Hearsay

“Ladies and gentlemen, take my advice: Lend me your ears and try to be nice.” One can almost sense a frustrated judge thinking this, if not saying it to adversarial counsel in a contentious trial.

Psychiatrist Sidney Freedman of television's “M*A*S*H” used similar, more pithy advice to pacify his confounded colleagues of meatball surgery in Korea, as those futile hostilities drew to a close. Been here, done this, now let's go home and try to forget about it, he means.

So it can seem to parties in the bleak courthouse drama that soldiers on, and on, without any glimpse of a defining horizon. The question lingers as to whether the trial record will be compiled with a word processor, or a calculator.

Justice delayed is justice denied – or at least diminished by the actual and emotional costs of endless continuances, no matter how meritorious. One's “day in court” can become a Trojan odyssey.

But hark! Benchmarks of juridical virtuosity have been etched in the vitae of one impatient judge in Florida and another in Arizona. Here is how they applied irresistible force to immovable objects.

A game of rock-paper-scissors between squabbling Florida attorneys was ordered in June by Judge Gregory Presnell. At issue was the location for the deposition of a witness in an insurance settlement dispute.

Presnell, a former member of the Florida Bar Board of Governors, said he was fed up with “Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts.”

With a stroke of his proverbial sword of truth, Presnell severed the tangle and imposed rock-paper-scissors as “a new form of alternative dispute resolution.” Fittingly, the lawyers took to training for the game in contests with their children.

Judge Michael McCuskey of U.S. District Court in Urbana received a relevant news clipping from the Florida Bar News, with a friend's annotation that “The feds are so much more advanced than us state court guys.”

Au contraire. Arizona superior court judge Pendleton Gaines resolved a more recent legal logjam by ordering the disputants to have lunch together. “The temperaments of the court's children always improved after a meal,” he observed in a footnote to the order.

The attorneys differed over an exchange of discovery paperwork in a patent rights disagreement between a skin-care product firm and a former employee. Communication by e-mail and voice mail had been fruitless.

The company's attorney filed a motion requesting that the defense attorney be compelled to accept a longstanding invitation for a working lunch. Judge Gaines so ordered, noting that “the court has rarely seen a motion with more merit.”

The order even stipulated a time frame for the lunch, a location “within easy driving distances,” and a procedure for dividing the check.

The fact that the artful orders by Judges Presnell and Gaines were effective, although distinctively incongruous, is evidence that latitude for levity exists in an otherwise austere environment.

In each case, civility was the result when stubborn adversaries were advised to look seriously at themselves through the eyes of the court, the clients and the public.

So take opposing counsel to lunch, resolve that rift collegially, and split the tab down the middle. Don't wait for a sterner judge to impose harsher remediation.

Muffled scoffing was heard from the public defense bar when the American Bar Association blithely rolled out an ethics opinion that suggests defenders should limit their caseloads (see story on page 25).

The problem was easily identified: The demand for defense counsel to represent indigents in the criminal justice system is far outweighed by a limitless supply of clients who cannot afford private legal help.

The solution is not so easily described. Politically speaking, public defenders get little respect when law enforcement allocations are whittled from sparse budgets. County officials are slow to grasp the concept that people in their jails deserve paid assistance in court.

The ABA points out that rules require lawyers to control workloads so each client can be represented with full competence; ergo, public defenders should refuse new cases, withdraw from others, and/or go over supervisors' heads – to the courts, if necessary.

That's easy to say when one is writing opinions in a cloistered office, but public defenders work by a different ethic. Access to justice is their mantra, and they are not afraid of all the time and effort it takes.

As Cook County defender stalwart Marijane Placek told a Sun-Times reporter: “We're lawyers who know when to say ‘enough.'”