The judge in A.W.'s case advocates for
how he thinks the matter should be settled.
THE COURT: –You’ve decided to battle, and he comes back. And see, you’re — you — you’re the kind of guy, you don’t want to get into this to settle this, mano y mano. You want to get all these friends who got nothing else to do with their time, in this judge’s opinion, because — my God, I’m a little bit older than you are, and I haven’t got enough time in the day to do all the things I want to do. And I thought by retirement, I would have less to do. I got more! Because everybody knows I’m free! So they all come to me. But you, you are starting a — a conflagration, for lack of a better word, and you’re just letting the thing go recklessly no matter where it goes. I mean, you get some — and I’m going to use word I (ph) — freak somewhere up Oklahoma, got nothing better to do with his time, so he does the nastiest things in the world he can do to this poor gentleman. What right has that guy got to do it?
WALKER: He has no right to do that, Your Honor.
THE COURT: Well, he’s — you incited him.
WALKER: But, your honor, I did not incite him within the Brandenburg standard though.
THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.
WALKER: I’m not sure what that means, your honor.
THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.
WALKER: Well, Your Honor, what–
THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.
So, you know, I guess you know what the court in Maryland thinks you should do next. If anyone complains, tell them the judge so instructed you from the bench.
Usually such counsel occurs in a bar, often one with sawdust or peanut shell flooring... Or so I've heard... *rubs scar over left eye*
ReplyDeleteI've never before heard of an Officer of the Court offering such *wink, wink, nudge, nudge* advice. Certainly not on the record. Simply amazing.
As the years go by it seems to me as if our institutions and society at large are devolving into something resembling a bad, post-apocalypse, B-grade movie.
The guy's been on the bench long enough to have become deeply disgusted with the petty crap people drag into court because they lack the imagination and honor to resolve it themselves. Most lawyers get there pretty quick.
ReplyDeleteThat I can believe while noting that almost every petty crap case brought to a court will have a lawyer representing the plaintiff.
ReplyDeleteMaybe I'm expecting The Court to hold itself to a higher standard, but to make the truck ride remark in the court?
IMHO this Judge should embrace, completely and absolutely, his retired status.
*maybe the hun should reconsider being the one in every crowd voice defending the legal profession when others are asking the How many Lawyers... lead in question to the a damned good start punchline?*
Yes, it's the job of representing one's client's views instead of one's own that gets the lawyer down after a while. You get to be the public face of all kinds of arguments you think ought not to be made in the first place, because your responsibility is to be the best voice possible for whatever it is that the client believes.
ReplyDeleteBut what the clients believe! It's indescribable! I spent a lot of time trying to talk people out of some rotten positions, but in the end, you either fire the client or you do the best you can with the position he wants to take. It's an adversarial system, and you're supposed to take your best shot and trust opposing counsel to poke holes in it if he can. -- Though I do think that there are too many lawyers out there who don't take advantage of the escape hatch that we always have, which is to refuse to engage in a fraud on the court (and that's something that goes considerably beyond a risible argument or a shocking waste of everyone's time). I often wish judges would be a little tougher about rendering summary judgments and imposing sanctions on counsel. Judges get pretty jaded.
I agree that the judge in Grim's story probably ought to embrace retirement a little more thoroughly. Not that I disagree with the general notion that some things ought to be resolved out of court, but you shouldn't stay on the bench if you can't live by the rules of the bench. It's an abuse of power.
"Though I do think that there are too many lawyers out there who don't take advantage of the escape hatch that we always have, which is to refuse to engage in a fraud on the court (and that's something that goes considerably beyond a risible argument or a shocking waste of everyone's time)."
ReplyDeleteI would like to think these are the visible exceptions to the just rule of law.
"I often wish judges would be a little tougher about rendering summary judgments and imposing sanctions on counsel. "
Yup.
"Not that I disagree with the general notion that some things ought to be resolved out of court, but you shouldn't stay on the bench if you can't live by the rules of the bench. It's an abuse of power."
There it is...
Well, the other thing is, this is the kind of case in which an extrajudicial solution would be highly tempting. The man made threats about A.W. and his wife that got them fired from their jobs (because their employer was afraid of violence coming to the workplace). It would be rational to take those threats at face value; and the judicial system has done a particularly poor job of restraining this character.
ReplyDeleteSo it's an act of self-abnegation to come to the court and trust to it to resolve the situation at all. For the judge to tell you that he thinks you ought to take the guy on a midnight boat ride is amazing to me: it's tantamount to confessing that the institution is not only incapable of performing its function (which should be manifest in its repeated failures over the years with regard to this person), but in fact disinclined to perform its function.
The court is like Congress, in other words. Budgets? Are you serious?
"it's tantamount to confessing that the institution is not only incapable of performing its function (which should be manifest in its repeated failures over the years with regard to this person), but in fact disinclined to perform its function."
ReplyDeleteAnd yet, should the otherwise law abiding person believe that the only solution is to handle the threat outside of the law and act on that belief, the law abiding person would be arrested, found guilty and on the table with a needle in his arm within 3-5 years.
It seems only the professional criminals know how to avoid the full weight of just punishment and are the only ones deserving multiple shots at the trusting members of societ... er, rehabilitation.
...this is the kind of case in which an extrajudicial solution would be highly tempting.
ReplyDeleteAnd this is the kind of extrajudicial solution that Kimberlin espouses. The judge either is senile or already targeted by Kimberlin.
Eric Hines
I'd think that either he has no idea of the legal precedents concerning third-party comments on the Internet, or he's been targeted by Kimberlin. In either case, with the greatest of respect the the Court, His Honor really needs to spend a lot more time on his bass boat and less on the bench.
ReplyDeleteLittleRed1
"The guy's been on the bench long enough to have become deeply disgusted with the petty crap people drag into court because they lack the imagination and honor to resolve it themselves."
ReplyDeleteSure, but we're all there because when we try to resolve issues ourselves anymore, we end up in court anyway... Don't blame us- it's the legal system of today that got us here, and has rewarded such behavior. I'd argue that precedent instead of original intent also plays a part in steering things to this point.
douglas, I don't think that's true. The fact that most lawsuits settle before going to trial suggests that the dispute in each case was possible of voluntary resolution from the start. In my entire career, I never was involved in a piece of litigation that couldn't have been resolved by the parties without intervention by the court, always more cheaply and usually with at least an equal degree of justice and fairness. Disputes fail to settle because the parties couldn't come to an agreement about what rule of fairness should apply and how likely a powerful third party (the court) was to agree with one or the other of their opposing views.
ReplyDeleteThat's not to say that both parties to a dispute are equally culpable in this inability to fashion a voluntary solution. Quite often, one side is far more unreasonable than the other. When the imbalance is very great (or when both sides are being complete buttheads), things tend to go all the way to trial.
My commercial clients have varied widely in their ability to grasp this lesson. Some are very good at nipping trouble in the bud before things ever go to court, and tend to find reasonable settlements before any court proceeding goes on for very long. They expect to continue to do business tomorrow with the people who are engaged in contract disputes with them today. They see contract disputes as a failure of clarity in striking the original deal, so they work on fixing the problem and resolve to be more clear the next time.
Other clients take aggressive, overbearing positions all the time and find themselves in constant protracted, expensive litigation which they never seem to be able to settle, because they're inflexible and combative and determined to put one over on the other guy in the end. It isn't something inherent in the legal system.
I've never sued anyone, and no one has ever had to sue me to get satisfaction. I don't believe that's entirely luck. I just know there are better ways to settle almost every dispute, because I've seen how awful trials are -- except for the lawyer, who's getting paid to handle some interesting intellectual puzzles by clients who really ought to know better. It's kind of like a doctor who specializes in self-inflicted wounds.
Well, clearly I need to defer to your experience in the matter, as I have very little (thankfully). That said, I still think that there are a lot of people who figure they can game the system to their advantage, even as a stick in a carrot/stick model- which may well not require them to go to trial, but merely to file.
ReplyDelete"It's kind of like a doctor who specializes in self-inflicted wounds."
Best analogy ever.
Oh, I agree, in fact that's the problem I was referring to: that it's the clients who are gaming the system every bit as much as the lawyers. After all, it's easier for the client to instruct the lawyer to cut it out than vice versa.
ReplyDeleteA proper lawsuit ought to be a way of forcing a settlement. In fact, at every stage, commercial litigants (the ones I'm familiar with) typically rethink their positions and alter their negotiation strategies. They go into the dispute convinced they're 100% right and the other guy is 100% wrong, but after they do some discovery they may shift their views, and again after they file or defend against some dispositive motions, and again as trial looms. The pretrial prep is almost a kind of mediation, where the two parties bounce their ideas off of a (fairly) neutral party and try to see who's being most unreasonable.
But the thing is, if the litigants really wanted to, they could skip all this and work it out among themselves. Well, except in cases where one side is hiding critical information, and the other side needs discovery to pry it out of them and make them acknowledge a broader truth about the facts underlying the controversy. That's what I meant above about how trials are more likely when one side is being much more unreasonable than the other. If both clients were being pretty straightforward about the facts and fairly willing to look at the controversy from both sides, they'd figure out a way to settle and move on. At a minimum, they'd work it out in mediation instead of in court.
There was a bankruptcy judge in Texas a few years back who used to lose patience with a courtroom full of bickering lawyers and warn them: "You'd better work this out before you make me rule. I'm a monkey with a pistol. You don't know who I'll shoot." Basically his version of "Don't make me come back there."
Yeah, reading this, we need more judges like that one. That's a huge part of the problem is that Judges don't just throw more cases out- I don't know if it's because they can't, or they won't, but either way, something needs to change.
ReplyDeleteThe traditional Chinese legal system -- before the Communists -- operated on the principle that the monkey should shoot both parties. The lesson: settle it yourselves, because if it has to become an issue that the state gets involved in, everyone will get hurt.
ReplyDelete