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The Erudite Judge, The Tactful Judge, And The Judge Of Considerable Experience
© Jerry Buchmeyer, 1987

Judges should, of course, be thorough and tactful and attentive(1) illustrated by three forensic fables by “O”: The Erudite Judge and the Question of Doubtful Admissibility; The Tactful Magistrate and the Much Respected Colleague; and The Judge Who Closed His Eyes.(2)

The Erudite Judge
considered himself rather hot stuff and, at the slightest opportunity, would “Enrich the Law Reports with a judgment in which he discussed all the authorities, exposed the fallacies of deceased members of the bench, and generally cleared things up for posterity.” During one trial, the plaintiff’s counsel asked the witness what the Charwoman had said when the witness told her the plaintiff had fallen over the pail on the stairs. Naturally, the Erudite Judge directed the witness not to answer the question — and, after a protracted argument, adjourned so he might consider the matter fully.(3) The results:

“The next day the Erudite Judge loosed off a splendid bit of work. No aspect of the law of evidence was left untouched. Beginning with the Pandects of Justinian, the Erudite Judge took his hearers through the Canon Law and the yearbooks, and thus traced to its source the doctrine of the inadmissibility of hearsay evidence. By eleven forty-five the Erudite Judge had gotten to Whitelock v. Baker (13 Ves. 514), declarations by deceased persons, inscriptions on tombstones, and the facts properly to be regarded as Res Gestae. At long last, when the stenographers were showing signs of exhaustion, the Erudite Judge reached the conclusion that the question was admissable.

“The witness having returned to the box counsel for the plaintiff once more inquired: ‘What did the charwoman say when you told her that the plaintiff had fallen over the pail on the stairs?’

“The witness replied that the charwoman hadn’t said nothing. He added that he wasn’t surprised, which the charwoman was as deaf as a post.”

The Tactful Judge, who had dined very comfortably the night before with a much-respected colleague, convened court to deal with the business of the day. To his surprise, the first defendant was his host of last night — who had continued his merry-making into the wee hours and had been arrested with other drunk and disorderlies. The situation was distinctly awkward, particularly since the much-respected colleague had given his real name and address. However:

“The Tactful Judge did not lose his head. Sternly addressing the culprit as John Marmaduke Bundlepump (a name which occurred to him on the spur of the moment), he told the much-respected colleague that his attempt to conceal his identity, based as it was upon a superficial facial resemblance to a public servant of unblemished reputation, was as mean as it was dishonest; and that in all the circumstances he could not inflict a smaller penalty than a fine of ten pounds. The defendant must also pay the doctor’s fee. He hoped it would be a warning. It was.”

The Judge of Considerable Experience was trying a case of unexampled dullness. The plaintiff’s counsel opened by droning a multitude of authorities, including the well-known decision of the House of Lords in The Overseers of the Parish of Criggleswick v. The Mudbank-Super-Mare Docks & Harbour Board Trustees & Others. The Judge, who had never been so bored in his whole professional life, fell into a gentle doze which soon developed into a profound sleep. Suddenly, he was aroused by the cries of “Silence” with which the bailiff precluded the coming judgment: the case was over and the Judge had absolutely no notion of what the counsel for the defendant had argued. Was the Judge dismayed?

“Not at all. He assumed a look of lively intelligence and said that, as he had formed a clear opinion, no useful purpose would be served by his reserving his judgment. He admitted that during the course of the excellent arguments which had been addressed to him his opinion had wavered. But, after all, the broad question was whether the principle so clearly stated in the House of Lords in The Overseers of the Parish of Criggleswick v. The Mudbank-Super-Mare Docks and Harbour Board Trustees & Others applied to the facts of the present case, On the whole, despite the forceful observations made on behalf of the defendants, to which he had paid the closest attention, he thought it did. It was therefore unnecessary that he should discuss a variety of topics which, in the view he took became irrelevant. There would, accordingly, be judgment for the plaintiffs, with costs; but, as the matter was one of great public interest, there would be a stay of execution on the usual terms. The judgment, which was appealed against in due course, was affirmed both in the Court of Appeal and the House of Lords; the Lord Chancelor commenting, in the latter tribunal, on the admirably succinct manner in which the experienced judge had dealt with a complicated and difficult problem.” (4)


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