A judge's day

AT 8:45 a.m., three civil cases came in, as ordered. Because the pending criminal trial was to go into another day of evidence at 9, the judge knew none of them could start yet. Rather than waste the 15 minutes, he chatted briefly with each set of lawyers (or, in one case, a litigant acting as his own lawyer) to see if the cases, like 95 percent of all his civil litigation, could be settled.

In the first, an auto accident, one lawyer wanted $4,000; the offer was $3,000. Either number would have been appropriate, but the parties wanted the judge to set a figure. The judge suggested $3,547, which everyone agreed would settle the dispute.

The next case had been in litigation for more than five years. It involved serious injury caused, plaintiff's lawyer said, by carelessness of defendant's employee in the operation of a sidewalk elevator. Defendant's lawyer agreed that plaintiff's damages gave the case value, but would not offer anything above $500,000. As plaintiff wanted $1 million, the judge recommended a trip to the corridor for further negotiation.

That left the pro se (defending himself) litigant, a real estate broker claiming a $526 fee. Defendants denied they had ever made any such arrangement. Although if the case were brought back for trial plaintiff would have a 100-mile round trip, and although the other side's lawyer's fees were already $526 and more, the parties declined to budge. The judge asked the parties to wait.

By then it was time to resume a criminal trial. The 20-year-old defendant had been indicted for molesting two small girls he used to baby-sit for. Both children had testified previously; now it was the mother's turn. The lawyers were fair. But stakes were high -- in Massachusetts, child rape can draw a life sentence.

During a brief recess, the lawyers in the elevator case said that the gap remained unnarrowed. Although the judge was reasonably sure of a settlement, either before trial or after a day or so of evidence, he knew that further attempts to mediate would be neither productive nor, given the demands of the rape case, a wise use of his time. He put the case down for trial in two months.

The rape case continued. When the mother finished, the government rested. A psychiatrist testified for defendant, then defendant himself. During another break, the judge talked briefly to the self-lawyering broker and his professional opponent. Their $526 gap was as umovable as the half-million; no trial seemed possible, so the judge put the matter over.

After a fast lunch, the judge returned to the bench. Two defendants in separate cases involving false insurance claims were up for sentencing. In two other ``heavy'' personal injury suits the parties had settled for large sums, and the law required that the judge ensure fairness of the settlements by interrogating each plaintiff.

Four more civil cases, at various stages of trial readiness, came in for conferencing.Then it was back to criminal law, as a pharmacist accused of drug-law violations sought to prove a search warrant invalid.

After a state trooper testified, the prosecutor and defense counsel agreed that the case turned on what the word ``knows'' meant in the application for the warrant. The judge took the question under advisement.

That left the last parties of the day, a dissatisfied customer and an exterminator, both pro se, contesting $151.50 worth of unkilled vermin.

Convinced of the parties' sincerity, yet acutely aware of the large number of serious criminal matters and significant civil injuries demanding the limited amount of court time, the judge allowed himself to philosophize.

No judicial system will last long if it has to give $526 commissions and $151.50 exterminators' claims equal billing with child rapes, drug prosecutions, and actions for serious personal injury. The courts are, and must be, open to every claim for relief. But just as surely, citizens, if they want their courts to deliver social and criminal justice, cannot expect a judicial resolution of every interpersonal dispute. A courtroom is not a nursery; and a judge is not Big Parent.

After a short discussion, the extermination case settled for $75.75. The judge adjourned court -- for today.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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