by Richard W. Millar, Jr.

Not all that long ago, I wrote in “Poetic Justice” about an opinion which waxed poetic.  Rhyming opinions are rare beasts, probably for good reason. Rarer still are motions structured as poems, probably for even better reasons. One done to “The Night Before Christmas” is, to use the vernacular favored by MasterCard commercials, “priceless.”

The author—I hesitate to use the word “poet” as the rhyming and meter were, in a word, erratic—was a clearly frustrated Atlanta divorce lawyer who represented the husband in a Nassau County, New York divorce action that had outlived at least one trial judge and was approaching a Dickensian record.

According to an Article 78 Petition to compel trial, which I gather is akin to our Writ of Mandate, brought by A. Todd Merolla on behalf of husband-client Mr. Drew Doscher, the marriage had lasted only 59 months, while the divorce action had been pending for, are you ready, 10 years or, as Mr. Merolla quantified more specifically, 3,192 days. During that time, Mrs. Doscher had been paid $1,100,000 in “temporary” support and her lawyer had received about $375,000 in fees. (This reminds me of the “temporary” buildings built during World War II that are still in use, but I digress.) In any event, I suspect that the status quo was as good as it was ever going to get for Mrs. Doscher who had little incentive to derail that train.

The case, which was filed in 2003, was assigned to Justice Robert Ross “for the purposes of facilitating a prompt trial” in 2007. After 27 spasmodic days of trial, according to the Petition, ending in July, 2008, the court took the matter under submission. The court ruled a couple of months later in September that essentially it couldn’t rule as information was missing and it ordered a continuance of the trial four months after the parties had rested. The action was then referred to a Judicial Hearing Officer which resulted in a written report dated March 31, 2011.  Both sides filed motions relating to the Referee’s Report, but before they could be ruled upon, Justice Ross died.

Mr. Merolla filed a motion for an expedited re-trial which engendered a cross-motion for $351,500 in fees. Court ordered settlement conferences were held before yet another Referee, between July and December 2011. No settlement was reached, nor was any trial date assigned.

On December 23, 2011, Mr. Merolla, only partially imbued with Christmas spirit, sent a poetic e-mail to the Referee and opposing counsel. It started:

T’was the night before Christmas, in the Matrimonial Part,
All the creatures were stirring, putting their horse in front of  the cart.
The fee applications were pending, bills demanding to be paid,
In hopes that Drew’s resolve, soon would fade.
The attorneys and consultants nestled all snug in their beds,
While visions of paid fees danced in their heads.
Turning to the submitted ruling delays, he penned:
The Honorable One now passed, who will take up the torch?
To rule on pending motions, some two years on the porch.
Without repeating the entire poem, I am sure you get the drift. It concluded with,
Tis the season for giving and to be jolly,
There must someday be an end to this folly.

Mrs. Doscher’s lawyer moved (in prose, I should add) for contempt and sanctions which the Referee denied while lateraling the e-mail to the grievance committee to determine if the poem was an ethical violation which, as a fate, is probably worse than a bad review by a poetry critic.

As surely as a moral is the “M” in MCLE, all my reports, if they could momentarily be elevated to that status, have a moral, and this case is no exception.

If you’re perplexed by long delays,
and you wish the court to mend its ways,
use not your pen as poet’s sword
lest you’re sent to the grievance board.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.