JudgesAuthor(s): Kenneth P. NolanSource: Litigation, Vol. 35, No. 1, JUST DESERTS (Fall 2008), pp. 63-64Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760699 .

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Sidebar

Judges

They're easy targets. Sitting up there all in black, everyone rising whenever they enter or leave, making rulings like some

Greek gods, all-knowing, but falling for some sleazebag's bull. They think who they are. Glorified politicians.

The complaints are universal. Pomp? ous, lazy, biased, even corrupt. And all true. Hey, I live in Brooklyn, and in the past few years, a half dozen or

more judges have resigned or gone to

jail for soliciting bribes, dipping into an elderly aunt's savings, practicing law while on the bench, paying for the

nomination, and all sorts of ugliness. And we've all been before these

charlatans. We have the scars and wounds of injustice. We've all been hometowned. Battling not only our

skilled adversary but also the judge, like the bald one who ruled against me as often and as deftly as possible. Made me smile just a touch when I read his

obituary. We remember the evil ones, the

bizarre rulings that would be hilarious if not so devastatingly wrong.

"Mr. Smith, what do you think of the finding in Jones v. XYZ", asked the erudite judge, inter?

rupting the squeaky clean, young lawyer. "I'm sorry, Your Honor," stam?

mered the kid at the bare podium

by Kenneth P. Nolan Senior Editor

in a courtroom packed with others

waiting to argue motions. "Did you read it?" "No, I haven't. I should have ..."

"Perhaps you should consider another profession," the judge smirked.

Yet when I consider the many judges before whom I've appeared, I realize that the rotten few were aberrations.

Almost all have been hardworking, courteous, and fair. What's sad about all those Brooklyn judges trading black for orange is that most were competent. As they say in the neighborhood: He's a good man, Mrs. Malone, but he has

just one flaw. And the job ain't easy. Overwhelm?

ing paper, life-changing decisions, second-guessed by judges breathing different air upstairs, and the pay is less than a first-year associate at a megafirm.

New York state judges haven't had a raise in 10 years. Used to be a judge would command respect in the commu?

nity, but that disappeared like so much in our increasingly vulgar society. Even some courthouses?not the federal pal? aces of course?are dumps.

Kenneth P. Nolan is with the New York City firm of Speiser, Krause, Nolan & Granito.

Yet even under these penny-pinch? ing, exasperating conditions, justice is done. Often with grace, intelligence, and humor.

"Suck my d?/'screamed the dirt

bag defendant to the prim judge during sentencing. "Application denied" was her swift and calm response.

Sure the system's flawed. It's agoniz? ingly slow, costly, and frustrating. But

complex billion-dollar cases are tried, rapists and murderers are given a fair

shake, the poor and powerless are heard. From landlord/tenant to matrimonial to the Supreme Court, ordinary individu? als try to do what's right, what's fair, what's American. And succeed. Unfor?

tunately, these good public servants

only make the news when there's an

indictment, a foolish outburst, or some other anomaly.

I was recently involved in aviation

litigation in Lexington before Senior

Judge Karl S. Forester in the Eastern District of Kentucky. For reasons some? what bizarre yet understandable, this

litigation involved literally thousands of filings, hundreds of motions, and innumerable decisions. For example, one party filed more than 50 in limine motions within six weeks of trial. Did

Judge Forester show ire, frustration, or even bewilderment? He did his job. Published rulings daily, resolved issues

Litigation Fall 2008 Volume 35 Number 1

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large and small with sophistication and wisdom. He never even raised his voice, which is when I realized that all

those, Yes, ma'ams and Thank you, sirs, are not just meaningless polite phrases, but teach civility and cour?

tesy, something I and some of my Yan? kee colleagues should learn.

As a senior judge, Judge Forester could have refused this case and cho? sen an easier one. Instead, not only did he guide this litigation through a hun? dred depositions and hundreds of thou? sands of discovery documents, but he also did so without rancor or threats.

"What's your expert going to tes?

tify to, Mr. Nolan?" a hardened New York judge inquired. "He's going to testify that there was a defect in the design of the car, Your Honor."

"If he does that, Mr. Nolan, I'm

going to have him indicted for

perjury."

Yes, the case settled. That intimidating behavior was

unnecessary. Instead, Judge Forester

presided with soft-spoken deadlines and learned and incisive rulings until the case settled a few days before trial.

My good friend Matt D'Ernie sits in the Brooklyn Mental Health Court in Supreme Court, Kings County. This innovative court was set up to guide defendants with mental illness toward treatment rather than jail. It's the larg? est of New York's 18 specialized men? tal health courts and takes nearly 100

participants each year. Judge D'Emie has headed this court from its incep? tion six years ago with concern, cour?

age, and wit.

Felons who plead guilty are steered to this court for treatment, and if they adhere to the program of treatment and court supervision, they avoid prison.

With affable encouragement, Judge D'Emie asks about their personal lives, their families. He makes justice accessible. Defendants approach the bench, shake hands, speak directly to him. And if they violate the rules, they get locked up.

Sounds like an easy job, but the risks are great, especially in a city ruled

by tabloids ready to pounce if one of the defendants commits a heinous crime while in this program. Then it will be the judge's fault. Still, Judge

D'Ernie continues, like so many oth? ers, to do his job with competence and

compassion. Of course, there are many others.

Judge Maxine Duberstein, one of the first female judges in Brooklyn, who combined maternal concern with an iron will. More than 20 years ago, I settled a malpractice case involving a disabled child before Judge Edward Korman of the Eastern District of New York, who continues to inquire about the family. Judge Robert Sweet of the Southern District of New York combines street smarts with humor and intellect. And on and on.

I'm sure if you consider your expe? riences, your list of vivid faces and their acts of quiet generosity will be extensive. Q

Making Full

Use of the

Court (Continued from page 32)

288 U.S. 249 (1933); Aetna Life Ins. Co. of Hartford, Conn. V. Haworth, 300 U.S. 227 (1937); 28 U.S.C. ?? 2201-02. In Nashville, C. & St. L. Ry. v. Wallace, the Court acknowledged there is technically no requirement in Article III that cases are tried in a

particular format, so long as a case or

controversy exists at the time the law? suit is filed.

Class action settlements are another non-traditional remedy the courts have recognized. Generally in these cases, the parties have already agreed upon a settlement when they file their lawsuit, and they simply ask the court to approve the agreement under Rule 23 of the Federal Rules of Civil Pro? cedure. Because the parties do not come before the court until they have reached a settlement, some courts

have questioned whether such cases

present a case or controversy for Arti?

cle III purposes. Particularly, these cases are often challenged as being collusive or moot. Despite challenges, however, courts have held that a law? suit is not necessarily collusive if the

complaint and proposed settlement are simultaneously filed. Although the parties no longer dispute the rem?

edy, they still remain true adversar? ies who have merely compromised a genuine dispute. Moreover, courts have emphasized that when a pro? posed settlement is contingent upon the court's approval, as is required for class action settlements under Federal Rule of Civil Procedure 23, a live case or controversy remains. Courts have

also held that class action settlements are not necessarily moot. Although a case does become moot once the par? ties reach a settlement, a proposed settlement that is contingent upon the court's approval does not render a case moot.

The non-traditional remedy of res? olution through court mediation also

complies with Article III because the

parties merely seek court mediation as a means to resolve an otherwise

justiciable claim. Similar to declara?

tory judgments, such a case meets the Article III case or controversy require? ments because at the time of filing, a

genuine dispute exists. Furthermore, assuming the underlying claim is oth? erwise justiciable, a claim requesting a remedy of court mediation would

certainly not offend the collusion or mootness doctrines raised in the class action settlement context. Unlike class action settlements, a claim for court mediation arises with parties who do not have an agreement at the time the lawsuit is filed. Rather, the parties

merely agree on the means to which a possible resolution will result, and will not be rendered moot until such a resolution is reached.

There is no better role for our judi? ciary than to be an active participant in helping parties reach a peaceful res? olution of their disputes. Whether this resolution is reached through a trial or a settlement conference, the judi? ciary performs its important function

by being a neutral participant in the

process. Encouraging parties to come to court to first seek a settlement of their dispute through a court-assisted

process, and if that fails, to litigate the case, is the appropriate role for our judiciary. Encouraging parties to

express their desire for settlement in their pleadings is a step toward accom?

plishing this goal. Courts must then

develop the trained cadre of judges or others to accomplish this objective. iD

64 Litigation Fall 2008 W W^^^ Volume 35 Number

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