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In defense of Judge Larry

Judge Larry Seidlin, the Florida judge handling part of the Anna Nicole Smith case, has been all over the news the last few days.  If you've even looked at a TV or a tabloid newspaper, you know why. I rise to speak in his defense.  (I don't know whether there's any "Crime" issues involved here, but there are a lot of "justice" issues, and an opportunity to show how some of the "inside baseball" of lawyering and litigation works.)

In handling the case before him, Judge Larry was not nuts, stupid, or incompetent.  His handling of that case was the work of genius.

Yes.  The work of genius.

Why?

Three basic reasons.

First, he managed to get the parties to agree to bury the corpse of Anna Nicole.  Second, he did so with only a modicum of judicial or litigational resources being spent.  Third, he gave everyone involved their say.

The first part of his success was in getting the parties to agree to bury Anna Nicole's corpse.  The decision on who was to be in charge, the lawyer who is guardian of Anna Nicole's infant daughter, was no surprise.  One probably could have looked to the Florida Probate Code (or whatever they call it) and found that surviving children of an unmarried  decedent are the people who decide where and how to bury the decedent.  I know, some will say "she was married", but I think in this context the proof thereof failed if such proof was even attempted.  When the surviving child of a decedent is underage, as is the case here, the Court ordinarily appoints a guardian.  Happens every day all over the country.  And that guardian works in behalf of the child.

Now, it just took me less than five minutes to write the preceding paragraph.  It surely took an experienced judge and lawyer, like Judge Larry, an equal or lesser amount of time to get to that decision.  Why then did he spend three days of court time on it?

Actually, given there's a pile of money about half a billion dollars tall waiting out there, spending three days on this issue was getting off cheap.  The prospect of grabbing that half billion dollars lying around buys a lot of lawyer time.  I've been around long enough to remember the debacle which was the case of the Johnson and Johnson estate - I forget her name, but the woman who wound up winning was the former upstairs maid or something like that, whom the decedent had wound up enamored of and, I think, married.  That dragged on for months, parsing through all the sordid details and generating huge sums of fees for all the attorneys involved.

Judge Larry kind of put a tourniquet on that artery.  He kept these litigants in his courtroom, which kept them under his control and did not give them a chance to get a breath for more fighting.  Did anyone notice how, yesterday when the lawyer from Texas passed out there was no break, recess or interruption.  All the buying orange juice, sending over the whatever bar, and so on, took place on the record and while court was in session.  By doing this, Judge Larry kept the litigants and their counsel under his control and made clear they were not getting out from under it unless and until they came to some sort of agreement.  

This is what's called "beating their heads together to reach a settlement".  It goes on every day, particularly where litigants are intransigent and the stakes are small.  Like small-county courthouses, where the fight may be over only a few dollars, but the ego involvement is huge.  The judge wore them out, and they walked out of the courthouse arm in arm.

Similarly, by all the obscure and tangential references and analogies he made, Judge Larry put the fear of crazy rulings into all the counsel.  More precisely, he put the fear of being on the losing side of crazy rulings (which the winners could then exploit) into all counsel.

A while back, I represented the employer (Client) in a case where a Disloyal (former) Employee started a competing business, using knowhow, contacts and maybe customers from the employer.  And did so while working for the employer.  All of this, of course, was a blatant violation of the employment contract and the non-competition clauses in it.  We sued, and (a little to my surprise) got a temporary restraining order which shut down the new competitor about two days before the grand opening.  The Disloyal Employee's business dream was being financed by Daddy, who was now looking at a serious nut just for the rent, let alone all the improvements, etc., involved in setting up the business.  Client and Spouse were quite happy with the injunction but Spouse, who seemed to have a lesser amount of business success than did Client, was far more aggressive than Client in seeking to grind the Disloyal Employee into the dust.  There was a whole marriage dynamic going on there which, while it might make for entertaining viewing, also made for difficult client-handling.  

In due course, along came the return of the TRO, where the judge would decide whether to continue the injunction or not.  Disloyal Employee (and Daddy) were seeking to have the injunction dissolved, which would allow them to try resuscitating the nascent business.  I expected they would get it as our discovery hadn't shown nearly as much of the parade of horrible conduct Client (and moreover, Spouse) had told me about.  There was a mere violation of the explicit terms of the contract.

The judge opened by being very clear he thought there was a lot to be said along the line that we were being quite oppressive, unfair and (important word) "inequitable" in our treatment of Disloyal Employee, and not a lot the other way.  And would the parties like to remind him about their progress in resolving this matter.  At this point, my colleague and I suggested to the judge that the parties had been discussing settlement, but through a series of phone tag problems, the talks had broken down.  Since you have a long docket today, Judge, perhaps we could use a vacant office or room to continue the discussions, now that the principals are here.  Splendid, says the judge.

We knew we would get hammered by the ruling, which we had been warning the Client and Spouse about for weeks and which warnings they had immediately ignored.  Now they had heard it from the judge, and we had to persuade them (particularly Spouse) off their high horses and into settlement.  Similarly, Disloyal and Daddy had been getting hammered, and there was no guarantee they'd be able to get up off the floor even if the injunction was dissolved.  In other words, this was a prime opportunity for settlement.  Which is exactly the same place Judge Larry's "craziness" on the bench put the competing parties.

Off to a conference room where, every time we started making headway toward resolving the case, Spouse would interject "but the contract should be strictly enforced" or, "what do you mean, we should compromise on the contract.  Disloyal violated it."  He sounded like one of those minuteman/common-law fanatics (you know the type) from the past decade who, once they got an idea in their head, couldn't move off it.  Meanwhile, my colleague was hustling the deal to resolve the case.  A video of colleague would have sounded pretty much like Judge Larry - all the odd references and analogies, the quick talking, the brusque and the cloying.  All that.  And adversary counsel was working his people as hard.

Eventually, Spouse's intransigence got to the point I told him "...shut up.  You're not helping matters." Implicit was "or we'll go out in the hall and then you'll surely shut up."  And everyone in the room turned to Spouse and nodded.  We settled about five minutes later.

Judge Larry, by having the guardian go back with the three parties and hammer out a settlement, also forestalled Anna Nicole's mom's appeal.  The long and short of it is, if you agree to settle an issue, an appellate court will only overturn that settlement agreement in the most extreme situations.  Those don't exist here.  And, that's how Judge Larry resolved his piece of the case through spending only a modicum of judicial resources.  If he'd imposed his ruling in the five seconds it would take to decide a rather simple question of law, rather than exhausting the litigants and their counsel through three days of hearings and his seeming nuttiness, the standard of review on appeal would be different (because the litigants would not have "settled"), and they all would have an incentive to appeal - because they would feel the judge hadn't been fair to them.  However you define "Fair".

Which brings me to the third point.  By giving everyone involved their say, he managed to defuse a lot of the emotion.  He found the release valve on the pressure cooker, and tapped the steam out of it.  It is a truism - because it's true - that many, many cases which go to trial will have an opportunity to settle immediately after the plaintiff has testified.  This is particularly true in suits between individuals over a slight, a wrong, or a breach of promise of some sort, and less so in the garden variety personal injury case or business litigation. This truism hold because a plaintiff will bring a lawsuit as much because he feels he was treated wrongly and going to court will make people, particularly the defendant, listen to him, try to refute him, and pay for their wrongs.  Once the wronged party has had the chance to sing their big aria with no interruptions and the whole audience watching, they are often satisfied with the same settlement offer they rejected yesterday.  Because they have been heard.

Judge Larry was operating that principle when he made all these parties testify.  They all got up and told their silly (or not so silly) stories, withstood some cross-examination, and then had to put up with Judge Larry's talking.  Moreover, they all heard from him, repeatedly, that bringing Anna Nicole's daughter up properly was the highest and most important concern any of them should have.  When he got done with them, they walked out of the courthouse arm in arm.

I think that was pretty successful.  That he was able in three days to defuse these people from at each others' throats to arm-in-arm is, in my book, the mark of genius.

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  • Display: Sort:
    Scribe, I wholeheartedly agree with you assessment (none / 0) (#1)
    by Electa on Fri Feb 23, 2007 at 05:53:56 PM EST
    of Judge Larry's handling of the court proceedings.  He was in control at all times and demonstrated parity among all concerns.  I was astounded to hear the comments about his demeanor and orchestrating of the hearing.  Personally I think more judges should get as involved in their cases and this man displayed in reguires ANS' last wishes.

    Thank you for sharing the FL law since I'm not a legal professional it helped me to understand more clearly the judge's actions.  I commented on your Sentencing Guideline Diary.  Your writings live up to your screen name.