by Richard W. Millar, Jr.

A number of years ago, a group of us were sitting around a campfire, listening to a conversation about golf. I confess, I was only half listening because I don’t play golf. I went to a driving range once with my late partner who was an avid (or perhaps, rabid) golfer and he was planning to help me get started. We were on the second story of the practice structure—whatever they call it—and no matter how hard I hit it, the ball barely got to the lip of the floor and then dribbled down in front of others on the first level. It did not portend an auspicious career.

Anyway, one of the speakers was a golfer friend of mine and other (unbeknownst to my friend) was a well-known golf course designer. He argued that golf is an adversarial sport and when my friend asked him to explain, he said that the designer is the adversary.

We all would say that trial is an adversarial process, but we often overlook one adversary: the judge. In a bench trial, there are at least two adversaries: your opponent and the judge. In a jury trial, there can be at least fourteen: twelve jurors, your opponent, and the judge. Obviously, in most cases, the judge is not as adversarial as your opponent, but you still have to convince the judge that it is your cause that is just, and most judges start with a healthy skepticism toward both sides.

The phrase “the thirteenth juror” is often used to describe the fact that the judge can throw out a jury’s verdict after a trial. A check, if you will, on runaway juries. But what if there were a situation where the reference to the judge as the thirteenth juror was more literal . . . like if the judge actually sat in the jury box?

You would be quick to say that would never happen, but if it did not, I (or at least this column) would be out of business.

Louisiana is a great state. Any place that allows drive-through daiquiri stands can’t be all bad. (There is something wonderfully incongruous between outlawing drunken driving and allowing drive-through bars, but I digress.)

Not too long ago, the Supreme Court of Louisiana reversed the district court and granted a new trial on the ground that the “bizarre” behavior of the trial judge resulted in a miscarriage of justice. (I am not sure what counts as bizarre in Louisiana because it may have a higher threshold than other states, but this one is on target.)

“According to the plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial.” If you were one of the lawyers, that could be disconcerting, especially if you didn’t have a swivel chair.

“Judge Ellender greeted the defense medical expert, defendant’s medical partner with a handshake and an embrace in front of the jury.” Seeing as how the trial was a medical malpractice case, the defense must have been ecstatic, particularly when the “embrace” was balanced with the treatment of the plaintiff’s expert, a Dr. Murphy. Neither lawyer asked Dr. Murphy about his fees and expenses, and he was excused. However, the judge then “took it upon himself to question plaintiff’s counsel about the costs paid to Dr. Murphy in front of the jury.”

Not surprisingly, Louisiana has a rule that forbids judges from examining witnesses without the consent of the parties, and it was not too difficult for the Supreme Court to find that questioning the plaintiff’s lawyer in front of the jury violated “the spirit and intent of the rule.”

Then there is my personal favorite, which is responsible for my title. “Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy.”

Can you imagine that? He was eating candy in the jury box! It is one thing for a judge to sit in the jury box during testimony, but eating candy . . . . You have to draw the line somewhere.

It didn’t help that Judge Ellender had been disciplined twice before. Once for being condescending to a pro per and once for appearing in public in a Halloween costume with a wig, black face makeup, and wearing a prison jumpsuit.

Maybe that’s where he got the candy.

Richard W. Millar, Jr. is a member of the firm of Friedman Stroffe & Gerard, P.C. in Newport Beach. He can be reached at rmillar@fsglawyers.com.