(note: this is a reimagining of a hideous courtroom encounter with an enraged young jurist who senselessly flogged a tired guardian with the unreasoning letter of the law.  No similarity to the actions of the angry hearing officer, if such a person even existed, is intended, nor should any be inferred.  Elpidio Ortega and Dave Levin, although arguably based on real persons, are also arguably not).

You don’t really understand how relentless the law is until you stand next to it for a long enough time.  Years ag0, as my dying mother was impatiently waiting for me to finish in court and get her for lunch, I had a conversation with a judge, on the record, that went like this:

Judge:  So, counselor, you’re telling you have  never even made an attempt to speak to your ward and have no intelligent action plan for the octogenarian, Mr. Ortega, a non-English speaking client of Adult Protective Services.

Me: (pause) … that’s basically what it boils down to, Judge.

The Judge asks a series of probing questions, my nods, head shakes and other body language and gestures are captured only as silence on the record, as is my detailed explanation.   Then the judge says.

So, basically, counselor, again, what you’re saying is you have never even made an attempt to speak to your ward and have no real plan of how to protect your ward, an 80 year-old man who is facing eviction.

Me:  … outside of what I have already said, Judge, that is what I’m saying.  There is only one plan now possible for Mr. Ortega.

Listen to the voice recording again, “outside of what I have already said” is a non sequitar when all I’ve said is that it boils down to me having no idea how to proceed in this guardianship matter.  

My adversary in the Housing Court that morning, Dave Levin, remembers well what I’d said, the steps I was taking, that he had already agreed to my excellent terms.  None of that is on the record.  The cunning and ambitious young judge made sure to make a clean record.

“A clean record comes in very handy when anyone questions your ethics.  If you can produce a transcript where everything that can be used against you has disappeared, you’re golden,” said his mentor Sheldon Silver.  This young judge was one of Shelly’s golden boys, had skipped over several more qualified candidates to become a Housing Court judge.  He dexterously rode the switch to edit our colloquy on the fly, delete the rest of what I’d said in the six unrecorded minutes.

But they have a clock in the courtroom, right on the bench, you will protest, surely when the judge and you speak on the record the transcript has a running time stamp that would show deletions.   

Oh, of course, absolutely — in theory.  But theory, we find, gets the snot whipped out of it by practice, almost every time.

In case a judge needs a break to make a phone call or look up a point of law on the computer, or use the bathroom, there is a switch that turns a tiny red light off and on and signals when the device is recording, when the transcript is being made.  The judge turns the recorder off between cases too, otherwise the log would be one running mess of courtroom sounds.  

Like so many things where the law is involved, keeping the system honest is on you.  If you speak without making sure that light is on, you learn to your horror too late, your remarks will leave no judicially cognizable trace.  

Once you know about the red light you can check it, point to it any time it is shut off, make a record of the light being off, correction to the record.  But, if you don’t know about the little red light, and the ease with which a concealed button can be pressed and unpressed, you are fresh meat for thirsty blood drinkers.  

“Off the record, please, your Honor,” means the tiny red light blinks off, the clock moves along, and all conversation is off the record, unless the judge decides something needs to be put on the record.  

“When we were off the record counselor for the respondent informed the Court that his client has not been seen in three weeks, cannot presently be located.   He reminds us that his client has evaded three psychiatric evaluations and a Heavy Duty Cleaning and that the last time he was in Court he spoke of having booked a reservation for a coach seat on an interstellar airline.  Respondent confirmed his flight arrangements by consulting a large, hardcover note book, and reading a long confirmation code from a blank page, aloud to the Court.” 

Outside of that kind of information germane to the case, there is almost never a reason to put something said off the record on to the record.  Everybody knows the drill.  On the other hand, an argumentative, angry judge, might prefer not to have an argument that makes him look like a cranky crybaby asshole preserved for all time. 

“Well, your Honor, I’ve already been waiting over an hour for you to look at and sign the three line stip [a stip is an agreement, stipulated to by two parties – ed.] Mr. Levin and I submitted to your Clerk.  You agree that the terms are reasonable and I have every reason to hope another Order to Show Cause will not be necessary.  In the event that the agency unaccountably does not do what it has already promised to expedite, I have almost a month before I have to make a motion.   Mr. Levin and I are in agreement about its terms and he has been generous in this negotiation.”  

Judge: this is not a bad stip, I agree, but I have a question for you, counselor, as the Guardian ad Litem.   As you know I am required to allocute this stipulation, even though your client is not in court, even though you and Mr. Levin are both attorneys.  But I have a few questions for you, and as you can see, I have not been sitting idly by as you waited for me to sign your stip, which I could not have done anyway, until I’d allocuted it.  

Me:  You will recall, Judge, that I’ve appeared before you many times as a Guardian ad Litem.  We have seen more difficult cases than this one, but the system doesn’t really have a good fix for this.  Tenant owes over $9,000 and has zero income so there is no way to get him any kind of grant.  He has to move.  He has adult children, also living with him, also with no income.  They will all have to find places to live.  The City does not have such places, outside of homeless shelters.  The best I can do is have APS get an Article 81 guardian appointed, that will stay this proceeding for up to a year, during which time they will find housing for him, hopefully.  At least then he will have a proper guardian for the person, as opposed to a Housing Court GAL.  Not many arrows in my quiver, judge.

Judge:  Did you meet with your client?  Is this what he wishes?  

Me:  Judge, the man is eighty, with no income and $9,000 behind in his rent, growing by $800 a month.  He doesn’t speak English and my Spanish is weak.   But Judge, even if he expressed to me, through a translator, his firm wish to retire to Kuai,  I could not do anything more than I am doing for him now, everything within my legal means to get him an additional six to twelve months in a rented home he can’t pay for.  It’s an imperfect system, I grant you, and we both know just how imperfect it is– and Mr. Levin’s client will be out close to $20,000 before this is over–  but I don’t see at this point what Mr. Ortega’s wishes have to do with it, I have to protect him in his place as long as I can.  

Judge:  Why would you take this case if you could not speak Spanish?  You’re telling me you never even made an attempt to contact him?  

Me:  I was in regular contact with his case manager at APS and her supervisor, Ms. White.  They both confirmed that he does not pick up the phone or come to the door.  Spanish was not an issue to your law secretary when she called to ask me to take this case.  Is there some insight I’m missing here, Judge?  

Judge (voice recorder on): So, basically, counselor, again, what you’re saying is you have never even made an attempt to speak to your ward and have no real plan of how to protect your ward, an 80 year-old man who is facing eviction.

Me:  … outside of what I have already said, Judge, that is what I’m saying.  There is only one plan now possible to protect Mr. Ortega’s interest in not being evicted into homelessness.

“They can’t do that,” you will say at this point.

I know, and dogs and cats can’t lick their genitals either. 

“You poor fucking innocent chump,” I will say.