Do Attorneys Shop for a Judge? Understanding Venue Shopping

The Reality of Venue Shopping in Legal Cases

Do attorneys shop for a judge who might be sympathetic to their case? In high-stakes criminal or civil cases, this is a fact of life. However, it’s more about “venue-shopping” than “judge-shopping.” What makes a good venue for a criminal or civil litigant? Sometimes, it’s just a matter of statistics. Certain court districts seem to favor plaintiffs or defendants in specific types of actions

Understanding Judicial Perspectives

How do lawyers know what the judge thinks when fighting a case in court? The answer lies in experience and the ability to read people. It helps if you know the judge personally. There’s an old saying, “A good lawyer knows the law; a great lawyer knows the judge.”

If you don’t personally know the judge or lack experience before the bench, you must rely on the same skills needed to read a client or another attorney. Judges are human and subject to the same quirks as the rest of us.

The Influence of Judicial Bias

Based on our court experience, we believe the following saying holds true: “The law is whatever the judge says it is in court that day.” A good starting point for discussion is whether there is a difference between liberal justices and conservative justices.

Both types of justices consider whether they are sympathetic to the plaintiff, not just what the Constitution demands. A new study shows “in-group bias.” Liberals have long believed that conservatives’ talk of “original intent” and judges who will “interpret the Constitution, not make laws” is misleading.

Instead, they want judges who will deliver the results they desire, regardless of the Constitution's wording. “Original intent” is a particularly flexible rationale. It’s often impossible to apply 18th-century ideals to 21st-century legal questions and arrive at a judgment based solely on your impression of what James Madison thought.

The Conservative Perspective

Conservatives argue that liberals do the same thing. They pretend to adhere to abstract principles while actually wanting their preferred outcomes in every case. Resolving the dispute over who is more correct is not easy.

The New York Times conducted a study to explore bias in free speech cases. Researchers examined hundreds of cases to determine if conservative justices favored conservative plaintiffs and vice versa for liberal justices.

What stood out was the stark difference between conservative and liberal justices. The differences ranged from significant to enormous. The headline of the Times article reads, “In Justices’ Votes, Free Speech Often Means Speech I Agree With.”

Patterns in Judicial Decisions

Based on our court experience, this pattern also holds in other types of cases. Liberal justices often strike down conservative regulations, while conservative justices tend to strike down liberal regulations. This pattern mirrors broader political dynamics.

For instance, Washington has become increasingly polarized in recent years. If you listen to the media, you might think that Democrats and Republicans have rapidly moved away from the center, each becoming equally opposed to compromise.

If the Supreme Court declares that a person cannot own weapons, that ruling is accepted as correct. The words in the Constitution stating that individuals can own weapons become irrelevant.

The Paradox of Judicial Interpretation

If the law stands as written, why are there split decisions in the Supreme Court? Why do different judges reach different conclusions based on the same circumstances and laws? If the law is not subject to a judge’s opinion, why do we need an appeals court to overturn a lower court's decision?

Some believe it is impossible for a majority of the Supreme Court to be wrong about the Constitution or the law when they issue a decision. The Court may change its mind later, but at the time of the decision, the majority must be logically correct.

For example, Plessy v. Ferguson and Dred Scott were deemed correct at the time they were issued. However, in Lawrence v. Texas, the Court stated, “Bowers [v. Hardwick] was not correct when it was decided, is not correct today, and is hereby overruled.”

This creates a paradox. If Bowers was wrong when decided, how can it have been correct according to the majority ruling? The Lawrence majority must be incorrect in claiming that Bowers was “not correct when it was decided.”

The Implications of Judicial Decisions

The Supreme Court acknowledges its potential to misinterpret the law. Even those who believe the law means only what the Supreme Court says must concede that the law has a meaning beyond the Court's interpretation.

If the law only means what judges say it means, why not apply the same logic to Supreme Court decisions? These decisions are just words on a page, and their meaning is only realized when lower courts implement them. If lower courts interpret a ruling incorrectly, they must be right because the text means only what the reader says it means.

You might push this argument further. If no fact exists until a court pronounces it, a murderer cannot be guilty or innocent until a jury decides. This premise suggests that wrongful convictions or acquittals cannot occur.

The Nature of Legal Interpretation

While this argument may weaken, it highlights that the meaning of a written text cannot solely depend on the reader. The logic of writing implies that it is possible to read a text correctly or incorrectly. Therefore, there must be a “fact of the matter” about what the law means, independent of what the Supreme Court or a judge claims.

In conclusion, the interplay between judges, their biases, and the law creates a complex legal landscape. Understanding this dynamic is crucial for attorneys navigating the judicial system. The law is not merely what judges say it is; it is a living document that requires careful interpretation and understanding.