From Wed Feb 24 02:17:06 1999
   Date: Mon, 22 Feb 1999 07:59:59 -0500
   From: judy-doc List Owner 
   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
   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;

   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
   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 Wed Feb 24 02:17:43 1999
   Date: Mon, 22 Feb 1999 08:19:19 -0500
   From: judy-doc List Owner 
   Subject: Correction and addition to previous message
I'm pretty whacked out today. I forgot to change the message before I sent it. Alice in Wonderland wasn't on TV last night. I think it's going to be on NEXT Sunday Feb. 28. (Anybody got a TV Guide?)

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