From email@example.com Wed Feb 24 02:17:06 1999 Date: Mon, 22 Feb 1999 07:59:59 -0500 From: judy-doc List Owner
To: firstname.lastname@example.org Subject: Caught in the Headlights - Judydoc meets the Judge Dear Diary (February 21, 1999), First let me say that in the judicial lottery, I may have drawn the short straw. When I filed my case the "computer" picked my judge. Since I didn't want the magistrate (I'd heard one bad magistrate story so far), it was down to just two judges in Springfield: Frank H. Freedman, Senior Judge and Michael Ponsor. The computer picked Frank H. Freedman. The only thing the clerk would tell me about him was that he used to be the Mayor of Springfield in the 1960s. The other feedback I got from unnamed courthouse sources were: "You'd have been better off with Ponsor" "Ponsor tends to listen to people. Freedman doesn't like to listen." And one fellow, when I said I had a big case in court says "Did you get Judge Ponsor?" I replied (optimistically) "No Judge Freedman" and his face fell. The judge's judicial biography shows that he was appointed for life by none other than President Richard M. Nixon. He was born and raised in Springfield. Boston University educated and is or was active in Republican politics; and fund raising for Muscular Dystrophy, Leukemia, and Kidney Diseases. I tried to take some heart in the interest in medical organizations. Noteworthy is the fact that there are 3 courtrooms on the 5th Floor of the Courthouse. Judge Freedman's and the other two. Only Judge Freedman's has a metal detector and several security people, who seem more interested in checking for recording devices than anything else. (Granted other guards had already checked us for weapons when we entered the building.) We have to go through this same security station to get to the clerk's office and they are always asking us if we have any recording devices. I had previously sat in on a hearing in Judge Ponsor's court , the other judge, and noticed no guards or anyone checking for anything. So the omens were bad, plus I'll admit I did push the envelope with a 300 page lawsuit. Actually this could have been the first courtroom scene from the movie The Rainmaker. Although we tried to get there early we ended up being the last ones in the courtroom. My little entourage consisted of myself, nicely dressed, my friend and helper Jack Artale in his nice suit, and my boyfriend Mike, hauling wheeled suitcases IN CASE the judge wanted to see any documents. Jack and I were shown to the plaintiff's table on the right by the court clerk. Mike gave me a kiss for luck and sat in the gallery behind me. Meanwhile milling around the left table and the left side of the court pews were about 18 of them. I figured they were mostly lawyers and their assistants. Some of them came over and introduced themselves and put out their hands to shake. I couldn't take it. Each time I shook their hands I felt so dirty I would wipe my hand on my skirt. Finally I just stopped returning my hand. I'm not going to pretend to show respect for people who don't deserve any. So here we are, when the judge comes in, looking much as you might imagine for a man in his seventies in his position. We stand, of course, until he takes his seat at that HUGE desk 30 or so feet away where he's looming about 8 feet above us with a huge picture of himself on the wall behind him. First he said he was not going to disqualify UNUM's attorney Pat Peard. Then he said something like "I've already made up my mind. But I'll let each of you say something about why I shouldn't dismiss this case under Fed. Rule Civ. P. 8(e)" ["Pleading to be Concise and Direct; Consistency"] So each of them got up in turn and repeated a 60 second recap of their other arguments. Pat Peard made sure to mention that my complaint was replete with Bible verses and fairy tales [Actually there was one short Bible quote in memory of Steve Peteet and a quote from Alice in Wonderland that was part of the testimony of one of William Shernoff's most famous insurance cases.] However I was starting to feel like Alice standing on the chess board in front of the Queen of Hearts as she was about to yell "Off with their heads." [By the way, Alice in Wonderland is going to be on TV tonight (Sunday)]. I was sitting at my table trembling and taking an extra half a tranquilizer. Then the judge asked me if I had anything to say. Mike said when I stood up I looked like a deer caught in the headlights. I stood up and told him I had prepared a speech. He said he didn't want to hear it unless it dealt with Rule 8. I'm not sure what I was thinking or exactly what was said but something to this effect. I quoted from John Wayne (more to give myself courage than anything else) "Courage is being scared to death, and saddling up anyway." Then I told the judge I thought the purpose of the legal system was to examine complaints on their merits and not to dismiss them for legal technicalities. He interrupted me and said "Rules and Procedures." Then I pointed out a case I had found where an amended pleading that was involuntary and ordered by the court was found by an Appeals court to not render the original issues moot because it was involuntary and therefore the plaintiff was justly deprived of the chance to be heard by trial on the pleading at issue in the original complaint (of course they had to go to an appeals court to get that ruling). It's called a "Hobson's Choice" based on the old horse-selling strategy "the horse near the door or no horse at all." The case is Home Health Inc. v Prudential Insurance Company, No 95-3974, 8th cir, Missouri, 1996. As you will see this judge has given me a Hobson's Choice. I reminded him that I modeled my complaint on a 211 page racketeering case filed by the government against a corrupt union and pointed to the notebook and read the table of contents of that lawsuit (similar to mine). That was about all I could get out before I had to sit down. He told me he was dismissing the case based on it's length and verbosity. He said I could have thrity days to submit an amended complaint. Then he offered me "grandfatherly advice" [he used those words]. He told me to resubmit my ERISA complaint within thirty days and that I should hire an attorney. That's it short and sweet. I'll reprint the Memorandum and Order he wrote in the next post. Anyway after this we went to lunch, Jack went home and Mike and I went to see the movie "A Civil Action." I just need to keep reminding myself that even experienced and confident trial lawyers with millions of dollars can't do anything with the present system. I went to bed at 8:00 pm and slept till 8:00 am. Yesterday I had a good cry, while watching the movie "Julia" which happened to be on TV (it's playright Lillian Hellman's memoirs of her friend Julia, who died trying to help and warn people about the Nazi regime - Good flick - Jane Fonda and Vanessa Redgrave) and later attended my nephew's first birthday party. My relatives now know that at any given gathering I will disappear for about an hour and a half for a nap. Well, I guess all, in all, he went "by the book" and struck the complaint based on it's length. He denied all the other Motions to Dismiss as "moot." and didn't mention at all my Order to Show Cause. Hopefully that means we can resubmit them later or on appeal. In all I got the very least I could expect and for that I am grateful. THE GOOD NEWS - THE COOLLIST IS WORKING AGAIN for those of you who like to follow this soap opera. If you don't wish to be on the list, please send me a note to It may take a day or two but I will remove your name. Also let me know if you are listed twice. ------------------------------------------------------------------------ From email@example.com Wed Feb 24 02:17:43 1999 Date: Mon, 22 Feb 1999 08:19:19 -0500 From: judy-doc List Owner To: firstname.lastname@example.org Subject: Correction and addition to previous message
Also if anyone has filed a straight ERISA case with the courts and could send me a copy of your original complaint. I figure I'm going to have to go through the motions with this judge and file the ERISA complaint for Breach of Fiduciary Duties, Conflict of Interest and the usual ERISA complaints. We pretty much figure we're going to be filing an appeal.
Meanwhile as I said, even if I get nothing, I will keep you posted to the best of my abilities about what is going on. Maybe someone else can use the information that I've gathered with better results. (That is my greatest wish.)
Also, several of you attorneys have been very nice and supportive of my efforts recently. As you know I had bad experiences with attorneys in the past but I don't hate all attorneys. I'm just very wary at this point. I wish to express my appreciation to those of you who have shared any hints, information, expertise, information about ERISA, and even just wishing me good luck.
I know you are limited in the amount of exposure you can solicit whereas I am not. Trying to fight what the insurance companies are doing is a group effort. I know some of you are very dedicated, especially those who are still helping ERISA victims. It is very frustrating. I realize that you have to make a living and that you have more than one client plus your own personal and family obligations. I do listen to you. You may have noticed that I stopped sending around lawyer jokes a while back because one of you helped me realize that it diminishes the efforts of the dedicated attorneys and just adds fuel to the fires of the promoters of tort reform and other impediments to justice. But I still feel the efforts of loudmouths like myself are desperately needed to move this thing to a new level of awareness among victims, attorneys, the media and the public.
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Created: February 24, 1999
Last Updated: May 28, 2000