Law Talk with Bill Powers - Honorable Lucy Noble Inman Episode 1

You have common sense. For me, having practiced law for 18 years, having worked with clients and examined witnesses, and experienced from that perspective does this person sound credible or not? I'm sure every lawyer has the experience with his own client. The client is telling the story and the lawyer is thinking not necessarily you're not telling the truth, but if I were a juror, I would not believe that. If I were a judge, I would not believe that. So it's really the common sense tools that everybody has. When you think about it, the pressure in a trial, certainly in a criminal trial, it's far more on the jurors than on the judge. They make the hardest decision.

But every decision about whether something's prejudicial, about whether or not evidence is relevant, or its probative value is outweighed by its potential for prejudice, those are all judgment calls. I do think having a broad experience helps.

Bill Powers: Right. So in superior court, if you've got a ... whether something's admissible as a piece of evidence or whether there was legal grounds to do something, you are a finder of fact in saying, "This is what I think took place." I kind of learned that. I went to a CLE hosted by Judge Donna Stroud, which was I commend anybody who has a chance to go to that CLE to go to it. That was on a family law case. I realized I had been doing my written orders wrong for 27 years. I literally went back to the office and said, "Let's pull the five most common orders that we do."

I'm not kidding. I mean she had the top 10 ... I don't know if you've been to this CLE. It's absolutely wonderful. She said the top 10 list or the top eight list, whatever it was, of things not to do and I did every single one of them. I was overly formal. I used that in front of every sentence. In the findings of fact I said that the witness testified X, Y, and Z, and just things like that. The judge is like, "That's not a finding of fact. It's what the court says happened or didn't happen." So there is, as a finder of fact as the court, you do decide what took place and didn't take place as a matter of law. Now, related but technically separate is what the jury decides.

The jury is the finder of fact in the sense of thumbs up, thumbs down. The court though decides, and I think more importantly, what the jury hears from the outset. So now you mentioned, you said it's tremendously different, I think that's what you said, than the court of appeals because on the court of appeals, as defense lawyers we call it that you're looking at the cold record. I don't know if clients realize this, but you don't listen to the transcripts of the proceedings. I have clients that I think literally think that every segment of the trial is videotaped and you watch it like it's Matlock. I think clients think, "Well, if the judges in the court of appeals would have done it differently, they're going to fix wrongs."

That's not really your role. So tell me a little bit how that works. I shouldn't tell you what your role is but that's my perception. Tell me what-

Judge Inman: No, no. No, that's a really, really good question. It's so different. I realize even more on the court of appeals than I did when I was a trial judge just how much power trial judges have that is not going to be subject to any review, the trial judge's assessment of the demeanor of a witness, all of the implicit bias that that trial judge brings to work every day. Just as an example, I read somewhere that culturally in some Latin American communities, looking down when you're answering someone's question, like literally look at the ground, is a show of respect. But in American culture, I'm also aware of the generally held belief that not looking someone in the eye when you're answering a question signals that the person isn't telling the truth.

So you really have to think carefully about not only what you're hearing concretely but how you're interpreting and how you're assessing a witness' demeanor. We do tell jurors and when jurors hear the witnesses testify, then that is for the jurors to decide. But for the court, if there is voir dire about an expert witness, if there are questions about whether evidence was hidden before trial where you're not only assessing the credibility of witnesses but of the lawyers, it's a tremendous responsibility. At the court of appeals, even if we had video of the entire trial and even though I certainly see between the lines of the cold record a lot of the times and see what's going on, there's often nothing I can do about it because the standard of review for witness credibility is that we defer to the trial judge unless there is absolutely no way any reasonable finder of fact could have found that fact.

Those decisions are also always reviewed in the light most favorable to the prevailing party, the appellee, which is almost always the state in criminal cases. So even if we wish a case had turned out differently or even if we wish the trial judge would not have created this problem on appeal by excluding evidence that probably wasn't going to matter anyway, we don't get to second guess those decisions by the trial court. We're not allowed to even if we think the trial court made a bad judgment call. It has to be an abuse of discretion.

Bill Powers: Right. So even if you personally may have ruled in a different way or thought that something should have been admitted or not admitted, but for an abuse of discretion, you're not going to overturn that decision.

Judge Inman: That's correct.

Bill Powers: Right.

Judge Inman: That's correct.

Bill Powers: I always try to warn younger lawyers, "Before you just bounce something up to Raleigh and enter notice of appeal, consider what the legal issues are."

Judge Inman: That's really good advice because you've heard the phrase, hard facts make bad law. Someone can appeal an issue in the interest of an individual client for one concern and if it presents the court with a legal issue that could really change the fabric of our jurisprudence, at least your colleagues in the bar are not going to be real happy with you for taking that case up.

Bill Powers: Right, exactly. Lawyers, people don't always realize this, but we have rules of conduct that we live by and people proceed in good faith. I've literally had people on the other side of the aisle argue a case, tell me what the facts were that went up to a court of appeals or the Supreme Court and didn't realize that I actually was a trial attorney. It can very difficult to discern from an opinion from the court of appeals down, but even the court of appeals what actually took place at trial, what was considered important or not important.

So someone would say, "Well, this was the facts of this case," in a formulaic type of expression, "A+B+C=D." I'm like, "Well, that's not really, one, what the court of appeals said and, two, that wasn't really what the facts were." These are people proceeding in good faith.

Judge Inman: Right. I'm sure as you've had cases go up on appeal, you've read appellate opinions. I feel confident the judges were acting in good faith where the lawyer who was in the trial thought, "Is this the same case? Because I don't even recognize this version of what the case was about."

Bill Powers: Right. Absolutely. It's just different where you're sitting, and you've been there so it's different arguing a case in a courtroom in the well of the bar and knowing what's in your mind and knowing the facts that you know them and then you read it on a transcript, especially if it says inaudible or things like that where-

Judge Inman: Inaudible sounds awful.

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