Why Doesn’t the Judge Understand the Law?

I literally cannot count how many times that I have heard the question, “Why doesn’t the judge understand the law?” This goes to the old saying, be careful of what you ask for, you just might get it. Here is why it ‘seems’ that the judge doesn’t understand, he’s not supposed to.

If you have never met Iustitia, or Themis allow me to introduce you to her. In ancient Rome, she was known by her Latin name Iustitia, and in ancient Greece she was known as Themis. In common English we refer to her as Lady Justice. I’m sure we’ve all seen the stone statues of a woman figure, erect bearing three distinct features. She is usually depicted as holding a set of level scales in one hand and a double-edged sword in the other. She will also usually have on a blindfold.

Though I would never suggest to anyone that they walk around blindfolded with a sword in their hand, in her case it is important to note that she is not walking, but to the contrary, she is steadfast. There is good reason for these depictions and the way we recognize her is exactly the way I personally want her to be.

Let’s take a closer look at her distinctive attributes. As I have just mentioned she is not walking or lucid, but rather she is steadfast. This means that she cannot be wavered, or moved. She has a duty and that is to be and to remain incorruptible.

We have heard that “justice is blind” and it should be. This is depicted by the blindfold that Lady Justice wears. The courts are not to show favoritism, though they do in ways sometimes seemingly subtle and in other times overtly. This is not equitable and favoritism can land a judge in a heap of trouble providing a litigant knows how to recognize favoritism and also knows the process of rectifying it when it is apparent. When a judge shows favoritism toward one side or another it is known in law as “Judicial Misconduct”. You can read more about how to address judicial misconduct specific to your state by clicking on your state statutes located on the Statutes and Rules page of Pro Se Foreclosure.

Her sword is double-edged so that it cuts in either direction. I have jokingly said in the past that she carries a sword to kill the loser, but figuratively speaking this joke is closer to the truth than I first thought. It is her duty to “dispose” of frivolous claim, treachery, and legal wrongs. She kills not the litigant but his arguments. The sword literally depicts reason in law and justice based upon the facts presented in any case that comes before her.

Her scales are probably the most important depiction in the overall image of her existence because it is upon these scales where a litigant places his findings of facts and conclusions. Let’s define these terms. “Facts”, are facts in law i.e. the law itself. Often referred to as statute, code or rules these are the facts that are presented in your argument. You, the litigant are the “finder of facts” and the judge is the “trier of facts”.  “Conclusions”, are not your own, but rather the conclusions of judges in prior cases in our Appellate Courts and Supreme Courts (State or Federal respectively). We refer to these conclusions as case law.

It is the duty of the court to open the court with clean, balanced scales. As a litigant it is your duty to bring your facts and conclusions to the court and place them all on your side of the scales. You opponent has an equal duty to do the same. Whoever has the most convincing facts and conclusions on his side of the scales wins.

Since justice is steadfast, and blind, since justice carries a sword that cuts both ways, and since the scales must tilt in favor of one party or another it would be detrimental to a litigant’s case if we were to expect the judge to “know the law” since that is not the duty of the court. It is your duty as a litigant to bring understanding of the law to the court.

In “fact” (there’s that legal term again) a judge is forbidden from practicing law from the bench. If the judge was to bring his law into your suit either in your favor or in favor of your opponent this would be a miscarriage of justice. Here is the fact, under the American Bar Association (ABA) Rules of Judicial Conduct, also known as the Judicial Canons, Rule 1.1 provides as follows, “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

If we as pro se litigants ask or demand of the court that the judge “knows the law” in essence we are asking Lady Justice to wield her sword and cut off our heads. This is exactly what we never want from our judicial system. We want impartiality, and part of that imposes a duty upon us all to know the law, and by way of proper presentation to the court bring understanding in our case. The duty is not the court’s but ours and ours alone.

Steve Skidmore

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