Judge Ann Bailey Smith,
Jefferson Circuit Court
KAS Monthly: We always like to begin by asking judges to tell our readers a little bit about themselves – their background, hobbies, interests, maybe a few things that people might be surprised to learn about them.
Judge Smith: I was born and raised in Louisville. My dad was in-house counsel at Chevron and my mom stayed at home to raise me and my younger brother and sister. I attended high school at Portland Christian and graduated in three years. I then went to Morehead State University for two years where I majored in piano. While I enjoyed my time at Morehead and loved playing the piano, I realized that job opportunities as a pianist were limited and I would probably not be able to afford to keep a roof over my head. I transferred to the University of Louisville and changed my major to English with an eye towards teaching. During my time student teaching, I decided that this may not be the path I was intended to take so I applied to law school at the University of Louisville (now the Brandeis School of Law) and was accepted. I won the Pirtle-Washer moot court competition during my second year; I also started clerking at the Public Defender’s Office in the appellate division. I became a trial transcript junkie and read as many transcripts as I could get my hands on, even taking TARC to and from work so I could get in more reading time. Every opportunity that I had, I would go to the courthouse to watch criminal jury trials. It was a great learning experience reading trial transcripts and watching lawyers in action. I transferred to night school for my third year of law school so I could work more hours at the Public Defender’s Office. Upon graduation and passing the bar, I accepted a position as a trial attorney at the P.D.’s office and, over the years, practiced in juvenile court, mental inquest court, and criminal district and circuit court. I practiced for a brief period of time with the county attorney’s office and with Goldberg & Simpson but the majority of my career as an attorney was with the P.D.’s office.
KAS Monthly: Who were some of your mentors as a young attorney and as a new judge?
Judge Smith: As a trial attorney I always had a great deal of respect and admiration for Justice Hughes when she presided in circuit court. She was a calming presence on the bench, she was well-versed in the law, she listened to the arguments of both sides, and she always strove to be fair and true to the law even if her decision may not have been a popular one. I felt much the same about Judge Denise Clayton, Judge Steve Mershon, and Judge John Potter.This is by no means an exhaustive list but I tried a number of cases before these judges so their demeanor on the bench and their aptitude for the law stands out in my mind.
KAS Monthly: How did your professional experiences prior to the bench prepare you to serve as a judge?
Judge Smith: I tried a lot of cases in the years that I practiced law. I feel like I understand the pressures faced by trial attorneys who have large caseloads with never enough hours in the day. I encourage the scheduling of jury trials but I work with attorneys in scheduling trials to not overburden them or their calendars. I understand that life sometimes gets in the way of a scheduled trial and that events occur out of an attorney’s control which may necessitate a continuance. I never want to push an attorney into trial who isn’t ready to do his or her best for the client. My calendar is not more important than the attorneys’ calendars and my desire to keep cases assigned to Circuit 13 moving is not nearly as important as an attorney being well-prepared to represent a client. I have had the opportunity over the years to practice before some excellent trial judges and I strive every day that I am on the bench to emulate them.
KAS Monthly: What made you decide to run for district court judge? And after that experience, what made you decide to run for circuit court?
Judge Smith: After practicing law for 20-plus years I felt that I had the legal skills and the demeanor to serve this community well as a judge. An opening became available in district court when one of the judges retired mid-term in 2008. I believed that it was a good time both personally and professionally for me to seek election to the bench so I filed for the seat. After being elected, I served for six years as a district court judge including two years as chief judge. I enjoyed my time on the district court bench but I was ready for a change in 2014 when the circuit court seats were on the ballot. Judge Fred Cowan decided to retire after serving for eight years in Circuit 13 so I filed for his seat and was elected to begin serving in January 2015.
KAS Monthly: Can you contrast your experience as a district and circuit court judge? How did your service on the district court prepare you to be a circuit court judge? How do the roles differ?
Judge Smith: The most obvious difference between serving as a district court judge and a circuit court judge is the number of cases that are on the docket each day and the number of people sitting in the courtroom each morning at the call of the docket. District court dockets can result in standing-room only crowds while circuit court dockets are more contained. On the other hand, the average time for a case to remain open in circuit court is much greater than in district court. Additionally, due to the complexity of the cases and the significance of the outcomes, an appearance in circuit court lasts longer than one in district court. Discovery disputes are practically non-existent in the civil cases in district court; the same can certainly not be said in circuit court where lengthy hearings occur with regularity. Jury trials, both criminal and civil, last longer than those in district court. And I write much more as a circuit judge than I did as a district judge. I am not “on call” as a circuit judge where as a district court judge I was “on call” for signing search warrants, issuing EPOs, setting bonds, etc., once every 17 days. When I was elected to the circuit court bench, I was already comfortable with the idea of judging so that was beneficial to my transition to circuit court. While there are some notable differences, I was also glad that I presided over the civil docket while in district court before becoming a circuit court judge.
KAS Monthly: Describe your typical week as a circuit judge.
Judge Smith: I have approximately 1,000 open cases as a circuit court judge. 800 of those cases are civil; yet my typical week in court is devoted primarily to criminal cases. I spend my morning listening to bond hearings, probation revocation hearings, sentencing hearings, and taking guilty pleas. Late mornings and afternoons are spent on more time-consuming hearings—in criminal cases there are suppression hearings, competency hearings, and immunity hearings, and in civil cases hearings on motions for summary judgment, discovery disputes, and temporary injunctions. Late afternoons I spend my time reviewing and signing orders, researching and writing opinions, and keeping up with new caselaw. If I am in trial, then I usually try to call at least some of my morning docket before beginning or resuming trial to avoid having to reassign too many cases. My typical day in court begins at 9:00 a.m. and I usually leave the courthouse around 7:00 p.m. While it may seem to some like a long day, the hours fly by.
KAS Monthly: When you were first elected and sworn in as a circuit judge, what part of the job did you take to the easiest? What aspect of the job was the hardest to adjust to?
Judge Smith: As a result of my background in criminal law, I felt most comfortable presiding over criminal hearings and trials. I have found, however, that I enjoy confronting many of the issues raised in civil cases and have found the civil trials that I have presided over to be interesting. It is difficult to see young people in court facing criminal charges and lengthy prison sentences. It is also difficult to see a person who suffers from a serious mental illness in the criminal justice system. Judge Susan Gibson presides over a mental health court which provides a much-needed option to incarceration but there are those individuals who face such serious charges that even that option is unavailable.
KAS Monthly: Who are some of your closest friends on the bench and why? Do you believe it is important for circuit judges throughout the Commonwealth to communicate with and learn from one another? Can you give us a couple of examples of circumstances where a colleague on the bench gave you some good advice or guidance that served you well, either generally or in a particular case?
Judge Smith: My closest friends on the bench are Judge Gina Calvert and Judge Dee McDonald of Family Court and Judge Jennifer Wilcox and Judge Erica Lee Williams, both district court judges. I became friends with each of them as they were elected/appointed to the district court bench. I knew Judge Wilcox from her days as a prosecutor with the Commonwealth’s Attorney’s Office but I did not know Judge Calvert, Judge McDonald, or Judge Williams until they became district court judges. I value their friendship because they have a positive attitude, a good work ethic, and they encourage me while not hesitating to tell me if they disagree with me. I am thankful to be a judge in Jefferson County where I have twelve other circuit court colleagues who I can approach with questions or to seek advice. There is very much an open-door policy amongst the circuit judges; I’ve never had any one of them say that he or she didn’t have time to listen and offer advice.
KAS Monthly: Some judges have told us that they struggle to interpret and apply new precedent from the appellate courts. Do you look to and consider what other trial judges do and how they rule on new and emerging issues and does that have any persuasive effect on you?
Judge Smith: Occasionally attorneys will attach as an exhibit to their briefs opinions from other trial courts as persuasive authority for their position on an issue. This is usually how I learn of another trial court’s handling of an issue. Certainly I consider my colleagues’ opinion but I exercise my own independent judgment when confronted with interpreting and applying new appellate precedent.
KAS Monthly: Can you think of any cases where you’ve been asked to reconsider a prior ruling and you changed your mind? What is your thought process when you receive and consider a motion to reconsider or something of that nature?
Judge Smith: I cannot think of any cases where I have been asked to reconsider my ruling. I have had requests to clarify an opinion where I may have failed to address an aspect of an issue presented and I appreciate having this brought to my attention. If after I ruled there was a change in the law or new facts came to light which weren’t present at the time that I made my ruling then I would be willing to reconsider my opinion.
KAS Monthly: One of the chief complaints about the judicial system from attorneys and litigants alike is that it moves too slowly. What are some steps that you believe would help move cases along more quickly, and what sort of resources does the judiciary need to make that happen?
Judge Smith: I do my very best to keep my cases moving. The attorneys who appear in Jefferson Circuit Court are aware, for the most part, of the volume of cases each circuit judge faces. I rely on AOC-280 forms to know when a civil case has an issue that is ready to be decided. My goal is to rule within 90 days of submission, although appeals from district court or from administrative hearings may require a longer time period for decision. I try to accommodate attorneys’ calendars when scheduling cases for trial but I often find that I have earlier trial dates available than they are willing to accept based on conflicts in their schedules or outstanding discovery. I schedule 6-7 jury trials each week but have only had 5 cases actually go to trial in 2017. Many of the cases resolve so no trial is needed and some need to be rescheduled to a later date due to additional preparation time needed or to accommodate witnesses. If my trials resolve or reschedule then I am willing to try a case for another judge who is already in trial; I believe most if not all of the other circuit judges in Jefferson County are willing to assist in this way. I am more concerned with cases being well tried than with the speed to which cases go to trial.
KAS Monthly: Discovery disputes are common in litigation. How do you approach those disputes as a trial judge?
Judge Smith: I approach discovery disputes by reading the discovery requests, reading the briefs addressing those requests, and then conducting a hearing so the attorneys can further flesh out their arguments in support of or against the requested information. I have found that attorneys are sometimes able to reach agreements about discovery requests once they see each other face to face in the courtroom rather than negotiating by e-mail.
KAS Monthly: We ask this question of every judge: what are your personal pet peeves in the courtroom? What should someone absolutely never do in Ann Bailey Smith’s courtroom?
Judge Smith: I don’t know that I have any true pet peeves as to lawyer’s conduct in the courtroom. I appreciate attorneys being respectful when they address the court but I don’t expect them to stand each time they have something to say and I don’t expect them to ask to be excused once their case is concluded. I do not appreciate when attorneys start addressing one another in the course of their arguments to the court or when they interrupt each other. I certainly don’t appreciate personal attacks between lawyers as they make the profession look bad and the attacks do nothing to help me render a good decision in the case.
KAS Monthly: What are some of the more effective advocacy techniques you’ve seen in your courtroom? What works? What does not work?
Judge Smith: I appreciate a good power point during hearings but I do not need the power point read to me word for word. A power point should be an outline of the argument to be presented, not the entire argument. I recently had a criminal trial where the incident was captured on video surveillance. The attorneys not only played the surveillance video for the jury, but they showed it screen shot by screen shot with the witness narrating the event. It was very effective and persuasive.
KAS Monthly: What do you look for in a good brief? What are the do’s and don’ts?
Judge Smith: A good brief, in my opinion, contains a recitation of the relevant facts that apply to the issues before the court with counsel’s arguments supported by caselaw. I do not find it helpful when counsel insert personal attacks or sarcastic comments regarding opposing counsel’s position. I do not judge the merit of a brief by the number of pages it contains; considering the number of briefs that judges are asked to read, it would be helpful if briefs were no longer than what is needed to address the position asserted.
KAS Monthly: How many trials have you presided over as a judge? What is your most memorable trial experience?
Judge Smith: I have been on the circuit bench for just over 2 ½ years. During that time I have presided over 7 criminal jury trials and 12 civil jury trials. While I don’t keep track of bench trials, I would estimate that I have presided over 12-15, all civil. One of my most memorable trial experiences occurred during closing arguments in a civil jury trial. The plaintiff’s attorney was presenting his closing argument and I saw the defense attorney lean over to speak to one of the jurors. I couldn’t see the juror because plaintiff’s counsel was blocking my view. I was trying to process what in the world could be going on when plaintiff’s counsel stopped mid-sentence. I stood up from the bench to see what was happening and then realized that one of the jurors had become ill and was on the verge of fainting. What initially looked like a juror tampering moment was, in reality, an attorney recognizing that a juror was experiencing a health issue. Fortunately, after a brief recess, the juror recovered although she was not well enough to continue with the trial and by agreement was designated as the alternate juror.
KAS Monthly: Do you find oral arguments helpful? Have you ever been leaning one way after reviewing the briefs but shifted course after hearing a particularly persuasive (or disastrous) argument from counsel at a hearing?
Judge Smith: I do find oral arguments to be helpful in some instances. Occasionally I have changed my position on an issue after listening to oral arguments but I would say that more frequently oral arguments have solidified my initial opinion and are useful in helping me formulate my written opinion.
KAS Monthly: What do you enjoy most about your job? Is there anything you do not enjoy or wish were different?
Judge Smith: There is so much that I enjoy about being a circuit court judge that it is difficult to reduce it to one particular aspect of the job. I enjoy the variety of cases that I hear, I enjoy working with my staff and having a staff attorney with whom to discuss legal issues, I enjoy presiding over trials, I enjoy interacting with my colleagues on the bench, and I enjoy watching attorneys enthusiastically and effectively representing their clients. I get no enjoyment out of sentencing people to prison; I realize that the law requires a prison sentence in some instances and that in others it’s necessary because of the nature of the offense or the non-amenability of the defendant to a lesser form of punishment. One of the most difficult aspects of the job is to watch families sit in court due to the loss of a loved one and realize that nothing in the justice system can fill the void that they now have in their lives. It is equally difficult to watch the family of someone who is being sent to prison for years and know that the family members feel like they are being punished even though they have done nothing wrong. There are days when this is a very, very difficult job.
KAS Monthly: What is next for Ann Bailey Smith?
Judge Smith: I am perfectly content with where I am in my career. I look forward to coming to the Judicial Center each day. This term ends in 2022 and I have every intention of seeking a second term on the circuit court bench. In my personal life, I am very much looking forward to becoming a grandmother for the first time in December and then for the second time in January. Life is good.
NOTE: This is the fourth in a recurring series of interviews with Kentucky judges. The editors of KAS Monthly thank Judge Smith for her time in answering these questions.
[Image Credit: Kentucky Court of Justice.]