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.


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