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 it, yeah 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.
H. Rumpole, Esq., Blog Proprietor.