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Washington Lawyer

A Visiting Judge Brings Hubris to the Bench

From Washington Lawyer, April 2015

By Jacob A. Stein

spectatorSome time ago, I had a matter in a California motions court. I asked one of the local lawyers how things proceed with the motions judge. I was told the judge is pretty quick on rulings. With that as background, I was on my own.

At 10:00 o’clock, the clerk entered the courtroom and announced that a visiting judge will take the calendar. The assigned judge was in a carry-over case and unavailable.

The visiting judge took the bench and requested the clerk to call the cases. The judge asked the clerk to divide the cases into the morning and the afternoon calendar. The judge then announced that the lawyers on the afternoon calendar were excused until 2:00 o’clock. I was on the excused list. I had no place to go, so I decided to remain and observe the proceedings.

The first case on the calendar involved a nervous young lawyer who asked the judge whether to discuss the law or concentrate on the facts of the case. The judge leaned back comfortably and ran his hand through a full head of gray hair and said, “Would you like to know what I think?”

“I certainly would, Your Honor.”

“Well, I think you ought to do what makes you feel comfortable and in that way you will be more helpful.”

In another case, the defendant’s lawyer was arguing an issue of no real consequence. Without a word of warning, the judge suddenly walked off the bench. He returned 10 minutes later and said to the lawyer who was still standing at the lectern: “You have so many good points, I cannot understand why you want to argue the bad ones. I decided that a few minutes would help you.”

On the next motion both the plaintiff’s lawyer and the defendant’s lawyer asked the judge for a continuance and, in essence, to take it off the docket.

The judge responded: “When I was a trial lawyer, there were few lawyers around who really wanted to go to trial. I was one of them. In litigation there remains suspense unless there is an external force that inflexibly moves the case to trial and allows for no continuances.

“The first time a case is called, the parties make an acceptable preparation for trial, and if compelled to go to trial, they will either try the case or settle it. However, if the case is once continued, there is a suspicion it will be continued again. The second is fairly acceptable. Almost any excuse serves to continue a case for the third, fourth, or fifth time.

“For instance, the first continuance will be granted because of the severe illness of one of the parties. The second continuance will be granted because of the illness of counsel. The third continuance will be granted because of the illness of an important witness. The fourth continuance will be granted because the file has been misplaced. The fifth continuance will be granted because one of the parties died and the executor of the will must study carefully the entire history of the claim.

“Once there has been a series of continuances, the lawyers know they have one of those cases that will never be tried.

“Now, gentlemen, I would like a discussion of a continuance in my conference room. We will take about 10 minutes. From what I have seen in the file, I can resolve the case.”
Ten minutes later, the judge enters the courtroom and proudly announces that the lawyers resolved the matter in nine minutes.

The plaintiff in the next case on the judge’s calendar argued that the witnesses in the case did not tell the truth. The visiting judge said he likes to use a story from another judge’s case to demonstrate the unreliability of a witness. “The trial judge in the case, after hearing the testimony, announced: ‘Gentlemen, if Humphrey, the deceased, said—in the light of these Missouri decisions—‘Daughter, if you’ll come and live with me, I’ll give you this house,’ then I’ll decide for the plaintiff. Now just what was the testimony?”

Unfortunately, the court reporter had boggled his notes. The judge impatiently asked if the principal witness, the plaintiff’s maid, was present, and, learning that she was in the courtroom, asked her again to take the stand and repeat her testimony. This is what she said: “I remember very well what happened. It was a cold and stormy night. We were all sitting around the fire. Old Mr. Humphrey said to Mrs. Quinn, ‘In the light of these Missouri opinions and decisions, daughter, if you’ll come and live with me, I’ll give you this house.’”

After each case on the docket, the judge found a way to flatter each lawyer. It seemed the visiting judge had taken President Lincoln’s maxim—with malice toward none—as his working principle. Of course, it had an effect on the proceedings. Even the losers (I was one) were impressed by this judge.

When the judge completed his calendar, he thanked the court personnel for their hospitality.

He wished everyone well, and he declared today’s proceedings gave him great pleasure being with “you all.”

He then said he was going to be away for a long time. He waved his hand and vanished through a side door.

I have tried to find out more information about that judge. So far, my efforts have led to nothing. If anybody can tell me something, anything, I would like to know whether this event really happened.

Reach Jacob A. Stein.