September 10, 2010 § 2 Comments

[Chancery Court in Days of Yore, Part One and “High Waters” and Burlap Suits are two older posts that touch on some of these same themes]

Recently in a ramble through the Uniform Chancery Court Rules (UCCR) I stumbled on a couple of curious throwbacks to pre-MRCP practice.  You can read and scratch your head over these historical anomalies in Chapter 2 of the rules, dealing with pleadings.  I won’t repeat them here, but they include references to bills of complaint, cross-bills and demurrers, as in “Trial not Delayed Because Demurrer Overruled.” 

The references to those ancient and outmoded engines of the law got me thinking about that pre-MRCP era when the practice of law was, well, quainter than it is today.  So travel back in time with me to 1979, when the “new rules” were not even yet a rumor, being two years away from adoption and four years from going into effect.  Things were different then.  Or maybe they were really the same, in a different way.

In 1979, Judge Neville ruled his courtroom like a Teutonic prince.  He was sovereign, dictator, despot and all-wise, solomonic adjudicator.  There were no “factors” for the Chancellor to consider. The Supreme Court understood the role of the Chancellor as finder of fact in complex human relationships and respected him as such.  That was back in the day when most appellate judges had trial court experience, including Chancery experience, and the Court of Appeals had not yet been invented.

It’s trial day in a divorce you filed for a friend’s sister.  Counsel opposite, a grizzled veteran, has filed a demurrer attacking your Bill of Complaint for Divorce, and the demurrer will be taken up in chambers before the trial.  Whether the demurrer is granted in whole or in part, the trial will follow as night follows day because, “Trial not Delayed Because Demurrer Overruled.”  The judge could grant a postponement if your case is gutted by the demurrer, but you know Judge Neville isn’t likely to do so, and your client wants this over with anyway.   

You settle your client into the courtroom (now Judge Mason’s courtroom) for the duration.  You’ve already explained to her that the judge may strike out part of the pleadings you filed on her behalf, but that you’re confident everything will be fine.  That’s what you told her, not what you really feel.  What you really feel is a knot in your stomach the size of Mount Rushmore. 

You gather your file and leave your client in the dark-panelled court room, where dour portraits of previous Chancellors who practiced their alchemy in that chamber, their medieval visages glowering down disdainfully as if they sniff disagreeably the fetid aroma of the weaknesses in your case, stare balefully down on your misery.

In Judge Neville’s dim chambers (Cindy James’ office today), you wait while he relieves himself in the facilities.  The air is redolent with fragrance of his ever-present pipe.  There are wisps of smoke clinging to the ceiling like disembodied spirits.  On the dark-panelled wall is a plaque that reads: 

“If you are well, you have nothing to worry about; If you are sick, you have two things to worry about: whether you will live or whether you will die; If you live you have nothing to worry about;  If ou die, you have only two things to worry about: whether you will go to heaven or whether you will go to hell;  If you go to heaven you have nothing to worry about;  If you go to hell, you’ll be so busy greeting your old friends that you won’t have time to worry!” 

Before long, your older and more experienced opponent, wielding his superior knowledge of the byzantine rules of pleading, has prevailed, and the negative pregnants and other flaws in your pleading have been lopped away like infected warts.  Before you know it, the 36-page Bill of Complaint for Divorce that you proudly filed has been whittled town to a dozen miserable pages. 

Before turning you loose for the court room, the judge takes the opportunity to use his best cajolery skills to try to settle the case, telling you how he would rule on this issue and that, and even cussing you good for wasting the court’s precious time.  He runs his hand over his balding head, adjusts his glasses, and you can see the trademark red flush spreading up his cheeks toward his forehead, but you stand your ground because you’ve already tried to no avail to talk your clint into a reasonable settlement.   

You emerge into the comparatively brightly-lit court room and flash a brave smile at your client.  Her attempt at looking brave looks more like crestfallen to you. 

The floor is cork, scarred from years of cigarette burns.  Brass spitoons, polished and emptied weekly by a jail trusty, are set on each side of the court room, one for the complainant and one for the defendant.  In a corner plainly visible to the lawyers is a Coca-Cola clock; the art deco clock built into another wall stopped years ago at 10:05.  

In the court room, the old lawyer has taken his place.  He is chain smoking cigarettes.  As he finishes one, he drops it on the floor and grinds it out under the sole of his two-tone wing-tips on the cork floor.  He lights another and removes his linen jacket, revealing his short-sleeve shirt.  He is wearing a cheap clip-on tie with Weidmann’s soup stains.  His polyester slacks are held up by suspenders.  His greased head gleams in the court room light.  He is no fashion plate, but he is a dangerous adversary who only a few minutes ago gutted your case.  He will smoke like that through the trial, his jacket hanging limply on his chair as he carves up your witnesses.

Your office file has only a few papers in it.  There is no voluminous discovery, because you don’t get to propound interrogatories and requests for production.  The only discovery is to ask for a Bill of Particulars.  The rules of pleading are so arcane and complex that a misplaced adjective just might doom an essential element of your case.  The older lawyers have mastered the strange warcraft of pleading and gleefully ambush you from the legal thickets, catching you unawares and pillaging the smoking ruins of your lawsuit. 

As the older lawyer tends to other preparatory business, he lays his cigarette on the edge of the table, and the burning end inflicts yet another scar into counsel’s table, adding one more to the many other burn marks.  He sticks the cigarette back into his mouth and approaches you to show you some document, wreathing your face in a fog of smoke and raining ashes on the natty pin-striped suit you bought from Harry Mayer (the elder) only last week. 

Judge Neville takes the bench, his smoking pipe emitting inscrutable signals, clad in his customary dark suit.  Chancellors did not wear a black robe back then, but he is wearing his black suit today, probably in mourning for my case, you muse.  Your voice quavers as you read your pleadings into the record for the court, followed by the older lawyer.  While you are struggling through the reading,  Judge Neville is puffing pensively on his pipe and whittling strenuously on a cedar plug.  Shavings curl slowly at first, and then furiously, as the pleadings pour from your mouth into the record for God and all the world to hear, the flaws and weaknesses drawing into clear focus with every heretofore and to-wit, and your spirits sag at the prospect of sour defeat.

By agreement the grounds for divorce are presented first, and the judge will rule whether a divorce will be granted.  You call the opposing party first and he denies everything.  Your client then testifies unconvincingly about her husband’s mistreatment.  Her performance on cross is frightful.  The corroborating witness might as well have been in Peru when the offending conduct is alleged to have occurred.  Judge Neville ponders and whittles, maufacturing acrid clouds from his pipe.  Tension builds until the judge intones his opinion that, “The grounds for divorce are not strong, but the court finds that these parties need to be divorced, and so I will grant the Complainant a divorce.”  Whew.  It was fairly common for Chancellors to do that back then, but it’s still a relief to get over that hump.     

You rise to call your first witness on the remaining issues, but Judge Neville interrupts you in his stentorian tone, “Suh, I will see the lawyuhs in chambuhs,” and he leaps to his feet and bounds out of the court room and into his office, his pipe jutting decisively out of his face.  You know what is coming.  It’s the arm-twisting conference where the Judge, now that he’s granted the divorce, will bring all of his considerable persuasive power and intimidation to bear.  In chambers he wheedles, threatens, sweet-talks, cajoles, cusses and pounds his desk, demanding that you settle, or else. 

You confer with your client who is now more amenable to a settlement, having been tenderized by opposing counsel.  A few more sessions with the Chancellor and the case is settled. 

Somehow you paint the best face on your performance for your client.  She’s not thrilled with the settlement, but it’s not really bad for those days:  She gets her divorce and custody of the baby; her ex-husband will have to pay a respectable $35 a week for child support (her best friend got a divorce last month and got only $60 a month; after all, there were no statutory child support guidelines then); her ex gets the house because it is titled only in his name (no equitable distribution then; title controlled); she gets the 1971 Dodge, and he will pay the $65 monthly note; she will have to pay the $120 McRae’s bill; she will get the living room and bedroom suites, baby furniture and the 19-inch RCA black-and-white television, and he will get the 19-inch Westinghouse color tv.  She’s not terribly happy, but all in all, she’s fairly satisfied that she got good value for the $250 that she paid you to handle her contested divorce.  

In the clerk’s office, you stop to visit with Mr. M.B. Cobb, the gentlemanly Chancery Clerk, and deputy clerk Joyce Smith, who try to console you about your misfire in court.  That new young deputy clerk, Rubye Hayes, is disgruntled about something, so you try not to lay your already-bruised ego in her path.

Leaving the court house, you meander over to the Southern Kitchen where you find the company of jovial lawyers and even your older adversary scarfing down coffee and pie, as they do every day.  You pull up a chair and order a comforting slice of lemon icebox pie, and before your first forkful, you are the butt of their ribbing about how you folded your hot hand when Neville called your bluff.  You fight not to blush, but you can’t help but smile with the satisfaction of knowing that they only treat colleagues that way, and that much of their humor is part painful experience and part shared pain.

It’s nearly 10:30, and you head back to your office.  You wonder whether you’ll get to finish reading that new John D. MacDonald detective novel or whether you’ll have some work to do. 

Back at the office, you have two new clients awaiting, and you receipt them and open files in time for lunch.  But before leaving, you ask your secretary to type up the pleadings, which will be on legal-sized paper, the original on bond, and the several copies made with carbon paper on onion-skin; you can’t yet afford the latest technological advance:  an IBM memory typewriter.  Word processors and computers are unknown.  You prefer carbons to photocopies (all of which were called “xerox copies” back then) because your copier, like most, makes sepia-colored copies on slick, coated paper from a roll in the machine, and the copies are not favored by the judges because they tend to curl up and are hard to handle, but worst of all, they tend to turn dark or black over time and become illegible.       

Ordinarily you would head over to Weidmann’s to sit at the lunch counter over a vegetable plate with cracklin bread and see many of the people you know, or to the Orange Bowl for a cheeseburger, but today you’ve decided to recover from your court room wounds by spending the afternoon on a friend’s lake, casting crickets on a quill with a fly rod for chinkapins and having a few cool ones.  You stop at the bait shop next to Anderson Hospital and visit with James Elmer Smith while he scoops up your crickets.  One great thing about being out on the lake: no one will bother you there because there were no cell phones then; in fact, many people still had dial telephones. 

On your way out to the lake you think to yourself what a good life you have and how even a disappointing day in court is not so bad in the whole flow of things.  And tomorrow is a whole, new day.

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