Arizona Attorney - March 2014

In 1985, I was a young and very inexperienced trial judge in Pima County when fate and the court calendar bestowed on me a four-month construction-defect jury trial. The plaintiffs were 200 homeowners, and the defendant was a national home-builder. They were both stuck with the problem that the homes had been built on the sort of shifting soils that are now well known in the desert but much less so back then. It was a case that was going to be tried, and that was the end of that.

Problem was, I knew almost nothing about what I was doing, and no one in the courthouse could ever remember having a trial lasting four months. Believe me, I know, because I asked the lions of our court about how the hell I could get enough citizens to leave their lives for four months at the princely rate of eight dollars per day. The lions—the Hannahs and Buchanans of my court—just shook their heads, allowed as to how they were glad it wasn’t their problem, and suggested I speak quickly and be prepared to make a run for it at a moment’s notice.

We knew we were going to need a honking big venire panel, and we didn’t have a courtroom big enough in Pima County Superior Court to accommodate such a large crowd. So arrangements were made with the Federal District Court to use their main courtroom. We set aside a week to pick the jury, and even with that didn’t know if we had allotted sufficient time.

Come the day of the trial, I dressed in
my finest and hoped my robe would hide
my running shoes. My bailiff, Plato
Watson, had been working for 20 years
for the Roylstons and probably that day
regretted ever having heeded my pleas to
come work for me when the twins retired
and by some fluke of the universe I got the
job. But Plato was at his very best that day,
damn near the only man I would trust with
the task ahead.

We had almost 200 people milling in the courthouse lobby when I came out, introduced myself and the lawyers, and said that we were now going to take a field trip down the street to the Federal Building, where there was a courtroom waiting that could accommodate us and we could begin the business at hand.

We then left the courthouse, Plato leading the way and me trying to stick in his shadow. All of us—jurors, court staff, lawyers, reporters—made the walk down Congress Street and into the Federal Courthouse. Traffic stopped in all directions for us, people marveling at the sight of a distinguished, graying African-American man leading the multitudes and wondering what the hell the kid in the sneakers was doing following him in a long black robe.

After everyone was seated,
for the first and only time in my
life I entered into the immensity of
a judge’s bench in a Federal
Courthouse. Everywhere I looked
was marble, and wood, and oh my
God look at all of these people! Poor,
unsuspecting people, plucked from
their everyday lives, and not a one
of them wanting to be sitting there.
Nobody had said a word to them
about what was going to happen, but
you could tell they knew they were in
for some trouble. And they also knew
that I was the guy responsible for
dishing it out.

It started out well enough. I again introduced the lawyers, the staff, and In such situations, I’m the sort of person who tends to shake their leg a lot. A lot of people do it. I tend to favor the left leg, probably because I’m left-handed. It’s a great way to dispel nervous energy, and Lord knows I had a surplus on board that morning. I had just finished telling them what the case was about and knew I needed to now get to the nitty-gritty about how long I expected them to be with us. In the back of my mind I sensed my knee bumping against the expensive wood underneath the bench, but there were acres of marble and wood between me and anyone who could see what I was doing, and, anyway, I had more pressing matters to deal with.

I was just launching into my speech about the Constitution and the importance of jury service (culled from some late-afternoon talks with my colleagues and an extremely intensive review of law’s attic

LARRY FLEISCHMAN was a Pima County Superior Court judge from 1985-1997 and has been a full-time mediator since then. He can be reached at larryfleischman@fladr.com.