Podcast - The "Referee" of the Judicial System
Order in the courtroom determines whether justice can move forward. In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small examines the essential role judges play in the adversarial system through his pro bono work in Uzbekistan and the mock case State v. Faulkner. Drawing parallels to the Farmers Export and U.S. v. Rendle cases, Mr. Small shows how trial lawyers must balance forceful advocacy with respect for judicial authority. He recounts how an Uzbek judge, unfamiliar with the referee role, struggled to manage competing advocates until a makeshift gavel helped establish control. Mr. Small concludes that a fair adversarial system depends not only on skilled advocates but also on judges who can enforce rules and maintain fair, balanced proceedings.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook" podcast. In this episode, we'll continue discussing the mock trial case of State v. Faulkner and how we used it for my pro bono work in Uzbekistan and also use it to reflect on the Farmers Export and Rendle cases that we talked about in prior episodes. These episodes are all based on my latest ABA book, Lessons Learned from a Life on Trial. If you want to listen to the full story of the Farmers Export case, you can go back and listen to episodes 84 through 92 of the podcast. The Rendle case was covered in episodes 119 through 122.
We first took the mock trial case file in State v. Faulkner to Uzbekistan 13 years ago, to do a three-day trial workshop with lawyers and judges there to explore reforming their judicial system. In prior episodes, we've talked about the lawyers' experience with this new process, but the impact on the judges there was also fascinating.
Judges in the U.S. wear many hats: decision-maker on substantive, procedural and evidentiary law and facts, and much more. Once a case goes to trial, the judge also plays the important role of referee between the two sides, keeping order and enforcing the rules and, hopefully, fairness. So, it's important for a trial lawyer to find common ground with a judge based on respect and on the rule of law.
In the Farmers Export case, that process started early in the trial. I was trying to respect a judge's strict courtroom etiquette while still enthusiastically advocating our case. The sharp gavel to bring me back to the podium that we talked about made clear to everyone who was in charge of the courtroom. In the Rendle case, it was an ongoing effort to strike a balance of mutual respect with a sometimes-difficult judge who I often disagreed with. Again, a sharp reining in brought all of us back in control. In both cases, the general parameters of our respective roles were clear. It was a matter of exploring and respecting the natural friction points.
But since the Uzbek system did not have adversarial trials, judges there had little or no experience in the role of referee between two sides. We selected one of the attending judges to preside over the Faulkner trial, and it quickly became clear that she felt lost in that role. We'd been talking with the lawyers for two days about the adversarial system, about there being two sides, about being a zealous advocate for your side. Some of the lawyers were not able to make that change. But some did and were enthusiastic advocates. It started getting out of control, and the judge had no experience with what to do, how to control the trial without taking over the trial, as they did in their system. There would never be lawyers talking back to judges there. There would never be two sides arguing. The judge did it all.
In this environment, I quickly realized that in our preparation for the workshop, we had not spent any time on the judge's role, and we'd forgotten one key piece of equipment, a gavel. So, I grabbed a maintenance man and, through a translator, urgently requested a hammer. Fortunately, he had one handy, and I took it and brought it up to the judge’s bench, showing her how to bang it as a gavel and explaining the gavel's all-important role in gaining attention, silence and respect. It took some further encouragement, but she eventually caught on and helped to control the process much more effectively.
Imagine a hard-fought trial without a judge. Pretty nearly impossible. We in the U.S. may complain that some judges are too strict and others are too lenient, but we understand the importance of that "referee" role in our system of justice. I was a football referee years ago, and some teams thought I was too strict, some teams thought I was too lenient. (I should say some coaches thought I was too strict or too lenient.) But everyone understood the basic role and the need to have someone there enforcing the rules. Being a baseball game. Imagine a baseball without an umpire. Someone has to call the balls and strikes, or the game can't go forward.
In a system without trials, the Uzbeks had little need for referees and no experience with them. Yet, if they were to move forward towards more of an adversarial system, this was another key part of the process they needed to develop to make all the pieces fit. Order in the court. Order in the court.