Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Don’t “friend” judges!
I write again and again about how changing technologies clash with law based on old technologies, but this is a particularly appalling example. In North Carolina, Judge B. Carleton Terry, Jr., who was presiding over a custody dispute, became a Facebook friend with Charles A. Schieck, an attorney for the father of the child whose custody was the subject of the dispute. As the Public Reprimand issued by the North Carolina Judicial Standards (pdf) recounts, before the matter was resolved, the Judge checked Schieck’s Facebook account and noted that Schieck had posted a question about what he would have to prove to prevail in the custody dispute. Then,
Judge Terry posted on his “Facebook” account [that] he had “two good parents to choose from” and [that he] feels that he will be back in court,” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”.
Our adversary system is founded on there being an adversary. Communications between one party and the judge without the presence of the other party (“ex parte” communications in the jargon of the law) are, therefore, forbidden (except under exceptional circumstances). I remember in law school standing with my clinical supervisor in the doorway of a courthouse in Flint, Michigan, where we’d just attended a hearing for a client I was representing. It was pouring rain, we didn’t have an umbrella, and we’d decided to wait out the storm in the shelter of the doorway. A minute later the judge we’d just appeared in front of walked out, and stood next to us, smiling and saying hello. My supervisor grabbed my arm, pulled me out into the rain, and walked with me to her car. I asked what was going on, and she explained: “We can’t talk to the judge!” I got it. Getting soaked to the skin in the only suit I owned was better than risking an ex parte communication with the judge.
Judge Terry also did research online on the mom in the custody dispute without telling the parties.
Don’t befriend judges on Facebook!
June 17th, 2009 at 9:12 am
It’s past time for the adversarial ‘justice system’ to cease and desist.
It is unfair when adversaries are mis-matched due to wealth & power; justice is Never served in such cases.
It is time for collaborative justice!
June 17th, 2009 at 9:19 am
I agree the mis-match in wealth has unduly distorted our justice system, but there are remedies other than dispensing with the adversarial process. Collaborative justice among parties mismatched in wealth and power? I’d rather take on wealth and power in an adversarial system myself, and I have, and I have been successful. The adversarial process doesn’t prevent collaboration. It serves well when parties won’t collaborate.
June 17th, 2009 at 10:49 am
It just seems to me the adversarial nature of human historical development has served its purpose and we humans are pretty much spread all over this global and we better learn to get along better.
It’s time to start working together to work out differences so that the goal isn’t so much winning a dispute and getting one’s way, but working things out fairly for not just the parties involved, but for everyone.
Yeah a very naive pov, but it’s really time for folks to think of others and not just themselves… and I Really believe it’s time has come because w/ the ubiquitous spread of digital communications, our world has changed by an order of magnitude – moreso than w/ the invention of movable type.
“The days when regimes can control the flow of information are over.” — Jon Williams, BBC http://bit.ly/JXblP
June 17th, 2009 at 12:32 pm
John – I think you perhaps put too much emphasis on the term “adversarial” in this context. The system as a whole is collaborative. If it weren’t, it wouldn’t work. What’s wonderful about the system is that it gives each side to a dispute a chance to present its own evidence and arguments and its own responses to the other side’s evidence and arguments. I don’t know of a better way to empower someone in a dispute. I’d rather have my own voice than a judge to supply it for me (as the judge in the case I originally posted about tried to do).
The imbalance of power and wealth which you very rightly point to deprives people of the opportunities to their opportunities to fully participate in the process. That we need to be better than we’ve historically been at resolving disputes is inarguable. But I don’t think the U.S. court system is any huge part of that problem. In fact, it might (in its “adversarial” style) be a good model to follow.