THE TRIALS OF A COMMON PLEAS JUDGE

THE HONORABLE MARK I. BERNSTEIN

PHILADELPHIA, PENNSYLVANIA 2017

 CHAPTER TWELVE

TOO INSIGNIFICANT FOR PRECIOUS JUDICIAL TIME

I WITNESSED MANY amazing things in court in that

time long past. We are so lucky that satellite, media,
communications, and general knowledge have stopped
the most egregious self-serving practices of prior
generations of judges. One example that springs to
mind occurred in Common Pleas Court Number 4.
Judge Wolfson was presiding. Judge Wolfson was a
man with little tolerance for attorneys who wasted
precious judicial time. Judge Wolfson also had little
tolerance for cases too insignificant for precious judicial
time. He learned to conserve judicial resources.
Although I spent many hours observing him in court
and even privately conversing with him I am not able to
report what he thought constituted an important matter
that warranted judicial time. Never did I see any relish
or intellectual curiosity for a legal issue nor any
THE TRIALS OF A COMMON PLEAS JUDGE 2

appreciation that the parties in any case really cared

about the dispute. His general perspective could be
summarized in the later-to-become-immortal words
Can we all get along? When not complaining that the
lawyers were being nits he vocally affirmed his belief
that all cases should settle.
Interestingly, Judge Fourier, who was also a
judge of Common Pleas Number 4, was not
appreciative of Judge Wolfsons perspective on forcing
or cajoling settlement at all costs in all cases. While one
judge would never criticize another directly, Judge
Fourier did on one occasion reflect upon the judicial
perspective that all cases should be settled. Judge
Fourier said: If all cases should settle, then there is no
case that a lawyer should decline to file in Court. The
result of avoiding trials and forcing all cases to settle is
to subsidize the bad lawyers who pursue cases they
should lose, or better yet should never have filed.
Common Pleas Court Number 4 scheduled one
day per month for what was called Motions Court.
This was another type of cattle call but organized and
promoted by the lawyers themselves. Any lawyer who
had any miscellaneous matter to present before the
court or who had any dispute that was not a trial or did
not need evidence could simply file a motion. It would
be placed on the miscellaneous motions list for the
following month.
Since all were required to be present at 9:30 a.m.
at the opening of court, the courtroom was filled with
attorneys. Generally, Judge Wolfson intentionally took
the bench at 10:15 a.m.because, as he would say:
THE TRIALS OF A COMMON PLEAS JUDGE 3

these attorneys have probably never even met and they

need time to work out their differences among
themselves so as not to waste precious judicial time.
Of course the bar knew this and at 9:30 a.m. the
courtroom would be empty, slowly filling as 10:15
approached. Promptly at 10:15 a.m. Judge Wolfson
would ascend to the bench from his chambers in the
rear and the Court Crier would proceed to the
ceremonial calling of the list. This would consist of
stating the name of every case and then intoning, If you
have reached an agreement, please form a line to the
right. After calling the 150 names of caseswhich
itself took close to 30 minutesthe court would then
accept the agreements one by one from the attorneys
who had formed in line. After each attorney advised the
court that an agreement had been reached, the judge
would say: Thank you very much counselor! Does
everyone see how good a job experienced counsel are
able to do? After forty of these ceremonies had been
completed the first contested matter would be
permitted to approach the bar of the court and argue
their respective points.
The arguments of counsel were often annoying to
Judge Wolfson. His annoyance was understandable
because counsel were constantly trying to speak over
each other. Possibly due to this rude behavior, it was
sometimes difficult for me to grasp any semblance of
the issue being presented. Often the attorneys would
argue between themselves as if on a street corner
without any regard to whether the court was even
listening. To outward appearances Judge Wolfson
THE TRIALS OF A COMMON PLEAS JUDGE 4

focused on the attorneys and intently listened to the

drivel and bickering in the courtroom, although having
seen his note pad afterwards I can attest that he spent
some of his listening time working on a crossword
puzzle, preparing a shopping list, or working on his
calendar. The lawyers confided to me their belief that
whoever got in the last point, whoever spoke last,
generally won before Judge Wolfson. Nothing that I
saw made me think the lawyers were wrong.
Despite the apparent courtroom disorder and his
actual disinterest, Judge Wolfson invariably cut straight
to the real issue. He eliminated the personal bickering
and entered what appeared to me to be a judicious and
appropriate order with clear deadlines that often
included what I came to learn he called a self-
effectuating Order.
But the most remarkable thing was the late
morning occasion when there were still some thirty
cases remaining and Judge Wolfsonprobably having
not gotten sufficient sleep the night beforestepped
out of his normal hail-fellow-well-met attitude, in
which he seemed to be interested in the welfare of the
attorneys who appeared in front of him and to be
willing to listen to them at length, and actually lost his
temper. Standing up in Common Pleas Court Number
4 where he presided, he announced that he had heard
enough of attorney bickering and drivel, that these
matters did not appear to be reasonable for
determination in a courtroom, and that he would have
none of it any longer. He then proceeded to take off his
THE TRIALS OF A COMMON PLEAS JUDGE 5

robe and say: What lawyer wants to hear this drivel?

Because I will hear no more.
Needless to say a serious hush fell across the
entire room as the attorneys sheepishly looked at each
other or the tops of their shoes. Judge Wolfson stood
there repeating his challenge: Doesnt any lawyer have
it within himself to take my challenge? One attorney
who had been at the bar long enough to be brave but
not long enough to know better approached and
sheepishly said, I would do this, Judge Wolfson, if you
really want me to. Judge Wolfson held out the robe
for him to put it on and offered him the judicial chair.
That attorney, Charles Bridget, having ascended to the
bench, three times declined the robe but each time
Judge Wolfson insisted that if he was going to make
decisions he had to wear the robe. Finally attorney
Bridget took the robe. Draping it over his arm, he sat in
the offered judicial chair. Judge Wolfson ordered the
next case argued and insisted that the now robed
attorney Bridget decide the matter. Although
hesitatingly at first, Bridget did obey the judicial
command. He made a determination of the matter and
did so for the next two or three cases, after which
Judge Wolfson announced that the attorneys had better
go resolve the issues like gentlemen or hed pick a
different attorney to decide. He left the bench and
returned to his chambers on the third floor, at which
time the Court Officers adjourned Motion Court until
the following month.
On one other occasion I witnessed Judge
Wolfson using a similar technique to avoid the waste of
THE TRIALS OF A COMMON PLEAS JUDGE 6

judicial resources, so I can attest that this was not

purely aberrational behavior. On that occasion I was
afforded the opportunity to observe a settlement
conference. Judge Wolfson alternatively reasoned with
the attorneys, cajoled them, or pleaded with them to
settle the matter. The only tricks Judge Wolfson did
not employ were to engage the attorneys in a discussion
of the evidence that would prove the claims they were
making or to discuss what the law might be about those
claims. Instead, the discussion focused on two topics.
The most significant topic, which occupied the most
time of the one and a half hour settlement conference,
was which attorney had engaged in unethical and
improper behavior towards the other attorney. The
attorneys discussed the insulting nature of how each had
been treated by the other. Judge Wolfson spent an
inordinate time discussing in detail the facts of the
supposed egregious behavior and desperately tried to
effectuate a reconciliation among the members of his
bench-bar tribe. He would alternatively minimize
behavior to one attorney and then urge both to act
productively for the good of the order. Once he
effectuated at least a perfunctory reconciliation
between members of the bar who needed to live and
work together cooperatively he then successfully
managed to get meaningless mutual apologies and
promises of more civil decorum in their relationships
thereafter.
The other topic of the conference was a summary
by each attorney of his side of the issue in the matter.
To my eye, each side was grossly exaggerating for
THE TRIALS OF A COMMON PLEAS JUDGE 7

maximum effect any possible version of reality,

seemingly in complete disregard (if the interruptions of
opposing counsel were to be given any credit at all) to
any actual testimony that could be presented in court or
any actual documents that in fact existed. Each attorney
completed his summary with an outrageous demand for
settlement or an offer that would not even pay the
opposing attorneys costs thus far expended. When
Judge Wolfson had no success cajoling either attorney
to become reasonable, he stood up from behind his
desk, took off his robe, walked over to the attorney
making the most outrageous demand, and put the robe
on the seated attorney. After returning to his seat
behind the desk he said: Now that youre the judge
what do you think your demand should be? While I am
glad to have seen the demonstration, sadly I am unable
to report either the answer or the remainder of the
conference because, unfortunately, I was already late
for an appointment and had to leave. I did however
subsequently learn that the case did not settlebecause
some months later I had occasion to see it actually on
trial before a different judge.

WATCH FOR CHAPTER THIRTEEN

APRIL 1, 2017