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May 17 2012

Judge’s Letter to Times Shows Importance of Personal Connection in Law

In today’s op-ed section of the NY Times, Brooklyn Supreme Court Judge Gustin Reichbach writes a poignant letter of love in support of medical marijuana. He recounts his own personal and ongoing battle against pancreatic cancer. He has fought the disease for more than three and half years despite being only given four months to live when he was first diagnosed. He painstakingly recounts how he tried Marinol, the legal marijuana substitute in pill form given to him by his doctors at Memorial Sloan Kettering Hospital, but that it did nothing to soothe his nausea, or allow him to sleep.

With no other recourse, His Honor turned to friends to score him some weed:

Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance. I find a few puffs of marijuana before dinner gives me ammunition in the battle to eat. A few more puffs at bedtime permits desperately needed sleep.. . .I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana.

He goes on to conclude the letter with a plea for legalization:

Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease. I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year. Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.

That’s great for Judge Reichbach and I certainly applaud his courage and efforts to make marijuana available to cancer patients, but I am not surprised that it took his getting cancer to see this side of the issue. Too often judges,lawmakers and chief executives are utterly blind to issues that people confront every day and do nothing more than look to the letter of the law before meting out “justice” or passing laws that sound good on paper but end up costing people their freedom, family and jobs when they are applied in ways that no one foresaw.

Take a look at the Republican legislators across the country who have come out in favor of gay marriage. Almost 100% of them have cited a personal connection to a gay family member or gay fellow legislator as the reason why they are voting for gay marriage. Even President Obama claimed it was his interaction with his wife and daughters that made him allegedly come around on the issue. Hey, whatever it takes for them to see the light is fine with me, but you have to wonder why intelligent folks who are called upon to preside over others’ lives cannot have this empathic ability without a direct personal connection. Isn’t that why we elected them in the first place? To represent all of us not just those of us that are like them?

But more importantly, Judge Reichbach’s willingness to openly confess to crime reminds me as a trial lawyer that the best way to get a judge or juror to rule in my client’s favor is to personalize the client and the client’s case to them. Find some way to make your cause their cause; use jury selection to find out as much as you can about the issues that jurors deal with on a daily basis to fins those who are most likely to see things your client’s way. This idea is borne out by the fact. Dr. Sean Overland, a trial consultant who specializes in jury selection and who has written a well-received book on the subject called The Juror Factor , has stated that while studies consistently show that “the most powerful determinant of a juror’s verdict in both civil and criminal cases is the strength of the competing evidence. . jurors must rely to a greater degree on their own intuitions, experiences and personal judgments when reaching a verdict, [and] their personal beliefs will have the greatest impact on verdicts.”

When dealing with a judge, the same argument holds. While overt emotional appeals to a judge almost never succeed, more than anything judges still want to “Do justice.” Appeal to their sense of fairness and never allow them to rule without your putting forth and making clear the impact the ruling will have on your client’s life, business, etc. It’s critical for the lawyer to force the court to see the person before them as someone who could be a member of their family.

To paraphrase a quote attributed to politics “All law is personal”

Here’s a link to Judge Reichbach’s NY Times article:
http://www.nytimes.com/2012/05/17/opinion/a-judges-plea-for-medical-marijuana.html

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