Trial work is hard. As a former trial lawyer, I can say with certainty that it can be more difficult than my appellate work. One of the challenging pieces is having to make split-second decisions. And then those decisions—especially those with life-changing implications—follow you and your client. They’re memorialized for all time in a written record. Opposing counsel’s job is to loudly and publicly challenge your choices. And then, as if that weren’t enough, your decisions are  *literally* judged.

In our judicial system, judges are often afforded great deference, and many decisions will generally not be disturbed. Trial judges are the ones who heard and saw the evidence—they’re the ones who have to make these quick decisions—and so we defer to their choices on appeal. An “abuse of discretion” standard of review is notoriously difficult for appellants to overcome as a result.

That brings me to this newest SCV decision. We rarely see reversals when the standard of review is abuse of discretion…but we’ve got one here. All trial lawyers will want to read Orndoff v. Commonwealth, as this appeal arose from a trial judge sua sponte finding a witness in summary contempt.

lessons from the opinion

First, a reminder: There are two kinds of contempt. The first is one that occurs in the presence of the judge (known as direct or summary contempt). The second is indirect contempt. The accused is provided traditional due process rights, including notice of the charge, right to counsel, etc. Contempt can arise quickly and unexpectedly, as it did in this case. Trial lawyers of all kinds will want to remember these basic differences so you can object or proceed appropriately.

Second, the Supreme Court gifted us with a new quote for an abuse of discretion standard of review. In your next brief, consider this line: “Although this standard is demanding, it is neither insurmountable nor meaningless.” While the majority ultimately concludes that the Circuit Court got it wrong (there was insufficient evidence to proceed with summary contempt), the dissent raises valid points.

I want to focus on Justice Mann’s concurrence, though, rather than the merits. He begins by acknowledging the difficulties trial judges face in juggling so many different moving parts. But it is also important for judges to be patient and to remember that “incarceration need not be the first” tool they use to maintain order. Justice Mann’s concurrence then eloquently points out how diverse our perspectives can be. Those of us in the legal system view things differently. In this case, a witness alleging brutal domestic violence didn’t act in the way the trial judge expected or wanted. Justice Mann emphasizes what went wrong—and what could have been done differently.

Let’s think charitably

I was recently reading the book, “Unreasonable Hospitality.” The author makes the point that we should view someone’s negative behavior charitably if we can. It is easier said than done. For instance, clients sometimes torture me with information they gather from ChatGPT. I don’t want to argue with a delusional robot ever again.* While I sympathize with a client’s desire to understand…boy, is it annoying. I must admit, though, that when I experienced a strange medical emergency last year, I turned to Dr. Google when we couldn’t figure out what was wrong. I asked my medical team about a potential diagnosis my husband discovered on Reddit. *Cringe!* Looking back, I realize that I was just scared and confused. Fortunately, my doctor responded charitably, with kindness and empathy.

Last week’s opinion could be a reminder to all of us in the legal trenches that not everything is clear cut. We all have different life experiences and perspectives.

It is easy for us to become immune to some of the horrible things we routinely encounter as lawyers. When you’ve been burned enough times, we might find ourselves expecting the worst and assuming bad motivations. But maybe we don’t always have to.

Perhaps there’s room to think more optimistically in our own personal and professional lives more broadly. Clients are stressed. Grumpy opposing counsel might just be having a bad day. Maybe I can even find a nicer way to view rude emails—like the one I received that concluded with “govern yourself accordingly.”

But before I get too charitable (I’m running a business after all), does anyone have any clever language in their engagement agreements about client use of ChatGPT? 😉

* If/When our AI machine overlords take over civilization, I reserve the right to withdraw this statement.