Among the perquisites of a bankruptcy judgeship is the occasional opportunity to attend educational seminars sponsored by the Federal Judicial Center (FJC).¹ This opportunity is welcomed by most judges, many of whom ironically attend fewer educational seminars than practicing attorneys because, generally, they neither face mandatory continuing legal education requirements nor have a sponsor to look to for the sometimes high cost of travel and attendance at private seminars.

In April, more than 75 percent of the nation's bankruptcy bench gathered for an FJC event in Baltimore. Among the program offerings was a small group seminar entitled Law and Literature. The program uses short, great literary works to stimulate discussion of the complex social, moral and ethical issues judges face in their public and private lives. I attended this outstanding workshop, moderated by Sanford M. Lotter of Waban, Mass. He asked that participants prepare by reading in advance Herman Melville's classic Billy Budd.

Although somewhat of a technophobe, I obtained my copy of the work via http://www.amazon.com. The company, I note, offers a sampling of reader reviews in addition to the book. Those for

Billy Budd ranged from "A must-read," to "You must be kidding!" Thus forewarned, I read the book. Though not a great fan of Melville's turgid prose, I will concede that the book presented a splendid backdrop for the lively discussion it provoked in my seminar group. I'll share some observations.

For the uninitiated, Billy Budd is an 18th century novel of the high seas in which an impressed seaman is hanged for alleged mutinous conduct aboard a British warship. I'll quickly add that this is possibly the sparsest synopsis of the book I might fashion. My brevity and hesitation, however, reflect both the story's paradox and perhaps its lessons for judges and lawyers.

In our small group session there was little unanimity even as to such seemingly straightforward questions as who in the story was a guilty or innocent party, and if so, of what. Even the most basic of facts recounted by the author were interpreted differently by some in our company. This is perhaps unsurprising where a story like Billy Budd is concerned. It is argued to be allegorical and laden with obscure meanings. But our group's dissension forced us to confront the reality that absolute truths, which ideally we all hope will "out," as Shakespeare might say, rarely do, be it in literature or in courtrooms.

This is not to say that in law, as in life, we do not aspire to find absolute truths, merely that it is unrealistic to expect that we frequently, if ever, will succeed in doing so. This simple proposition itself perhaps helps to explain the untold violence man has visited upon man over the centuries in efforts to assert one version of a supposed absolute truth over another. While we eschew violence in our profession, we still face the same problems--i.e., how to discern the truth amid conflicting versions of the facts, and how to convince others of our point of view. How, indeed?

The architects of the rules of substance and procedure to which lawyers and judges must adhere recognized this dilemma somewhere along the way. A lawyer in bankruptcy court could not expect to get far simply by urging the court to accept Benjamin Franklin's wry notion that creditors have better memories than debtors. To win, a lawyer must use evidence. But consider, for example, the well-established definition of a preponderance of the evidence; if a hypothetical scale tips but a fraction in one direction versus the other, the fact in question is considered at law to be proven. This rule may have the virtue of easy application, but it gives rather short shrift to the evidence in the other pan of the scale. The rule almost guarantees errant results.

Just as any group of judges may disagree over what happened and why, so too will an individual judge often struggle to understand a story presented to him or her by parties during a trial. An object lesson of this occurs when two witnesses swear to diametrically opposed versions of facts, such that it is clear that one must be lying. Celebrated cases, such as those involving O.J. Simpson or President Clinton, generate great public debate. However, the problem arises as well in the mundane realm of litigation far removed from the public eye. A national newsweekly recently featured a cover story that decried people's growing proclivity to tell lies to advance or protect their interests. This should be cause for great concern to bench and bar alike. A bankruptcy judge has no more ability to peer into the soul of a witness to discern unerring truth than does a reader to peer past the pages into the soul of an author. Judges and lawyers must take heed. The truth will frequently elude us. How, then, does such a system of justice succeed?

The success of our judicial system hinges in large part on the willingness of litigants to accept the findings of fact on which judicial decisions are based, knowing full well that the process is fraught with the potential for error. Indeed, the American public believes its justice system is the best in the world, despite its flaws, according to survey results recently released by the American Bar Association.² In my view, this is a somewhat humbling testament to the measure of faith that society places in the judgement of its judges. Even greater, so it seems, is the reliance placed on the trial judge's ability to find the truth by those who themselves sit in judgment of trial judges. As the Second Circuit Bankruptcy Appellate Panel (BAP) recently proclaimed, "...for a bankruptcy judge's decision to be clearly erroneous it must...strike (us) as wrong with the force of a five-week-old, unrefrigerated dead fish." In re Miner, 1999 WL 69624 (2nd Cir. BAP N.Y.). I venture to guess that some of my decisions might pass such a stringent smell test, yet arguably still warrant reversal. Judges can and will make mistakes that will go uncorrected, even at the appellate level. Justice Jackson recognized this when he observed that in reaching its decisions, the U.S. Supreme Court was not final because it was deemed infallible; rather, the court was deemed infallible simply because it was final.³ As a trial level judge, I take solace in that observation. At the bottom, I personally believe that our judicial system succeeds for the same reasons that our democracy does; because, as Churchill observed, it is the worst possible system in the world, except for all of the others.

Complementing the literature seminar nicely was another workshop I attended in Baltimore entitled Personality and Judging. Judge John W. Kennedy Jr., of the San Bernadino County Superior Court moderated this session, and he sought to enlighten attendees on how they process information and how their personality types influence decision-making. Participants completed, in advance, the Myers Briggs-type indicator test. Again, for the uninitiated, this test presents a respondent with word choices and asks them to select the one of two they feel applies more to themselves. The results place respondents into categories: Extroversion/Introversion, Sensing/Intuition, Thinking/Feeling and Judging/Perceiving. One can then locate oneself on a grid of the possible permutations and find a composite personality sketch. Judge Kennedy shared with us his survey results of 1,450 jurists who had previously taken the test, and I noted that respondents fell into every possible category. The test offers no assessment of an individual's skills or intelligence, and focuses exclusively on positive rather than negative traits. For the latter reason, it was a relatively painless exercise.

I felt that this workshop dovetailed neatly with the law and literature seminar, because while the former demonstrated that different judges can arrive at markedly different interpretations of a single set of facts, the latter test helps one to understand why that can happen; namely, that individuals process information through the prism of their own personality. The particular message this sends to an individual judge may of course vary. However, its overarching value to the bench and bar alike is surely to re-emphasize the many pitfalls that attend our mutual search for truth. After all, as Thoreau put it: "It takes two to speak the truth--one to speak and another to hear."

Footnotes

¹ Congress created the Federal Judicial Center in 1967 "to further the development and adoption of improved judicial administration" in the courts of the United States. The Center's statutory duties are codified at 28 U.S.C. §§620-629. They include orientation and continuing education for the federal judicial system, research on court operations and procedures (particularly in support of Judicial Conference committees), and programs to promote judicial federalism, assist foreign judicial systems, and study the federal courts' history. Federal Judicial Center Annual Report 1998. Return to article

² Source: ABA, "Perceptions of the U.S. Justice System," 1999, M/A/R/G® Research. Return to article

³ Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953). Return to article