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Wednesday, February 20 , 2019, 2:35 am | Fair 44º

 
 
 
 

Brian Burke: About Your Divorce (Letter 48) — What Did the Judge Have for Breakfast?

Dear Pinky and Spike:

There was a single crosswalk between the courthouse and the law offices of Constanzo & Gaunt. As Jennifer and Ralph reached the corner, the light turned red. Ralph thought it was the right time to find out exactly what had happened. With his eye on the light, he asked, “So Jennifer, who got their clock cleaned in there? Me, you or both of us?”

When there was no immediate reply, he turned to look at her. She didn’t look like she had seen a ghost, she looked like a ghost. Her hand was on the signal post, and she wasn’t merely leaning; she was holding on. Ralph realized he could follow up on his question, or he could ask if she was OK. Neither one had an immediate benefit, so he said nothing.

Seconds before the signal changed to allow them to cross the street, Jennifer, in a raspy voice he didn’t recognize, said, “Mr. Robinson, nothing happened that will have any effect on your case. It’s just that the judge made a very strange ruling and didn’t abide by basic procedural requirements. It was so weird that I have to talk to Ashley for another perspective. We’ll have a full explanation shortly after we get back to the office.”

Ralph didn’t know if it was good or bad that Jennifer was calling him Mr. Robinson again — just as she had before she received his retainer. Was she worried that after seeing her in action he’d want the money back? Maybe she should be worried, and maybe he should go back to one of the other lawyers he had interviewed.

When they reached the office, Jennifer asked Ralph to make himself comfortable in the waiting room. Her departure from the reception area was noticeably abrupt, and then he heard a door slam. What did that mean?

Jennifer slammed the door because she had just entered her partner’s office, and her partner was working. When Ashley was engaged with material, she had an uncanny ability to understand it, to connect it and to combine it with other material. She didn’t have a photographic memory, but she remembered the gist of what she read or heard and, if important, her recollection could be verbatim. But she had to conclude her work when she was ready to. It was very hard to interrupt her; once interrupted, her mind pushed a “delete” button and all the work she had done during that session was lost. You had to have a very good reason for interrupting Ashley.

Jennifer usually knew when she could interrupt Ashley, and she knew how to do it. This was an appropriate time, and she did it by slamming Ashley’s door. She didn’t think of its possible effect on Ralph.

“What?” Ashley asked. Jennifer gave her a detailed description of her encounter with Judge Maryland. Lawyers hate to lose, but it is worse to be in a courtroom where they’re not able to understand the procedure the judge is following. Lawyers can work with or around a judge who makes consistently erroneous decisions. They can even work with a judge who makes decisions that are both wrong and inconsistent. But if the procedures are a mystery, it’s like being thrust before a court using a language that’s incomprehensible. Even if your client prevails, you have the feeling of complete professional helplessness.

First-year law students experience this vicariously as they read one appellate decision after another — each containing words they’ve never heard before, and can’t pronounce, with the dictionary definitions also written in terms that are unfamiliar.

Ashley’s was the voice of reason. She listed the points swimming around in Jennifer’s mind:

» Nothing had happened to damage Ralph’s case.

» The judge’s behavior was both wrong and inexplicable.

» The restraining order against Ralph — with no evidence for its necessity — was absolutely wrong. They were willing and able to get the matter before the Court of Appeals. They would offer to do the work if Ralph felt he had to be vindicated. They should not do the work for free, but they could offer a discount — they would decide the amount later if necessary.

» As tempting as it would be to speculate about collusion between the judge and Eunice Heep, they wouldn’t do it. Without overwhelming evidence, the claim against the judge would go nowhere. The effort was better spent on the case or not at all.

» Every judge will occasionally do something that’s inexplicable. Both Jennifer and Ashley subscribed to the, “What did s/he eat for breakfast?” School of Jurisdiction, which posits that a judicial decisions are affected by a lifetime of experience — which includes the judge’s most recent meal. Any aspect of that experience has the potential to affect outcome more than “the law” or the version of reality that unfolded in the courtroom.

[There is nothing radical nor disrespectful about this view. See, for example, Overcoming Law by Richard Posner, chief judge of the 7th Circuit U.S. Court of Appeals. Posner is also a professor at the University of Chicago School of Law (as was President Barack Obama), and he is unquestionably the most published living lawyer or judge — perhaps the most published lawyer-judge ever. The Harvard University Press publishes a new book from him every year, and he writes a continuous flow of law review and popular magazine articles. I recently started a letter to him: Dear Judge Posner: I once was determined to read all of the books you’ve written until I realized that you can write faster than I can read ...]

» They were confident of being able to handle the problem. But they were presently unable to define or solve it. Until they could be reasonably confident that the playing field before Judge Maryland was level, they lacked even the potential protection of the court, which meant they (and Ralph) were more or less at the mercy of Eunice Heep, which was a very bad place to be.

» They would not suggest that Ralph get a second opinion. If he mentioned the idea, they would encourage him. In the meantime, they would contact colleagues to get second, third, fourth and even a fifth opinion.

» Ashley wanted to tell Ralph that there was at least one legitimate ground for a complaint to the Commission on Judicial Performance. Jennifer wouldn’t tell Ralph not to file a complaint, but doing it felt like playing with fire. Otherwise, they didn’t know what they were going to say to Ralph when they went out to meet him.

As Ralph waited, he had time to think. When Jennifer entered the reception area first and said, “Mr. Robinson ... ,” Ralph interrupted with, “Do you think I need another lawyer; one that’s a real fighter?”

Your friend,
Bucky

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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