THE judge sat without pleasure at his desk, editing a draft of findings - the factual conclusions he had reached after a lengthy bench trial, a juryless hearing in which he alone had heard the testimony. It was not a task that he approached with good humor. No judge loves a jury-waived trial, demanding as it does close attention to every witness, the frustration (odd though lay people may find it) of not always being sure where the truth rests; and the inescapable necessity of writing up the findings.
With mixed relief and irritation, the judge looked up as his courtroom clerk walked in, carrying a document.
``This one's looking for a TRO,'' the clerk said. A temporary restraining order is one of the few things a judge will issue before giving the other side a hearing. If the applying party can convince the judge that dire, irreparable harm will result unless the court imposes the restraint, the judge will enter an order that will hold the situation in status quo for no more than a week or 10 days, and in any event not until the defendant gets the opportunity to urge terminating the order.
As he always did, the judge flipped to the last page.
``This isn't even verified,'' he said. Unless the applicant's signature has been notarized, or (in Massachusetts) unless above the signature appears the phrase ``Signed under the penalties of perjury,'' the judge may not legally give the order. That is not mere judicial folderol. Because the order issues on a one-sided basis, the law requires a more solemn assertion than ``Gosh, I'm pretty sure about most of this.''
Even if the petition were in proper form, the judge knew, no immediate restraint could issue. The complaint merely sought an accounting from the officers of the plaintiff's social club. Hardly an urgent situation.
``Just give him a short order of notice,'' said the judge, thus denying the emergency relief, but allowing the petitioner to try again in a short time, after the defendants had received notice and the judge would have all parties in court.
``I'm sorry to bother you.'' The clerk was back. ``He's very upset. Says he needs to talk to you. He's pro se.'' Judges most dread the litigant acting on his own behalf. From earliest colonial ordinances down to present-day statutes, the government has always guaranteed any person the right to represent himself.
``Who has himself for a lawyer has a fool for a client'' may be a universal truism. Nonetheless, the courts are full of men and women happily playing Little League lawyer. Judges do not regard the exercise benignly.
It is not so much the amateurs' ignorance of rules and procedure. Indeed, some of them have developed at least a talking knowledge of courtroom ways. Rather, it is their incurably self-centered optimism.
Lawyers know that in the universe of litigation, life's rewards are both uncertain and uneven. No case is completely sure, no cause unshakably just, no precedent guaranteed to hold.
The ``pro se'' does not recognize the possibility of failure. The self-attorney knows, absolutely knows, he is right, and that therefore he must, absolutely must, win. Anything that challenges these twin certainties, including chance and the merits of the underlying dispute, is an agent of Darkness. And the judge who presides over such a miscarriage of justice is Darkness incarnate.
The judge stood up, put on his robe, and walked into the courtroom. Maybe all this man wants, he thought, is someone to listen to him, the judicial equivalent of tea and sympathy. Perhaps if I hear him out now, I can get him to think about negotiating the dispute, rather than battling on. A judge, he told himself with an inward grin, can be as blindly optimistic as any pro se.
Hiller B. Zobel sits on the Massachusetts Superior Court.