Judge David Tapp,
28th Judicial Circuit Court
Q: Can you tell our readers a little bit about yourself? Maybe something that even those who know you would be surprised to learn?
A: I am 55 years old and I was born in Lexington. I grew up, however, in Morehead. My parents were both college teachers. Dad was the Chairperson of the psychology department at Morehead State University and mom taught nursing.
I was blessed to attend great schools. I began at MSU where I also met my first wife, Patty.From there we went to Hawaii and I attended Chaminade University of Honolulu and obtained my Master’s in Criminal Justice Administration. My oldest daughter, Katherine Tapp was born in the giant pink hospital on the hill, Tripler Army Medical Center, overlooking Pearl Harbor. (I am proud to say that Katherine is currently a successful law student of the University of Louisville). When our employment changed, we moved back to the mainland and relocated to Louisville. I began attending law school while working full time and Patty and I had Adrian and Morgan, our second and third daughters. Those were some hard years!
After graduating, I began practicing and relocated to Somerset where I practiced generally in Kentucky and occasionally in other states until I took the Bench in 2004. In that capacity, I’ve had the good fortune to direct the education for all of the state’s general jurisdiction and family court judges for the past several years. I’ve also volunteered as a drug court judge since becoming a judge and developed Kentucky’s SMART probation program for high risk/high need defendants. I speak frequently on a variety of topics including e-Discovery, drug treatment, evidence based practices, and new legislative initiatives.
In 2010, my wife passed away after a three year battle with melanoma. A few years later, I remarried a wonderful woman, Debbie. We are pretty active and recently took up trail running. Thanks largely to the encouragement of a mutual friend, we’ve both signed up for an April race held in the Big South Fork National recreation Area. Debbie’s doing the 10k and I’ve registered for the 50k. Frankly, that may be beyond my wheelhouse. It’s almost 33 miles on very technical and beautiful terrain—waterfalls, rock formations, old mining communities. We are pretty excited but it’s very daunting.
Your background is in law enforcement. You were a deputy sheriff at one time. How and why did you make the transition to law?
I have had the privilege of serving in multiple law enforcement capacities. I began with the Rowan County (KY) Sheriff’s Department as a road deputy in 1983 for Sheriff Jack Carter who just recently retired. He may have been the longest serving Kentucky Sheriff at the time of his retirement. I think I was a “challenge” to Sheriff Carter. I was young and untrained and we were seriously understaffed.There were lots of nights when I was the only deputy out.
Later, in Hawaii, I became an investigator for the Office of the Prosecuting Attorney for Oahu. That position started out with the normal stuff that is usually associated with those positions.I was fortunate, however, to quickly develop a couple of really good confidential informants and they allowed me to pursue some cases that were handled by a local Organized Crime Strike Force. As a result, I spent a fair amount of time pursuing OC and public corruption cases. Hawaii was unusual in the sense that there is a lot of non-traditional OC, at least when compared to the mainland. So one week you might be looking at a drug case involving gangs and then the next week you might have an issue involving a well-established organized group with ties to the mainland or one of the Pacific Rim countries.
It was during that time that I obtained a Master’s. I fully intended to remain in law enforcement at that time and I thought a law degree would further enhance my credentials; so I decided to return home. While attending school I gradually determined that perhaps practicing law might be kind of fun and I was right!
Who were some of your mentors as a young lawyer?
I don’t know if I can identify a single “mentor” as a young lawyer though I did have a few “tormentors!” I did have the good fortune while attending law school to work at the U.S. Attorney’s Office for the Western District of Kentucky. They impressed me. At the time, there was a lot going on there including BOPTROT, the Corn Bread Mafia and the Hell’s Angels.I had the privilege of watching some really great prosecutors in action—Cleve Gambill, Sandy Taft, Monica Wheatley, and Bill Campbell.Everyone in that office worked really hard, played fair, and took time to help me develop. At the same time, I loved watching Frank Haddad and some of the other talented defense bar just wear on the prosecutors at times!
Later, when I began practicing myself, I had the really good fortune to associate in particular instances with John Prather, Jr., one of Kentucky’s pre-eminent civil defense attorneys, Richard Hay from the plaintiffs’ bar, and some wonderful federal and state criminal law practitioners including former Lt. Governor Steve Pence. Some of my best lessons though came from trying cases in front of really competent judges including Karen Caldwell and Jennifer Coffman. Sometimes, the best lessons for what would later be my own career came from the lower courts—U.S. Magistrate J.B. Johnson, state District Judge Mike Henry and state Circuit Judge Julia Adams. Each of these judges exemplified characteristics which I hope I exhibit today—patience, attentiveness, and concern for the process as well as the outcome. I have benefited from life lessons from innumerable lawyers and judges.
Equally important as those positive influences were some of the negative experiences that I and most young lawyers encounter—attorneys who were dishonest or completely uncooperative and ill tempered. In some instances, jury trials were impossible because judges did not ensure that jurors actually attended court so we would prepare for trial, but would show up only to be greeted by yet another continuance. Sometimes it was plain that the court had never read the motion, much less the relevant cases. All of those examples, and I know other attorneys have had far worse experiences, are troubling to young and perhaps idealistic lawyers. Those experiences also undermine the integrity of our profession with the public. Looking back at some of those instances, it’s easy to understand why we sometimes aren’t held in very high regard.
Why did you decide to run for circuit judge?
I first ran for Commonwealth’s Attorney. I was soundly defeated, but during a conversation with my opponent he mentioned that he thought I would make a good judge.I’d never contemplated that. A couple of years later I ran for district judge and carried every precinct in that district. I discovered that I loved the Bench. For the most part, I was helping people and most, including the attorneys, seemed to respond well. When my predecessor passed away, I was fortunate to receive the appointment to the circuit court bench and never looked back. The issues are challenging, there’s a great diversity of cases and issues, and most of the time there is a lot riding on the outcome. I like the intellectual challenge and the rigors of managing a busy docket.
When you were first elected and sworn in, what part of the job did you take to the easiest? What aspect of the job was the hardest to get used to?
Docket management was the easiest aspect in some respects. I’ve always had a good personal work ethic and I had been troubled as a practicing lawyer with unnecessary delay in resolving my cases. As a judge, I intended to ensure that my docket moved at an expeditious pace and that I would actually try cases.We are a “trial” court after all, and that’s what I continue to do today.
The hardest aspect of being a new judge still continues to this day. Most people, including lawyers, do not understand how isolating a judgeship is. Almost immediately upon taking to the bench, your relationships with people change. You are supposed to have a greater degree of wisdom than you possessed before; your own friendships with attorneys are fundamentally altered. You can’t discuss things that were previously part of the everyday experiences of lawyers. You are confronted by people you know from court, about pending or potential cases and so you learn to avoid going to your regular grocery or local restaurants. That’s really hard for new judges to get accustomed to and frankly it grows worse every year. Because there are usually only a small handful of other judges you see on a regular basis, you can’t even associate with other members of your profession except at conferences.
When we announced that we were interviewing you, the interest was quite overwhelming, including among some of your colleagues on the bench. Who are some of your closest friends on the bench and why? How important do you think it is for circuit judges from throughout the Commonwealth to communicate with and learn from one another? Can you give us an example of a circumstance in which a colleague on the bench gave you some good advice that served you well?
Given my role in judicial education, I‘ve really been blessed to develop wide ranging friendships across the state. I frequently stop in to visit my colleagues in Jefferson County—Judge McKay Chauvin, Mitch Perry, Audra Eckerle, among others, and I also make a point to visit Judge Kim Bunnell and former Judge Tom Clark in Fayette. I’ve depended on all of them for advice on a variety of topics including particular issues in cases to career decisions. Locally, Judge Marcus Vanover worked briefly with me in private practice and he’s continued to be my closest friend on the bench as well as my fellow general jurisdiction colleague Judge Jeff Burdette. We frequently converse on issues which arise in our part of the state. Additionally, Eddy Coleman from Pikeville is who I call sometimes when I just need to hear from a friend. When I have a personal or administrative issue, I also call dear friends from the District Court bench and sometimes members of the Supreme Court and Court of Appeals. All the judges across the state do a good job of communicating back and forth when there is some novel legal issue or one of us needs guidance. Odds are, someone somewhere has dealt with a similar issue and it’s very helpful to hear of another judge’s take on a particular problem.
Candidly, I love my fellow judges. As a group, there is no finer collection of legal minds in this state. And they’re funny! My goodness, judges have as fine of a take on the human race as any other. They tend to be great observationists. They’re literate, well-educated, and well-read. They have a wide range of personal interests. It is absolutely hilarious to get together occasionally to discuss various cases or topics which are arising around the Commonwealth.
As far as advice from my fellow judges. Well, I seek that every day. Usually it’s some routine issue. Sometimes it’s procedural, like in a capital case where every judicial decision must be sound given the importance of the litigation to the parties and to society. The most meaningful advice though has come in times of personal crisis. Like everyone else, judges are not immune to the tribulations of life. We get sick or injured, our parents or other family members die. Our children go astray or encounter some horrible tragedy. Finances can be rough. Additionally, like the rest of the Bar, some judges abuse alcohol and drugs. Several times over the years, I’ve turned to my judicial colleagues and to my lawyers for help during days of personal challenge. When my wife Patty was declining during her bout with melanoma, my friends helped me more than anyone could ever expect. They helped me to maintain perspective and my sanity. My fellow judges covered for me when I would have to be unexpectedly absent. My friends from the Supreme Court counseled me to always take care of my family first even when my dockets were slowing. I don’t know how I would have survived that experience without all of those members of our profession who rallied around me during those really difficult years. Since then, when I encounter some personal issue, it’s to these friends—judges and lawyers, practitioners and those long retired, they are the ones I turn to for guidance. They are truly counselors and they know, if they read this, how much I depend on them and how grateful I am for their guidance.
One of the things that we run into a lot with our publication is trial judges struggling 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?
Absolutely. When I encounter an instance in which other judges are dealing with similar issues, I frequently survey them to determine what approach he or she may be taking. Having said that, I sometimes disagree with my fellow trial judges. Further, as well known, even where the case law is pretty unambiguous, the factual nuances between cases can produce radically different results.
An eastern Kentucky circuit judge recently summed up his colleagues’ feelings on the Supreme Court’s recent pronouncements on the “open and obvious” doctrine as “confused.” I’m sure that characterization could be applied to any number of other issues. If you had to identify a few areas where greater clarity from the appellate courts would be helpful, what would those areas be and why?
I think I best understand the complaint I hear from many trial attorneys. Kentucky jurisprudence has become so riddled with factual distinctions drawn by appellate courts that many of our “bright line” cases offer little or no guidance for lawyers or lower court judges. In other words, many areas are so riddled with uncertainty as to the application of fairly simple rules that no one can readily predict the outcome. That uncertainty promotes litigation about what ought to be simple issues, dramatically increases litigation costs, deters settlement, and delays resolutions.
Every trial judge in Kentucky has been reversed on appeal. Have you ever been reversed and said to yourself “the appellate courts just got it wrong and I got it right”? Have you ever been reversed and said to yourself “I got it wrong and they got it right”? Tell me about what it’s like from a judge’s perspective to have an order or judgment reversed on appeal.
I think every judge has had those experiences. I recall one significant highly charged case some years ago in which the testimony was unequivocal and yet I was reversed on a largely factual issue. It sure causes some heartburn when you cannot discern the basis for an appellate court’s conclusion or some pre-textual reason is presented which doesn’t really square with the evidence.
On the other hand, just recently, I was reversed and I agreed completely that I just messed up. It was an issue that I recall having struggled with during a trial and my decision was wrong. In that instance, the higher court corrected my mistake and I’m completely comfortable that justice prevailed. Every judge makes mistakes. I think when you’re a baby judge being reversed bothers you more. As you gain experience, it doesn’t rankle so much and we try to learn from our own errors. Which is the way it’s supposed to work.
You have something of a reputation of expecting cases on your docket to move reasonably quickly. Is there some philosophical principle undergirding that expectation? I don’t have to tell you that some judges aren’t quite as insistent on expeditious movement of cases as you are.
That question makes me strangely pleased. I developed, as an attorney, in an environment in which I was expected to be ready for court and trial dates were “real.” A few years ago as I was cleaning out a storage locker I came across a memorandum from then Circuit Judge Daniel Venters. The memo was addressed to members of the local bar and it explained now-Justice Venters’ frustration with meaningless pre-trial conferences in criminal cases. Basically, at that time, every month, prisoners and out-of-custody defendants would show up for pre-trials, nothing would be accomplished, and another pre-trial conference date would be set. That same practice still exists in many courts today. When I serve as a special judge somewhere I encounter dockets filled within meaningless proceedings—pre-trials where lawyers have not talked with each other much less with their clients. Nothing ever gets done and trials are almost non-existent.
In criminal cases, baring something unusual, I typically set trials 70-90 days from arraignment and I do not schedule pre-trial conferences unless something is actually to be accomplished. I expect lawyers to meet with their clients prior to court, not to use court as a substitute for going to the jail or meeting with clients in their offices. The vast majority of criminal cases are very simple, which is not to say that they are not very important. But there is usually a minimal amount of discovery and the issues to be tried are fairly simplistic. I also utilize a ten-day plea cutoff rule. Absent justification, plea agreements must be concluded ten days in advance of the trial date or we either have a trial or an open plea. This ensures that valuable trial days are not wasted and that our jurors are not having to take time off from their personal responsibilities just to show up and find out there is nothing to try. This approach is something I learned from former Circuit Judge Bill Mains many years ago and it works well.
Civil cases are different. Many have much more complicated issues and of course the discovery process takes longer, but the same principles apply. The judicial canons require that we resolve cases in a reasonably expeditious fashion and I expect attorneys to exercise diligence in doing so. I can’t help but laugh, hopefully internally, when I encounter one of those attorneys who tells me they have no available trial dates in the next 12 months and then when I inquire as to how many trials they’ve actually participated in during the last two years the answer is generally none. We practice in the age of the vanishing trial and we are doing a disservice to our profession and to our clients. The public deserve a system which we can be responsive to the issues that they bring before us.
You have been a strong supporter of the drug court program. Tell me about your feelings on the program – is it succeeding? What can be done to make it more successful? Are there any particular success stories that stick out in your mind?
Drug Court is one of the great successes of the criminal justice system. No other program has been studied to such a degree and uniformly presented positive results. It works. However, Drug Courts are facing new challenges and it remains to be seen if it will continue to be viable. For instance, with the emphasis on the harm reduction model which is sweeping the nation, Drug Courts are now moving away from an abstinence based model and increasingly being forced to permit the medically supervised use of methadone and Suboxone. That model is anathema to many Kentucky judges for a variety of reasons. First, every Drug Court judge is a volunteer. No one gets paid to do this. For judges like me who are conscious of the historical abuse and diversion of opiate agonists and partial agonist like methadone and Suboxone, it’s difficult to surrender personal beliefs when people with a limited understanding of the difficulties in managing an addicted population of criminal justice involved individuals are directing the Drug Court agenda. In addition, it’s difficult to have a lot of confidence in medical professionals’ entreaties to utilize more and more of these drugs when the medical profession is now beginning to acknowledge their own responsibility for creating this country’s opioid crisis. It’s odd that an industry driven by the desire for obscene profit should be paid the degree of deference that they continue to demand. Having said that, I love Drug Court. It so rewarding to occasionally encounter a former graduate who is continuing their life of sobriety.
On a related note, you have taken an active role in helping the judicial system implement House Bill 463. It’s been six years since that legislation passed. Is it working? How can it be improved? What have been some of the challenges in implementing it from a judge’s perspective?
The implementation of HB 463 has been problematic. All of the provisions were well intended, but a few have certainly had unintended consequences or simply have proven ineffective. For example, the requirement that judges utilize an evidence based risk assessment tool at final sentencing in criminal cases is a good thing. It provides judges with a “snapshot” of information contained within a Pre-Sentence Investigation Report and some statistical basis to evaluate the significance of a particular defendant’s history, character, and condition. A defendant scoring as a high risk/high needs individual obviously requires a greater degree of supervision on probation that a low risk/low needs individual. However, some attorneys and some judges never studied the appropriate use of the risk assessment tool and therefore misapply it. The tool itself warns that it was never designed to aid a court in determining whether an individual should be probated or incarcerated, yet some lawyers argue and some judges accept that lower risk defendants should be placed on probation instead of being imprisoned. That is a blatant misuse of the tool.
Other provisions are problematic because the General Assembly always seems poised to tinker with certain re-occurring issues. HB 463 dramatically affected the potential penalties for most drug crimes. We know that our prisons are heavily populated with low level drug offenders and HB 463 was designed in part to help alleviate prison overcrowding by reducing penalties for many drug offenses. Yet, we see during this year’s legislative session efforts to increase certain type of drug crimes. It’s been a constant see-sawing over the past few decades in dealing with these issues. When the emphasis has been on reducing penalties and supervising these offenders on probation there has been no, or little, corresponding emphasis on treatment alternatives and improving the efficacy of supervision within the community by probation officers. So, we keep probating drug offenders, who really aren’t motivated to seek treatment, we have few treatment dollars to work with, and our probation officers are overwhelmed already. These “low level” offenders go right back to committing property crime after property crime, and sometimes worse in order to feed their habit. Eventually, they’re probation might be revoked and they are right back in prison. It’s not enough to pay lip service to treatment and accountability, we have to actually mean it. And in these tight fiscal times, that’s really hard to do.
It is interesting to note that little has changed in Kentucky despite nearly four decades of “reform” in our criminal justice system. Observations made about Kentucky in the early 1970s still ring true.
[I]n 1972 there were approximately 3000 inmates housed in five facilities operated by the Department of Corrections. At the same time, there were about 3500 offenders under the supervision of less than 100 probation and parole officers. While these numbers seem modest by comparison to today's statistics, the two main penal institutions at Eddyville and LaGrange were well above capacity at that time. The overcrowding in the institutions and the heavy caseload of the probation and parole officers were not merely security and workload problems, they were counterproductive to sound corrections policy.
The LRC found that the prison system was not effective in protecting society, preventing crime, or rehabilitating offenders. Although the stated goal of the Department of Corrections was to rehabilitate the offender, the LRC candidly observed that there was little treatment or rehabilitation occurring in the state's prisons. The institutions were described as brutal, inhumane environments, where staff was too few in number and insufficiently trained. As a result, proper security was lacking and treatment programs were inadequate. Without adequate rehabilitation in prison, many offenders were committing new crimes upon their release into society.
Moreover, there were far too many individuals sentenced to terms of imprisonment who should have been granted probation. The LRC observed that probation was “not widely or adequately used in Kentucky.” In fact, in 1970 only 32% of all persons convicted were placed on probation, although nationwide the number granted probation was in excess of 50%. Even more troubling was the fact that so many inmates were first-time offenders. In 1966, over 50% of all inmates were serving time for their first felony conviction and over 28 had no record whatsoever.
This under-utilization of probation, as an alternative to incarceration, was not only inconsistent with good corrections policy, but was also bad economics. In 1972, over two-thirds of the Department of Corrections' budget was spent on its institutions, with most of those funds going to custody and maintenance. Only a small percentage of the money given to the institutions was used for inmate treatment programs. Overall, the annual cost to house an inmate was approximately $2300 compared to an average cost of less than $400 per year to supervise an offender or probation or parole. In addition, the overcrowding of Kentucky's facilities, caused in part by the failure to implement alternatives to imprisonment, forced the state to confront the need to build more penal institutions at staggering capital costs, even in 1972 dollars.
Greg Bartlett, Alternative Sanctions and The Governor's Crime Bill Of 1998 (HB 455): Another Attempt At Providing A Framework For Efficient And Effective Sentencing 27 N.Ky.L.R. 283(2000).
Today, according to the Kentucky Department of Corrections Statewide Population Report, approximately 12,000 people are incarcerated in Kentucky’s prisons. In addition, over 11,000 are currently on some form of community supervision or in local jails. Corrections costs are enormous. Public perception of crime in Kentucky has not noticeably improved, and far too many offenders are released only to re-offend time after time. Piecemeal legislation can do little to remedy the current situation.
Kentucky’s current statutory scheme is rife with redundancies and a surfeit of criminal statutes. Our sentencing policies reflect a “top down” approach in which well-meaning legislative initiatives compel particular results despite the individualized assessments by experienced judges, attorneys, and correctional personnel. Compounding these problem is the morass of sentencing provisions which makes it nearly impossible for defendants and their attorneys, prosecutors, courts, and the public to readily determine the certainty and likely punishment for any given crime.
We have created on the felony level, a system in which the outcome of any prosecution is uncertain given the prevalence of statutes which offer deferred prosecution, diversion, probation, shock probation, split sentences, vagaries in parole eligibility, jail credit, street credit, educational credit, treatment credit, and numerous other laws which affect not only the length of sentence but the certainty of punishment. Current research strongly supports that the certainty of punishment is a much more effective deterrent to misconduct rather than the duration of sentence. Recognizing these issues, a complete reconsideration of our penal code is warranted with a goal of simplifying our criminal statutes and decreasing penalties while ensuring that punishments are predictable, proportionate, and certain.
Simply put, we could benefit from a complete revision of criminal justice policy. That approach needs to emphasize accountability while decreasing penalties in order to reduce incarceration costs. Some programs which exist in Kentucky, like our SMART program, illustrate the efficacy of this approach. Offenders placed on probation are expected to comply with the terms of that probation and violations result in the immediate imposition of a graduated and proportionate sanction which almost always means jail. The same approach applies to most crimes. It is the certainty of punishment, not the duration, which is effective in achieving actual deterrence.
Some trial judges are pretty liberal on discovery and admissibility issues and others are a bit more conservative. Forgive the resort to hearsay, but I have heard you characterized as a bit of an interesting hybrid, tending to take a fairly broad view on discovery early on while insisting that the process actually serve its intended purpose—narrowing the issues for trial. I have even heard of a few parties in your court getting dinged for twenty-page exhibit and witness lists on the eve of trial that do nothing to narrow the issues for trial. First of all, is that an accurate characterization? Second, can you share with me your general philosophy on discovery issues?
I think that is an accurate characterization. “Dinged” is a charitable word. I am one of two judges in Kentucky who is a signatory to the Sedona Conference Cooperation Proclamation. As stated in the Proclamation:
The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.
Sadly, the adversarial approach to digital discovery has now become commonplace regarding all discovery. That “hide the ball” approach, particularly close to trial when we are supposed to have narrowed the issues, is a waste of judicial resources and a disservice to jurors and litigants. As we grow closer to trial, discovery should be about economy, presenting the facts and applying the law. When we originally created our discovery rules, the process was designed to be cooperative and designed to exchange relevant information. That is so far from what we have now. For too many lawyers, discovery has become a substantial income stream which they attend to maximize at the expense of clarity and cost. The discovery obligations of the rules and the Court’s orders are not to be performed in a perfunctory or obstructionist fashion. By the time trial arrives, the court and counsel should be able to reasonably anticipate the nature of the issues to be tried, the likely witness, and the likely exhibits. Trial memoranda, witness lists and exhibit lists, which have been padded to obscure the intended value, should not be tolerated.
Our practicing readers will probably take a particular interest in your answer to this question. Every judge has a pet peeve or series of pet peeves: things that attorneys in their courtroom do that just won’t fly. What are your personal pet peeves?
That is a surprisingly difficult question. I’ve had lawyers who I caught dipping snuff in my courtroom, one during a trial! His spit cup was sitting on the table. That’s inexcusable. I’ve had a few lawyers show up intoxicated—also inexcusable. I think though that if I have a single pet peeve, it would be unprepared attorneys. I cannot fathom how an attorney who is not familiar with the facts and law applicable to a particular hearing or proceeding is considered “competent.” If you are going to litigate, be prepared for court. If you are not prepared, seek a reasonable continuance and make sure you are prepared when you arrive.
One of the things that has always struck me in practicing throughout the state is watching the criminal motion hour docket calls in various venues. I am not sure how it is in your courtroom, but in a lot of courtrooms across the Commonwealth the prosecutor has something of a permanent perch, sometimes right next to the bench, and the visual is such that if I were a defendant in a criminal proceeding it might suggest that the prosecutor has some kind of special status or credibility with the judge, almost as if they are a part of the court itself. Obviously you see prosecutors every day, whether it’s in court or in the hallways of the courthouse. How do you maintain the critical balance and neutrality that’s so imperative in making sure that defendants not only get a fair shake, but feel like they got a fair shake?
I’ve seen the same behavior and I agree it creates an improper perception. The research is unimpeachable: criminal defendants who perceive that they have been treated fairly are far more satisfied with the results of a case even if convicted and imprisoned. In other words, where people feel they’ve been treated fairly, they are better equipped to accept even a disappointing outcome. Our actions, those things which indicate a bias in favor of the prosecution, or a prejudice against a defendant, even when unspoken, cast doubt on the notion of impartial justice. For that reason, I don’t let attorneys from either side enter my chambers except through the public door. I don’t ever let one side approach the bench without inviting counsel for the opposing side even if it is to discuss something unrelated to the matter then pending. I try to be very conscious of the appearance that I am creating to ensure there is nothing which could suggest to a party or to a jury that I have any personal feelings for or against a party.
I’m sure you’ve seen some very effective and some not-so-effective techniques in advocacy in your courtroom, whether it’s before the Court or before the jury. Can you share some of those? What works? What doesn’t work?
The ability to tell a story is crucial to success. It doesn’t matter how well an attorney knows the substantive law or the rules of procedure if counsel cannot communicate effectively with the fact finder. It is absolutely amazing to watch a gifted trial lawyer at work. Generally, right from the start, they take the jury into their hands and they carry that jury through to the end of the trial. The jurors watch every move, hang on every word. It is a thing of art, it can’t be taught, though it can be enhanced through practice and technique. That ability carries through to all of the more mundane aspects of the trial such as introducing exhibits or dealing with objections. A gifted lawyer can make even these parts of the trial interesting to the jury. On the other hand, jurors collectively have a finely adapted ability to discern misdirection or similar techniques sometimes referred to by more pejorative terminology.
Humor, appropriately used, by lawyers is a great aid in connecting with a jury. When you get right down to it, a lot of what we deal with has some humorous aspect or moments. Sometimes, humans use humor as a release because the subject matter of what we are dealing with is so horrible we need a moments’ respite. The ability to discern when an instant of light levity might be appropriate is a gift.
What do you look for in a good brief? Give me some do’s and don’ts for briefing in your courtroom.
Most issues are somewhat commonplace. Brevity has some place when there are no novel issues to be discussed. It is not uncommon to receive, the evening prior to a hearing, a thirty, forty, or even fifty page memorandum that I’m supposed to read and digest. Even more frustrating, sometimes counsel attach page after page of exhibits or case law—much of which is forbidden by our rules. I think I can safely characterize this practice as “maddening” to all judges. I read everything in order to be prepared for a hearing and I simply cannot be prepared when I receive a voluminous filing which does little to clarify the issues. So, absent a truly unusual issue, I encourage brevity.
In addition, I suggest that our rules regarding briefs, pleadings, and memoranda are supposed to be followed. If the rules prohibit the citing of unpublished cases, don’t do it. If the rules prohibit attaching published cases to a document, again don’t do it.
I am also surprised by the frequency in which the law is misstated. Some attorneys have apparently not read the cases they cite, or frequently omit controlling cases, statutes, or regulations. Such efforts at misdirection are not only frustrating, they are unethical.
In trials, “pocket briefs” are helpful. Sometimes it’s easy to anticipate some issue which might be likely to draw more than a perfunctory objection. I find it very helpful when that issue is broached if the attorneys can produce a short one or two-page memorandum which outlines the law for me. I find that extremely helpful.
How many trials have you presided over as a judge? What is your most memorable trial experience?
I average twelve to fourteen jury trials a year. Some last a day or two, some go a week or ten days. So that’s 140-180 jury trials. In addition, I do about the same number of bench trials monthly. They tend to go in spurts. We may do three or four trials in quick order and then take a month or so off. Thus far in 2017, I’ve had four jury trials.
As far as memorable moments, there have been many including the attorney who split his pants during a closing argument and the elderly female witness who was testifying on Skype who stood up during the middle of her testimony and announced that she had to “poop” and then disappeared off screen leaving me, the attorneys, and twelve jurors with our mouths agape. That incident, by the way, is the reason I now require recorded or in-person testimony. There was also the delightful moment when the plaintiff’s recorded deposition could not be played on their recorder and so I had my staff attorney—like in the days when I was a young lawyer—read the part of the testifying doctor while counsel read aloud the questions. Well, the term my staff attorney was supposed to read involved a “CT scan with contrast.” According to what my staff attorney read aloud, however, the procedure the plaintiff had undergone was a “CT scan with castration” a categorically different medical procedure. Every trial has its moments. It’s one of the things that makes being a trial judge so much fun.
Some judges tend to hear the arguments and then review the briefs and take the matter under submission. Others, where possible, review the briefs before hearing oral arguments and often will rule from the bench. Which are you more likely to do in a typical case? And do you find oral arguments helpful? Have you ever been leaning one way after reviewing the briefs but then shifted course after hearing a persuasive argument from counsel at a hearing?
I generally prefer to rule from the bench when possible. This is far more expeditious and I am most familiar, generally, at that time immediately following oral arguments, versus a few weeks later when I receive post-argument memoranda. Sometimes though, I don’t have a good feeling or the facts or issue and additional briefing is helpful. And yes, I frequently change my mind following a particularly persuasive oral argument. Of course there are rare cases in which more than one oral argument may be necessary in the event of a particularly technical issue. In those instances, there is generally some fact which I did not initially grasp as being so crucial to the outcome. When I’ve taken a case under submission and I discover some factual issue that we had not addressed during oral argument I won’t hesitate to have a second oral argument so the parties may develop that issue. It seems the fairest way to both parties.
Pro se litigants can be particularly challenging for judges to deal with. Tell me a little about your experience with and philosophy on pro se litigants. Is it important for the court to show them some leeway and take their status into account when making a ruling?
We train judges on dealing with pro se litigants both in education provided in-state to our judges and at the national Judicial College in Nevada. Pro se litigants present diverse challenges. I have parties who chose to represent themselves who have been graduates from Ivy League universities and those who have little to no functional education and suffer from co-existing medical, mental, and emotional disorders. They all present challenges. Basically, such parties need us to slow down and make greater efforts to listen and explain the rationale for our rulings. I also make it a practice to encourage pro se litigants to seek counsel and frequently refer to the various legal aid groups available in different parts of the Commonwealth. I do not generally, grant additional time to pro se litigants to the disadvantage of another party.
What do you enjoy most about your job? What do you enjoy the least?
There are few aspects of my work that I dislike. Generally, the attorneys are great. They are cooperative, diligent and good natured. Good lawyers are a joy in the courtroom. They make the entire experience of litigation better for me and their clients. Additionally, I take a lot of satisfaction when litigants walk away satisfied with the process even if they did not achieve the desired result. People who feel that they’ve been heard and understand how I reached a particular decision tend to have a much more favorable experience than those who don’t understand the process or feel like they never got to say their piece. I also enjoy resolving complicated issues that really mean something to someone. Sometimes, a lot of litigation just doesn’t have much meaning to anyone. However, sometimes, we really get to help people. Obviously, that’s pretty rewarding.
I abhor those unpleasant encounters with unreasonable people whether they be attorneys, litigants, or witnesses. Some people, whether they are in a bad place in their life or for some other reason, are unable or unwilling to be reasonable. They can be rude, recalcitrant, obstructionist, even profane. No one enjoys dealing with individuals like that, but that is also a component of the job. Because of the nature of our business, we encounter those individuals very frequently. They deserve, and it is our obligation, regardless of our personal feelings, to provide patient and courteous services to them.
I had a case before you once where you ordered the parties to meet and confer to resolve a discovery dispute, and when I say “meet and confer,” you made clear that the attorneys actually had to physically meet and discuss the issues and then report back to the court. That is increasingly rare, but I have to say in that particular case it was effective. Is that something you normally do? Why?
My guess is that you all probably resolved that dispute. [Editor’s Note: We did.]
I frequently utilize the “meet and confer” technique to resolve discovery disputes. In rare instances, I’ve also ordered that those conferences be video recorded when the attorneys seem particularly unwilling to discuss such issues or are particularly rude to one another. Having a record of the meet and confer encourages civil discourse between counsel. I’ve also, sometimes, ordered that the parties submit a particular discovery dispute to a discovery mediator when the issue has some technical component or is complex for some other reason. Generally, the parties tend to resolve their disputes prior to the actual mediation. These techniques all emphasize the cooperative approach to discovery that I encourage.
What are some of the biggest challenges facing Kentucky’s judiciary now and in the immediate future, from your perspective?
Our Commonwealth’s judiciary is facing significant challenges. As you are aware, the General Assembly has begun to address the issue of re-districting. That process should, after 2022, help alleviate some of the overwhelming caseloads in some parts of the state.
We also have the long-standing issue with judicial compensation. Our judges have not received a meaningful raise in many years and continue to lag behind surrounding states. This is a problem which we have steadfastly refused to address while judges are being asked to volunteer more and more of their time. No judge in this state receives even one penny of compensation for programs such as Drug Court; yet we are all aware of the crucial importance of these programs. We want to attract and retain quality candidates for the bench. This is a hard realization to accomplish when judicial compensation is so low compared to similar positions in other states – including cost of living increases for certain areas.
What traits do you admire in a litigator or advocate? What traits do you wish we saw a little bit less of?
I appreciate attorneys who respond with reason, rather than simply reacting. A mere reaction to an issue or question is seldom helpful. Sometimes we all need to slow down and focus less on the quantity of what we say and more on the quality. I’d like to see less bravado and more logic, less angst and more rational thought, less bluster and more calm professionalism.
What is next for David Tapp?
There are always new and exciting opportunities launching in the legal and judicial profession. I am always open to new prospects in my field and new chances to learn and grow as a professional. I continually aspire to challenge myself and develop as a legal scholar and thankfully, this career path gives me the chance to do so.
NOTE: This is the second in a recurring series of interviews with Kentucky judges. The editors of KAS Monthly thank Judge Tapp for his time in answering these questions.
[Image Credit: Kentucky Court of Justice.]