Friday, May 22, 2009

Why Judges Matter, Part 4

Today was an unusual day in court, because I was able to compare how two different judges dealt with the exact same motion under the exact same set of circumstances with the exact same defendant and the exact same defense attorney. Not surprisingly, they rendered wildly different decisions.

First, a little background. In civil cases, the parties engage in a process known as "discovery," in which they attempt to ascertain all of the pertinent facts and documents. Written requests for information are known as interrogatories, and requests for documents are known as, well, document requests. After these requests are submitted to a party, the party has 28 days to respond. If they do not respond or do so inadequately, the next step is for the requesting party to file a motion to compel the responses. There is also a specific court rule that says, if the court grants a motion to compel discovery, the court "shall" require the party who did not answer the discovery to "pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees[.]"

I have two cases in which I represent two different clients suing the same defendant. The cases are assigned to two different judges. I submitted interrogatories and document requests to the defendant's attorney in each case in March. These were never answered. At the end of April, I wrote the other attorney two letters (again, one in each case) about his failure to respond. No answer. So, I filed motions to compel discovery; again, a separate motion for each case. No response. The hearings on these motions took place today.

In the first case, even though the other lawyer told me that he could answer my discovery requests within 14 days, the judge gave him another 30 days to answer and denied my request for the costs and attorney fees that, under the Court Rules, are mandatory.

In contrast, the judge in the second case gave the other attorney only 14 days to answer the discovery requests, and she ordered his client to pay my client $500 for having to file and argue the motion.

The second judge followed the rules. The first judge ignored them, apparently believing that in the phrase "the Court Rules," the word "Rules" is a verb. The problem is that there is no recourse for the first judge's blatant ignorance of the rules or his refusal to follow them. The cost of appealing is prohibitive, even if there was any prospect the Court of Appeals would agree to hear the case (it wouldn't), and a motion for reconsideration goes right back to the same judge, who will deny it, either without comment or by saying simply, "I've already decided this issue and I see nothing new here," or words to that effect.

So, two judges + same motion + same facts + same attorneys = two irreconcilable rulings. I know there is no IQ test to sit on the bench, and many of the judges I appear before are smart and/or they try to do the best they can, but it is extremely frustrating to appear before a judge who doesn't apply the rules correctly and doesn't care.

When the first judge denied my request for costs and attorney fees (without giving any reason, by the way), I asked if we could simply take the request under advisement pending the other side's compliance with the order requiring them to answer my requests within 30 days. In other words, no decision now on costs and attorney fees but, if the defendant doesn't comply, the judge can impose sanctions at that time. This is an unbelievably reasonable request on my part, so of course it was quickly denied without any explanation.

I have been practicing law for over 26 years. This experience today was, unfortunately, nothing new, but the fact that I had two identical motions pending before two different judges was unusual, giving me a control ruling, if you will, against which to judge the aberrant decision. Rarely is the contrast between competence and incompetence so glaringly obvious.

It is impossible for voters to be aware of the hundreds or thousands of rulings judges make that affect the course of litigation pending before them, so judicial campaigns devolve into contests of who-can-put-up-more-signs and who can pretend to be tougher on crime, all against the backdrop of name recognition and incumbency. No, the ballot box rarely improves the bench. The key point is to make sure that we elect a governor and a president who will make wise appointments, since these appointed judges then carry the power of incumbency.

Regrettably, our current governor and president will make and have made poor choices. When we see what they have done to our economy, we should not be surprised when they screw up our judiciary.

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