THE TRIALS OF A COMMON PLEAS JUDGE

THE HONORABLE MARK I. BERNSTEIN

PHILADELPHIA, PENNSYLVANIA 2016

CHAPTER NINE

A VARIETY OF APPROACHES

IT IS TRULY remarkable that although no one knew

what to make of me, without exception everyone was
extraordinarily open, friendly, and hospitable. I was
introduced to the bench and the bar as a foreign visitor
from a distant time. Just as someone visiting our time
from 1913 or 2112 would be an object of curiosity and
study about whom everyone might curiously approve,
so was I treated. This meant that although I was
physically present, no one truly felt that I was even
there. Everyone expected that at any moment I would
disappear just as casually as I had appeared. The
surprising result of this ambiguous existence was that
everyonejudges and lawyers, litigants, politicians,
even people I would meet on the streetfelt totally
free to share their true feelings and beliefs and honestly
discuss any topic of conversation without the usual

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diplomacy and obfuscations that usually passes for polite

conversation. Equally remarkable were the dramatic
differences in the manner in which each court dealt
with its cases and the varied reactions of the bar.
Somehow being neither fish nor fowl, everyone
assumed I was part of their own club and confided in
me freely.
The way this played out can be explained by
describing the varied perspectives revealed by the case
management procedure of Common Pleas Court
Number 9 colloquially referred by everyone as the
Cattle Call. As Judge Brown described it, he had
learned through difficult experiences the trick that 10
percent of all cases resolved simply by exposing them to
a courtroom. Accordingly he would regularly bring
throngs of lawyers into his courtroom for no reason
other than to have them report on what had or had not
occurred since the last time they had been summoned
en masse. Lawyers whose cases had resolved would
either send a messenger with a letter and not personally
appear or would be present and proudly make a show
of walking up to the bar of the court to personally
announce the grand result. These lawyers would
receive accolades from the judge before their assembled
brethren.
Judge Brown and his court staff were very proud
of their ability to resolve cases, although in the months
that I observed it did seem that the number of attorneys
present for the cattle call never decreased and the actual
numbers of cases pending in Common Pleas Court
Number 9 was actually higher than in some of the other

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courts. Nothing actually occurred in court and as I

learned in conversation with Judge Brown, he never
intended anything specific to occur.
Of course, the attorneys always smiled for Judge
Brown and laughed at his jokes. Nonetheless, they
confidentially expressed to me abhorrence at having to
bill their clients for time wasted in court and their
disdain for Judge Brown and his tricks. Several lawyers
expressed the opinion that the biggest joke was the
cattle call itself. This perspective was really not
surprising because attorneys would sometimes sit in his
courtroom for hours as he went through hundreds of
cases pro forma. Neither was it surprising that in the
courtroom the attorneys massed in the cattle call
behaved like cattle. Sometimes even after the judge
took the bench, the mob was irreverently joking,
talking, and yelling across the courtroom. On one
occasion I observed a spit ball thrown, followed by a
courtroom spitball melee which ceased only when the
judge unexpectedly arrived and took the bench. Even
once he was securely on the bench an occasional spitball
was thrown whenever the judge was clearly looking
elsewhere.
One must picture Courtroom 443 City Hall in all
its glory to envision the scene. Today some courtrooms
have deteriorated and suffer from a lack of
maintenance, but in 1913 the courtrooms were new
and spectacular, beautiful rugs were matched by shining
marble columns, and the ceilings were graced with
fabulously painted gold leaf. These courtrooms
presented the aura of the rise of American industrial

THE TRIALS OF A COMMON PLEAS JUDGE

power and a flourishing society. Anyone charged with a

crime immediately came in awe of the power of the
state, often a greater deterrent to recidivism than any
sentence eventually imposed.
Judge Brown would often intentionally arrive 20,
30, or 40 minutes late. He told me that since the cattle
call was often the only time the attorneys ever talked to
each other about their cases he gave them time to
confer. Of course, knowing that Court would not open
until 20, 30, or 40 minutes after the announced time
the courtroom would frequently be empty at the
scheduled start and would slowly fill. Indeed, its a
lucky thing the judge did not take the bench at 9:30
a.m. when all 200 status conference for the day were
scheduled because most of the attorneys, expecting him
not to arrive until at least 10 or 10:30 a.m., were
absent. They would gradually filter into the courtroom,
where they milled about joking, smoking, pushing each
other, and generally having the grand time which is
common when old friends who havent seen each other
for a time have occasion to gather. Although I never did
see actual drinking while awaiting court to open, on
occasion I thought that out of the corner of my eye I
saw an attorney slipping what appeared to be a flask
into his rear pocket to the amusement of those nearby.
Generally, by the time the Judge arrived most
attorneys were present, with the notable exception of
those attorneys who would make a dashing entrance
throughout the course of the day. The proceedings
started with attorneys whom the judge knew being
called up first and asked a rather mundane routine of

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questions: Is this case settled? No. Does it look like

it will settle? Were working on it Judge! Do you
have any discovery? Were trying to work them out,
Judge, but the pleadings have not yet closed. When
do you think it will be ready for trial? Its hard to say,
were working very diligently. Thank you. After the
judge received these answers the attorneys would be
sent on their way with the admonition to keep working,
at which point the Court Crier would call the next case
where the same questions and answers were repeated.
But woe be to the attorney who was not physically
present in the courtroom when his case was called.
Judge Brown would throw himself into a rage about the
disgraceful conduct of counsel and the disrespect shown
to the bench. He would send minions to fetch the
ingrate, threaten arrests, set the matter down for a rule
to show cause why the reprobate should not be held in
contempt that very afternoon, insist that the sheriff
appear in his courtroom with the miscreant, tell
everyone in the room that if they saw the offender to
remind him to come to the courtroom represented by
counsel and to bring his toothbrush, and otherwise
make it clear to the assembled bar that dread
consequences awaited he who dishonors Judge Browns
Court. On rare occasions I came to learn that when the
missing attorney was of a different political persuasion
from Judge Brown he would work himself into such a
lather the Court Officers would suggest a brief recess at
which time he would leave the bench to afford himself a
calming smoke. Usually these outbursts would be
calmed by the Court Officers or a friend of the Court

THE TRIALS OF A COMMON PLEAS JUDGE

attorney friend of the miscreant explaining the absolute

necessity for the attorneys absenceand the cattle call
would resume.
On one occasion I did observe an actual contempt
hearing late one afternoon. The miscreant attorney
arrived promptly for the hearing at 3:30 as had been
ordered earlier in the day, apologized to the Court,
promised it would never happened again, and was
dismissed with a stern warning to see to it that it
doesnt.
On another occasion, the description of which
within minutes flew on wings of rumor across the
entire legal community of Philadelphia and its environs,
an attorney brought his datebook, secretary, and
witnesses to the contempt hearing. Judge Brown asked
if he was represented by counsel at this contempt
hearing. The attorney responded he was represented
by the best attorney in town, me. When asked why he
did not appear in court, he described a day in which he
was required to be in four courtrooms at precisely the
same time, had picked a jury in one case, assisted a
different defendant to plead guilty in a different
courtroom, and settled a civil matter in a third.
Unrepentant for missing the meaningless cattle call and
suggesting that some coordination between the nine
courts might be productive he offered to call witnesses
to attest to the truth of his actions that day. Judge
Brown said that would not be necessary, offered a stern
warning to see to it that it doesnt happen again, and
left the bench. As the Judge left the courtroom, counsel

THE TRIALS OF A COMMON PLEAS JUDGE

said in a stage whisper: and I seem to have forgotten

my toothbrush.
Since everyone knew nothing actually happened
at the cattle call, attorneys often sent their least senior
associates, who knew nothing about the actual case. But
a senior partner would always appear when a case had
been settled. Those attorneys who had settled their
cases would tell a Court Officer and were immediately
invited to dance up to the bar of the court to receive the
congratulations and praise of the judge. Judge Brown
would exclaim to all of the assembled crowd what good
lawyers these were for blessed are those who resolve.
But those few who would approach a Court Officer and
seek permission to leave without telling the judge their
case has settled were routinely advised that it was not a
good idea to leave for any reason. When Judge Brown
would occasionally get irritated, the Court Officers
thinking to themselves that the fact of a settlement
could return the judge to his usual pleasant
equilibriumwould try to get a settled case in front of
him as a service to the rest of the bar. This they could
easily do since the judge himself neither had any record
nor any concern as to the order in which cases
appeared. No concern, that is, unless he saw a lawyer
he knew in the crowd, and then he would immediately
call up that case.
Ordinarily, he would leave the order of the cases
entirely to the Court Officers who ran the courtroom.
Since only one Court Officer ran the room the others
generally hovered around the courtroom chatting with
friendly attorneys, occasionally selling Republican Party

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annual dinner tickets or tickets to a benefit dinner for

the judge. Thus, Court Officers were empowered to
leave attorneys who were temporarily or permanently
out of their favor sitting in the courtroom for an
entirely wasted morning. God help those who had
afforded some slight or even perceived slight to any
Court Officer in the room or their relatives who
populated other offices of the courts. They would find
themselves on a widespread shit list. Those attorneys
might arrive smiling, eager, and ready to go only to sit
for hours without accomplishing anything even though
according to the list they were supposedly the second
case to be called. A Court Officer explained to me that
he had one lawyer sit hours because of having passed an
unfavorable remark to a clerk in another courtroom
some weeks before. It has always been remarkable to
me how then, and even now, attorneys will say things
to Court Officers or reporters or treat them badly
without any understanding that this behavior will be
elaborately described to the judge and may even
circulate widely around the courthouse.
Once, in my courtroom back in the 21st century
(or should that be forward in the 21st century?), an
attorney for whom English was a second language
appeared before me. He spoke with an accent but
generally did very well. Occasionally however, he
would get confused and misunderstand my directions or
question in oral argument. I understood and made
allowances. After a few days of trial my Court Officer
approached me in chambers and said: You know,

THE TRIALS OF A COMMON PLEAS JUDGE

Judge, he speaks perfect English when you are not in

the courtroom.
WATCH FOR CHAPTER TEN
JANUARY 1, 2017