I was sitting in First Parish Court the other day waiting for my turn in a routine default judgment matter. The room was a modern space, brightly lit and filled with rows of benches where people charged with various traffic violations or seeking to settle small civil disputes were restlessly gathered. On the right hand side of the room there was a long bench where the few lawyers were seated.
All of the court personnel were stern-faced and when the judge quickly entered the room they became even more serious. The judge looked like a middle linebacker. He had a buzzcut and his black robe sported a number of patriotic pins. As he settled into his chair (next to a large American flag) a cellphone went off in the audience, causing his somber expression to become a full-fledged scowl. The baliff immediately approached the offender and bellowed "TURN OFF ALL CELLPHONES NOW!" The audience, which was a motley group of poorly dressed people who seemed to thrive off of ignoring authority, was largely unfazed. The young tatooed man slowly took out his phone and turned it off.
I felt surrounded by people who’d spent their early years in
detention hall. Most of them were now traffic violators who had come
to court to advance what they thought would be compelling excuses for
their misdeeds. And then, of course, there were the lawyers.
The minute clerk called the first case and two lawyers approached
the bench and began arguing their case. The judge had ruled adversely
in an eviction case and so the losing lawyer filed a motion for a new
trial. If you weren’t a lawyer you might not grasp that the argument
to the judge, essentially, was "you are so inept you applied the wrong
law, but if I just let you know about your grevious mistake then you’ll
rule in my favor." If you just focused solely on how confident the
lawyer sounded you might think that there was actually a chance that he
could win. Most lawyers can appear totally confident, even when they
know have no shot. I kept waiting for the fireworks, but the judge
He listened patiently for a few minutes, until the attorney said:
"and we’ve cited a case directly on point from the Louisiana Supreme
Court…" At that point, the judge boomed in a voice laced with
sarcasm and derision: "You’re talking about that case that was decided
in the year 1878?"
Not surprisingly the judge then denied the motion. The lawyer, however, acted as if the judge had just overruled Roe v. Wade.
I couldn’t help smiling. First, watching the lawyer pretend to
believe the judge was going to change his mind was funny. But, even
more humorous was the notion that a case decided over a 100 years ago
would compel the judge to admit he was wrong. It reminded me of an
episode of the Rockford Files where Jim’s attorney Beth Davenport was
trying to convince the judge to let him off the hook for something
stupid he’d done. With an air monunumental seriousness she informs the
judge that the Ramshackle case is ‘right on point’ and that compels him
to let Rockford off the hook.
"Is this the case from 1871, counselor"? the judge asks.
"Yes it is."
"The case where the stagecoach was surrounded by attacking indians, Ms Davenport?"
"Yes, your honor."
"Counselor, give me a break."
I was pondering how that losing lawyer might learn something by
watching the Rockford files when another cellphone went off. The judge
jumped up and quickly scanned the audience as a elderly spanish woman
fumbled with her phone, which was playing a bouncy little tune that
lasted for about 5 seconds, but seemed like a lot longer. "TAKE THAT
PHONE FROM HER BALIFF!!!" the judge commanded.
The woman was confused because she didn’t speak English, and
probably didn’t hear very well, and seemed to have no idea of what was
going on. She did, however, understand that the Baliff’s outstretched
hand was there to receive her phone, so she hesitantly placed it there
as the judge ranted about the inherent evils of cellphones. "You can
pick it up tomorrow," the judge then told her. One of the people
sitting behind her translated. The judge overheard the translation and
seized upon one key word.
"Yes, mañana," he said. It seemed as though he was saying it more
to himself, which would explain why his tone seemed to carry more than
just a hint of painful resignation.
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Having had to show up in a few courts like that myself, it does seem like the judge is more of an irate vice-principal than an arbiter of law. I’ve seen more than a few instances of judges going all Judge Judy on some guy who was caught with a crack pipe for the third time. Very effective.
Watching The Rockford Files can help you solve jus’ about any problem in life. :~)
I’m not saying that precedent wears off after time, but it behooves lawyers to examine the underpinnings of cases that old, especially since judges (and that’s who we’re trying to persuade, right?) tend to focus on distinctions between cases and may not be eager to apply a case that old unless it’s clearly still applicable. In other words, it’s not whether I think old cases are without value; it’s whether judges think they are, and often they are disinclined to rely on old cases. At least that’s a phenomenon I’ve often observed.
I have had occasion to cite to an 1880s-era case from time to time, when I have not been able to find more recent authority.
Is there a rule that no one has told me about, saying that the precedential value of a case wears off after 120 years have passed?