What is he constantly writing about?
October 31, 2011 9:31 PM   Subscribe

What do judges do during trials aside from deciding on objections and keeping order in the court? I've been engrossed with the Conrad Murray trial and I've noticed the judge is almost always writing on a legal pad. What's he writing?
posted by allseeingabstract to Law & Government (11 answers total) 7 users marked this as a favorite
Judges do all sorts of things. Probably most importantly, they have to decide whether to allow or exclude evidence. They have to give instructions to the jury throughout the trial, and especially before deliberation, often giving special instructions for special situations. For example, if a witness is unreliable but the testimony is important and allowed on that basis, the judge may have to tell the jury to consider carefully the unreliability of evidence when they use it. And of course judges have to give the verdict, with reasons, if there's no jury.
posted by smorange at 10:03 PM on October 31, 2011 [1 favorite]

A close relative of mine is a judge, though a different kind, and it is entirely possible that, at least some of the time, the judge is doodling on that pad.
posted by redfoxtail at 10:12 PM on October 31, 2011 [1 favorite]

What do judges do during trials

Do you literally just mean "during trials," or do you also care about what happens before and after a trial? Often there is no trial because the judge decides a trial isn't necessary. So, a judge isn't just someone who sits around occasionally ruling on objections while a jury does its thing; a judge often makes the decision about whether the jury is going to be there at all. Google "motion to dismiss" (which applies in criminal or civil cases) or "summary judgment" (which is about civil cases).

Remember, the vast majority of cases never go to trial. So "trial" isn't synonymous with "important legal proceedings."
posted by John Cohen at 10:17 PM on October 31, 2011 [2 favorites]

I find that they take notes for objections later on in the case. For example, in my trial on Friday, about 20 minutes after my client answered a question, the DA asked her to clarify a portion, but he mischaracterized her testimony, so I objected and the judge reviewed his notes and gave the correct phrasing. In addition, in trials, after the state/petitioner/plaintiff presents their case, the opposing party can move to dismiss because the proponent did not prove their case and the judges need to review their notes to make the determination. Finally, in a non-jury trial, the judge needs to have good notes in order to make a ruling at the end as the judge needs to recite the findings of fact, such as credibility determintations, that support their findings.

To be fair, sometimes they do doodle, but in my experience, they are more likely to surf the net or message their judicial assistants. Sometimes, they are working on other case - reviewing documents and signing orders. Judges like to multi-task just as much as the rest of us.
posted by miss meg at 10:19 PM on October 31, 2011 [4 favorites]

The judge is making his or her own notes of the witnesses' testimony. He/she needs to be able to make rulings of all kinds, and many of them depend on the evidence already in the record. But the judge may not have the reporter's transcript at the time the ruling is needed.

Keeping control of a trial is extraordinarily difficult. There are a million different things that can go wrong, and the attorneys are always trying to get away with something. It takes a very forceful personality, and it requires one to make split second decisions about complicated issues. The judge has to know all the rules inside and out.

If the judge makes a serious enough mistake ("reversible error"), the verdict may be overturned on appeal. Or a mistrial may need to be granted. Either way, that entails an enormous expense of time and money.

I used to clerk for a federal judge, BTW.
posted by mikeand1 at 10:21 PM on October 31, 2011

I also used to clerk for a federal judge. :)

+1 on the taking notes that they can look back to when making rulings on evidence, testimony, etc. They might also be messaging their clerks to ask them to research legal issues that have come up during the trial or rulings they may need to make later.

Additionally, even if it's a jury trial, the judge has to listen to and weigh the evidence for him or herself. During certain portions of the trial attorneys may make motions saying that there isn't sufficient evidence to support the other side's argument, and a judge has to remember the evidence and rule on the issue.

Plus, as others have said, judges typically have lots of cases in various stages before them, so they may also be doing research or reviewing motions in other cases.
posted by McPuppington the Third at 10:54 PM on October 31, 2011

Yes, I would say definitely taking notes. I've not done an actual trial yet, but in nearly all my motion hearings so far the judge has been taking notes on what witnesses are saying or even on what I'm saying for future reference or to try and outline whatever the arguments are that the lawyers are making.

But in a trial as complicated and intricate as celebrity manslaughter... I am SURE the judge is taking notes to keep everything straight for future decision making. No one likes being overturned on appeal!
posted by motsque at 7:57 AM on November 1, 2011

Judges serve as "the thirteenth juror" and can, if the weight of the evidence is insufficient, acquit a defendant even if the jury would unanimously vote to convict. So the judge is making notes of testimony in order to perform that role. And also, as others have said, the judge needs to have notes on witness testimony to rule on objections (for example, some evidence might be ordinarily inadmissible but the party offering it claims that the other side "opened the door" to it in some way; that party may deny that it opened the door to it; the judge needs good notes on testimony to resolve that dispute). Also, parties are not allowed to misstate the proof in closing arguments so, in order to rule on objections to closing arguments, the judge must have a pretty detailed recollection of what was said by witnesses and what evidence was put on.
posted by jayder at 8:34 AM on November 1, 2011

Judges multitask.

Almost all of them here in Texas (state and federal) have access to their email on the bench, and they often check it and send out messages that may relate to the case being heard, other cases, courthouse/judges inside baseball gossip, or maybe personal/professional issues. So, while they are listening, the extent to which they are intently paying attention predictably ebbs and flows. Key witness and key testimony, you probably have the judge's full attention (or at least you hope you do). Random background testimony (where were you born, tell me your education background), the judge will almost certainly drift to other things.

Judges tend to be masters at listening just enough to get the gist of what is being said and to be able to rule on objections if necessary. This is actually easier because most judges also now have a real-time transcript on a screen in front of them as well, so if they miss something, they just read what was just said and pretend like they were paying attention. But they also work/read on other cases, doodle, answer emails, and I've heard some do crosswords or Sudoku puzzles.

So what is the Judge in the Conrad Murray trial doing with a legal pad? I don't know for sure because I have not watched that trial. But from my experience, the judge could be keeping track of exhibits offered and admitted for himself (one of the few scorecard things that happens during a trial, though the reporter keeps the official list), but it is more likely that the judge is doodling. I think it is unlikely he is taking copious notes as some suggest. Not many judges who I have been in front of in jury trials actually do that. He may make an occasional note, but he is unlikely taking diligent notes--after all, he has the transcript at his disposal so why would the judge be taking notes of something he will have the complete transcript of? You may like to think the judge is doing that, but I would highly doubt it.

In my experience in trials, federal judges tend to be more likely to take notes for substantive reasons than state judges primarily because federal judges have to write reasoned opinions on things they decide and state judges do not. So federal judges sometimes take notes when they think about what they are going to say in that opinion they write that will end up on Westlaw/Lexis.
posted by dios at 9:50 AM on November 1, 2011

I just had a four-week state court hearing in which the judge spent most of his time taking notes of the witnesses' testimony, even though there was a court reporter. I think he did this for a couple reasons:

(1) Even though the court reporter could read it back, she had a lot of errors and holes in the rough transcript. (She would later listen to the audio and fix them before producing the certified version.)

(2) The judge seemed to prefer having his own notes, which were probably an efficient summary of the evidence. It was much easier for him to locate a given fact in his own notes than trying to find it in the transcript, especially if it was a fact that was established more than a minute or two prior.
posted by mikeand1 at 2:58 PM on November 1, 2011

Judges typically do not have court reporters read back testimony in order to refresh the judge's own memory. The court reporter is supposed to be reporting for the duration of the trial. In some circumstances, when there's a dispute about the testimony, it is done, but I've never seen a judge do it to refresh their own recall. I have been struck, many times, by how thorough a judge's notes have been when I had thought the judge seemed somewhat disengaged.
posted by jayder at 6:25 PM on November 1, 2011

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