The Law Is Clear..Why Does It Matter Which Judge I Have?

Posted by Leslie ShumakeNov 12, 20220 Comments

     If you are computer/internet savvy at all, you can look up any statute in the State of Mississippi and find out what the law is.  You might then think to yourself, understandably, that "the statute plainly says this--the judge has to follow it, so, no problem.. end of story."    That is not the end of the story.

    Why?  I would answer that question with an example in the Criminal Law Arena:  I was Municipal Court Judge for many years, and I guarantee that the attorneys who routinely practiced before me could reliably predict what the sentence or fine would most likely be in a given situation.  If his or her client had a 1st or 2nd time DUI, they probably knew how to advise their clients appearing before me.  By the same token, the fine and/or sentence given by another Municipal Court Judge in our County for the same charges might be completely different.   Only by knowing the judge's tendencies,( because we are human and all have them), could that attorney effectively represent his or her client.  The law is clear, but the end result not as easy to predict.

    I'll give you a more specific example in the family law setting.  In Mississippi a child age twelve (12) or older can "express a preference" as to which parent he or she wants to live with in a custody or divorce case.   This seems to be a pretty straightforward statement of the law, so, naturally, a parent in such a case might logically believe that their child or children could testify, if old enough, and that the Judge would at least have to consider that child's wishes.  

   But, I  have personally been involved in custody trials before three (3) different judges in three (3) different cases where:

     1.  One Judge allowed an eleven (11) year old to testify as to which parent she wanted to live with.

     2.  Another judge refused to allow a fourteen (14) year old to testify as to which parent he wanted to live with.

     3.  Still another judge refused to allow an eighteen (18) year old child to testify as to which parent he wanted to live with.*

     *The Judge in the case above wherein the eighteen (18) year old was not allowed to testify was not picking on the parent who wanted to call the child to testify.   This particular judge refused to allow any child, no matter what the age, to testify in any custody or divorce case that came before him.  The only way an attorney would know this about this judge is if he or she had practiced before that judge. 

     So, our mantra of "experience counts" when practicing law is certainly true in both of these examples.

     As attorneys, we should know the law, and, hopefully, know as best we can, what a particular judge ls likely to do in a given situation.  That is all part of the effective practice of law and representing our clients.