McLaughlin v. Venore Transportation Co., Civ. A. No. 65-24.

• Decision Date: 16 August 1965
• Docket Number: Civ. A. No. 65-24.
• Citation: 244 F. Supp. 802
• Parties: Frederick McLAUGHLIN v. VENORE TRANSPORTATION COMPANY.
• Court: U.S. District Court — District of Massachusetts

244 F. Supp. 802

Frederick McLAUGHLIN v. VENORE TRANSPORTATION COMPANY.

Civ. A. No. 65-24.

United States District Court D. Massachusetts.

August 16, 1965.

Nathan Greenberg, Boston, Mass., for plaintiff.

Hiller Zobel and Robert Hallisey, Bingham, Dana & Gould, Boston, Mass., for defendant.

WYZANSKI, Chief Judge.

August 13, 1965 Nathan Greenberg, Esq. filed what he called "Plaintiff's Motion for Transfer of Case to Another Judge." Inasmuch as the full text "has to be seen to be believed", the best course will be to set it forth as the first appendix to this opinion. A summary might lead someone to suppose that I had been infected by the butter of the book reviewing counsel for defendant or by the pepper of the complaining counsel for plaintiff.

If the motion is offered in purported compliance with 28 U.S.C. § 144, it fails, for reasons elaborated in In re Union Leader Corp., 1st Cir., 292 F.2d 381. First, there is no affidavit whatsoever by client or counsel. Second, counsel whether deliberately or not, merely alleges that the judge "could not be expected to act * * * without bias or prejudice", but fails to certify that "to the best of his knowledge, information, and belief" there is good ground to support an affidavit that the judge "has a personal bias or prejudice." Third, the motion, tested by In re Union Leader Corp., 1st Cir., 292 F.2d 381 and other authorities set forth therein, is not "sufficient" in law to meet the statutory requirement.

Perhaps, however, the motion was not intended to comply with 28 U.S.C. § 144, inasmuch as the statute was not cited, and should, therefore, be examined at large. A broader consideration may dissipate any concern that plaintiff himself or his counsel might otherwise have as to the Judge's freedom from any disqualifying aspect.

No doubt, Mr. Greenberg would prefer that his client's case should be heard by another judge. In the more than 23 years that I have sat in this Court, I have had Mr. Greenberg before me in dozens of cases. Sometimes, to my profit, he has taught me the error of my rulings. Occasionally, I have erred in his favor, Greenberg v. Panama Transport Co., D. Mass. 185 F.Supp. 320, only to be later corrected, Panama Transport Co. v. Greenberg, 1st Cir., 290 F.2d 125. See also the article critical of my opinion in that case written by the very Hiller B. Zobel involved in the present case; — "ATTORNEYS, SEAMEN, AND FEDERAL CHOICE OF LAW", Massachusetts Law Quarterly, October 1961, page 228 Not infrequently, Mr. Greenberg has been precluded by my rulings from tactics which I regarded as improper. I have never hesitated to prevent a lawyer from directly or indirectly drawing to the jury's attention inadmissible evidence, or artfully arguing to a jury that it should not hold against a client the lawyer's deliberate indulgence in breaches of canons of behavior and rules of law. When it has appeared to me that advocates have participated in the presentation of obviously false testimony, I have been quite willing to submit for the jury's ultimate consideration my own analysis of the evidence which has led me to that disagreeable conclusion. And when arguments presented to a jury have included points not supported by the record, or otherwise not relevant, or designed to create unwarranted prejudice, I have not sat in silence.

My practice in exercising that type of control Mr. Greenberg often has not welcomed. However, while he has occasionally remonstrated informally, he has in recent cases utilized not direct objections, but indirect attacks, of which the present motion seems on its face to be an example.

It would, of course, be fortunate if in each case all counsel and all parties were psychologically as well as legally content with the Judge assigned to try the litigation. But if one or more is discontent, the Judge is not on that ground alone entitled to disqualify himself. Unless disqualified, a Judge has a moral duty to sit even if it be unpleasant for him or others. A Judge ought not to shift his work to his brethren. He ought to remember that every party has a right to insist on his obedience to the Court's rules; and that his unwarranted self-disqualification represents a breach of the rules which may be regarded as injurious to those who are content with the assignment of the case to him. Justice involves not only acting justly, but also appearing to act justly. It is part of appearing to do justly to adhere to the rules even when adherence excites objection by a person with an unwarranted sense of grievance.

The particular book review referred to in the motion was not solicited by the Judge, nor even known in any way to him before publication. The motion does not indicate the contrary. But it asserts that the author wrote "intending that the said book review would come to the attention of" the judge "and be viewed by him with favor." Even were this suggestion true (and it is a suggestion resting solely on plaintiff's unsworn belief, unsupported by any concrete detail), it would be of no legal or ethical significance.

It hardly lies in my mouth to assert that a reviewer might both in good faith and on the basis of a just appraisal of the book reach the very conclusions which were stated in the review. Others can weigh that element by comparing all other reviews which have so far appeared, of which a list appears in a second appendix to this opinion. Most of these were written by persons who have never appeared and are not likely ever to appear in the District Court for the District of Massachusetts. Moreover, some of these reviews, e. g. the one by Mr. Justice Whittemore of The Supreme Judicial Court of Massachusetts, might be thought at least as deserving as defendant's counsel's review of the stricture that "said book review in fact is directed more toward praise of the author than comments upon the book."

I make no hypocritical pretence that I do not like to read a favorable review. I am frankly pleased when someone says I write better than would be expected of a lawyer. It gives me comfort to find that, at least to some readers, I seem able to have gained from, and yet not been seduced by, my Harvard teachers, or those under whom I served as an apprentice, or other giants of our calling. Nor am I sorry to experience the satisfactions which come to one whose ideas are noticed and even accepted as persuasive. Little men, like great ones, enjoy the responses they elicit from expression of their ideals. Modesty is a noble virtue; but humbug is not humility.

The most disarmingly honest statement I could make is that I ought to be grateful to Mr. Greenberg for his having advertised my book WHEREAS: A JUDGE'S PREMISES, even if he has gone about it in a most peculiar way. And, quixotically, perhaps I should encourage him to seek by mandamus the judgment of appellate tribunals thus achieving further publicity and even possibly larger royalty payments.

I have no doubt that the only one who has any reasonable ground for fearing adverse prejudice is Mr. Zobel, the book-reviewer who is defendant's lawyer. He may be alarmed lest, in an excess of caution, I should lean over backward against the interest of his clients. But my willingness to place this hidden risk in a public setting may serve as an indication of my capacity to digest praise no less than blame. Neither sugar nor salt will easily spoil my taste for the essence of justice.

One final word should be addressed over the heads of counsel to their clients. I have prepared this opinion as an explanation of my denial of the motion, not out of vanity, or a desire to show how a legal matador can pierce a charging bull. A judge who makes sport out of the serious business of parties is not true to the standards of his calling. Gravitas, not wit, is his most becoming mental attitude. What I seek to assure the litigants is that I regard the motion and counsel who prepared it as merely misguided, not insulting or insincere. Neither side will suffer from the motion's want of subtlety or substance.

Motion denied.

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

C.A. NO. 65-24-W

FREDERICK McLAUGHLIN

vs.

VENORE TRANSPORTATION COMPANY

PLAINTIFF'S MOTION FOR TRANSFER OF CASE TO ANOTHER JUDGE

The plaintiff moves that the Honorable Charles E. Wyzanski, Jr., disqualify himself from further participation in the above-entitled action and order that the case be transferred to another judge of this Honorable Court for all further proceedings.

As grounds for this motion, the plaintiff says:

1. Under the practice prevailing in the United States District Court for the District of Massachusetts, each case is assigned by lot to a single judge for all proceedings in the case, including pre-trial proceedings and trial.

2. In accordance with said practice, this case was assigned to the Honorable Charles E. Wyzanski, Jr., when it was commenced in this Honorable Court.

3. The defendant is represented by the firm of Bingham, Dana & Gould, with which firm one Hiller B. Zobel, Esq. is associated. Said Hiller B. Zobel, Esq. has filed an appearance for the defendant herein.

4. In early 1965 a Boston publishing company published a book entitled "Whereas: A Judge's Premises", which book consists of collected writings of said Honorable Charles E. Wyzanski, Jr.

5. In the July 1965 issue of Boston, a magazine published by the Greater Boston Chamber of Commerce and widely distributed in and around Boston, Massachusetts, there appeared at pages 43-45 a review of said book, said book review purporting to be written by Hiller B. Zobel, "a Boston admiralty lawyer". So far as the plaintiff can determine, there is only one Hiller B. Zobel.

6. A true copy of said pages 43-45 including said book review is annexed hereto and marked "A".

7. The plaintiff believes that said book review was in fact written by said Hiller B. Zobel and that said Zobel, deliberately and consciously wrote said book review with...