Monday, December 10, 2007


Our profession is full of ….legal fictions. ( You thought we were going to write something else?)

One legal fiction is setting a case for trial during the last two weeks of December. With many outside commitments including family, travel, office parties, not to mention year end work like getting ready for tax season, a lawyer’s life becomes so busy that the late December Monday trial setting evolves into little more than a legal fiction.

First of all, many Judges take off some or all of the holiday period. No offense to the great retired Judges who fill in, but many lawyers do not want their client’s important cases falling before a retired judge who might be more reluctant to grant a motion than a regular judge who has the better ability to evaluate a case.

So why all the nonsense about setting trial dates for the week of Christmas or the week before or the week after? Better to not set any trials for that week and realistically manage cases. We are not talking about shutting down the courts. Many defendants want to take a plea. Some clients are in jail and looking to get that CTS plea and get out. We are talking about the shooting cases, the grand theft first degree cases, the armed robbery cases, the drug trafficking cases. They are not going to get tried that week (spare us your December horror stories. Yes, some cases get tried, but it’s rare, and no one’s very happy about it.) So why not bring some truth into court scheduling and dial things back during the last weeks of December?

And that brings us to this friendly holiday reminder. Longtime and careful readers of the blog may remember our post:
Trial Lawyers Bill of Rights. Indeed, we may just re-run it during this holiday season. But today we talk about one pet peeve that has not gotten any better: setting a case for trial the week a lawyer returns from vacation.

Nothing, repeat, nothing, tells us a Judge knows less about how difficult it is to be a trial lawyer, then when a judge sets a case for trial the week a lawyer returns from vacation.

Here is the scenario: a case is continued and the judge and lawyers start talking about a convenient trial date. The Judge mentions December 21 and the lawyer says s/he is out of town for ten days. So the Judge says “when are you coming back?” and the lawyer says “Sunday January 1”. So the Judge, feeling very magnanimous says, “well of course everyone is entitled to a vacation, so I’ll respect your time off and set this first degree death penalty case for Monday January 2.”

This is the first indication that the person wearing the black robe has never tried anything more serious than a bench trial for disorderly conduct.

Judges who do that have no clue how difficult it is to bring a case to trial. From last minute witness scheduling to subpoenas, to just holding a client’s hand the day before trial, no lawyer- prosecutor or defense attorney- can properly prepare for any serious type of case going to trial while flying home on the Sunday before the trial date.

So while we know that one of the many perks of being a Judge is the ability to spend the day before trial watching re-runs of the Beverly Hillbillies, or out on the golf course, or other such intellectual pursuits, remember that the lawyers are working their proverbial butts off for the ten days or so proceeding trial doing everything they can to get ready and make the trial at least a semi-orderly procedure.

Therefore, how about our robed readers making a New Years resolution to at least pretend they know or remember what it is like to try a case, and not jam a trial into the first working day a lawyer has when returning from vacation?

Lawyers should remember that it is entirely proper to tell a Judge they are not prepared. Not being prepared does not mean slacking off. It means you are busy with lots of cases. Judges should remember that not every judge is as kind, wise, and understanding as they are, and that some Judges put an incredible amount of unreasonable pressure on a lawyer to try a case when they are not ready.

The remedy is truth in calendaring cases. Cases should be set during a week that they have a realistic chance of going to trial (ie., not the week of Thanksgiving, or the 4th of July.) Lawyers should truthfully ask for the amount of time they need, and should request additional time well in advance of the trial date.

Ok. Now we brace ourselves for all the comments telling us how dumb we are- that lawyers from both sides play games with continuances, and that only a tough judge who moves cases can be successful.

That may be true. What we are saying is that the system is broken. And the happy fact is that things don’t have to be the way they are. Things can get better.

See you in court, scoffing at the December 31, trial setting, or whatever the last working day of the year is.


Anonymous said...

Rumpole, may we borrow your blog for a moment to give some instructions to the members of the Barzee brigades for Monday? Thanks.

John Has a Long Moustache. (repeat)
John Has a Long Moustache.

Wound my heart with a monotonous languor.

Thanks again rump de la rump.

Anonymous said...

I could sure use the time off with family.
Perhaps those Judges who think that Boston Legal is really how to try a major case should just take the winter off.
No one will really notice.

P.S. D-Day and Pearl Harbor were on different dates. Tora! Tora! Tora! (not Torah)

Anonymous said...

Memo to the U.S. Attorney General, Head of the FBI, ATF, President of the Senate( Dick Cheney) and Members of Congress. It is with a sad heart that I must report that we are falling short of our goal of one mass murder a day for an entire year with guns within the borders of the self-proclaimed greatest nation in the world. In the last week there have been two shootings at religious institutions, a mass shooting at a mall in Nebraska, and in Indianapolis the attempted hit of an NBA player but we are still not meeting our quota and the tv networks are complaining that the blond beauty queen anchors don't like non-violent lead stories, it just doesn't get them wet between the legs so I am imploring my fellow Americans to get more violent and buy more guns. Sincerely, the NRA of America. P.S. I am proud to announce that the congresswoman from NY elected over 10 years ago after her husband was murdered in the LIRR shooting and her son permanently disabled has been totally ineffectual in stopping gun violence in the U.S. That bitch just doesn't know who she was fucking with. Now that you know you can't beat us, the FBI will now concentrate on the sex life of Oprah Winfrey who is supporting a black man to be President.We will be dedicating hundreds of agents to try to dig up dirt on the democrat party candidates for our republican president which will result in another terrorist attack on our country within the next decade. the onion peeler.


John Has a Long Moustache was the coded signal used by the French Resistance in WW II to mobilize their forces once the Allies had landed on the Normandy beaches

The reading of the second line (wound my heart with a monotonous languor) on BBC radio signaled to the French Resistance that the allied invasion would occur within hours. With that, the French set about destroying rail lines, communications, and other German targets to pave the way for liberation.

Anonymous said...

so da captain has seen the Longest Day, brilliant. it is only on tv twice a year for the last40 years. you are da man.

Anonymous said...

So did Little Billy make an announcement that he was going to run or is the commentary just that... someone who pathetically finds themselves very witty. What's that saying? Sh** or get off the pot?

Anonymous said...


Anonymous said...

This whole "lawyers take vacations" thing needs to end. Can the Bar implement a rule that criminal lawyers can't take vacations? It really screws up my audit.

Also, this whole Christmas/New Years thing is a ruse. My plan is to let everyone out at 7pm for Christmas eve, and bring them back Christmas day at 2-after the presents are open. New Years Eve we'll have a party in the REGJB, everyone can sleep over in 4-1 and we'll start trial late on New Years Day at 10am. What else are you going to do on New Years Day, watch footbal and parades?

Anonymous said...

You should have titled the last post Dear Judge Thomas,,,

Anonymous said...

And nowadays the BBC would let the enemy know we're coming-in the name of journalistic integrity, of course.

Batman said...

I understand your unhappiness, however how many attorneys have suffered the fate you describe? This is not a rhetorical question, I would love to hear the stories with judges specifically named. It has been my experience that most judges are sensitive to vacation issues and, absent that excuse being used on prior occasions on that particular case, usually ask the attorney when they can be ready after their return.

I find your comment about how judges spend their recreational time to irrelevant to the discussion and a bit gratuitous.

Your idea about what cases should be set for trial in December has merit. However, I am not sure all of our colleagues would agree. Some like the December settings because witness availability is limited and "speedies may be 'a-runnin." That said removing the "A" week from December could assist in resolving less serious matters and allow some defendants to be released from jail or remove the threat of jail from their holidays.

Checking out the Christmas Lights (and Hannukah Menorahs)from the dark alleys of the City.

Anonymous said...

Vacation? What is that? Real trial lawyers don't take a vacation. There will be plenty of time for R & R when the undertaker closes the lid.

Anonymous said...

Its time for Carlos Martinez to step aside and let Barzee take over. Barzee is willing to keep Carlos on as a top aide IF Carlos steps aside as a candidate.

The primary is Barzee's to lose.

Rumpole said...

My dear caped crusader: where have you been? Are you not a careful and long time reader of the blog? My whole purpose is to be both irrelevant and gratutious. As well as irreverant and a general pain in the butt to our fair robed readers.

Anonymous said...

...and I can sleep when I am dead.

Anonymous said...

BILLY HAS A HYPER WILLY was the code name used by the FBI to launch the investigation into the sex life of Bill Clinton which used up so many manhours of the FBI that memos to Washington by field agents went ignored; such as the agent in Phoenix who wanted to investigate men from the Middle East taking flying lessons, and in Florida, who did not want to learn how to land, just steer. The response to Billy has a hyper Willy to alert the FBI that the Republican leadership now knew the investigation was underway and that they should curtail their extracurricular activities was; STARR LIGHT STARR BRIGHT NO MORE AFFAIRS TO SLICK WILLY IS OUT OF SIGHT. Thank you Tom Delay and the republicans for having Louis Freeh of the FBI in your back pocket which was one of the proximate causes of the 9/11 attacks.


Not So Breaking News ....


Cap Out ....




and the Answer is:

Justices Samuel Alito and Clarence Thomas dissented!

and the Question is:

I will let Rumpole ANSWER the Question as I believe that he will probably be doing a column on this if not a post.


Anonymous said...

My, my , my Rumpole was able to get the US Supreme Court to read his blog and pass this case today. Good job Rumpole:

The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a black veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

"In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses," Justice Ruth Bader Ginsburg said in her majority opinion.

The decision was announced ahead of a vote scheduled for Tuesday by the U.S. Sentencing Commission, which sets the guidelines, that could cut prison time for up to an estimated 19,500 federal inmates convicted of crack crimes.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change. Tuesday's vote is whether to apply the guidelines retroactively.

In a separate sentencing case that did not involve crack cocaine, the court also said judges have discretion to impose more lenient sentences than federal guidelines recommend.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

The guidelines were established by the Sentencing Commission, at Congress' direction, in the mid-1980s to help produce uniform punishments for similar crimes.

Justice Samuel Alito, who dissented with Justice Clarence Thomas in both cases, said that after Tuesday's decisions, "Sentencing disparities will gradually increase."

Kimbrough's case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

"A reviewing court could not rationally conclude that it was an abuse of discretion" to cut four years off the guidelines-recommended sentence for Kimbrough, Ginsburg said.

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

"The sentence imposed by the experienced district judge in this case was reasonable," Justice John Paul Stevens said in his majority opinion.

Chief Justice John Roberts and Justices Stephen Breyer, Anthony Kennedy, Antonin Scalia, David Souter, Ginsburg and Stevens formed the majority in both cases.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

Anonymous said...

McWhorter once set DUI cases for trial during the week between Christmas and New Years.

She then denied continuances for those, like me, who had a few continuances in the past.

She was not nice about it either.

Guess what happened to her!

Batman said...

My Dearest Rumpole,

I hold you in the highest regard and would never subscribe to you such traits as to aspire to be a "general pain in the butt", irrelevant or gratuitous.

Anonymous said...

"lawyers are working their proverbial butts off for the ten days or so proceeding trial doing everything they can to get ready and make the trial at least a semi-orderly procedure."

SOOOOO untrue in 95% of the cases!

A robed one

Batman said...

The question Captain is:

"What intellectual and his sidekick idiot Supreme Court justices have dissented from an opinion holding that judges have the discretion to order lesser sentences in "Crack Cocaine Cases."

This would have been more effective had it been a video daily double. Say a picture of Abbott and Costello.



In still another great example of the DOJ using their resources (our money) to try ridiculous cases, the Liberty City 7 jury again announced today to Judge Lenard that they are still hopelessly deadlocked.

Leonard denied defense motions for Mistrial and instead read the "Allen Charge" to the jury.

Cap Out .....

Anonymous said...

You are upset about senior judges because they are not on the take and will rule according to the law, not according to the politics.

Yeah. Right.

Listen, I take Mapp over Slom any day buddy.

On Carlos Martinez, please. Can you say "Superman that Ho!"

Sentinel said...

I really should try to post comments the day of, however, I just read this post and something struck me. What was it? The line about judges forcing cases to go to trial. The truth is this happens to 90% of the cases the State takes to trial at the C level at least in some courtrooms on the second floor. There is no 10 days to prep a trial, more like 10 minutes. To some that may be great since it means your clients have a greater likelihood of getting off, but if that's anyone's idea of justice, we should be alarmed. Perhaps that's why some have said the the SAO is not the place to be if you're seeking justice, at least not at the bottom of the todem pole.