Saturday Morning Post: No One Wants To Talk About It

A couple of years ago, I had an idea for an article on practicing law, when the judge is exhibiting signs of a decline in neurocognitive ability.  In other words what to do when the judge has Alzheimer's.  I have talked with a few attorney over the years who have had this experience and were calling looking for advice on how to deal with it.  I have known a couple of judges, who had colleagues on the bench with dementia, and struggled to find a way forward.   

I had sources this should be an easy one to write. Either to get one of the attorneys who has experienced this first hand to write about it, or to get them to tell me their stories on the record, and I could write the article.  When I started asking about writing an article, no one wanted to write it, no one wanted to talk to me about it.  

I never had this experience.  I had a judge (who died about 17 years ago) who didn't believe the rules of evidence applied in his courtroom, and a judge who took perverse pleasure is starting 10:00 AM motion hour, 15 or 20 minutes early and postponing ruling until next week, if both attorneys were not in the courtroom when the clerk called the case.  He used this to make his early tee time at the golf course on pretty spring days. You just learned to drag opposing counsel into that courtroom a few minutes early if it was a bright sunny day. But I never had a judge who seemed to lack cognitive ability (luckily.) 

I have been surprised by those who have lived through a judge who was staying on the bench beyond their best by date, and won't talk about it, but not really.  The last thing you want to do is have the judge dislike you before you file the first pleading or open your mouth in court.  

There are things that can be done. All states have a lawyer's assistance committee, and any lawyer or judge who appears to be impaired in their ability to practice can be reported anonymously.  

Judges and Court Clerks can manage the docket so that the impaired judge has little or no work to do. There is a case here in the Federal Circuit where this has been done, and the offended judge has sued. (She gets paid, but has virtually no work assigned to her.) 

Attorneys can avoid that Court, or file motions to transfer their case to another court.  

Dementia is not an easy subject to get people to talk about.  I asked a Doctor who does research on Alzheimer's if his patients admitted to him that something had changed long before they came to see him? His answer was the vast majority knew something was wrong and where terrified by the changes, leading to deep denial.  But it is a topic we need to talk about.  Ten percent of adults by age 70 experience a decline in cognitive ability.  By age 90 about one-third of adults experience a measurable decline in cognitive ability. 

Just because the judge rules against you, does not mean the judge is demented, or biased.  Half of the people in every case lose.  But if the judge is openly forgetful, confused, or disoriented there needs to be a review process.  We can't rely on persons living with dementia to self report, or voluntarily remove themselves from positions of risk.