Don’t Over-think Things, Judge
My first case was one I brought myself after a dog bit me during the summer of 1999. I had just graduated from law school and was studying for the bar exam. I was bicycling in the country near my home when a group of dogs came dashing after me from a farmhouse, and one of them got me in the calf area. It was not serious, but certainly a nuisance – it seemed I should be able to use a public road to exercise without being harassed by unruly dogs. I stopped, walked up to the house amid the barking dogs, knocked on the door, and no one answered. So I went on into town and called the sheriff’s office to report the incident. My leg was bleeding but I did not go to a doctor right away; later, the wound became infected and I had to get treatment.
I eventually contacted the dog owners, but they refused to reimburse me for the trouble and expense their dogs had caused, claiming that it occurred in the country and there was no “leash law” there. I studied the Animal Control Act, a state law, and was sure I had a remedy. I filed a small claims suit at the Piatt County Circuit Clerk’s office at the courthouse, paid the filing fee, and left the complaint and summons with the sheriff to serve on the dog owners.
By the time I filed this lawsuit, asking for a couple hundred dollars, I’d passed the bar exam, received my license to practice law, and was working at a small law firm in Mattoon. My lawyer friends there sort of laughed at the idea of my suing over this, and didn’t provide much help.
I wanted to protect my right (as well as that of others) to use the public roads without being bothered by undiscriplined dogs. Besides, it would be good practice, since my firm had been disappointingly slow in getting me into the courtroom.
Two judges were on the bench in Piatt County when I started practicing law. One of them, Circuit Judge John P. Shonkwiler, had been the “resident” circuit judge for Piatt County for many years. Under the Illinois Constitution, “there shall be at least one Circuit Judge from every county,” and this created the “resident” Circuit Judge. Judge Shonkwiler had been a Circuit Judge since 1972 (according to an inscription on his photograph in the courthouse), and by the time he passed away in 2012, or shortly thereafter at least, he had attained some degree of legendary status. A large memorial service was held for him at the new middle school, and there is a marker in his memory and honor outside the courthouse today.
When my case came up for hearing, Judge Shonkwiler called the parties into chambers to discuss settlement, which he could do under small claims rules. The dog owners made their “no leash law” argument, but the judge advised them that the Animal Control Act applied to the entire state, including rural areas. He told them he was sorry but he could not do anything about it, his hands were tied, because that law provided that they were responsible for their dogs aggressively attacking someone using a public road, even in rural areas. He explained it in a way that almost made me feel guilty for making such a big deal of it. Almost.
So, although I won this first lawsuit, the judge did not make me feel very good about it. He did give me the impression, though, that he was impartial and respectful of the law, because even though he did not seem to like my little lawsuit, he ruled in my favor because the law required it. I felt empowered.
Soon I would have more serious cases, and my feeling of empowerment was to mostly disappear.
One of my first clients came to me with a child custody matter. It was set for a hearing before Judge Shonkwiler on temporary relief, but each side was to present all their evidence and the outcome would likely have permanent effect.
My client was a mother who, in addition to the minor child who was the subject of the dispute, had a young adult child who testified on her mother’s behalf. New as I was to the bar, I was not about to try any of the dirty tricks John Grisham and other writers of legal fiction seem to think are so commonplace in the courtroom. I had not had much practice preparing witnesses to testify in court. I advised the young woman that it was important to tell the truth, and that if she did there was no reason to be nervous. We went over the facts she was going to give to the court. She followed my directions, but was still very nervous when she testified.
The other attorney was experienced, well-versed in such “clean” tricks as showing the court that his client was well acquainted with the minor child’s teachers while my client could not remember their names; I had not prepared her for this. When he cross-examined my client’s adult child, he was not overly aggressive but enough so to make her even more nervous.
I believed that a veteran judge like Judge Shonkwiler could tell whether a witness was lying or not. My witness had indeed been absolutely truthful, at least as far as I knew. And yet, the judge found that her testimony was not credible, even suggesting (I don’t remember his exact words) that I had coached her.
Of course I’d done nothing of the sort, but how do you convince the judge of that at that point? I knew the judge was wrong, and this came as something of a shock. Now it appeared that even though I don’t coach witnesses, I have to do just that to guard against a witness giving the impression to the judge that she is! It was clear to me that Judge Shonkwiler over-thought this one and got it wrong, and viewed me in a bad light to boot.
From experiences like this, I have concluded that if I were ever in a position like Judge Shonkwiler’s, I would not place too much confidence in my ability to divine whether a witness is telling the truth or not. If a judge who had as much experience as Judge Shonkwiler could not do that, I doubted that I could. The better practice, it seems, is to give witnesses the benefit of the doubt, and have hard, objective evidence before concluding otherwise – don’t try to guess. If witnesses give conflicting testimony so that you know one of them must be lying, even then, don’t jump to the conclusion that one of them is doing so in bad faith. And as I suggest in the next chapter, judges should not be too quick to conclude attorneys are acting in bad faith.
In the dog bite case, I had told the judge five dogs had attacked me. The dog owners stated that they only had four dogs at the time. OK, I said, it could have been four, it just seemed like it was five but I did not take time to count. Judge Shonkwiler gave me an accusing look, but I was not intentionally exaggerating or lying. Judges should realize eyewitnesses – and attorneys – can make honest mistakes.