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Behind the Bench with Judge Matt Osman: A Candid Conversation with the Mecklenburg County District Court Judge - Part 2

This episode is the first in a series of conversations directed towards lawyers, legal professionals, and law students. In this series, North Carolina Attorney Bill Powers digs into personal issues, patterns, personalities, unspoken truths, realities, and the lifestyle of being a lawyer.

In this episode, Bill Powers sits down with ... Read More

Modified Transcript of “Behind the Bench with Judge Matt Osman: A Candid Conversation with the Mecklenburg County District Court Judge - Part 2” for the Hearing Impaired

Judge Osman: I believe a rising tide lifts all boats. If everyone's practicing at a high level it encourages everyone, but it only takes a few attorneys who are not doing well ... Look, lawyers have a negative reputation in a lot of society where lawyers are the butt of a lot of jokes. It only takes a couple lawyers in the news doing the wrong thing and not doing it well to kinda tar us with that same brush. I think that encouraging helping lawyers, young lawyers especially, improve their practice I think it benefits the legal profession as a whole.

Bill Powers: Mm-hmm (affirmative). You've, again, kinda drawn me to my next question, because personally I try to keep ... and try to keep even our conversation on a positive note. Are there things that you think make lawyers better in court? I know I personally regularly self-assess and I practiced law long enough now to be able to say, "I could've done that better," or perhaps more importantly, "I'm sorry." I know my strengths, but I also recognize my strengths are often times my weaknesses. I can be overly competitive. I can take a case so seriously that you can focus on the leaves and the branches of a tree and miss the forest through the trees.

Bill Powers: There are also times where I know things that others don't and from a moral compass standpoint when I know something is, let's say, being not accurately described after someone puts their left hand on The Bible and raises their right hand, or affirms, whatever they want to do, that offends me and I have to be careful to step back, and I have numerous times called up prosecutors, lawyers, Judges, law enforcement officers; I try not to make it too much of a habit, but I've said, "I'm sorry. I could have been nicer to you," or, "I wasn't having a good day."

Bill Powers: So, I mean what do you think about that encouraging the lawyers? Is it a matter of ... and this may be part of the education process where you say, "Get a mentor," or, "Knock on someone's door and ask them questions." I don't have any problem horse collaring a lawyer I think has been acting in a tough fashion in court and say, "Come here and let me take you out for a cup of coffee and let's chat a little."

Judge Osman: I think having a mentor is key. If an attorney is not able to get into a firm that has experienced lawyers they're still ways through the Bar to seek out other attorney that have been there and can encourage you. I have called up experienced attorneys to the bench and asked them to reach out to another attorney, because that person might need some guidance and some mentoring that might be better received from a fellow member of the Bar rather than a Judge.

Judge Osman: When it comes to ways to improve practice I think it's really true that for many of us our best traits and our strengths are sometimes our weaknesses. If you're someone who's extremely thorough and prepared sometimes you don't know, as you said, when to get off that horse and you drill down so far, put such a fine point on it, that you've basically, you've gone too far and you've lost the effectiveness. So, how do I pull myself back, as an example? Being professional and respectful I think is critical. If you give respect you will get respect. And being trustworthy. I am a naturally trusting person. I will ... whereas some people will say you have to earn trust out of the gate, for me I'm more likely to trust from the beginning, but when that trust is gone trust is really hard to get back for me and a lot of people. But, I'm going to give you room to get that. I'm going to give you room to earn that back, but it's going to take a bit of time.

Judge Osman: You were talking about getting frustrated in court and things like that, and that's an interesting issue that I see, and I do it too. I'm a big fan of ... There's two things that I think are a big part of my judicial philosophy and kinda of who I am and I would refer to them as the razors. So, you've Occam's Razor, which says in paraphrase: all things being equal the simplest answer is the most likely. The second will be Hanlon's razor, which was popularized by Lane Williamson in a bar letter sometime last year. Hanlon's razor, that basically says that when in doubt it's easier to ascribe the actions of someone to stupidity rather than maliciousness. So while there are people that come into our courtrooms who flat out lie, who are there with no good. There are other times that people are not as bright, not as intelligent, don't understand the questions, and need to be given room to explain themselves.

Judge Osman: I look at a lot of things through those lenses. It's a lot easier for me to think that this attorney just, they didn't know better and they're learning than that they set out to come into court and deceive me. Maybe that's a little Pollyanna, but I'd rather give them the benefit of the doubt that they just didn't know better, and stupidity's a strong word, so is ignorance. Maybe they just didn't know better. Again, when you're coming up with complicated conspiracies it's often the same thing. Is it possible that all these amazing factors came together or is it just the simpler answer, which is that so and so did this thing that they're accused of doing or not, or that this witness who's saying something happened but it's an exceptionally complicated way of getting there, or it's the simpler answer. Those two razors, those two philosophies have a lot of impact on the way that I view the things that happen in a courtroom.

Bill Powers: Of course, then there's Gillette razor, which means don't forget to shave to court. I say that in jest, but take care of yourself. I find my mental health and my ability to be a more effective advocate is related to what I've done in the morning and getting up and working out or eating a good breakfast or trying to get enough sleep. So I say that in a jest, but there is an aspect of that.

Judge Osman: Right, and there's a couple different parts of that too from us. Two parts of it, I'd say. One is getting honest feedback is really hard as a Judge. I used to joke that you put the robe on and suddenly you lost 10 pounds, your jokes are hilarious, and your hair looks great. Because, the lawyers in front of you, they don't want to tell you what they really think. They want to curry favor, and so getting meaningful feedback so you can improve your practice ... We derisively refer sometimes to something called black robe disease, or robitus. Judges who go off the rails who can't be told anything, and I don't want to be that Judge. I try to find people who I can trust who I know aren't trying to curry favor but can give meaningful feedback on court performance.

Judge Osman: The other part of that is personal, taking time, exercising when I have the time, just getting away, trying not to think about work and difficult cases, which is very, very, very difficult for me. I have a hard time compartmentalizing. So, trying to do that and trying to just take care of my mental health. I'm giving the issues as I see as a challenge but as important.

Bill Powers: Well, I want to move to another ... and I want to thank you for your gift of time. You've been very generous with us. It's something new I'm starting with, and if you've ever seen inside the actor's studio with James Lipton he borrowed something from Bernard Pivot called Bouillon de culture, who borrowed something from Marcel Proust who was a late 19th century French novelist. These are just some fun questions that are intended to be fun and maybe just show some insight and humanity of who we are. You can answer these personally, professionally, any way you want.

Bill Powers: The first one, most obvious one I think, is if you weren't in the legal profession what profession would have otherwise interested you?

Judge Osman: I would have loved to have done something with sports.

Bill Powers: Really?

Judge Osman: I would never dream to have been an athlete, but to be engaged in sports in some way. I don't know, broadcasting, but some sort of management. Something to that effect. I just really enjoy sports, so I think that being involved with something to that effect would have been enjoyable.

Bill Powers: Oh, that's interesting.

Judge Osman: If not maybe some sort of food and travel writer, because I really enjoy that. Obviously the Navy really scratched that itch a lot having lived all over the world. That would be pretty fun too.

Bill Powers: Sure. I'm big into etymology awards and things like that. I have ... I really want to figure out which way people are thinking about this. I'm going to give you a series of words and I'll give you an A or a B option, okay?

Judge Osman: Okay.

Bill Powers: Whereas, arguendo, nunc pro tunc, volenti non fit injuria. Legal lingo: tradition and history or pedantic and loquacious?

Judge Osman: Tradition and history.

Bill Powers: See, I kind of like it. I don't know why. I know a lot of lawyers don't, but there's a very strong opinion amongst lawyers about simplifying things and not using that language, and sometimes just quicker. What's your favorite word, legal or civilian?

Judge Osman: Legal.

Bill Powers: I meant, that was a poorly asked question.

Judge Osman: Yes. I would sustain that objection, if counsel made it that the question was ... I probably sua sponte, which is another traditional history legal word. So, my favorite word just in general?

Bill Powers: Mm-hmm (affirmative).

Judge Osman: Oh, man. I wish I had a chance to think about that one before, because I know that there are a few words that I'll ... I'll find a favorite word and then use it for a little while, a 50 cent word, and then overuse it. I know there are a couple, and I'm just completely drawing a blank right now.

Bill Powers: That's all right. Mine is too. It'd probably be ice cream. Some Proustian questions I ask ... You know, he asked about, "What's your favorite color?" And things like that. But, is there a historical figure ... he used the [inaudible 00:39:40] spies, but I'm more interesting in historical figures that people tend to admire. It could be spiritual or anything like that, but from an intellectual standpoint is there a world leader like Churchill or Franklin or Lincoln?

Bill Powers: You mentioned John Adams before, so.

Judge Osman: I was a student of history, but I don't often think about things that way. When people say, "Well, could I have dinner with four historical figures dead/alive," things of that nature, I never really have a good answer because I'm not one who's big into heroes for myself. There aren't people who, celebrities and the like, who I'd fall all over myself to meet. I just think they're regular people, so. I probably would harken back to World War II, heroes and the like such as Eisenhower. I think he would be really interesting to meet. And, some others who were instrumental in the American victory in Europe and in the pacific. I think it'd be really interesting to get a sense for how they made some decisions they made knowing that the men under their command were going to die, and how they came to those decisions knowing that probably some of those decisions, they would live with them for a long time.

Judge Osman: The decisions I make certainly don't result in people dying, but there are lasting consequences, and when you think about those decisions. So, I think there can be some interesting parallels between decision making with consequences and hearing how they dealt with that in their life.

Bill Powers: I think the follow up on that one ... My wife Sammy and I were asking one another this question: would you rather meet your great, great grandparents or your great, great grandchildren?

Judge Osman: I would probably meet my great, great grandparents. I had two great grandparents up until I was 18. So, I had a number of grandparents far in excess of what most people have. To have gone one generation back from them I think would have been really neat.

Bill Powers: Do you have a motto or something that you think to yourself, I mean ... My personal one is esse quam videri, so. I'm joking. That's the North Carolina motto. But, is there a ... and I know I didn't prepare you for any of these questions, but is there a favorite saying or is there a motto or something you think on regularly?

Judge Osman: I'm sure my wife would probably tell you that is and something I say often, but off the top of my head? No. I'm not much of a mantra/motto person.

Bill Powers: Right. Well, that's an answer in and of itself, so.

Judge Osman: Mm-hmm (affirmative).

Bill Powers: Your honor, as a Judge we have spent a fair amount of time talking about experiences and backgrounds and one of the arguments we make with juries or in the selection of juries is that the reason we're taking you is that we want your life experience. We want your background. That's the common person's perspective in life. Most notably, you started your legal career in the Navy in the Navy JAG program. I think that stands for Judge Advocate General, did I get that correct?

Judge Osman: Correct.

Bill Powers: That normally requires you to handle, to my understanding, a lot of different legal matters. I've always said the best attorneys in a courtroom would be able to sit at either table, and I truly mean that. I personally would have no problem prosecuting cases. I know you prosecute matters for the state, and I think you probably did some defense work as well in the Navy, maybe wrote some wills or anything? Tell me about JAG and what that experience was like, because I think a lot of law students would benefit from that.

Judge Osman: Sure. When people talk about my background experience they often focus on being a prosecutor in Union County. They often focus on my prosecution work when I was in the Navy, and I rarely get the chance about my work as a defense attorney, which was probably some of the most meaningful work.

Judge Osman: As a quick overview, my first two years I was a prosecutor stationed in Japan, which was a really interesting time. There were a number of young sailors stationed over there who oftentimes made mistakes, oftentimes involving drugs and alcohol, and so we had a number of interesting legal issues both on the base and off, and having to work through our relationship with the Japanese government and how we were going to handle that.

Judge Osman: From there I went to Spain where I was a staff attorney, and so I was advising on legal issues on the base, and I was advising the commanding officer for the base again about discipline issues, and also international issues related to the Status of Forces Agreement and our relationship with the Spanish government, which was very different from our relationship with the Japanese government. When you tend to beat someone in a war you tend to have a bit more power when it comes to making the rules, and so in Japan we owned that land. In Spain, we were tenants. So we had to be much more respectful of ... and go about ... not that we weren't respectful of the Japanese government, we had a great relationship. But just we had to operate a little differently in Spain than we did in Japan because of the history going back to what brought us there in the first place.

Judge Osman: From there I went on to Charleston where I was the officer in charge, which means the head officer of the legal office there. In Charleston is where the Naval Nuclear Power Training Command is, so you had a bunch of very bright, very tech savvy young men and women who tended to commit crimes that were consistent with their youth, their intelligence, and their computer savvy.

Judge Osman: During the time I was in Charleston we also, as a legal service office, we did lots of wills on people who were deploying, powers of attorneys, gave some civil law advice, but were very limited in what we could do because we couldn't represent out in state court. We could give some general advice about family law matters and the like, but then we had to push them to handle those things on their own or get a civilian attorney if it was a state court matter.

Judge Osman: My time as a defense attorney when I was in Charleston really helped to shape me as a lawyer, because I was a prosecutor and then I was a defense attorney and then when I got out of the Navy and went to Union County I was a prosecutor again. I really feel like my second time around as a prosecutor had a much different perspective. I think for a lot of baby prosecutors as we call them, baby ADAs, the world is so black and white, very little shades of gray where you tend to be very idealistic. Having done that defense tour and then coming back into the prosecution world I think I was able to see that scale, the shades of gray in the middle as well as when defense attorneys were telling me things that were coming from their clients I had a much better sense of what was legitimate, what was true, what was going on with their client, and taking that into account. So yes.

Judge Osman: I've handled some really serious defense cases. I've had to sit across from sailors and marines and tell them that the maximum punishment if they're convicted is death, because in the military under the Uniform Code of Military Justice, UCMJ, there are several offenses that are still capital on the books beyond homicide, certain sexual assaults and other things like that, that still carries a death penalty, although no one has been executed in the military for years and years and years and years. But, you know as a defense attorney that you still have to advise your client of the maximum punishment or you are committing malpractice.

Judge Osman: So, having to tell a 22, 23 year old sailor that the maximum punishment if they're convicted of this sexual assault is death is not easy. But, I think it's an important part of my history, because I've had to have those conversations with young clients about the potential consequences of their actions.

Judge Osman: Some of my biggest wins in a courtroom, my most memorable wins, and some of my most memorable losses have been on the defense side because of the client you have sitting next to you. Now, as a prosecutor you're still advocating very hard for the state, but you're also advocating for that victim, and that victim's family. But the relationship you develop with a defense client tends to be a little more close, a little more emotional and you have to be careful with that, not to get too emotionally invested in the case. That's very hard. But, because of that the wins and the losses, I think you tend to feel a lot more strongly on the defense side than you do on the prosecution side. At least, I did.

Bill Powers: Well, here all these years I've been thinking the lash was the most severe punishment in the Navy, or maybe keel hauling, but trying to add some levity. That is ... I've actually-

Judge Osman: They don't do that anymore. There may be some times when it's justified, but we don't do that anymore in the Navy.

Bill Powers: It brings up another point. I really want to hear what you think about this, particularly because of your work in the drug courts and being the lead, and I apologize if I'm using the wrong term, criminal Judge in Charlotte. I'm a defense lawyer, and people regularly assume I'm a liberal kinda person. In fact, I'm actually quite conservative. Maybe a progressive libertarian is what I like to joke around with, but the point is I get tired and there are days I'm just done with some excuses. I regularly tell prosecutors, "You don't realize how much I've modulated the message." Culturally I think there is been a major transition from acceptance of responsibility and just an attitudinal shift for ... I have clients regularly that think that they're in control. I've done blog posts on this. Like, how is court scheduled in North Carolina and who's actually in control? This ubiquity of devices and things like that.

Bill Powers: On other days I see the kindness in a human heart and I always want to make sure that I don't forget that this is a real person with real life, real world concerns. I have to just guess that working the drug court in Charlotte, it has to be in large measure a thankless job. It's not a sexy position. It's not something where it garners a lot of attention. It doesn't sell newspapers. Like the latest beginning of a charge, but as far as changing lives and really making a difference I have to think that it's one of the most important things we do.

Bill Powers: But as a Judge tell me about your experiences there as you're able, and does the good outweigh the bad? You mentioned taking it home with you, and how do you ... if you're caring for an ill person and you're living it in your face 24 hours a day there have to be periods of separation. I won't go into great detail, but I feel like you have a very fair understanding of that, more than most even. As a Judge how do you deal with that?

Judge Osman: Well, first compassion fatigue is real. When you hear the same stories over and over again, when you're dealing with some same issues over and over again it's hard. In probation court if the first person comes up and this is their story and their reason for why something happened and then somebody comes up three hours later and they're the 10th person with the same story you have to be very careful not to be calloused, because maybe that last person it's actually legitimate but you've heard that same story so many times. It's easy to become jaded, and so you have to really guard yourself against that. But the compassion fatigue is legitimate.

Judge Osman: In my work in the DWI treatment court, which I think is really valuable but it is hard because you are dealing with really difficult issues involving addition, and some behaviors are trying to change, and people who don't want to change. That's really difficult. I struggle not to internalize those and not to get burned out. The two times of most meaningful work I've had as a Judge where I think I've had the greatest impact has been in DWI treatment court, and also was during my two years as a family court Judge.

Judge Osman: Now, in criminal court there are consequences to what we do. If you're convicted of a marijuana possession, if you're convicted of a DWI there are lasting long-term, sometimes lifetime consequences to that. But, I would suggest to you, and others would agree, that the long-term consequences of who is raising these children, of custody and other matters, especially when there are serious issues going on in that family, the long term consequences of those are arguably more significant and are the ones that stay with with me more. I'm far more likely to take a decision like that home and think on the decision I've made in a custody case than I am in a criminal matter, both from my experience, because I have more experience on one side than the other, but secondly because you just so desperately ... You want to get everything right. You so desperately want to get decisions involving kids right.

Judge Osman: Those are the things that I think tend to stick with us Judges longer. I know it does with me.

Bill Powers: Sure. Wow, and we do a fair amount of 50b work, which is the domestic violence protective order, restraining order. Sometimes 50c depending if there's relations. When you do family law and you have some experience, whether there's an interaction between those two courts and one of the key questions oftentimes is not just a danger to the person that's brought the action, but the future danger and the trauma caused to the children, and I would think that'd be hard not to internalize, because there isn't ... when you open up the court file there isn't an envelope inside it that opens up and says, "Who would be the best person to provide the primary custody or care for this child," and you open it up and it says, "This person."

Judge Osman: Right. Judges have a tremendous amount of discretion in family court when it comes to making those decisions. As long as you can justify your decision with provable facts then the Judges can do a lot of different things, and on the one hand that's freeing because sometimes it means there isn't a right answer, there's just a range of acceptable answers. But other times I think that's a great weight that there may not be one "right" decision. To me, that's a heavy burden to bear, because as someone who likes to get things right knowing that there might not be one right is hard.

Judge Osman: I tend to believe ... I'm a believer in absolute truth. There really are two people in this world, people who believe in absolute truth and people who believe in absolute truth. Believing that there is no absolute truth is in itself an absolute, so I believe that everybody believes in an absolute of one form or another, and as someone who believes in absolute truth trying to find that one right answer when sometimes there may not be one right answer can be challenging.

Bill Powers: Mm-hmm (affirmative). Which kinda cross references our prior reference to natural Arthurian Aquinas, which was very much into that theory. Some come natural and some comes inspired. One last question and I'll let you go, because you mentioned the JAG and your experience in criminal and civil work. I have to think as being a family of three and being married now that we've interjected this idea of trying to be empathetic to clients. That has to effect things. I'm glad when I know a Judge has had some personal experience with that. Not that you can always draw and project your own personal experiences to things, but is there an aspect to that from the bench?

Judge Osman: For me, yes. Now we have had some wonderful, current and past, some very skilled Judges who were great family court Judges who may not have had children. Certainly you can have a great criminal court Judge who's never been a criminal, who's never been charged with a crime. So, you don't have to have sat in that person's seat to be good at that, and we've had people demonstrate that. For me though my real life experience certainly impacts my perspective from the bench. My time with my three children, one of whom has some pretty significant special needs, certainly impacts the way that I receive evidence from parents, especially those who also have challenging children, and you can view that through that lens and you can kinda tell what has a ring of truth and what doesn't.

Bill Powers: That was a great point. I think my question to you is more when we're trying to help younger lawyers or younger law students that their life experiences are important to their practice and therefore I would encourage them to get as much experience in multiple different areas, understanding that no one's going to be an expert in any area. So where, like we said, have jurists who have had families and kids and haven't, and are excellent but may have had a time experience in the JAG.

Bill Powers: I guess the key take away that I was trying to draw from that was when you graduate from law school try your best to try a lot of different things. Maybe find a tutor or a mentor or join a JAG where you're forced to fire hose information. I think it makes you a better person and a better lawyer.

Judge Osman: And be who you are. Don't forget your experiences. The North Carolina jury instructions talk about how jurors can draw on their life experiences, their common sense. They don't have to leave everything they know at the door, and for Judges it's the same way. When Judges are finding facts we have our histories, we have our experiences. Now, it's important to set aside biases and implicit biases and the like. It's important to recognize and set those aside, but I can't completely divest myself of my life experiences. It's going to affect the way that I view cases and the way that I receive evidence, and that's going to be the way for anyone. Our experiences affect the way that we perceive the world. I think it's important for attorneys to recognize that in us and also for attorneys to use their experience as a strength when they're practicing and presenting evidence.

Bill Powers: Well, our system isn't perfect by the fact that it's run and judged by juries and Judges, by humans. It'd be better to recognize our strengths and weaknesses than ... and it's not always perfect. I still think it's the best legal system in the world myself, but it's not always perfect. Like good sausage it isn't always pretty watching it being made.

Judge Osman: But hopefully it tastes pretty good in the end and we get the right result, right?

Bill Powers: Right, right. Exactly. Well, thank you very much for answering that. I know that's a somewhat personal question, but I do very much appreciate it.

Judge Osman: Thank you.

Bill Powers: Well, again I want to thank you, your honor, for joining us on Law Talk with Bill Powers. It's been very helpful and enlightening to me. I hope it's been not too pressing on you. I would encourage our listeners if you have questions or if you'd like to hear other people speak shoot me an email. The materials are in our notes attached to this podcast. Thank you so much.

Judge Osman: Thank you for having me. A lot of fun. Thank you.

Speaker 3: You've been listening to Law Talk with Bill Powers, your resource for answers to your most pressing legal questions on your time. Ready to discuss your matter now? Call (704)-342-HELP for your free and totally confidential consultation. That's (704)-342-4357. Law Talk with Bill Powers is an educational resource only. The information presented on this podcast does not constitute legal advice and is not a substitute for consulting with an attorney. Every situation is unique, therefore you should always consult with a licensed attorney before making any legal decisions.

Speaker 3: Thanks for listening.

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