MUSINGS ON JUDGES
Many times when I sit down with a new client to talk about their case my first question is “who is your judge?” To many clients, this seems unimportant and most of them can’t even tell me the name of the person who will be deciding their case. To me, this question is perhaps the most important one I can ask.
I frequently talk with potential clients who have already spoken with one or more lawyers before me. One such client came in this week (which is why I am on this topic) and mentioned that the lawyers he had talked to spent all their time talking about what the Family Code says the law is. Our conversation was more about how his particular judge goes about interpreting that law. The answer to the question “what is the law in this case” as often as not is “whatever the judge decides it to be.”
Family law, whether we are dealing with children or with property, is loaded with discretion for judges. For instance, the Texas Family Code sets out what we call “Guidelines Child Support” in Section 154.125. This is the percentage of net monthly resources that a parent should pay depending on the number of children (20% for one, 25% for two, etc.). This is presumed to be reasonable and in the best interest of the child or children. However, if you look at Section 154.123, there is a long list of factors that a judge can consider in setting child support and the very last item on the list is “any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.” Effectively, the judge can do whatever he or she thinks is best for all concerned. This is perhaps not the best example I could have used because most of the judges stay pretty close to the Guidelines, but you get the picture. When it comes down to hard and fast rules, most of the time the Family Code will provide some leeway for the judge, if he chooses to do so, to tailor the situation to the facts and the parties.
Most of the judges I know are diligent, hard working and really try to know the law and apply it properly. But even the best of judges, knowledgeable and attentive as they can be, will frequently be confronted by cases where there simply is no answer, or least no good answer, in the law or under the facts presented. That is why the law gives them so much discretion. Without discretion, a judge’s hands are tied and the result can be so out of proportion to the circumstances that no one would think it fair, just or right. For a good example of this, take a look at comments on the Federal Sentencing Guidelines for federal criminal cases.
People seem to forget sometimes that judges are human, too. It is impossible for a judge to completely set aside his life experiences when he puts on the robe. He will still be the same person he has always been, for better or worse, and he will have views on particular situations or circumstances that will impact cases he hears. It can’t be helped and it’s not always a bad thing.