself. As I truly Believe give from your Heart, “Love” is the Greatest of All!!!

  13. I once heard Judge Alex Kozinski, now chief judge of the 9th Circuit, in a speach talk about why he became a federal judge. He said for the money, then explained there is cash value to some of the perks.
    The one talked about was the cash value of having people laugh at your bad jokes. I think he put a $10,000 cash value on every bad joke that got a laugh.
    So, if people didn’t laugh at federal judges bad jokes, fewer people would want the job.

    • Tom,

      I appeared (by phone on a summary judgment motion) only once before Judge Kozinski when he and I were both very young. He was on the claims court and I was lawyer for a bank out where central time bleeds into mountain time. I was suing the damn FMHA ’cause those bastards had screwed us on a Uniform Commercial Code lien filing. They grabbed our security (cattle) and sold the security keeping the money.

      After the oral argument was over, and I had lost (as I should have), I told my law partner, Ed, that I had just appeared before “the smartest son-of-bitch in the world.” Judge K. easily ripped apart the argument of opposing counsel who was a dolt. He then proceeded to do the same thing to me, although I like to think I gave almost as good as I got. The exchange was great fun–a true intellectual feast.

      As a result, I hesitate to disagree with Judge Kozinski. But the present cash value of the “laugh-on-command” benefit of being a federal judge substantially exceeds his measly estimate.

      All the best.

      RGK

      • Scott has been very tolerant of my slips. I’ve watched Jeff over the years and have to consciously remind myself to make sure I have the correct name when I respond to Simple Justice. Also, I don’t think Scott starred in the movie Disco Beaver from Outer Space. (Check Wikipedia, if you don’t believe me.)
        Hope treatment is going well.

  14. I hope your correspondent didn’t mistake me for a fawning lawyer–or for any other kind of lawyer.

    Since the power dynamic is inherently and immutably unequal, is this blog’s striving for a humorous, transparent, honest and legally realistic exchange doomed?

    Not a bit of it. Keep those cards and letters, and those jokes and provocative commentaries coming. I often disagree with you, and often…enthusiastically…so, but I always manage to learn something, too.

    And here’s a lesson I learned as a military officer–both as the one in the superior position, and the one in the inferior position: my subordinates who weren’t afraid to get in my face and tell me I was doing something stupid were far more valuable to me than the yes-man fawners. And my seniors thought so, too.

    I suspect it’s the same with lawyers. The fawners are useless, to the court and especially to their clients.

    One more: the joke of a bully goes like this favorite of a civilian boss I had once: “you disagree with me? You’re fired. Ha ha.” Or this one from the same guy: “you disagree? No raise for you. Ha ha.” Those aren’t the jokes of a Kopf.

    I disagree with SLS, too, to an extent: [A] bully has to have power (or perceived power) to successfully impact the target. A bully, though, has only the power surrendered to him by his purported victims. All bullies are cowards and have no power of their own. Their insecurities have already robbed them of that.

    With this, I’ll stop rambling: Yeah I wondered about the fawning comment too. I think that comment may have been from someone who is not a regular reader of the blog, and viewed that post through skewed lenses.

    I took the comment to be a reference to those of us so timid as to have defended the judge in that post.

    Eric Hines

    • E,

      You are a good friend. I value your advice. Thanks for writing, and I look forward to our future disagreements.

      All the best.

      RGK

    • Eric,
      Thanks for the comments. I think we actually agree about the bully concept. You’re just better at writing it concisely than I am. Something may have been lost in my bombastic verbosity.

  15. Wow, Judge, I would say that attorney about your age has not read through your blog much. Just having a blog is something many judges would not do. I spent 28 years in the Army and Army Reserve. I have some experience with the power of an office or rank. Yes, a person can speak “truth to power.” A person can even joke with power. But, one has to pick those moments carefully and with some respect. I do not mind saying I never kissed anyone’s backside and I would not start now. True respect is earned, not given. I think if someone “fawns” on you, then that reflects on the person, not the one with the rank or office. There were times when I felt younger officers or NCO’s were brown-nosing me. It turned me off and I would call them on it if it got in the way of accomplishing the mission. Anyway, I know I am preaching to the choir here. You’re doing ok, Judge. Keep it up. I say in my most respectful way…….

    • Tom,
      I was going to leave a similar comment based on a similar background (well, you have more years than I did in the Army, but, I think the analogy is right…in my case, it was a mix of line duty and Company Command before heading off to the JAG Corps). That is, both lawyers and the judiciary represent a hierarchy as does, of course, the military. However, you beat me to the comment.

      The hierarchy and positions in both environments by definition create unequal power relationships. However, any good leader takes the input of subordinates into account and treats all with respect. Subordinates give respect by custom and duty (at least; of course, they also give it when it is earned). Also, as you alluded to, “boot licking,” or “eating cheese,” is frowned upon. That last issue, though, is not as important as having a good climate where folks can share their thoughts (in the right forum and with the proper respect).

      I am going to give a second hand compliment to Judge Kopf, by stating that I agree with your view. And, to be frank, unless one is likely to appear before him, the courtesy given him is likely just a matter of respect for the office, not out of fear or some other concern. To undercut his concern, absent some outrageous disrespect in a blog towards him, met by some referral to the Bar disciplinary committee (an extremely unlikely event I think), there is no real “unequal” relationship here in “blog-land.” I find the blog very interesting, even though it is more likely that I will be named to a manned mission to Mars than it is that I would every appear before him.

  16. Judge:
    Two points. I freely use humor while presiding over trials for a very specific reason: I know and appreciate just how stressful litigation can be. I tell the occasional joke or story as way to “let the air out of the balloon” and lessen the tension associated with trying cases. Second, I respectfully disagree with the contention that your respondents will gravitate towards obsequiousness given that you are a judge and most of them are not. This is an anonymous forum and respondents are free to say anything–within reason– in response. The power dynamic to which you refer certainly exists in the courtroom but not necessarily here.
    Yours,
    Robert

    • Judge Robert,

      I am really glad you mentioned humor in the courtroom as a stress reliever for the lawyers and everyone else. I try my fragile best to do the same. When I interview jurors after each one of my trials they often tell me that they appreciate the fact that proceeding was decorous but relatively relaxed.

      Thanks for writing.

      All the best.

      RGK

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