Countering the Judicial_critics 2006

8/12/2019 Countering the Judicial_critics 2006

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In Support of Fair and Impartial Courts

Countering the CriticsA Q&A Guide

303 N Queen StreetChestertown, MD 21620

[email protected]

This pamphlet has been prepared by Margie Elsberg of Elsberg Associates for theLeast Understood Branch group, a joint project of the American Bar AssociationJudicial Division and Standing Committee on Judicial Independence.

The views expressed herein have not been approved by the House of Delegates orthe Board of Governors of the American Bar Association and, accordingly, shouldnot be construed as representing the policy of the American Bar Association.

Copyright 2006 Margie Elsberg. All rights reserved.No part of this book may be transmitted or reproduced in any form by any meanswithout permission in writing from the author.

Source: http://www.abanet.org/judind/toolkit/impartialcourts/critics.pdf


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Contents

I Who Needs a Q&A Guide? 3

II Q&A: Top Six Tips 4

III Bridge to Your Core Message 6Bridging Guidelines 7

IV Fielding Questions:Softball, Hardball & Out of Left Field 8

V Real Questions Youll Probably Get 10

Social Issues 10Constitutional Issues 11The Courts Themselves 12Space for Additional Questions 14

VI Real answers: Putting Bridging to Work 15

VII Helpful HintsMaintaining Control 18Never Repeat Negative Accusations 19Assume that Reporters Are in the Audience 19

Notes 20


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IIn Support of Fair and Impartial Courts

Who Needs a Q&A Guide?

We recently heard the story of a judge who addressed alocal civic group on the importance of judicial independence

from political and special interest interference.,He expected enthusiastic applause at the end of his talk,

perhaps even a standing ovationbut instead, he got a batteryof complaints and comments about the courts and judges:their inefficiency, lack of accountability and mishandling ofvarious hot-button issues.

The judge felt blind-sided, and acknowledged later thathe was simply unprepared to respond.

To prepare for such hostile attacks, we were asked todevelop a Q&A Guide for judges, attorneys, academics andplain folks who want to join the nations growing speakersbureau in support of Americas courtscourts that weredesigned by the framers of the Constitution to be as Fair andImpartial as is humanly possible.

When the detractors take their best shots, we hope youllfeel ready.

Margie ElsbergElsberg Associates


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IIIn Support of Fair and Impartial Courts

Q&A: Top Six Tips

1. Prepare and PracticeTheres no substitute for 3-step preparation: 1. List every question,comment or challenge that could come your way; 2. Decide how youllrespond to every item on the list, and how youll bridge to your CoreMessage (virtually every answer should resolve into a version of yourCore Message); 3. Practice with an audience thats willing and able tocritique you fairly and honestly. Then practice again.

2. Always plan a second close for your presentation.Most Q&A sessions end because the speakers time runs out, not becausethe last question gives the speaker an opportunity to finish on a powerfulnote. So make sure you re-take control of the presentation after youveanswered that last question, and re-end your speech with a message youwant the audience to remember.

Note: In the unusualbut superbevent that the last question DOESend just right, discard your second close, smile your brightest smile andend with a big thank you!

3. Think of the Q&A session as a one-on-one conversationwith a reasonable person.No matter how difficult the questions, comments or out-and-out attacks,

youd likely have a fairly easy time of it if you were in a one-on-one

conversation with, say, a long-time neighbor. I think its all of thoseother people listening in that makes Q&A unnerving. So tune them out,and talk only to the person youre looking at at a given moment. Find adifferent face every few seconds but maintain your one-on-one attitude.

4. Stay cool. Let your body language signal confidence.Everyone in your audience knows (at least subconsciously) that bodylanguage, facial expressions and voice tone can tell them more about yourmessage than the words themselves (thats a proven fact). So follow these

guides; theyll help you appear fearless and truthful:

SMILE. Not a smile that says your words are funny or that yourebelittling the questioner, but a soft smile that says youre relaxedand happy to be engaged in this interesting conversation.


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Encourage your hands to GESTURE NATURALLY, the way theywould if you were talking to your best friend. Dont hang on tothe lectern or let your hands seek the safety of your pockets or

your back; dont assume the common fig leaf position or letyour arms cross over your chest. If you start with your handseasily at your sides, theyll naturally connect with your words.

MAINTAIN EYE CONTACT, TAKE A STEP FORWARDand relax your face when youre thrown a hardball to signalthat youre happy and willing to engage. Beware! Your eyeswill want to look down or away and your body will want toback up. If you let that happen, the audience will know that

youve taken a hit.

START SHIFTING AWAY FROM THE QUESTIONER sothat person doesnt dominate the session and grab too muchattention. Find other faces in the audience so others will feelthat youre including them in the conversation. Let youreyebrows rise to add interest to your face and inflection to yourvoice. Youll look open and honest, and youll sound morenatural and engaging.

NO ALCOHOL OR CAFFEINE in the hours before you speak!And get plenty of sleep.

5. Keep your audiences needs, interests and values centralto your messages.The more you know about your audience, the more finely tuned yourcomments will be. If the audience is evenly divided on reproductive rights,

for instance, youd best cite examples on another topic. If you know the

audience is generally liberal or conservative; management or labor; rich orpoor; well- or poorly-educated, youll be able to get on their wavelengthand avoid misstepsif youre sensitive to their needs, interests, concernsand values. Everyone in every audience is different, but most audienceshave many things in common. Use PLAIN LANGUAGE so everyonewill know what youre talking about.

6. Think before you speak! A pause can be your best friend.

Take a few seconds to think about what youre going to say. The audiencewont mind the silencein fact it willalert them that something importantand interesting is coming up. Use the time to plan how youll get from thespecific attack to your core message. Only when youve decided what youre

going to do should you start to talk.

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IIIIn Support of Fair and Impartial Courts

Bridge to Your Core Message

No matter how friendly or confrontational the questioner; nomatter how loaded or straightforward the comment, you should treatevery question with openness. At the same time, remember thereasons youre talking to this audience:

To Counter the CriticsTo Support Fair and Impartial Courts.

Heres the easiest way to get from the question to your goal. Wecall it Bridging.

Use the question only as a starting point to get to your Core Message.Remember, the thing you want your audience to take away is that

America needs Fair and Impartial Courts, so pause to decide how thequestion or comment relates to that point. When you start to talk, spend alittle time talking about the questioners specific issue, then broaden your

point so you can bridge to your Core Message and finish with confidence.


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Bridging Guidelines

Never debateResearch by the nonpartisan Justice at Stake Campaign shows

that most Americans have little or no interest in slogans likejudicial activism and activist judges and they rarely want todebate specific cases. What they DO agree with strongly is thatWe need strong courts that are free from political influence.

So dont waste time debating controversial decisions, arguingpoints of law or countering anti-court slogans. If an audiencemember insists on taking you there, you might offer to continuethe conversation after the event . Meanwhile, use the issue to

bridge to your Core Message.

Vary the length of answers, but be briefBe polite and informative. You can tell a story from time to

time to illustrate a point, but generally be briefthough notabrupt. You want to avoid being so short that you seem dismis-sive or confrontational.

Find different ways to express the Core MessageRepetition is a powerful tool so use ityour audience will re-

member the words fair and impartial courts if you say them overand over. At the same time, youll want to avoid sounding like abroken record. So from time to time, you might turn to sportsanalogies for help.

If we all want ballgames to be impartially refereedwhen all thatsat stake is a banner in the gym or a plaque on the wallthink how

important it is to this democracy that our court proceedings be fair andimpartial.

Just as referees must follow the rules of the game, judges are heldaccountable to the Constitution and the Bill of Rightsnot to politi-cians and special interests. Dont forget that court decisions must be

published for all to see. And if someone feels the decision wasnt fair,they can appeal it to a higher court.

Americans expect referees to stand up to the boos from the home teambleachers when they make an unpopular call. Just the same, they wantstrong courts to protect individual rights and to offer equal justice forall.


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IVIn Support of Fair and Impartial Courts

Fielding the QuestionsThere are three kinds of questions:

Softball

Hardball

Out of Left Field

All three types of questions can be managed, and with practice,they can almost always be managed well. Here are some guidelines:

Softball questions are the ones that give you relief, since youknow the answer and are eager to get across the message it conveys.But remember, its easy to sow seeds of discontent along the way. Tothat end

Pause and strategize. Recognize that your answer will give youa chance to deliver your Core Messagethat Americans must dowhat they can to keep the courts as fair and impartial as possible.Use the bridging technique to fashion your answer.

Spend a little extra time telling a story that will help supportyour Core Message. Your anecdote will help audience membersunderstand and remember the point youre making.

Use a pause to consider where youre going next, or whether youwant to continue. Every time you add something new, you riskreminding the audience of some unpleasant courtroom memory, or ofan issue about the judicial system that is divisive.

Hardballquestions are usually asked in a confrontational

manner. Everyone in the audience knows youve been challenged;theyll be eager to see what will happen next. Heres what to do

Break the tension by staying relaxed. Usually, a slight smile (nota smirk) while the questioner is still talking will signal to the audi-ence that youre finethe perfect way to retain control.

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Dont debate the question. Instead, address the questionerstopic in a way that allows you to bridge to your Core Message.

WARNING! Dont disregard the question or commentand leap across the water to a message about Fair and Impartial

Courts. Audience members want you to show respect for thequestioner by addressing the issuebut theyll nearly always besatisfied (and even relieved) if you use bridging to put the questionin context and relate it to something they value, like Fair andImpartial Courts.

Feel free to pause as you decide what youre going to say. Theaudience will wait. If your pause seems too long you can simply say,Forgive me, please. I want to take a second to think about what Iwant to say. Then take the time you need to figure out where youwant to go.

Out of Left Fiel

dquestions are the ones you haventanticipated or know nothing about, and if youre certain that theaudience agrees that its too far removed from the event topicandif youre equally sure you wont hurt the questioners feelingsyou

can simply smile or laugh pleasantly and wave it off.

Nearly always, however, youll need to give these questions andcomments a fair hearing, so use a pause and figure out how youllrespond. Here are a few tips:

If theres an ally/expert in the room who can help (theexpression on youre allys face should let you know), ask her tostand up and join you for the moment.

Use a pause to decide if you know enough to answer briefly and toconsider whether you can bridge to your Core Message.

If you dont know about the decision, research or issue, feel free tosay so. Telling an audience, I dont know enough to talk about thatquestion may be hard to admit, but audiences will find your honestyrefreshing and theyll let you move on.

Write down the left field question as soon as youre done,then spend time figuring out how youll answer it the next time itcomes up. Questions out of left field become softballs as soon as

youve decided what youll say.

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VIn Support of Fair and Impartial Courts

Real QuestionsYoull Probably Get

With the help of a few other people, including (and this is impor-tant) some who have no particular knowledge about the courts, youshould brainstorm every question you might get and decide then andthere what your response will be. Youll save yourself heartache andreduce the risk of misspeaking. After all, hot button topics morph intosoftballs questions when youre ready for them. Here are somequestions to start with:

SOCIAL ISSUESAbortion

When we had a liberal Supreme Court, abortion was legalized,but with the new conservative justices, most people expect thatabortionists will become felons again. Arent the courts more

about politics than justice?

How can you defend liberal activist judges who rule that killingan unborn baby is not murder?

Adoption/CustodyFamily courts do more damage than good in the name ofpreserving the family. Judges give custody to parents wholater hurt or even kill their children. They tear apart parent andgrandparent relationships. And racial or sexual preferenceprejudice clearly colors many adoption rulings. Dont you agreethat family court judges should be taken into custody when theydo harm?

Medical Malpractice and Tort ReformWhen incompetent doctors make terrible mistakes, dont youthink that judges and juries should be free to award the victims

or survivors as much as seems right?

Medical malpractice and product liability awards are so out ofcontrol that they force doctors to close practices and businessesto shut down. Dont we need control over the courts?


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Same Sex MarriageHow can you defend any court that would threaten the sanctity ofmarriagethe real kind of marriageby pronouncing it legal toallow marriages between gay men or lesbians?

Why is there any question about gay marriage? Why cant courtsagree that the time to accept gay marriage has come?

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CONSTITUTIONAL ISSUESActivist Judges & Accountability

Why should we allow activist judges to legislate from the bench?Shouldnt we have the right to impeach them?

Dont you agree that our courts shouldreflect the values andtraditions of the community and not the personal opinions ofelitist judges?

Biased, incompetent and activist judges all over the country makedecisions that ruin peoples lives every day. Why aren't they everheld accountable for the damage they do?

Death Sentence; Death Sentence AppealsOur system says that if a jury finds you guilty of a capital crime, youcan be put to death. Why do we have to allow bleeding heart judgesto overturn verdicts that are perfectly legal?

Isnt the death penalty appeals process far too costly in terms of timeand money? Shouldnt appeals be limited?

The only thing we know for certain about the death sentence is that

innocent people will be put to death. How can you defend a courtsystem that gives the government the right to murder innocent menand women and call it justice?

If a judge hands down a death sentence and the person is put todeath, and if that person is later proven innocent, shouldnt the judgebe charged with murder?

Free Speech: Flag Burning & Pornography

Is nothing sacred? How can you defend liberal judges who allowdemonstrators to burn the American flag?

The Bill of Rights guarantees the right of free speech and yet thecourts are forever telling consenting adults that they cant purchase


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or display certain books, photos and movies. Who gave the courtsthe right to declare that speechthat hurts no one isnt free?

A judge ruled that a smut store can operate in our town. Some-thing about the Bill of Rights and free speech. How can you, in

all good conscience, defend a ruling like that?School Prayer

With violence and drugs all around them, our children need Godin their everyday school lives. We prayed every morning in publicschool when I was coming up and thats what should happen today.Dont you think the Supreme Court was wrong on this one?

* * *

THE COURTS THEMSELVESCorruption, Election Campaigns and Cronyism

I recently heard a report about prosecutors who make deals withwell-to-do people charged with crimes. If theyll donate money tothe prosecutors favorite charity orto a civic program, the chargesare reduced or dropped. And this goes on in several states. Howcan they get away with that?

Judges often give lucrative appointments to friends and former lawpartners, naming them referees in bankruptcy cases, guardians ortrustees of estates, or as implementers of complicated court orders.How can this cronyism be legal?

When a special interest groupreal estate developers, forinstancedonates millions to a judges election campaign and thejudge then rules in favor of that group, isnt that grounds for

impeachment?Decisions that Defy Logic or are Undecipherable

If were to trust the courts, we need to understand their decisionsand we need to agree that rulings make sense. (Questioner citesan example.) Why do many judges refuse to explain theirdecisions in plain English...and why do you allow rulings thatdont make sense?

Evidence Rules that Hide the Truth from JuriesJudges often rule that evidence is not admissible for some arcanetechnical reason, and after the trials are done jurors feel theywould have decided differently had theyd had all the evidence.Why should we trust a court system that lets judges load the dice?


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Jury DutyWhen I was on jury duty, the place they kept us was dirty anddingy, and no one told us what was going on. Why does thegovernment allow the courts to turn our lives upside down andthen treat us like cattle without brains?

Racial & Gender Bias; Reverse DiscriminationStudy after study shows that blacks get more jail time and whitesget lessor nonefor the same crime. Juries are more likely toconvict blacks, especially if the victim is white, and drug laws arewritten to ensure that young black men serve long sentences whilewhite kids get off with a slap on the wrist. Since the courts refuseto fix this travesty, arent we left to assume that the judges them-

selves are bigots?

Gender bias pervades Americas courtrooms. Stereotypes, mythsand biases color the way judges decide whether to admit evidenceor determine sentences in rape cases. Biased judges devalue femalewitnesses, lawyers and experts; they trivialize domestic violenceand sexual harassment; they devalue women and so-calledwomens work in civil cases; and their bias against both men andwomen colors decisions in child custody disputes. You talk aboutfairness and equality, but all we see is bias. When will this end?

Under what authority can courts rule that its right to discriminateagainst whites when it comes to offering jobs and deciding whogets into college? If its not right to discriminate against blacks orJews or immigrants, why is it okayto discriminate against whites?

Speed, Fairness & ImpartialityCourts move so slowly and its so expensive to mount a defensethat righteous people lose reputations, livelihoods, family relation-ships, friendships and even their health while your so-called justicesystem moves at a snails pace. How can you defend that?

Everyone knows that rich and famous people get justice and poorpeopleespecially minoritiesget jail. Even though youre partof the system and even though you believe in the system as awhole, dont you have to admit thats true?

It seems as if judges always believe the police and prosecutors.Ive read that they believe men more than women, and they believewhite people more than minoritiesor immigrants. Dont you gettired of pretending that our courts are fair and impartial?

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More Questions


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VIIn Support of Fair and Impartial Courts

Real Answers:Putting Bridging to Work

For a Question on Social or Cultural IssuesThis answer starts by putting the issue in perspective and steers

clear of entering into a debate (which is the mine field).

Abortion, same sex marriage, stem cell research, school prayer (include the

questioners issue)these are social and cultural issues of our time aboutwhich we have widely differing opinions.

Continue by bridging away from the issues toward the safe havenof your core message...

These issues are brought into our courts; the courts do not invite them.But one thing is certainthey must be decided according to the law; theymust NOT be decided according to which side is the noisier, or which side

has more demonstrators outside the courthouse.

Finish firmly, but graciously, in the Core Message haven:

It is the law that looks at each issue, however difficult, with an impartialhand. Each side of the argument is treated fairly and equally. And that,after all, is where we can all agree.


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For a Question on Constitutional IssuesThis answer uses the same approachas the first. Dont debate

the issue or point of viewthats the mine field. Instead, begin byframing the questioners issue and putting it into context.

Lets say the questioner wants you to agree that activist judgesshould be replaced with judges who honor the Constitution as theFounding Fathers intended. Here goes:

Im going to assume youre asking about federal judges and the termsthat they serveterms that are set in the Constitution. The FoundingFathers were very clear that there must be three co-equal branches of

government. And they were also very clear that the judicial branch (the

courts) must be independent of the executive (the president and his vari-ous departments) and of the legislature, the Congress. They knew thatthe president and members of Congress would be beholden to the indi-viduals and special interest group members who elect them, and theywanted judges to be distanced from those pressures. So the Constitutionsays two other things about federal judges: First: They serve for life, aslong as they exhibit good behaviorwhatever that means! And sec-ondly: No one can reduce their salary.

Continue by bridging toward your core message.

Why did the Founding Fathers make it so hard to remove judges? Andwhy can't the president or Congress cut judges pay if they dont like theirdecisions? Because the Founding Fathers wanted judges to be account-able only to the Constitution and the laws of the land. Judges are, afterall, the nations referees, and just as we wouldnt tolerate it if a teamowner could fire a ref if he didnt like a call, or cut his salary, we dont

want anyone bullying our judges when they dont like a decision.As you arrive at the safe haven, finish your answer with your Core

Message.

In other words, the Founding Fathers did everything they could to keepyou and me and the president and Congress from trying to influencejudges and justices. They knew that fair and impartial courts are essen-tial to our democracy. After all, thats where we go when we need some-

one with great power who will uphold our Constitutional rights.


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For a Question About the CourtsThese may be the most difficult questions to answer because

theyre often built around truisms: that a court or judge, law or set ofrules is neither fair nor impartial, neither guarantor of civil rights nor

well-mannered or even civil.Just as you shouldnt debate a social or Constitutional issue, you

shouldnt challenge the questioners criticism as long as it seems rea-sonable. Instead, accept that the courts must uphold the law whilebeing fair and impartial, respectful and polite...and move on from there.

The question this time is about federal mandatory sentencingrules that, according to studies, have put a disproportionate number of

blacks in prison for disproportionately long amounts of time.As always, start by framing the issue while avoiding confrontation.

"Many...perhaps mostpeople familiar with the courts would agree thatmandatory sentences ordered by Congresshowever well intentioned

can cause serious problems. Theyre one-size-fits-all laws with one im-portant exception thats become quite controversial: When it comes to thevarious forms of cocaine, Congress says sentences for dealing crack co-

cainewhere most defendants are blackmust be much stiffer than sen-tences for dealing powder cocainewhere most defendants are white. Ifyoure a non-violent first-offender and youre convicted of trafficking 50grams of powder cocaine (thats less than 2 ounces), youll serve two yearsin jail. If you deal the same amount of crack, youll serve ten.

Now bridge to your core message:

Lots of judges and observers think the federal courts that hear these cases

should also determine the punishment, but the mandatory sentencing lawswere written to ensure consistency from court to court, so judges have littleleeway. A young person who shows great promise gets the jail time thatCongress has ordered. Period. And if that young person sold crack, thesentence is going to last a long time. Your question is really about fairness,impartiality and colorblindness. Its a valid question.

Finish firmly in your Core Message haven

But until federal mandatory sentencing laws are rewritten by Congress,judges are bound to apply them as they now exist. Remember, judges donot write the laws. They must abide by the laws as they are writteneven if they disagree with them. A judges absolute duty is to follow thelaw and to uphold it.


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VIIIn Support of Fair and Impartial Courts

Helpful HintsMaintaining Control

Look at the person as they ask their question and maintaingood eye contact as you begin to answer. Then start to lookat others in different parts of the audience as you speak. Thatway, youll visually include others in the conversation.

Keep your hands free to gesture. If youre unsure or uncom-fortable, your hands will dive into your pockets or reach foreach other and clasp; your arms will cross in front of yourchest. Dont let them do that! Stay open and use your handsto gesture.

Stand your ground or move forwardeven when the questionfeels like an attack. Stepping back signals that youre on the

defensive. Allow a follow-up question, but only one. Explain that you

want to give everyone a turn.

If a questioner wont let go, suggest that youll be happy tocontinue the conversation afterward, but that its time to letothers have a turn.

Break tension with a smile: A relaxed smile while someonesasking a question in a rude way tells the rest of the audiencethat youre okay. And a smile as you greet a new questionersays youre happy to make their acquaintance.

Choose the time when you will end the Q&A portion of yourpresentation, retake control and finish with your preparedsecond close. If youve forgotten that tip, return to Page4Q&A: Six Top Tips. The one about a second close is tip

number 2.


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Never Repeat Negative Accusations!Its frighteningly natural to repeat accusations made against you

orin this caseagainst the courts, but the impact of hearing you dothat is dreadful: you instantly give the accusation credibility. Listen

to how this sounds:Q. Arent all judges just power hungry narcissists?A. No, all judges arent power hungry narcissists.

Instead of repeating the accusation, answer the question positively,on yourterms. As

Q. Arent all judges just power hungry narcissists?A. Judges know that their authority comes from the Constitution

and from the law. Actually, its most often a wonderfully humblingexperience to be a judge.

We invite you to think of negative accusation as the bait in amousetrapthe cheese, if you will. Our advice? Dont bite!

Assume that Reporters Are in the AudienceWe hope youll think of the reporter as someone wholl give you

the opportunity to talk to an even larger audience. If you were happyto talk with this audience of 50 or 500, we hope youll be glad that thereporter might spread your messages even more widely.

So if a reporter comes up to you after your talk, we encourage youto think of the interview as another phase of the presentation. Focuson the mediaaudiences interests this time, and give them more of thesame important views.


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Notes

Countering the Judicial_critics 2006

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