On being intimidated by a trial lawyer

By e-mail, I received the following from Nick, a lawyer,

I enjoyed your recent post “I am going to kill you!” and I was wondering if you might write on an analogous topic.

While its not on the topic of threats or fear per se, I’ve often wanted to see you answer the question,”Since becoming a judge, have you ever been intimidated by a person appearing in front of you?” This could be an attorney, a witness, an accused criminal; any party that might enter your courtroom. I think the conventional wisdom is that a judge would be unlikely to be intimidated, or at least never admit to it.

What a fascinating question.

The only time I remember being intimidated involved a contract case. I was intimidated by a trial lawyer. His name was Bill Janklow from South Dakota. The lawyer on the other side was Jim Gordon, a local fellow who is very talented. The jury trial occurred in 1994 when I had been a district judge for about two years. The case was Haight, et al v. Wyuka Cemetery, et al., 4:92-cv-00392-RGK (D. Neb.). Janklow represented the plaintiff and Gordon represented the defendant. Two days into the trial, it settled.

Here is what Wikipedia says about brother Janklow:

William John “Bill” Janklow (September 13, 1939 – January 12, 2012) was an American politician and member of the Republican Party who holds the record for the longest tenure as Governor of South Dakota – sixteen years in office. Janklow has the second longest gubernatorial tenure in post-Constitutional U.S. history at 5,851 days.

Janklow served as the 25th Attorney General of South Dakota from 1975 to 1979 before serving as the state’s 27th Governor from 1979 to 1987 and then the 30th Governor from 1995 to 2003. Janklow was then elected to the United States House of Representatives, where he served for a little more than a year. He resigned in 2004 after being convicted of manslaughter for his role in an automobile accident.

Early life
Janklow was born in Chicago, Illinois. When Janklow was 10-years-old his father died of a heart attack while working as a prosecutor at the Nuremberg Trials in Germany. His mother moved the family back to the United States, and in 1954 when Janklow was 15, they settled in her home town of Flandreau, South Dakota. Following a series of scrapes with the law, Janklow was ordered by a judge to either join the military or attend reform school. Janklow dropped out of high school and joined the U.S. Marine Corps, serving from 1956 to 1959. He graduated from the University of South Dakota in 1964 with a BS in business administration and then went on to earn a J.D. at the University of South Dakota School of Law in 1966. After graduation from law school, he was a Legal Services lawyer for six years on the Rosebud Indian Reservation, advancing to direct the program there.

In 1973, he received his first political appointment as the Chief Prosecutor of South Dakota and “quickly earned a reputation as a top trial lawyer.”

Tragically, Janklow died of brain cancer at 72. He was courageous and outspoken until the end. I highly recommend reading Jill Callison, Bill Janklow: ‘I know it’s the end of the trail,’ Argus Leader (Nov. 5, 2011). Janklow died about two months after that revealing interview.

Back to my case. Why was I intimidated. I suppose there are several reasons. First, Janklow had a larger than life reputation. Second, I was a “young” judge. Third, I have found that trying contract cases to juries is intellectually stressful for the judge. At least for this dummkopf, it is always unclear what portion of a contract case is to be decided by the judge and what portion of the case is to be decided by the jury. This matter was no different.

The trial went far better than I thought it would go. Janklow, who others have described as a “force of nature,” started off aggressively. I had to call him down a few times. I remember particularly that he wanted to “crawl into the jury box” when we selected the jury. I can’t stand that behavior, and I barked at him for doing so. I also remember that Janklow was hard of hearing and I had to speak very loudly to him. Those things said, as the short trial progressed, we got along fine. In fact, I came to like and respect Janklow just as I liked and respected Gordon. Nonetheless, I was certainly relieved when they were able to settle the case before it got to the jury.

So, in answer to your question Nick, a trial lawyer intimidated me. But, I got over it.

RGK

17 responses

  1. I think this highlights a significant difference between federal courts and state courts – namely, that it sounds like federal courts generally have much more reliable security.

    I used to clerk for a state court judge on a criminal assignment in a relatively large county in a major metropolitan area. The courthouse had a reasonable amount of security (and metal detectors at the entrances, which my now-local courthouse does not have) but you could go quite a while without seeing a deputy in a courtroom. A major part of my job was to manage the courtroom – often it was just me, the judge, and the court reporter as far as staff – and there were a handful of times during the year and a half or so that I clerked in which a defendant who was unhappy with the charge/conviction/sentence became agitated with no deputy around. The quickest way to summon a deputy without hitting the panic button (which, fortunately, was never necessary) or alerting the defendant that I was doing so would be to actually jump out of the courtroom back into chambers and call the security room. I could email someone and ask them to call or email the security room directly, but I never knew how quickly someone would be up.

    I don’t know if my judge was intimidated – he certainly never let on that he was – but there were a couple of times when I was. It probably didn’t help that someone would have to go through me to get to him and that, in the absence of a deputy, it’d be my job to try to stop them.

  2. I was told by someone who was a direct participant in a well-known contentious federal court civil rights jury trial in North Platte, NE, many years ago, which had considerable national media attention and unruly protesters present, that USDC Judge Schatz had a sawed-off shotgun under the bench throughout the trial. This was, of course, years before anyone thought of courthouse security as we know it today. Is the story true? I believe it is because I trust the source of the information, but others are free to choose what they believe. I doubt the Judge was intimidated by the attorneys or witnesses – it was the “public”.

  3. MOK,

    I know the case you are talking about. I got to know Judge Schatz when he became a federal trial judge and I clerked for Judge Ross. Wes Mues, my dear friend, whom I suspect you knew, clerked for Judge Schatz after Judge Dier died.

    Judge Schatz served in the U.S. Marine Corps as a captain from 1943-1946 and as law clerk to Hon. Joseph W. Woodrough, U.S. Court of Appeals for the Eighth Circuit, 1948-1950. Schatz was in every respect a great, great trial judge.

    Judge Schatz was not afraid of anything. I sat in the packed courtroom of civil rights plaintiffs, and their multitude of supporters, when Judge Schatz read aloud his unpopular opinion denying relief in the Omaha desegregation case. It was one of the most courageous things I have ever seen a judge do.

    The foregoing said, I have no knowledge of the shotgun matter that you describe. Given the nature of the case, if I did know something about it I wouldn’t confirm the story. Some things are better left unknown.

    All the best.

    RGK

  4. David L.,

    State trial judges are truly in the line of fire, as my former law partner, now a state district judge, would confirm (but only over a drink). In contrast, we feds always have US Marshals in the courtroom in criminal cases. They don’t tolerate nonesense. Example: I had a savage punk, who was a bank robber, try to come toward me at sentencing after I maxed him out. He became awfully sore awfully fast, and I didn’t have to say a word. I confess that a slight smile crossed my face.

    All the best.

    RGK

  5. Yes, what you say about Judge Schatz was much the same description I had of him from my “source”, whom I am also sure you know. He had great respect for the Judge and used him as an example of what a great judge should be. Let’s just say that those who could confirm the shotgun story have passed on to greener pastures where legal war stories will have an infinite life.

  6. Judge,
    Having grown up in South Dakota (now practicing law in Iowa) I am very familiar with William Janklow and his reputation. He was a force of nature, and I believe served S.D. well. An interesting tidbit about him – did you know he shared quarters with Lee Harvey Oswald on a ship going over to Japan while both were in the Marines? My first Master Sergeant in the Marines also bunked with Oswald back in the 1950s in Japan, William Bagshaw. I have an interesting article from Reader’s Digest from 1978 (the 15th Anniversary of the assassination) where my former Master Sgt was interviewed about Oswald, if you are interested..

  7. Michael,

    I knew nothing of Oswald and Janklow. What a fascinating bit of trivia about a fascinating man (Janklow). Thanks ever so much for sharing it. All the best.

    RGK

  8. Duke was a great judge and as a trial lawyer he was the embodiment of polish and elegance, I wanted to be him when I grew up but never came close. However, when asked by the Circuit about a portion of a brief I had written, he noted my authorship and suggested no one in Omaha understood me anyway. Shotgun maybe, but aren’t sawed off shotguns illegal?

  9. HA! Yes, I assume the shotgun was illegal and I always thought it was something provided to the Judge by a US Marshal . . . . or maybe is was “evidence” from a previous case? 🙂 My source claimed to have actually seen the weapon (the Judge showed it to him) and he described it as sawed-off. True or not, it is an interesting story.

  10. MOK If it was left over from a caser it may have been one I lost, so some good did come of my tragic defeat.

  11. Judge:
    Yours truly was never intimidated, per se, but within the last serval years a plaintiff in a suit before me readily testified to having previously been incarcerated for murdering someone. As he calmly testified, I could not help but look at his hands and think to myself “These hands killed a man.” There was never an issue with his conduct and the trial went along without incident. But I mention this because, considering the depictions of murder in the news or entertainment media, this was the real deal: a man was alive and then dead because of the person sitting just a few feet away from me. I still think of it to this very day.
    Robert

  12. Judge; I am a friend/classmate of your wife and have just recently begun reading your blog. Very interested in hearing a judge/lawyer point of view. As a very common man from another professional fiend it just might be of interest to see a “general public’s” viewpoint. We don’t have occasion to witness court scenes often and are not weighted by the ‘trending’ going on in those hollowed walls. The personality of this trial lawyer reminded me of the impression I received when attended Foster children custody case recently involving Judge Porter. My daughter is the foster parent in this case. The states attorney had a professional but likable personality and was very influential in the case. The lawyers of the parents were much less so… almost aloof. I felt the judge did a great job at helping to create a balance in the proceedings to create a fairness and possibly something closer to ‘justice’ in the outcome.
    I guess what I am bringing up is that from a commoners viewpoint we see a certain amount of injustice solely because of the qualities and personalities of the ‘players’ on the scene. If there is a question here it would be whether a judge is allowed/required to create fairness and equality from the bench,
    From the commoner,

  13. One – perhaps the only – nice thing that Judge Kopf has ever done for me was to schedule the trial of our case of Haight v. Wyuka more than 20 years ago. It was during our preparations for that trial that Bill Janklow and I immediately became friendly adversaries, and genuine friends very soon thereafter.

    I think “irascible” (or maybe “cantankerous”) best describes Bill Janklow. Either of those adjectives might similarly well describe Judge Kopf, but that commentary may best be for another time, and in another forum.

    Bill and I shared similar backgrounds. He was only a few years older than I. As with his Dad’s death when Bill was 10, my Dad died when I was 21. I think my Dad had waited – and held at bay the cancer that finally killed him – until I returned home from Vietnam and 17 months of hospitalization.
    Bill’s scrapes with the law were of a higher order than mine. Mine was being arrested for playing pool as a minor (at a time when the “Blue Laws” of Lincoln made that a crime).

    He dropped out of high school and joined the Marine Corps. I left college well short of graduation, and was almost immediately drafted into the Army. He and I did not talk much about what had happened to us, but we shared the belief that we were both the better for it.

    It was almost literally “on the courthouse steps” prior to our first day of trial that Bill shared with me that this was to be his last trial. He confided that as soon as we were done here, he was going to return to South Dakota to run for Governor. I thought he was kidding. And so I offered that I was going to be the next Pope. I was joking. He obviously was not.

    But first we had a trial to conduct. The truth be told, neither I nor Bill thought of the Judge drawn for our case as a particularly “young” Judge. Then, as now, Judge Kopf seemed to me to be older than his stated age. In our time together back then, I learned a great deal from my worthy adversary. And I learned at least as much from our Judge (of whatever age).

    What Judge Kopf did not know is that Janklow was not the only “hard of hearing” person on our side of the bench. So I secretly appreciated Judge Kopf speaking loudly to Bill as it was easier for me to hear what was being said when he did so. Perhaps Judge Kopf knew that I was hard of hearing, too. I certainly don’t remember him speaking to me in dulcet tones either. Only now am I humbled to learn that he liked and respected me. The feelings are mutual.

    But for Bill Janklow’s kind and really quite pleasant behavior, and the short duration of, and settlement discussions during, our trial, I would also have been intimidated both by my adversary and by our Judge. Suffice it to say that both became my friends, and that I miss Bill Janklow to this day.

    I called Bill to congratulate him on his victory in the gubernatorial race. I called him several other times when I knew the pheasants would be flying in South Dakota, or just to check in with him.

    I called him once more to let him know that I was thinking of him following the fatality accident. If I could, I would call him today to share with him the comments which Judge Kopf had to say about him. Bill would be pleased.

  14. Jim.

    Thank you for your generous comments. I am so very glad that Bill and you developed a friendship. Back in the day, and I hope still now, one of the greatest rewards of practicing law was making friends with the lawyers on the other side. All the best.

    RGK

    PS Truly, I didn’t know you had a hearing problem. I do (and did) too. Frequently, I speak too softly ’cause the sound of my own voice drives me absolutely bonkers. My monotone was bad enough that in 1972 the late and great Professor John Mayer Gradwohl sent me to a speech and hearing therapist in preparation for the National Moot Court competition in New York. On the other hand, you have a wonderfully sonorous voice.

  15. Judge, I am not sure that this was actual intimidation as opposed to harassment.

    My experience has been that anyone who cuts part of their own body off, or plucks their own eye out, is probably a person to be avoided.

    About 10 years ago, I presided over a medical malpractice case in which the Plaintiff had self amputated his own penis. It may be Freudian, as he was a convicted child rapist. A physician re-attached it, but not to his satisfaction, thus he sued the physician. As the Plaintiff had no expert witness, I granted summary judgment and was affirmed by the state supreme court.

    The Plaintiff started hanging around the courthouse talking increasingly about how I had ruined his life (I didn’t start that chain saw).

    One day security reported he was in the hall, babbling about all of this so I decided to have it out with him. I told security to bring him in (I keep my own 9mm security on my waist and am an NRA Firearms Instructor). After about 30 minutes they reported that the Plaintiff could not be found. I remembered that it was my children’s’ spring break, so I called home to warn them to lock the doors and cut the alarm on. There was no answer on the land line nor on three cell phones. I raced home, with visions of this pervert tying up my family and torturing them. When I approached my house, a single, unmarked white panel van was parked outside and the front door to the house was open. I made sure that I had an extra 15 round magazine on me and charged into the house, only to be met by my electrician changing out the circuit breaker box. My wife and children were at the beach for the day. My heat was beating at 300 beats per minute.

    However, just last month, my Plaintiff told his new doctor that he was saving up his explosives, to take care of the judge that ruined his life.

    Am I concerned. No, not really. That is why I run combat drills every other week at the shooting range. But the focus of some disturbed people is really hard to believe sometimes.

    Judge Rusty Johnston
    Mobile, Alabama

  16. Judge Rusty,

    Chilling story.

    We feds, and the public more generally, just don’t understand the true dangers you all face. My former law partner is a state district judge and I would bet he has had similar experiences, although perhaps not involving an amputated penis. You and my old friend Jim are on the front lines. I hope you both do whatever you need to stay safe. All the best.

    Rich

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