July 2010 - The Power and the Glory
by Justice William W. Bedsworth
I went to my old court clerk’s retirement party last week. I felt like the Lone Ranger watching Tonto hang up his gun belt.(1) I suspect there are a few poor, benighted, tragically uninformed souls who will argue the point, but I believe Dwayne Roberts was simply the best court clerk in the history of the cosmos. I don’t know, there may be some 9-armed, 6-eyed, 3-brained creatures on Arcturus 7 who can handle a clerk’s duties better than Dwayne, but certainly nobody on this planet could touch him.
He pretty much picked me up and carried me(2) through my career as a trial judge. I spent my first few months on the bench puffing myself up and pronouncing my pronouncements in my most stentorian judicial tones, only to glance over at Dwayne and catch just the hint of a headshake, just the most minuscule, almost undetectable signal I had screwed up.
At that point, I would clear my throat, announce that some last minute consideration or previously undiscerned nuance had just occurred to me, and declare that I was going to hold onto the case until I had a chance to resolve the problem. Then, at recess, Dwayne would come into my chambers and explain to me that I had failed to rammelfratz the feeblevetzer or enunciate the Gazorninplat Warning or some such thing, and I would go back out onto the bench and finish the job.
He did that for me throughout my career—although I did learn about veeblefetzers and the Gazorninplat case, and his neck was spared the whiplash those first few months must have inflicted. But he still found it necessary periodically to ask, as I turned and handed him the file after pronouncing judgment, “Will there be a Wableframer assessment on that fine, Your Honor?” or “Was Count 6 stayed or dismissed, Your Honor?” Without Dwayne, my reversal rate would have been indistinguishable from my body temperature.
How he remembered all that stuff, I will never know. I tried really hard to dot all the umlauts and bend all the tildes. I always felt a certain disdain for my colleagues who imagined themselves “big picture guys” and thought it was somebody else’s job to figure out the credits for time served or when the interest began to run. But I still missed things on a daily basis.
And Dwayne always caught them. I’d go soaring through the air, flying from trapeze to trapeze with Dwayne always acting as my net.
But his more valuable contribution was that he set the tone in my courtroom. There is an old adage that says if you want to know what kind of a judge someone is, study her staff. If the clerk is an unhelpful, sarcastic jerk, don’t expect the judge to be Mother Teresa.
Well, Dwayne is about the nicest guy I’ve encountered in my frighteningly close to forty years in this business. And his pulse rate rarely gets above 12. By the time I took the bench, Dwayne had always lowered the temperature in the courtroom about twenty degrees just by being cool and unflappable, courteous and helpful.
We doubtless disappointed people who—following the above-noted adage—expected me to live up to Dwayne, but we always had a relaxed, comfortable courtroom in which people conducted themselves with dignity and respect. That was the example Dwayne set, and he was such a complete gentleman about it that—after they’d known him for a few minutes—the attorneys didn’t want to disappoint him.
And not disappointing the clerk is an important part of successful trial work. The relationship between a trial court judge and his clerk is much like the relationship between Louis XIII and Cardinal Richelieu: One gets the glory; the other has the power.
Given your choice, always opt for the power.
I learned this my second month in practice. The Orange County District Attorney’s Office had some interesting personnel philosophies in the early seventies. One of them was “Sink or Swim.” New lawyers started with jury trials on their first day, and were assigned a calendar as soon as possible.
In my case it was the second month I was there. In a month, I had learned where the men’s room was, which side of the counsel table to sit on, and what a Tahl form was.(3) In the mind of someone in the management ranks of the District Attorney’s Office—someone whom the State Bar had inexplicably licensed to practice—that made me qualified to handle a calendar of over 100 cases twice a week. The theory, as explained to me, was that I would either grow some . . . testicles . . . or turn in my badge.(4)
The day before I was to start on this kamikaze mission, I walked down to the court where I would be self-immolating every day for the next month and introduced myself. The court clerk was a gentleman named Dennis Lodge. I knew that because it said so on the name plaque affixed to his desk.
I walked up, extended my hand, and said, “Mr. Lodge, my name is Bill Bedsworth. I’ll be handling the calendar for the DA’s Office in February.”
He laughed. Loudly.
I was flummoxed. I had no idea what arcane rule I had stupidly violated, and was cursing myself for whatever rookie mistake I had made when he said, “I’m sorry. It’s just been so long since an attorney called me ‘MISTER,’ that I didn’t know how to handle it.”
Well, he may not have known how to handle it, but he apparently remembered it.
A couple of weeks later, a rather famous Los Angeles criminal lawyer approached my lectern before court and asked what my offer was for his client. I told him, and he went off like his mouth was made of cordite. If I’d stepped on a land mine, I would have taken less flak.
Suffice it to say he considered my settlement offer inadequate. And he considered his vocabulary inadequate to express his opinion of the Stygian stupidity of the person who had made that offer. So he tried to make up for it by shouting.
He shouted my imbecility(5) in a voice that would have drowned out jet engines. There are people in Las Vegas who swear they heard the voice of God that day, and He was really angry at some “stupid ____ing ______ who was too stupid to know his ______ from a _____.”(6)
What seemed to irk him most was that he had been required to lower himself to the level of actually speaking to someone as ill-prepared as I was for the practice of law. He seemed to regard youth as a lower caste and felt sullied by his contact with me. He demanded that I “fetch” someone who actually knew something about the law.(7)
Before I could accede to his insistence on someone with “half a ____ing brain” to negotiate his case, Judge Henry Cabot took the bench and began calling his calendar. It took the better part of two hours to go through the entire hundred cases, and at the end of it, Judge Cabot asked if there was anything else that could be done before he took a recess.
Up popped the lawyer from Los Angeles. “YOUR HONOR,” he shouted, “you haven’t called my case, People v. Whomeveritwas. I’ve been sitting here for two hours and you never called my case!” Every syllable dripped with self-righteous outrage.
Judge Cabot looked to his clerk: “Mr. Lodge?”
Lodge spread out his hands, palms up, shook his head ruefully, and said, “We’re having trouble locating that file, Your Honor. We should have it by this afternoon.”
This is the other half of what the people in Las Vegas will always insist they heard God say, although they will always admit to being confused about why God then added, “I’M A BUSY MAN; I CAN’T SIT AROUND HERE ALL DAY.”
By this point, Judge Cabot was starting to figure it out. He wasn’t sure what this obnoxious lawyer had done to antagonize his clerk, but he didn’t really need to know what had been done. He knew Dennis Lodge had no use for the guy, and that was good enough for him.
Always a gentleman, Cabot spoke to the man like he was addressing a tornado victim. “Counsel,” he said softly, “you need to do two things. You need to sit down, and you need to shut up. And you need to continue doing both those things until we find your file. Mr. Lodge will tell me when that happens, and we will call your case then.” And he left the bench.
At that moment, I think Dennis Lodge winked at me. He always insisted he had not. In fact, when I brought this incident up in later years, he always smiled broadly and insisted, “I have no idea what you’re talking about.”
But I knew immediately that the man I had called “Mister,” did not like seeing his favorite rookie shredded like parmesan right there in front of him. And the fact the mysteriously missing file did not show up until 4:00, at which time Judge Cabot sent the matter out for trial over the protestations of the big shot attorney from Los Angeles who was way too busy for us hicks and couldn’t understand how his request for a fifth continuance was being denied, made a lasting impression on me.
I like to think I would have been respectful of court staff even without this experience. I like to think that’s the kind of person I am. But I’ll never know, because having watched Dennis Lodge maul and eviscerate a big-time lawyer, I never again had any difficulty distinguishing the Christians from the lions in a courtroom setting.
Dwayne Roberts never did anything like this. At least, I am not aware that he did. But then Louis XIII probably thought he was in charge, too.
(1) Yes, Tonto DID wear a gunbelt. My memory has become so porous I had to go online to make sure, but I found photos. That’s why I feel comfortable referring to Dwayne as my “old clerk.” He and I agreed at the party that “old” is the appropriate modifier for both of us.
(2) As task that will—if I don’t stop eating doughnuts—henceforth be reserved to skiploaders and cranes.
(3) In re Tahl (1969) 1 C3d 122, requires that a plea of guilty to a criminal charge be preceded by an advisement and waiver of constitutional rights. This is usually accomplished by having the accused fill out a form. When I started, the form was a page long, on 81/2 x 13 inch paper. For the first two weeks of my career, I thought it was called a “tall form” because it was printed on long paper.
(4) Actually, I cleaned that up a WHOLE lot more than you might imagine.
(5) He was quite fond of the word “imbecile;” he used it a lot.
(6) He was even more fond of profanities and obscenities than he was of the word “imbecile.”
(7) He actually used the word “fetch.” Also the word “jejeune,” which, while accurate, seemed so inapropos to the rest of his tirade that I’m afraid I laughed out loud. This did not help.
William W. Bedsworth is An Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org.