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Friday, December 6, 2019

Legally Speaking: Judges Who Missed Their Calling

By John G. Browning | Sep 30, 2009

Like most trial lawyers, I spend a fair amount of time appearing in front of and interacting with judges. With most of them, it's hard to imagine them as anything but judges – issuing rulings from the bench in all their black-robed, gavel-wielding glory.

With a few judges, the glimpses I've had into their personal lives and interests provide some measure of insight into where the road not taken might have led them – careers like playing in a blues band, restoring classic cars, even writing comedies. And with some jurists, I can only speculate from their orders about other career paths for which they might have been suited.

For example, U.S. District Judge Gene E. K. Pratter evidently missed her calling as an international diplomat or, at the very least, a restaurant maitre'd. The Pennsylvania-based federal judge recently crafted a novel sanction for a lawyer who had stooped to cursing and name-calling in a deposition with an opposing counsel: she ordered the lawyer to go to dinner with his adversary.

It seems that proceedings in Huggins v. Coatesville Area School District had gotten rather heated. Lewis Hannah, an African-American attorney, represents a black school janitor who alleges he was fired from his job in retaliation for filing a complaint against a white female principal who had called him "boy."

During a deposition with his opponent, James E. Ellison (who is also African-American), Hannah repeatedly used profanity, calling Ellison what Judge Pratter delicately referred to as "a certain unattractive endpiece of anatomy" at least four times during the deposition.

Ironically, Hannah even referred to Ellison in a racially-charged manner, calling Ellison "boy" and prompting the other lawyer to end the deposition.

In her 12-page opinion, Judge Pratter characterized the exchanges between the attorneys as "heated, personal, rude, and pointless."

Rather than impose a monetary sanction, the judge sought a punishment that would have a greater long-term effect. First, she ordered Hannah to attend a continuing legal education course dealing with civility and professionalism.

Next, she ordered that within six weeks Hannah and Ellison must go to lunch or dinner together (Dutch treat) and then file a joint status report about their efforts "to restore their conduct in this case to a level of professionalism for attorneys practicing before this court ..."

Judge Pratter's decision to use a shared meal as a means of working out the attorneys' differences was inspired by Shakespeare himself, who urged in "The Taming of the Shrew," "And do as adversaries do in law. Strive mightily but eat and drink as friends."

Judge Pratter wrote that "perhaps the adversaries in this case can be re-inspired to achieve the Shakespearean vision and the aspirational goals of the very rules of professional conduct by which counsel have pledged to abide." Let's hope they don't get into a fight dividing up the check.

Sometimes, judges are forced to play fashion critic. U.S. District Judge Nicholas Garaufis of Brooklyn, N.Y., recently ruled that lawyer Todd Bank had no constitutional right to wear jeans and a baseball cap in court while representing himself in a landlord-tenant dispute.

Bank claimed that his choice of attire, including his Operation Desert Storm hat, was a fundamental right of expression. Judge Garaufis disagreed, saying "Plaintiff's desire to make a fashion statement is far from a fundamental right."

The court noted the lower court's restrictions on courtroom attire were reasonable, observing that it wasn't just Yankees caps that were banned from the courtroom, "or that hats with pro-war messages were permitted while anti-war hats were not."

Bank intends to appeal and remains defiant, claiming that while he's lost cases "I knew that I should have lost," "this is not one of them."

Other judges show some promise as budding editors or schoolteachers. In New York, Supreme Court Judge Charles Markey found a rather unique justification for dismissing a motion for a default judgment in the auto accident case of Jones v. Fuentes: negligent stapling!

According to Judge Markey's written opinion, "The poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them. Such negligence on the part of counsel shows a lack of consideration."

Apparently, a court clerk handling the filing was cut not once but twice by errant staples. The attorney who filed the dangerously-stapled motion, Jeffrey Hirsch, is quick to point that none of his other filings have been cited for any similar deficiencies.

But, lest all of us be lulled into a false sense of security that killer staples are no longer on the loose, beware: the case will continue on as a separately-filed uninsured motorist case, leaving Mr. Hirsch ample opportunity to staple away to his heart's content.

U.S. District Judge Gregory Presnell of Florida also channeled his inner editor and put his red pen to good use recently. Frustrated with a motion for dismissal by attorney David Glasser of Daytona, Judge Presnell denied it outright.

The jurist-turned-proofreader wrote that Glasser's pleading was "riddled with unprofessional grammatical and typographical errors that nearly render the entire motion incomprehensible."

Ouch! Judge Presnell went even further, attaching a copy of the offending motion complete with his own red mark-ups, ordering the lawyer to re-read the local and federal rules in their entirety, and directing Glasser to copy his client on the court-issued critique.

As Judge Presnell points out in his order, Glasser's grammatical sins were many and varied: typos; incorrect use of apostrophes; incorrect placement of periods and commas; wrong capitalization; at least one run-on sentence; improper word use (such as saying the plaintiff "had attended on filing," instead of the plaintiff "had intended"); as well as excessive spacing.

Remember this the next time you see a judge – beneath those black robes may be a country and western singer, an event planner, a gourmet chef or even an editor waiting to emerge.

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons LLP. He may be contacted at:

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