ATTACK OF THE KILLER EARWIGS
September 1, 2010 § 1 Comment
The latest fad in the anxiety/nightmare industry is bedbugs. Seems like every media outlet has close-up photos of the little beasts the size of shetland ponies roaming mattresses across the country in cornucopious profusion awaiting fleshy morsels to chomp off of unwary humans.
In Chancery Court our “bedbug” is the dreaded earwig.
Uniform Chancery Court Rule 3.10, entitled EARWIGGING THE CHANCELLOR PROHIBITED, provides in part:
“No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made. No person shall send any written communication to the Chancellor concerning a pending action in the Court without delivering or mailing a copy of that communication to the opposing party …”
The language about written communication and copy to the opposing side has given rise to a curious practice among some attorneys that can be illustrated in the following scenario:
Lawyer A sends a letter to the Chancery Judge describing the scurrilous actions of the opposing party, including pillage, wantonness and rapine. There in the lower left-hand corner of the letter is the notation “cc: counsel opposite.”
When the judge questions the propriety of the letter, Lawyer A responds innocently that he complied with the rule because he sent a copy to opposing counsel.
With all due respect, if any is due, that practice is undoubtedly in violation of the rule and is, without question, earwigging.
The provision for copy of written communication to opposing counsel includes no exception to the preceding two sentences prohibiting communications about the merits of the case. It simply means that, if communication by letter is proper, as where it is necessary to transmit a copy of an agreed order, then a copy of the proper communication must be sent to opposing counsel.
By the time that opposing counsel has received a copy of the ex parte correspondence, the damage has already been done. The bell cannot be unrung, as the adage says. The judge has heard one side alone on the matter, and the judge’s impartiality and independence is in question from then on out. If the judge rules for the side that sent the letter, was the judge unduly influenced? If the judge rules against the side that sent the letter, was the judge trying to lean the other way to prove impartiality? We can never know what might have been because the ex parte communication has called the judge’s impartiality into question.
In my court, if you have allegations to make on the merits, put them in the form of a pleading and set the matter for hearing, and I will make a judgment after hearing both sides. Don’t poison the well that both parties have to drink from.
If you introduce the dreaded earwig into Chancery Court, prepare to be fumigated.