THE TRIALS OF A COMMON PLEAS JUDGE

THE HONORABLE MARK I. BERNSTEIN

PHILADELPHIA, PENNSYLVANIA 2017

 CHAPTER THIRTEEN

NEGOTIATION BY OTHER MEANS

AS I PREVIOUSLY mentioned I was given a

remarkable position of confidence with judges and
lawyers. Taking advantage of the honesty and candor
with which I was treated, I frequently took occasion to
spend time in a courtroom before a judge took the
bench. I also took to spending time in the various pubs
where lawyers would congregate after hard days in
office or court. In this way I learned the peculiarities,
techniques, nuances, and reputations of each of the
several judges for each of the nine courts.
It was amazing to learn the detailed book the
bar knew about every judge and the ease with which
they shared this knowledge. It was also amazing to learn
the detailed book the judges had about every lawyer
and law firm and the ease with which they shared their
knowledge. I wondered what information about my
THE TRIALS OF A COMMON PLEAS JUDGE 2

own style, mannerisms, habits, and peculiarities had

been shared or would be discussed about me in the
future present. If the sharing I witnessed still occurred
in the 21st century, I necessarily concluded that the bar
knew more and had greater insight into my judicial
behavior than ever I did. I made a mental note to seek
insight counseling should I ever return to my proper
time.
On one occasion over drinks a younger attorney
mused, I wish every judge would prepare a list of dos
and donts so I would know exactly how to behave.
Two older attorneys whom I had observed ingesting
prodigious quantities of ale over the prior three hours
responded.
The first said, Some dont want to do that
because then theyd have to be consistent.
The more seasoned noted, Forget that idea, kid.
Youll learn more about what they really do by keeping
you ears open in this pub.
I learned for example that in Court of Common
Pleas No. 3, writs of injunctionthat is, petitions
seeking to compel another to perform some act or to
permanently refrain that other from performing some
actnever went to court. They were never heard
because Judge Blank, the President Judge of that court,
who took all such matters unto himself, forbade any
testimony whatsoever. Believing that the court should
not be in the business of ordering people to do things,
and believing that a piece of bread no matter how thinly
sliced always had two sides, he always encouraged the
parties to resolve every matter amicably. This
THE TRIALS OF A COMMON PLEAS JUDGE 3

encouragement consisted of congenial discussions of

their respective positions, gentle nudges, reasoned
discourse, impassioned pleas, invitations to the parties
themselves to participate in a round table discussion,
securing a room in which the attorneys and their clients
could thrash out their differencesand when the effort
was to no avail screaming, yelling, berating, and
eventually threatening until all participants came to the
realization that it would be far better to resolve the case
than to remain interminably in contentious
argumentation.
Indeed, I was toldalthough I often viewed with
skepticism the anecdotes attorneys spun after a few
hours at the pubthat as the hours went on Judge
Blanks appearances at these conferences became less
and less frequent. Nonetheless, his success in resolving
injunctive matters was considered to be one hundred
percent.
Unfortunately, since the bar knew they would
never have to actually prove whatever outrageous
allegations they made, all plaintiffs seeking injunctive
relief tried desperately to secure a position in front of
Court of Common Pleas No. 3, trusting in the
knowledge that the weaknesses and deficiency and
perhaps even the absurdities of the case factually or
legally would never be confronted and therefore
certainly could never be reviewed by an appellate
court. Countless questionable injunctions were filed in
Court of Common Pleas No. 3. One lawyer confided in
me, If Judge Blank is going to force a settlement, then
I know Im going to get something for my client.
THE TRIALS OF A COMMON PLEAS JUDGE 4

Conversely, well-connected attorneys whose

clients actually needed injunctive relief used every
artifice to avoid Court of Common Pleas No. 3. As a
result, Court of Common Pleas No. 3 always received
the weakest of injunctive actions, the ones in which no
relief was deserved, the ones for which going to court
really was merely negotiating by other meansas war
is diplomacy by other meanswhich had the result that
Judge Blank was repeatedly confirmed in his belief that
there was no injunctive action that required court
testimony or an actual ruling.
I had heard it rumored, although I could never
confirm it, that in fact money exchanged hands in order
to get cases of a weak injunctive nature assigned to
Court of Common Pleas No. 3and that greater sums
passed to court clerks to avoid it. While I could find no
proof whatsoever nor any witness willing to confirm
firsthand knowledge, the clarity of the inevitable result
in the court made activity to get an injunctive action in
front of Court of Common Pleas No. 3 so appealing
and the fees that could be charged so lucrativethat
the possibility of actual bribery must be entertained. It
is so refreshing to know that the professionalism of my
court now (that is, in the future present when I was
presiding) has so improved that we can say to a
reasonable degree of professional certainty that no such
activity occurs.
In conversation among the judges, Judge Blank
would boast of his ability to do justice by having the
parties resolve injunctive matters among themselves.
Many more were filed in Court of Common Pleas No.
THE TRIALS OF A COMMON PLEAS JUDGE 5

3 than in any other, and almost 80% of Judge Blanks

time was spent on theses injunctive matters. His
perspective on them was straightforward. He would
often confidentially tell me that injunctive hearings
were nothing more than business negotiations and that
his role was to facilitate that negotiation. He felt that
only by settlement could real justice be done
certainly not by the vagaries of proof at trial. Indeed, he
mocked other courts whenever he heard of protracted
injunction testimony.
Whenever such trials resulted in no order being
entered he would find occasion to visit each of the
judges of that court. He would dress up, and without
mentioning the actual case in casual conversation he
would drop comments about an injunctive matter that
had just settled in his court and how he was thus free to
enjoy a lovely leisurely lunch with his wife, after which
he thought he would take a stroll in the Fairmount
section of Philadelphia. Needless to say this behavior
did not endear him to his colleagues or to the bar.
Nonetheless, Judge Blank being the grand nephew of
one Republican Party ward leader and being cosy with
one Supreme Court Justice, no one would ever
mention his behavior in any critical way. It was sad to
me when he died because he went to his grave believing
that he alone had the solution to a litigious society. My
stories of the future-present court successfully
managing 7000 cases to trial within two years by 20
trial judges were taken with the same evident grins as
when the topic was Paul Bunyon or John Henry the
THE TRIALS OF A COMMON PLEAS JUDGE 6

steel driving man. Luckily no one ever actually called

me a liar to my face.
Since all assumed that I would sooner or later
manage to return to my actual time and resume my
elected duties as a judge, many judges and lawyers
would offer specific nuggets of advice. Judge Blanks
advice concerning injunctions was consistent with his
philosophy, experience, and success. He said, Dont
ever take testimony. Lock them up in a room, and
make them work it out. They always do. Litigation is
only negotiation by other means. Thus were all bills of
equity resolved in the Court of Common Pleas No. 3,
and perhaps some serious measure of justice was indeed
on occasion accomplished.

WATCH FOR CHAPTER FOURTEEN

MAY 1, 2017