THE TRIALS OF A COMMON PLEAS JUDGE

THE HONORABLE MARK I. BERNSTEIN

PHILADELPHIA, PENNSYLVANIA 2017

CHAPTER TEN

SETTLED IN PRINCIPLE

AT ONE OF these cattle calls I learned an odd term

occasionally used to engender a favorable response from
the judge. The term was settled in principle. When I
first saw counsel approach the bar of the court and
make the announcement that their case was settled in
principle, I could not understand what the term could
mean since it was not one with which I was familiar. I
came to learn that it was an extremely flexible and
variable term without any fixed definition. It could
mean anything from the attorneys are merely arguing
over punctuation in a Settlement Agreement to the
attorneys agreed to the proper monetary range of what
a settlement should look like without ever having
gotten approval from their clients. Sometimes it even
meant nothing more than that everyone agreed that the
case should settle rather than go to trial. There seemed

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to be no consequences if a case that was settled in

principle never actually settled. The case was simply
restored to the trial list.
Nonetheless and perhaps accordingly, attorneys
in the know would troop up to the bar of the court and
amid broad smiles announce to the courtroom that the
judge would be pleased to know that their case had
settled in principle. Without fail this brought a smile
to Judge Browns face. The use of the term would
immediately erase any imbalance or displeasure from
previous courtroom activity and would change his
demeanor to a happy mien. Never once did I hear the
judge ask what in principle meant. Instead, as if by
habit, he would thank the lawyers most heartily for
their efforts, announce to the courtroom that this is the
type of work that the court expects, and proclaim that
with hard work back in your office this is what can be
accomplished. The scene inevitably ended as the judge
excused the attorneys with heartfelt thanks.
Apparently, settled in principal did not occasion
any docket activity because I had regular occasion to see
the same attorneys, having so announced, return three
months later and announce that they were diligently
working on the case without any reference whatsoever
to the aforementioned settlement in principle and
without the judge recalling that he had commended the
same lawyers for their diligence some months before.
Judge Goodwill, about whom I will write at length
later, thought the concept ridiculous. He said that
being settled in principle is like being slightly
pregnantit doesnt exist.

THE TRIALS OF A COMMON PLEAS JUDGE

Another interesting courtroom phenomena

among the cattle waiting for their cases to be called was
the constant patter of running feet and jabbering
mouths as messengers ran into the courtroom,
delivered papers, brought clients or other attorneys
into the courtroom for corner conferences, and ran out
of the courtroom again and back to the office. The
telephone was not yet in common use and messenger
service was the only way to conduct any business while
waiting for court release. Sometimes these messengers
carried messages that required immediate attention, in
which case an attorney, from across the courtroom,
would interrupt the heretofore-described nonproceedings of calling case after case to the bar of the
court by respectfully asking to approach the bench on a
personal matter. The judge would interrupt the nonproceedings to hear the individuals personal situation
of being summoned to another courtroom, being
summoned to see a judge, needing to attend to an
arraignment because a client had just been arrested, or
just being needed at the office because a client had
unexpectedly appeared. The judge would frequently
allow this attorney to attend to other business with only
an admonishment for him to return as soon as he was
able. This was known as setting the matter aside.
When the excused attorney failed to return that day the
set aside could last months, or at least until the next
weeks cattle call.
As the day progressed the number of lawyers in
the room dwindled. I was astonished to note that
however many cases were in the courtroom not one set

THE TRIALS OF A COMMON PLEAS JUDGE

of lawyers had ever indicated a readiness to go to trial. I

inquired among some friendly court officers as to the
reason for this and was advised that since Judge Brown
did not believe in trials, the bar knew that announcing a
readiness to go to trial or persisting in a request to be
assigned for trial would result only in ill humor and a
disposition worse than anything I could imagine.
When I gingerly raised this issue with the judge in
private he offered a lengthy jurisprudential discourse
detailing the cost to the citizens of a trial, the emotional
distress and disruption to the litigants, and the fact
that because the county courts were in the business of
dispute resolution an actual trial was a failure of the
system.
Coming from a court system in the next century
where 350 trials take place every year, where civil cases
come to trial within 2 years after initiation, and where
my courtroom was operated by the judicial tipstaff on
my personal staff, I found this lecture hard to
understand. Nonetheless, at no time did I doubt the
sincerity of Judge Browns cherished beliefs.
Still confused by the concept of trial as failure, I
raised the issue with friendly attorneys. They uniformly
agreed that asking to go to trial before Judge Brown
was the worst faux pas that a young lawyer could
commit. They also explained that on those rare
occasions when they had seen it happen, they saw the
judge fly into a rage about young attorneys who think
they know everything and who are going to change a
system that has worked well for over a hundred years.
The judge would berate them about why they thought

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12 schnooks from the streets were more capable of

resolving the case than one judge or better yet two
lawyers, who could think rationally about the issues. If
the attorneys stood their ground after Judge Brown had
embarrassed them, he would assign the case to Judge
Feldspar. Upon that assignment the entire room would
gasp because everyone who had been at the bar longer
than six months understood the dire fate that awaited
the rookies.
WATCH FOR CHAPTER ELEVEN
FEBRUARY 1, 2017