Friday, March 05, 2021


BREAKING AND VERY SAD NEWS. ONE OF THE LEGAL GIANTS OF FLORIDA AND OUR NATION FORMER JUSTICE GERALD KOGAN HAS PASSED AWAY AT THE AGE OF 89. Justice Kogan was our own from Miami. An assistant state attorney in the 1960s, a Circuit Court Judge starting in 1980 whom we appeared before many times, appointed to the Florida Supreme Court in 1987, and CJ in 1996, Justice Kogan spent his retirement active in the law, lecturing on death penalty litigation, joyfully attending the FACDL Miami Dinners where the "Kogie" was awarded to a Judge in his honor, he was truly one of the good guys who never forgot where he came from. More tomorrow. 

This started as a discussion between bloggers on the use of "Comes Now" in legal pleadings. It has become a battle for the soul of our profession. Comes Now Rumpole, who rises in support of our soul.

Your favourite federal blogger Mr. Markus wants to throw it all away. He  is the new generation. The upstarts. The disruptors. "Comes now...." to start a pleading is archaic.  "The defendant wants dis case dismissed" is the world he is steering us towards. 

This is a discourse in etymology. Or as Mr. Markus would prefer, "we blogging 'bout language and stuff."  Either way, buckle up. 

 The legal profession is based, almost completely, on the respect for precedent and tradition. See, Marbury v. Madison: "The process (of mandamus) is as ancient as the time of Ed.2d. 1 Levinz 23". Marbury v. Madison, 5 U.S. 137, 153 (1803). Tradition was good enough for Justice Marshall, but not bloggers who work on top of garages. 

The traditions that lawyers have handed down over the years, decades, and centuries survive in recognition that our legal system comes from the common law of England. Many are the Supreme Court opinions that delve deeply into the English roots of a statute or legal precedent. We support decisions in 2021 with concepts from 1721 because of the belief that ideas that have stood the test of time are important. 

Judges wear robes. No one else does. Archaic tradition. Starting next week, it's shorts and t-shirts and sandals on the bench. Speaking of which, in what other forum in the world does one person sit elevated above all others? Not in church or temple or a mosque. Even the Resolute Desk in the Oval Office sits on the floor in the White House. Only in the archaic traditions of the legal world does one person sit on a  bench above others. And while we are at it, lets remove the term "bench" which is a lie. It's a comfy chair before a desk, with a big computer that the judge spends her days sending snarky texts to her judicial friends during court, right?

"Hello kids, welcome to your courtroom tour. That person wearing a Marlins t-shirt sitting before the desk in a big chair a few feet above us is the judge. Say hi to the judge. No Sally, we don't use the term 'your honor' anymore, it is archaic." Where else in our society is the term "your honor" used? It's old legalese so out it goes, right? 

Let's see Mr. Markus tell Judge Moreno or Judge Moore that starting next week he gets to sit in a recliner in the corner of his courtroom and that nobody will be addressing him as "your honor". We will do the bond hearing for free after that discussion. 

The very term "reasonable doubt" comes from the evolution of the religious beliefs of judging. In the middle ages jurors were instructed that they place the souls of themselves and their families in jeopardy for judging a man. Judging was disfavored by religion as only the almighty could judge. When the English common law adopted the reasonable doubt standard, an enlightenment came upon the courts. Mr. Markus doesn't like old language and traditions. Does he wish to replace the term "reasonable doubt" as well? It came into being in the 1700's. Enough is enough right? Or is his issue only with some  archaic terms that he subjectively doesn't like?  

We stand when judges enter a courtroom and you will not find that requirement in any law book or in any of the committee notes that Mr. Markus and his federal devotees love to debate on a Friday night over a bottle of wine. "Just sit already" is his preferred way to start a court calendar. 

The  United States Supreme Court has started every session since February 1, 1790  with "Oyez Oyez..........God save the United States and this honorable Court".  In the new world of Mr. Markus, court  would start a bailiff wandering into the hallway and placing two fingers in his lips and letting out a loud whistle with the phrase "alrighty then, let's get this show on the road!" And what about the term "bailiff"? The Oxford dictionary tells us the etymology of bailiff is from Middle English from  Old French "baillif". Mr. Markus may now prefer "The gal in the uniform helping out in court"

Every time Rumpole stands before the jury in opening and closing statements it is a solemn moment. Regular citizens are called for service before the bar. The Courtroom is hushed as we stand, all eyes on us. "May it please the Court" we rumble. And then with a slight bow towards our opponents "and the learned counsel for the prosecution"....and we are off to the races. 

Presumably Mr. Markus will leap to his feet with a "Yo yo yo Mr. M in the house. The defendant is innocent, she didn't do the crime. So find her not guilty and stop wastin our time."

By the way why do we call it "The Bar"? Drinks aren't served (which wouldn't be a bad idea at times). 

When we file a plea of not guilty, we come before the court, battered by an arrest, but not bowed. We appear and approach the bench figuratively if not literally and we invoke five hundred years of legal precedent- PROVE IT!  And until the state does, by tradition, constitution and law, all must presume our client is innocent. And our document is a PLEA, because tradition calls it a pleading. Mr. Markus presumably wants to do away with pleas. Just say it. "Hey, not guilty, forgeeetaboutit." 

And what does Mr. Markus suggest about the "wherefore" clause?  Nobody else in society uses "wherefore" except lawyers. How should our pleadings end? "Having asked for the case to be dismissed, just do the right thing judge" ?

When we keep our traditions alive, including the use of antiquated language, we are reminding ourselves of our past. Where the great traditions of our profession have come from, and the words and phrases and actions that have given due process of law real meaning  to millions of people. It is comforting in times of trouble. It is a building that shows its architecture. It is a tree with deep roots. It is honoring all those who came before us. 

When we become a lawyer, by tradition we are called "counselors" because we counsel clients. It is an archaic term, but it brings respect to our profession and reminds us that our work is not just about producing fees. It is to give counsel. A tradition we are proud of and do not wish to relinquish. 

We can remove the old language, not stand when judges enter courtrooms, not say "may it please the court" when we start a trial, and for that matter put our shoes on the desks when waiting in court. We can bring our profession down into the ranks of a short order cook in a bowling alley. But why? We have a profession that has glorious traditions. The old, cranky law professor grilling a student on the first day of class- molding the clay into what will become fine lawyers. "Here's a dime Mr. Markus, go call your mother and tell her you will not be a lawyer." 

We under go such trial by fire because what emerges on the other side is steel, tempered by fire. We throw new PDs and ASAs into what we call "the pits" so that they will learn by trial and error. And what comes out after several months/years is a top-notch litigator. Trained in the ancient arts- and they are indeed ancient arts- of verbal combat and persuasion, they learn their craft studying the greats and learning from their mistakes. They learn that tradition matters. 

But not to Mr. Markus. When jurors find Rumpole's client not guilty, they sign a verdict form that ends with "so say we all", which is an archaic way of indicating that the verdict is  unanimous. Imagine the foreperson of the jury reading the form and seeing those words. It doesn't say "unanimous" which is what the jury instructions say. It reads "so say we all"- a solemn and traditional way of indicating that the verdict is the collective decision of all jurors. Mr. Markus would be satisfied with a form that says "didn't do ityeah dog". 

We want our jurors to be solemn and understand the tradition of their service. We want our judges respected, wearing robes, on a bench, presiding above the melee of the pits. 

We want our community and our nation to respect our law and our courts. And one way is to show that our profession  just did not come about. Every judge, every lawyer, every pleading stands on the firm ground of history. This is our system since 1776 and it works, which is why we honor our traditions. Traditions that do not work- that insult us- like separate but equal- are tossed aside and we honor those who fought those battles.

 But when something works, we do ourselves no favors by tossing those traditions aside. Because at some point some narcissistic leader who idolizes dictators will say "Whyy do we have proof by reasonable doubt? All that does is let criminals go free. Who gave judges the power to tell us what to do anyway? This Judge is from Mexican descent and cannot be trusted." Etc. You know who we are talking about. 

Tradition is not just done for traditional reasons. It helps secure our rights. But young men and women who think they know everything do not understand that. It is when you are older than you see what young eyes cannot. Tradition matters. It help us and future generations understand where we came from, what we fought for, and why what we do matters. 

Wherefore, Rumpole submits that the use of "comes now" serves an important purpose in our profession. It lends a solemnity to a court pleading, the filing of which is an important and solemn act. Pleading Not Guilty is a solemn act. Those are archaic words, as is the phrase "comes now." In for a penny, in for a pound. Keep our traditions or throw them all out. These words Mr, Markus will cavalierly toss away are  part of our traditions that mean something,  and help protect everything.  

Res Ipsa Loquitor. 

Respectfully Submitted, 

H. Rumpole, Esq., Blog Proprietor. 


Anonymous said...

That escalated quickly. DOM for the win!

Rumpole said...

now all the DOM groupies are going to flood my blog with comments.

Sir Wilfred said...

With respect, I suggest our legal traditions go back to England dating from.1215 and Runnymede when King John was forced to sign the Magna Carta
Sir Wilfred

the trialmaster said...

I back Rump. Tradition and respect governs.

Anonymous said...


Leslie is coming back from the dead to run for the Florida Bar Board of Governors.
Oppose this evil.

Charles Lammers said...

I am with Rumpole. Lawyers deal with serious issues. The courtroom is a serious place - not an entertainment forum. We still stand when the judge enters the courtroom. For good reasons. Lawyers deal with life and death, freedom or incarceration, the loss of children, property, employment - when submitting documents dealing with these issues it is important to maintain solemn formality. They are not blog posts or twitter warrior shots - they are serious documents dealing with some fo the most important issues our client's will ever deal with.

Anonymous said...

Rumpole used a lot of words and still lost to DOM.

Anonymous said...

Nope, get rid of Comes Now, hereby, prays, etc.

Anonymous said...

I agree with DOM. "COMES NOW" and all of those archaic terms are just wasted words on the paper. They don't mean anything at all and do not make the brief more serious. They are just additional terms that merely detract from what the writer is trying to convey. I highly doubt any judge has ever made a decision because one brief said "COMES NOW" and the other did not.

Kissimmee Kid said...

Rumpole's father's daughter wrote this interesting piece.


Oh, "Comes Now" is bullshit.

"Defendant, Any Body, in accordance with Fla. R. Crim. P. 3.220(n) moves this court to enter an Order. . . ."

Anonymous said...

Agreed. Would have been a close bout because DOM kept it brief whereas Rump brought the passion and history to his argument but the failure of Rump to not post a link to his opponents blog seals the deal for him. That lack of courtesy to his readers and his opponent betrays the entire point he was trying to make otherwise he would have won.

Ringside judges score this round 10-9 for DOM.

Anonymous said...

It was like Ali strutting around waxing eloquent when Norton hit him with a short straight right on the chin for the KO. Down goes Rumpole.

Anonymous said...

If anything, comes now detracts from a pleading. We drill the concept of primacy into every young lawyer's head when teaching them oral advocacy. Why would you ever waste the first line of your motion on a phrase that is meaningless. Effective advocacy is a tradition too.