…and the judge who was equally as afraid

A client once threatened to kill me.

Oddly enough, it wasn’t a criminal case or a family law case, but a probate case – usually the most non-confrontational of all legal matters.  It scared the bejezus out of me, but I didn’t have the clout to force the County of Alameda to protect me, as did the Honorable Judge Roderic Duncan.

*

Rod Duncan, now blessedly retired, was the darling of the family law bar – except for those attorneys who refused to appear in front of him.

A graduate of my law school at UC Berkeley, where his chief distinguishing mark was not as editor of the law review, but as editor of the school newspaper, he was appointed to the Municipal Court Bench in 1975, after which he spent ten years specializing in small claims cases before winning an election to the Superior Court.  Once on the Superior Court bench, he gravitated to family law.  Most judges hate family law.  It’s too stressful and too heart-breaking, so usually only the judges with the lowest seniority get placed in family law courtrooms.

But most judges don’t take into account the feeling of absolute power you get when you’re presiding over family law matters.  In small claims court (Duncan’s specialty), a judge can award a few dollars here or a few dollars there in a fence dispute or a fender bender.  In Superior Court, a judge might preside over a multi-million-dollar business dispute or personal injury case.  But that only involves money.

Or our hypothetical judge might preside over a murder trial and sentence a convicted defendant to 25 years to life in prison.  But that only involves years.

In family law, however, a judge has the ability to micro-manage the very lives of the litigants.  He decides whether or not a party should be working at a better job – or working at all.  He can order a party to look for work and to provide proof of ten or fifteen job applications each week.  He can order the mom to stop smoking in the house with the children or the dad to stop drinking in front of the children.  He can order the parents to go to parenting classes.  He decides what the holiday visitation schedule with the children will be, whether mom is allowed to have her new boyfriend sleep over, whether dad is feeding and clothing the children properly, who the children are allowed to socialize with, where they go to school and who pays for extra-curricular activities.

Murder trials and asbestos-related lawsuits are so much easier to deal with.  Most judges hate being asked to run people’s lives like this.  But not Duncan.  He loved it.  It was much more fulfilling than listening to petty small claims gripes all day.

*

After a few years in the family law court, he decided to become “the people’s judge” and began writing a series of self-help books, including “How to Sue for up to $25,000… and Win!”, which was the “insider’s” guide to small claims court, and “A Judge’s Guide to Divorce,” in which he demonstrated his contempt for the judicial system.

“Whatever you do, try to keep your case out of divorce court — the system stinks,” wrote Duncan, who contributed mightily to what Tennessee Williams termed the “powerful smell of mendacity.”

And in a companion piece he wrote for Nolo Press, he expressed equal contempt for the litigants who appeared before him.

“Lying under oath is an accepted element of most trials,” he wrote.  “[I]n almost every trial, at least one of the parties will step up to the witness stand, swear to tell the truth ‘so help me God’ and then sit down and violate that oath.”

Now, let’s say you’re a litigant, looking to the judicial system to address a wrong and hoping that the  system will make it right.  Do you want a judge who claims that “the system stinks” and who firmly believes that you and your opponent don’t simply have a legitimate dispute but that one of you must be lying?

I’ve done my share of trials and I swap stories with other attorneys who have done their share.  We all know that some parties lie.  But I’m not aware of any attorney – whether he won his most recent case or lost – who takes it as an article of faith that one party in “almost every trial” lies through his teeth.

But, then, attorneys are not “a breed apart,” as Duncan described himself in an interview with The San Francisco Chronicle.

*

Duncan was voted “Judicial Officer of the Year” in 1990 by the Family Law Section of the California State Bar Association, so he must have been making some attorneys happy.  There were, however, numerous attorneys and uncounted litigants who didn’t share this benevolent opinion.  For he was widely known as rabidly prejudiced in favor of women.

“Personally, I consider it malpractice to allow a male client to appear in front of Judge Duncan,” a female family law attorney once told me.  (At a client’s very first appearance in front of a particular judge, the attorney can challenge the judge on the grounds that the judge is prejudiced against the attorney or the client and that they cannot – or believe they cannot – obtain a fair hearing.  There is the rare judge who bristles at these challenges, but mostly they are accepted without argument.)

“I’ve only challenged one judge in my entire career,” a contemporary told me recently, “and that was Judge Duncan.  Actually, I liked Duncan and usually didn’t mind appearing in front of him.  But this one involved a substantial amount of money – and I was representing the husband.”

“Most of us,” relayed a Family Court Services mediator, “think he has an almost … pathological … prejudice in favor of women.”

Granted, the air in family law courts fairly crackles with emotional sparks, and much of the time one client or the other leaves the courtroom with face bright red and ears smoking.  But in my memory, only one Alameda County judge has ever been the object of organized pickets outside the courthouse or of a recall petition  – Roderic Duncan.

Duncan later claimed the recall effort and the pickets were the result of a single case in which he ruled against a monied husband.  They weren’t.

The recall failed, but Duncan retired two years later, at his earliest opportunity.  Since then, he has devoted his time to writing about being a judge which, being abstract instead of dealing with real cases, is safer for Duncan and the public both.

*

The guy who threatened to kill me was the step-son of a wealthy local politician who had died a few years before, leaving a complex will designed to reduce federal estate taxes and necessitating a complex probate when my client’s mother died.

Al was not the sole beneficiary of the estate, but he was named as the executor in the will.  And from the beginning, he determined to do as he pleased, despite my advice and frequent lectures.

But my patience snapped when he began treating the estate bank account as his own.

Most of the estate’s assets had been liquidated and placed into a bank account in the name of “The Estate of Susan Somebody,” with Al as the sole signatory.  According to the rules of probate, he was holding these funds on behalf of all of the beneficiaries under the will and had absolutely no right to any of them until the funds were ordered to be distributed by the judge.

One day I received a telephone call from a car dealer in Las Vegas.  Al was trying to buy an $80,000 sports car with a check on the estate account.  The dealer wanted to know if this was legitimate.

I exploded – internally – and, as calmly as I could asked to speak with Al, telling him to make an appointment with me as soon as he was back in town.  When he arrived at my office, accompanied by a knuckle-dragging Neanderthal whom he referred to as his “bodyguard,” I had a Substitution of Attorney form waiting for him to sign.

“Find another attorney,” I said flatly.  “I won’t represent you any more.  In the meantime, please sign this Substitution.  You’ll be acting as your own attorney until you find a new one.”

Al and the knuckle dragger glanced at each other.  Uh, oh, I thought, and the next day made a quick visit to the hardware store, bought a 30-inch piece of galvanized pipe and mounted it in the kneehole of my desk, within easy reach.

But all he did was turn up the corners of his mouth and flash a bit of teeth.  It was not a grin.

“No, counselor.  I guess you’re stuck with me.”

He was partially right.  Once an attorney has appeared in court for a client, or filed any papers for the client listing himself as the attorney, he remains that client’s attorney until the client signs a Substitution of Attorney or a judge grants the lawyer’s motion “to be relieved as counsel of record.”

A month later, I was in the probate court attending the hearing on my motion.  Sitting in the audience were Al and the Neanderthal.  He had filed no objection to my motion and didn’t come to the counsel table when my matter was called.  He just sat there.

My motion was granted and, as I walked past Al to leave the courtroom, he pointed his forefinger at me, with thumb straight up and slowly let his thumb fall like a hammer.

*

At this time, I was going through marital counseling with my first wife, from whom I was separated.  We were trying to work things out and get back together.  We had an appointment that evening.

“I really don’t feel like talking,” I started out.  “I don’t even want to be here tonight.  This has not been a good day.”

Of course I caught hell from both of them.

I was still trembling from the experience of three or four hours before – and with good reason, as I found out later.

“A client threatened to kill me today.  Doesn’t that matter at all?  I just don’t think I’m able to be all touchy-feely tonight.  Can’t either of you understand?”

No, it didn’t, and no, they couldn’t.

I don’t even remember if I stayed for the whole hour or got up and walked out.

*

Al evidently continued to raid the cookie jar and a few months later there was a hearing to determine whether to remove him as executor of the estate.  He evidently didn’t take it well, caused a disturbance, was physically restrained by the court attendant and was found to be in possession of a handgun, for which he was arrested.  I have no doubt that he was stupid enough to have used it, although not smart enough to have used it effectively.

*

Those were in the days before there were metal detectors at the entrance to all of California’s courthouses.  It would be three or four years yet before they were slowly installed, prompted by a minuscule number of courtroom incidents statewide.  (The metal detectors wouldn’t, of course, have stopped the one angry litigant who stabbed his attorney in the eye with a pencil.)

But in the meantime, I had to make an appearance in one of the two family law courtrooms in Oakland.  Surprise!  In one wing of one floor of one of two buildings full of courtrooms in downtown Oakland, there was a metal detector.  And one of the three courtrooms in that wing was presided over by none other than Roderic Duncan.

He was pretty fearful for a judge who claimed that only one rich husband was behind the recall effort and all of the picketing.  How he swung this favor I’ve never learned, but I’ll bet the story he told the county about who was “out to get him” bore little relation to the story he told to the newspapers.