It has been awhile since I
have written about Judge Learned Foote and many of you have inquired about
him. He has diligently avoided
controversy. Intense scrutiny of public
figures these days makes this a difficult task.
Up to now Judge Foote had succeeded in keeping out of the public
eye. But unwittingly he became embroiled
in a matter over which I believe he had little control. I leave it to you, dear reader, to judge for
yourself.
It began with a settlement conference gone awry. The underlying case grew out of an employment
dispute involving defendant, a writer known as Kipling, and six struggling singers
in search of a day job. Kipling employed
them as "serving men" and at first was impressed with them. He wrote a poem celebrating his pleasure with
their work:
"I keep six honest
serving men.
They taught me all I knew;
Their names are What and
Why and When
And How and Where and
Who.”
In their evening hours, Kipling's
servants were able to get singing gigs at various venues, including the Los
Angeles County Superior Court's annual dinner dance. They also auditioned for the television show,
America's Got Talent. It did not go well. Two of
the group began singing "Where or When." But, as you can imagine, the other members
objected. Then other members refused to
sing "Who Can I Turn To?" It
turned into a melee when it came to "How High the Moon."
Who, What and Where were tired of trying to break into show
business. They gave up singing and attended
night law school. How, Why and When were
doing more work than before because Who, What, and Where were too tired from
studying to do their share of work. How,
Why and When could not adequately cover for them. A disenchanted Kipling fired all six of them. They filed a wrongful termination suit. The case settled for an undisclosed amount with
an agreement that Kipling not publish a new poem about six deceitful serving
men who taught him nothing.
Wouldn’t you know it, no sooner was the case over, the six began
squabbling among themselves about how to divide the settlement proceeds. How brought an action against Why and hired
Who to represent him. Why hired What to
represent him and cross-complained against When. Where, just having passed the bar,
represented When.
Judge Foote held a settlement conference. I won't hold you in suspense. It turned out to be a disaster. Judge Foote wanted to bring his service cat
to the court as a calming influence, but thought better of it. Recent events served as a caution to judges bringing
animals into the courtroom. But he
thought it would not be controversial to bring his pet flying fish to the
settlement conference. He reasoned the
fish's graceful movement in the tank would be soothing to all the parties. In case you are wondering, Judge Foote had
never witnessed the fish actually fly.
And it did not occur to him that flying fish obviously would be a sore
point for the parties. The conference
began inauspiciously.
JUDGE FOOTE: "Who
represents the plaintiff?"
WHO: "That’s
correct, Your Honor."
JUDGE FOOTE: "What?"
WHAT: "Yes, Your
Honor."
JUDGE FOOTE: "I beg
your pardon."
WHAT: "I
represent the defendant."
JUDGE FOOTE: "What’s
your name?"
WHAT: "That’s
correct Your Honor."
HOW: (Sarcastically
under his breath) "He's got the
names right, only he doesn't know it."
JUDGE FOOTE: "How's
that?"
HOW: "I'm the
client. Can we talk about the
case?"
JUDGE FOOTE: (To How) "Who are you?"
WHO: (Responding) "That's me."
JUDGE FOOTE: "What?"
WHAT: "Yes?"
JUDGE FOOTE: "What?"
WHAT: "You
just said my name."
JUDGE FOOTE: "When?"
WHERE: "He's a
cross-defendant and should be dismissed from the case."
JUDGE FOOTE: "Why?"
WHY: (Turning to
his lawyer What) "Should I
answer?"
WHAT: "I'll
answer for you." (To the judge) "We would just like to settle Your Honor."
JUDGE FOOTE: (Sarcastically)
"When?"
WHEN: (To Where) "He called me."
JUDGE FOOTE: "What?"
WHAT: "Yes?"
JUDGE FOOTE: "What is
your name?"
WHAT: "What."
JUDGE FOOTE: (LOUDER) "I said, what is your name?"
WHAT: (Meekly) "What."
JUDGE FOOTE: (Exasperated,
turning to Who) "What is his
name?" (pointing to What)
WHO: "It
is."
JUDGE FOOTE: (Turning to
What) "O.K., what's his name?"
(pointing to Who)
WHAT: "Who."
JUDGE FOOTE:
"Him." (No answer) "Can anybody help me here?"
WHY: "Judge,
I thought you were supposed to help us."
JUDGE FOOTE: "I can't
help you if I don't know your names."
WHY: "We gave
you our names."
JUDGE FOOTE: (Sarcastically)
"Oh, I must have missed
something. Tell me your name."
WHY: "Why."
JUDGE FOOTE: "Because
I'd like to know. Each of you please
give me your names so I can properly address the parties and counsel."
WHERE: "Where."
JUDGE FOOTE: "Here."
WHEN: "When."
JUDGE FOOTE: "Now." (Out of control) "This is worse than an Abbott and
Costello routine."
There was a stunned silence.
WHO: "That
remark was uncalled for."
JUDGE FOOTE: "You're
probably right. Maybe the Marx Brothers
would have been better."
WHO: "You
can't help us settle this case, Your Honor."
JUDGE FOOTE: "Why?"
WHY: "Don't
ask me."
WHAT: "I agree
with my client."
JUDGE FOOTE: "What?"
WHAT: "Yes?"
JUDGE FOOTE: "You're
right."
It was at this point that an exasperated Judge Foote pounded
the table with his fist. This so
startled the fish, that she flew out of her tank and began flying over the
heads of the astonished parties and counsel.
Luckily she flew back into the tank.
To relieve the tension, the litigants and counsel could not
help themselves and perversely began singing "On the Road to
Mandalay." They lodged a complaint
with the Judicial Performance Commission.
The commission called a special session.
Judge Foote wisely left his flying fish at home.
The presiding member of the commission asked the prosecuting
attorney the order in which the witnesses would testify.
She answered, "Who's on first."
The presiding commissioner said, "That is what I'm
asking you."
What then said, "You are asking me?"
Judge Foote breathed a barely detectable sigh of relief.
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