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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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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