Flinch Factor, The (2 page)

Chapter Three

At 2:30 that afternoon I was standing before the worst judge in the Circuit Court of St. Louis County—and possibly the worst judge in the State of Missouri.

All I could think was how lucky I was.

The judge in question is the aptly named Howard Flinch, whose last name describes the reaction of most attorneys at the moment they learn he has been assigned to their case. Judge Flinch is arbitrary and capricious. He is short-tempered and foul-mouthed. He has the attention span of a housefly, and his grasp of the law is comparable to my grasp of quantum mechanics.

Indeed, he is so bad that Missouri Supreme Court Rule 51.05—the rule that grants each party the right to one automatic change of judge at the outset of a case—has come to be known among practitioners in the Circuit Court of St. Louis County as the Flinch Factor. Although each new case is assigned at random to one of the twenty or so judges of the circuit, so many of the parties drawing Judge Flinch exercise their right to a change of judge that his case docket is but a fraction the size of his colleagues' dockets. Entire days can pass without anyone entering or leaving the chambers of Judge Flinch. Oh, but on the days His Honor strides into his courtroom, his unbuttoned black robe flapping behind him, it can feel like the judicial equivalent of Grendel emerging from his den.

The Flinch Factor reverberates throughout the courthouse, a few of whose chambers include judges with demeanors and abilities that could charitably be described as curtailed. In any other judicial circuit, those are the very judges who might trigger a Rule 51.05 reassignment, but the chilling possibility of drawing Judge Flinch on the rebound keeps their dockets full.

Only a betting man would dare evoke a Rule 51.05 request with the knowledge that he might be reassigned to Judge Flinch. Rob Crane and his client most certainly were betting men. Indeed, their annual high-roller junket to Vegas usually made it into the local gossip column. And thus when they were served three months ago with the court papers in
Finkelstein, et al. v. City of Cloverdale, et al.
and discovered that it had been assigned to Judge Gerber—a good jurist but one who occasionally showed sympathy for the little guy—they invoked Rule 51.05. Despite the 20-1 odds, they drew Judge Flinch.

That reassignment put the ball back in my court as counsel for the plaintiffs. I had thirty days to request a new judge. I mulled it over. The only type of case where it might help to have an arbitrary and capricious judge is a weak case.
Finkelstein
had already started morphing into
Frankenstein
. I let the time expire.

Judge Flinch stared down at Rob Crane.

“A bicycle?” he demanded.

“Yes, Your Honor.”

Judge Flinch lurched back in his chair, eyes wide in either real or feigned astonishment. I could never tell which.

The judge asked, “He's a man, right?”

Crane nodded. “He is.”

The judge smirked. With his bald head and bushy eyebrows and flared nostrils and black handlebar mustache, Judge Flinch is God's gift to editorial cartoonists.

“Your client's not a little light in the loafers, is he? A little sugar in the old gas tank?”

“Absolutely not, Your Honor.”

I tried to keep a straight face.

Although Rob Crane and I had an unpleasant history dating (literally) back to high school, he was nevertheless an excellent trial lawyer with a powerful courtroom presence. He was tall, had thick dark hair flecked with gray, and wore expensive dark suits that accentuated his athletic build, which he'd maintained since his linebacker days at Princeton.

But all such assets were for naught inside the alternative universe of Judge Flinch's courtroom. No matter who you were or where you went to law school or how many Fortune 500 companies you represented, you were at His Honor's mercy. Depending upon the case and the mood of the judge, the courtroom experience could resemble anything from Pee Wee's Playhouse to Don Corleone's darkened study to today's version, which appeared to be Amateur Night at the Comedy Club.

The judge shook his head and snorted. “Mr. Crane, you expect me to believe that your client would rather pedal around on a bike than sit across the table from this pretty gal and answer her questions?”

The judge gave me a big wink as he twirled one end of his handlebar mustache between his thumb and finger.

“Heck,” he said with a chuckle, “you can take my deposition anytime you want, Miss Gold.”

I formed a polite smile. “Thank you, Your Honor.”

Flinch was in his forties and single. He frequented singles' bars, according to a female friend of mine. He arrived occasionally in his judicial robe, apparently in the belief that it would improve his chances. She was in a bar once when he pulled out a gavel from under his robe and pounded it on the bar, demanding another Loch Ness Monster, a favorite drink of his that includes equal parts Bailey's Irish Cream, Jägermeister, and liqueur.

Crane said, “My client has no problem answering Miss Gold's questions. The problem is scheduling the deposition. As the Court may know, Mr. Rubenstein is an avid triathlon competitor. Moreover, he uses each triathlon as an opportunity to benefit our community by making a significant charitable pledge tied to his scores at the event. At last summer's triathlon in San Diego, his scores translated into a contribution to the Arthritis Foundation of fifty thousand dollars. Fifty thousand, Your Honor. This time he's made the pledge to the Children's Foundation. Those poor disadvantaged children need my client to stick with his training schedule.”

“Triathlons, eh?” the judge said. “Reminds me of a Jewish joke. Heard it last week from Judge Bernstein. He's a Jew, so there's nothing offensive here—or if there is, take it up with him. Anyway, he told me he was heading off to the JCC for a Jewish triathlon. I ask him, ‘What the heck is a Jewish triathlon?' Know what he said?”

Rob Crane stared at the judge, his expression neutral. “I do not know, Your Honor.”

“A shvitz, a whirlpool, and a massage.” The judge laughed, shaking his head. “That's a good one, eh? Yessiree, bob.”

His smile faded. “Where were we?”

I said, “We were discussing Mr. Crane's client's purported scheduling problems, Your Honor.”

“There is nothing
purported
about it,” Crane snapped.

“Your Honor,” I said, “I have been trying to schedule Mr. Rubenstein's deposition for more than two months. Every date I've offered has been rejected because of some alleged scheduling conflict. Two weeks ago I sent Mr. Crane a letter in which I set forth twelve different dates this month and asked him to pick the one most convenient to his client. He had one of his associates send me a reply stating that Mr. Rubenstein was unavailable on
all
twelve dates and was not available at
anytime
in the foreseeable future. Here is that correspondence.”

I handed photocopies to the judge and Crane.

While the judge studied the letters, I said, “You will note that one of the days I proposed in my letter was the third of this month.”

“Let me see—ah, yes, here it is. The third.”

“And that was one of the days that Mr. Rubenstein was supposedly too busy to be deposed.”

Judge Flinch glanced at the other letter and nodded. “Yep. Too busy.”

“The third was last Monday. Here is a copy of an article that appeared in the
Post-Dispatch
four days later on Friday.”

I handed copies to the judge and Crane.

“As you can see,” I continued, “it's a feature story on the growing number of men who go to spas for facials and other treatments. Let me direct the Court's attention to the seventh paragraph, which I will now read into the record.”

“‘On Monday of this week,'” I read, “'I visited the lavish Stonewater Spa in the upscale Plaza Frontenac shopping mall in the hopes of getting some insights into this trend. Who should I find in the lounge area talking business on his cell phone? None other than high-powered real estate developer Ken Rubenstein, who was treating himself that day to the $250 Man Collection package, which features a pedicure, a manicure, a facial and a 60-minute deep tissue massage.' End quote.”

I set my copy of the article down on the podium.

“In short, Your Honor,” I said, “Mr. Rubenstein couldn't be deposed last Monday because he was getting his toes moisturized.”

Judge Flinch leaned back in his chair, smirking at Crane. “Busted, bee-atch! What do you say to that?”

“I am quite certain that at the time we responded to Ms. Gold's letter my client was busy on that date. As we all know, appointments change, meetings get cancelled, schedules free up at the last moment. Those things happen.”

“Not here, Mr. Crane. Your motion is denied.”

The judge turned to me. “When do you want the deposition?”

“Next Friday. Starting at ten a.m.”

“Friday it is. Draft me an order.”

“Your Honor,” Crane said, anger in voice, “my client has a training schedule. He needs to get his miles in that day.”

“Tell him to bring his bike to the depo, Mr. Crane. He can pedal himself out of there as soon as Ms. Gold says she has no further questions.” He paused, a smile forming. “By the way, does your guy wear one of those goofy outfits when he goes biking?”

Crane frowned. “Goofy outfits?”

“You know what I mean. Those little tight Spandex shorts.”

“I would assume that he wears the accepted cycling attire, Your Honor, including bicycle shorts.”

“Is he going to wear those things around Miss Gold?”

Crane glanced over at me, irritated. “If he has to, he will. She's a big girl.”

The judge laughed. “Your client better be the big one. If he's going to be parading around in mixed company in a pair of tights, I hope for his sake he can fill them out, if you know what I mean.”

Crane gazed at the judge, his jaw clenched.

“Well, Counselor?”

“I can assure the Court and Ms. Gold that Mr. Rubenstein fills his shorts most impressively.”

The judge widened his eyes and looked at me. “My, my. What do you make of that claim, Miss Gold?”

“If anyone would know, Your Honor, it would be Mr. Crane.”

The judge exploded into laughter. “Bull's-eye!”

He stood, still laughing, and headed toward the door to his chambers.

Pausing, he turned back to us.

“Draft me an order, Miss Gold.”

He glanced at his long-suffering court reporter. “Court is in recess, Lois.”

He turned back to us. “I'm starting to feel the public's need to know.” He raised his eyebrows. “This one might be ready for prime time.”

He made a pistol with his hand, took aim at us, and said, “See you later, alligator.”

I wrote out the order and waited in the courtroom while his clerk walked it into the judge's chamber for his signature and then made copies for the lawyers. It took about ten minutes, which I devoted to an internal monologue of complaints to my mother for getting me involved in this Frankenstein case. Although fairness and decency were on my clients' side, the rule of law was not—and the rule of law is what counts, even in the courtroom of Judge Flinch.

Flinch's last comment—about the public's need to know and the case's almost-ready-for-prime-time status—raised the prospect of yet another unwelcome complication, namely, television coverage. While Oliver Wendell Holmes, Jr., Louis Brandeis, and Learned Hand might top the list of exemplars for most judges, Howard Flinch's two idols are Lance Ito and Judy “Judge Judy” Scheindlin. He has signed photos of each framed and hanging on the wall of his chambers. A framed custom-made bumper sticker above his desk reads “WWJJD?”—which stands for “What would Judge Judy do?” While others might quote Confucius or Mark Twain, Flinch preferred to preface his profundities with a reference to the presiding judge in the OJ Simpson case, as in: “Ah, yes, as Judge Ito would say,…”

About once a year over the past decade—mostly for trials but sometimes for hearings—Judge Flinch has unilaterally declared that the public's “sacred right of access” trumped local court rules and required that his courtroom be opened to all media. Each time—to the exasperation of the presiding judge—the local stations sent over film crews, confident that a Judge Flinch Extravaganza would deliver ratings worth preempting their soaps. Would my Frankenstein case provide Judge Flinch with his next television performance? The thought made me shudder.

When I stepped off the elevator on the first floor I was surprised to find Rob Crane waiting for me in the lobby. He ended his cell phone call as I approached.

“Here's your copy of the order,” I said, handing it to him.

“I spoke to my client.”

“Good. Be sure to tell him I want the deposition to start on time. If he tries to pull what O'Brien did, I'll come back here that day and ask the judge for sanctions.”

O'Brien was the vice-president of Rubenstein's company, Ruby Productions. His deposition had been scheduled to start at one p.m. a week ago. He and his attorney (one of Crane's associates) arrived two hours late.

“Calm down, Rachel. I wasn't talking to him about the starting time of the deposition. I was discussing a more important issue in this case.”

“You mean whether to show up in a business suit or bicycle shorts? Since it's a video deposition, I vote for bicycle shorts.”

“I'm not joking here, Rachel.”

“Rob, we've spent enough time together for one day. If you have something to say, say it. I need to get going.”

“The issue I discussed with my client concerned the fate of your lawsuit. Specifically, our prior settlement offer. The deposition is next Friday. If your clients would like to settle this dispute, they have until the close of business next Wednesday. We previously offered to pay each of your clients an amount equal to ten percent above the appraised value of their homes. That is a generous offer by any measure. We are now willing to augment that offer. Until the close of business on Wednesday, my client is willing to pay each of your clients fifteen percent above the appraised value. It has to be unanimous, though. Every one of your clients has to sign on. If your clients reject that offer, my client has instructed me to ramp up this litigation. I currently have one associate and one partner assisting me on this case. If the settlement deadline passes, I will add two more associates.”