TO-WIT: TEMPER, TEMPER
I sat there in silence, under the best of circumstances no mean feat for me, and this was hardly the best of circumstances. I was certain, o so certain, that any minute His Honor would tell Opposing Counsel he had heard quite enough, thank you, and would follow up on said pronouncement with a vicious right cross. And once I was certain Opposing Counsel was down for the count, I would kick him.
The specific conduct of Opposing Counsel that had brought me to this uncharacteristic lust for violence is not now terribly significant. Suffice it to say that he was presenting a motion that was scurrilous, libelous, devious, bilious, and not very nice. Fortunately, His Honor made it quite clear from the beginning of the argument that he was having no part of it.
“No,” said His Honor. “But…,” said Opposing Counsel.
“No,” said His Honor. “But…,” said Opposing counsel.
“No,” said His Honor. “but…,” said Opposing counsel, as persistent as he was vulgar, and the deep resentment I had felt from the outset began to dissipate in gleeful anticipation of a judicial left jab. Yet as the minutes became many, there was no indication from His Honor that he actually intended to cause Opposing Counsel any physical harm at all.
“Go ahead, hit him,” I said, if every so quietly, and I looked eagerly for the clench of judicial jaw or the contraction of judicial fist, any premonitory sign of a judicial assault. To my severe disappointment however, the moments past unfulfilled.
For an hour or so, His Honor permitted Opposing Counsel to have his unfettered say until, like a dime-store toy whose spring had completely unwound, Opposing Counsel finally slumped spastically into repose. Then His Honor simply denied the motion and left the bench.
What?! No climax, no retribution, no judicial bang but merely whimper? That I had prevailed on the merits without saying a word was hardly a satisfying alternative. I was in need of some sort of vindication, if not an award of counsel fees then at least the letting of blood not mine. Since His Honor would not swing so much as a gavel in my defense, I would have to resort to a little self-help. I am not entirely helpless in these matters, for after all these years at the bar, I have developed certain fairly sophisticated verbal skills and the wherewithal to utilize them.
“You no-good, pea-brained, mung-infested, maggot-ridden, sleazeball ignoramus”, I said, my eyes riveted directly across counsel’s table to the very spot where Opposing Counsel had been sitting not five minutes before.
Now I may not be the most astute lawyer in the world, but I can recognize judicial temperament when I see it. Like judicial intellect, it’s one of those ethereal qualities we hear so much about but so rarely encounter.
I concede that judicial temperament has its place, but I have long believed that judges are prone to take it to extremes, particularly when they actually lug it into the courtroom. After all, the courtroom is a place of blood and guts, and the average litigant, being one who sues a neighbor over an encroaching hedge or dismembers the family unit with an ax, is not the sort who generally values temperament as a character trait in the first instance.
As judicial paraphernalia go, temperament is fairly new. It was unheard of in the courts of England prior to the Protectorate. I those tumultuous days, judges frequently leapt into the litigious fray with the result that courtroom decorum was sketchy at best. Then, in 1653, Cromwell appointed Lord Burton Ernye to the bench. Judge Ernye brought an entirely new standard of behavior to the courtroom. No matter how lawyers would taunt him or each other, no matter how vile the behavior of the litigants in his courtroom, he remained unruffled, and his demeanor was never short of exemplary.
It is well documented that on at least one occasion members of the bar conspired to test the strength of his character. Throughout the course of one trial, all the lawyers took every opportunity to verbally abuse and insult him. Wagers were even placed by various lawyers as to who would be the first to make him crack.
“You are the illegitimate offspring of a rabid pig,” said the front-runner in response to an unfavorable ruling on the admissibility of evidence.
Yet Judge Ernye refused to show offense. In time, he became the most beloved and widely respect jurist in the land, and to this day he remains the prototype of judicial temperament, the standard for all those who followed to emulate. For his renown however, precious little is known of his personal life, save that he died in 1687 and that he had been stone deaf since early childhood.
If there is a lesson to be learned from history, it is that judicial temperament need not be applied willy-nilly. Some colleagues practice with style and grace, and should be treated by the court with courtesy and respect. Others don’t. If any judge has difficulty telling the difference, I’ll be pleased to offer my opinion. I’m fair and impartial in these matters, and I’ve been keeping a list for years.
© 1988, S. Sponte, Esq.