December 2010 - “Take Me Out To The Pre-Trial”

by Justice William W. Bedsworth

I have here in my hand(1) a request for a continuance. It’s not addressed to me or even my court. It’s addressed to a court in Texas. I have it only because the syndication of my column is helping me develop a national cadre of people who have correctly intuited that I need all the help I can get.(2) Three of them sent me this motion.

I have a particular interest in continuances. I’ve gone all over the world urging lawyers to devote less time to their practice and more time to their family. My remarks on this topic have been cited to me more than once in continuance requests. It’s difficult—though, I should warn you, not impossible—to turn down a continuance when you are the primary authority cited in support of the request.

And I’ve seen some unusual ones. When I was in Superior Court, we had an attorney phone in a continuance request from his sailboat. It was suggested to him that, “I’m busy sailing” was not going to get him a continuance. At which point, he explained he was stuck on a tiny island near Guam with a broken mast. Continuance granted.

My favorite was one I witnessed in my first year of practice. I don’t remember much about my first year as a prosecutor—other than being clueless most of the time and coming to the disconcerting conclusion that some of the cops I was examining knew more law than I did—but I remember one continuance.

I’d been assigned to Judge Arnold Palmer. No, that wasn’t really his name, but that pseudonym will go a long way toward explaining what happened.

Judge Palmer presided over a misdemeanor trial court,(3) and I was sent there with a half-dozen criminal cases. The idea was that some would be negotiated, some would plead, and I would try one. Sure enough, I was able to reach dispositions on five and announced to Judge Palmer that we would be trying the sixth. I asked if he wanted to try to pick a jury immediately or start after lunch.

Judge Palmer seemed somewhat nonplused by this question. He suggested we spend a little more time trying to negotiate the case. We did.

He suggested I balance the cost and risk of trial against the equities involved. I did.

He suggested he get involved. He did.

Nothing worked—including Judge Palmer’s amazing offer to essentially waive punishment in exchange for a plea, an offer that pretty much dumbfounded a fledgling prosecutor with a solid case.

Finally, when it was clear the case could not be resolved, Judge Palmer noted that this was “only” the third setting of the case and announced he was continuing it on his own motion because it was not yet “ripe.”

I was aware of the “ripeness” doctrine with regard to constitutional issues, but had no idea it could be applied in this way. I had never seen it done before or since, but then again, I never had another case ready for trial on a day Judge Palmer had planned on playing golf.

Criminal defense attorneys often needed a continuance because they sometimes had difficulty with witnesses. The nature of criminal practice is that your client’s defense—especially if it’s an alibi—may hinge on people who are . . . shall we say . . . unencumbered by conventional lifestyles. So I always tried as a prosecutor to cut defense counsel a little slack.

One day, I had an attorney tell me he needed a continuance because he was missing a witness. It was a driving under the influence case, there was no one else in the car, defendant said he was driving from his workplace home, denied drinking, and refused a chemical test. I couldn’t figure out who the missing witness might be. I expressed my skepticism to defense counsel who smiled somewhat sheepishly and said, “Mr. Green.”

“Mr. Green?” I exclaimed, “There’s no Mr. Green in this case. Who is Mr. Green?”

Counsel shook his head, rubbed his thumb across the first two fingers of his right hand and said, “You know . . . Mr. Greeeeeeeeeeen.” I finally figured it out and gave him his continuance. My more-experienced colleagues later explained to me that they usually gave criminal defense counsel a reasonable opportunity to get paid before trial, “because they sure aren’t gonna get paid afterward.”

The late Myron Brown, as fine a trial judge—and as fine a person—as our bench has ever known, once denied a motion filed by an attorney whose declaration said he could not appear for the trial because he had a preliminary hearing scheduled that day. Judge Brown read the declaration and instructed his clerk to call the attorney and tell him that it was insufficient—that a preliminary hearing did not take precedence over a jury trial and he would be expected in court the next morning at 9:00.

The clerk came back a few minutes later, somewhat abashed. Turned out when the attorney said “he had a preliminary hearing scheduled,” he meant HE had a preliminary hearing. It was his case. He was the defendant.

Judge Brown reluctantly granted the continuance.

But I must admit, the Texas motion in my hand certainly ranks right up there with the best I’ve seen. It’s in a case called City of Irving v. Villas of Irving, Ltd.(4) It’s captioned, in all-caps boldface, “EMERGENCY MOTION FOR CONTINUANCE.”

Here’s a practice tip for you. You don’t just file a motion for continuance, you file an EMERGENCY MOTION FOR CONTINUANCE. In fact, in years to come, you probably file an EMERGENCY ELECTRONIC MOTION FOR CONTINUANCE in which not only is the type boldfaced, but it’s accompanied by sirens and foghorns and the sounds of weeping and gnashing of teeth in the background, and interspersed with videos of floods and fires and firefights in the desert.(5)

Of course the efficacy of said electronic enhancements will depend somewhat on the nature of the emergency. And what’s the nature of the emergency here? Illness? Childbirth? Calendar conflict? Broken mast? Criminal prosecution of the moving party?

Nope, nope, nope, nope, and . . . nope.

The emergency is the World Series.

Counsel’s favorite baseball team, the Texas Rangers, inexplicably made it to the World Series this year, and October 27—the date of the pre-trial he sought to reschedule—was the date of the opening game, in San Francisco.

Attorney Darrell Cook’s motion for continuance explains that he has been a Rangers’ fan since the creation of the team—“a love of the Rangers that has gone generally unrequited for thirty-eight (38) years.” He has “either listened to or watched all or parts of thousands of baseball games played by the Rangers” and has been a season ticket holder for ten years.

To fully appreciate Darrell’s devotion, you have to understand that the Rangers play in Arlington, Texas,(6) which, as near as I can determine, is located six blocks from hell. It is the hottest place in America that does not include the word “Death” or the word “Valley” in its name.

After the Civil War, Union General Phil Sheridan was sent west to fight Indians. He spent time in Texas. I think he had Arlington weather in mind when he said, “If I owned hell and Texas, I would live in hell and rent out Texas.” So buying season tickets for Rangers games is an act of devotion roughly equivalent to walking to Mecca while barefoot and on fire.

In fact, there might well be a freedom of religion violation inherent in denying a continuance to a Rangers fan on this showing—especially considering the fact the Rangers had NEVER previously made it to the World Series. I mean, if Jesus shows up tomorrow, we’re probably gonna have to grant continuances to all the Christian attorneys who want to go see Him, right? Pretty much the same thing when something as unexpected as the appearance of a World Series berth presents itself to a devout Rangers disciple.

There is, of course, an issue concerning the lateness of the request—two days before the pre-trial. But Attorney Cook explains rather convincingly why this problem could not previously have been anticipated, “Everything between [Attorney Cook] and the Rangers was business as usual this year:

  1. Josh Hamilton [the team’s best player] was discovered drunken and covered with whipped cream;
  2. Ron Washington [the team’s manager] was discovered to have ingested a ‘controlled substance’ during the 2009 All-Star break;
  3. The top two starters for the Rangers . . . looked like they were completely unfamiliar with the tasks assigned to them . . . ;
  4. The team declared bankruptcy and was sold via an auction more befitting a used Buick than a major league baseball team.”

Astonishingly, all these things are true. And, as counsel further points out, to get to the World Series, the Rangers not only had to win their division over TWO teams favored over them, but had to get past a superior Tampa Bay team AND the New York Yankees in the playoffs.

As Mr. Cook points out, “[T]he Rangers have only participated in ten playoff games in the history of the franchise prior to this season and all such games were played against the New York Yankees. Their record in these ten games was one win and nine losses.” Given those facts, it seemed unlikely that October 27 would be problematic.

So the last-minute nature of the request is certainly forgivable. And, indeed, Cook’s motion was granted.

I would have granted it—once I had stopped laughing and applauding. It’s not only a great motion, it’s great literature.

Besides, I am the son of a woman who was raised to be a Washington Senators fan.(7) She taught me the New York Yankees are the antichrist. You beat the Yankees, you get a continuance from me.

Unfortunately, Mr. Cook’s Rangers walked into a buzz saw in San Francisco, and he probably went home with brain matter and bone dust all over his baseball hat. They lost 11–7 and 9–0.

But that’s beside the point. He won the continuance motion.

(1) Never thought I would find myself quoting Joe McCarthy (“I have here in my hand a list of 205 names . . .”), but that’s the way things have been going for me of late. A friend, upon learning I had just judged the Big West Conference Basketball Coaches’ Cooking Throwdown, commented, “Bedsworth, your life gets weirder every day.”
(2) I don’t know whether to put that down as a “W” or an “L” but it comes in handy.
(3) Back in the blessed days when we had municipal courts.
(4) Irving is a city about the size of Irvine in the Dallas-Fort Worth Metroplex. The Cowboys used to play there until they decided they needed a stadium bigger than the entire city of Irving.
(5) I’m afraid footage of firefights in the desert will—one way or another—always be available.
(6) Another part of the Dallas-Fort Worth Metroplex.
(7) The now defunct Washington Senators were the doormats of the American League and the perennial fall guys of the New York Yankees for most of their existence. They were so bad they inspired the expression, “Washington: First in war, first in peace, and last in the American League.”


William W. Bedworth 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 william.bedsworth@jud.ca.gov.