Officers of the Court

Officers of the Court -

Grim is occasionally fond of recounting a tale of John Randolph. A guest is coming to dinner; Mr. Randolph is not prepared to receive him; he opens the door to the guest and says, "Sir, I am not home"; the guest leaves, without attempting to say in any way that Mr. Randolph is being less than truthful. Only Grim tells it with more elegance and fewer semicolons.

In my first job out of law school (a judicial clerkship), I learned that on some matters, a lawyer could make an assertion as an "officer of the court," and in the absence of a dispute, this would be accepted as true. As with the Virginia gentry standard, this assumption was made without any regard to the attorney's actual reputation for truth or untruth. I don't doubt it arises from the same source: when class was far more a reality than now, lawyers were gentlemen by birth, and treated as such. (In British courts, lawyers are still wearing robes and wigs in court - for no better reason I know than that gentlemen once dressed that way.)

I've got a case now, away from my home station, in which I think the other side's staff judge advocate has an office policy that creates a legal issue (and I'm not saying what the policy is, nor the issue, nor even where it is). In my brief to the judge, I simply asserted that opposing counsel told me about the policy, and went on to what I think the issue is. In response, the other side didn't say, "Yes, we do that," or "No, we don't," but simply said, "Joseph W. isn't producing any witnesses to our conversation, so he can't prove what he says."

Don't fear for me - I've got ways of proving it, all right, even if the old doctrine doesn't apply here (and I'm not going to stand on it, anyway). I'm not claiming the profession has fallen to new depths, either - courtroom duels used to lead to actual duels, a couple of centuries back, when the advocates didn't remember how to separate the personal from the professional (a longstanding issue in our profession). One of us two lawyers is about to learn something. I mention it simply because some here might be interested in the standard, and this is what brought it to my mind.

In googling the Randolph story, I ran across a lengthy Vanderbilt law review article on the subject of social norms and the legal profession, with a long section on honor and shame, but time does not permit me to study it right now.

(Let me say also - I am not going to be using this weblog to do advocacy on the public for my cases; and whoever catches me doing it is free to deal me a mighty thwack.)