Photo of Stephen McConnell

We have always tried hard not to inflict our vacation replays on friends.  When we were kids, September often saw neighbors invite folks over for a dinner followed by a droning slide show of Summer hijinks at the Jersey shore or, for our more posh acquaintances, Myrtle Beach. We thought it was a bore then.  It still is, even if Facebook has replaced the Kodak carousel as the transmission route. 

Our vacation just ended and we are determined not to subject you to memories that are precious to no one save ourselves.   (E.g., “Here’s the Drug and Device Law Son flipping a coin into the Trevi Fountain.  Here he is frolicking in the fountain.  Gosh it was hot that day!  Oh, and here are the carabinieri hauling the Drug and Device Law Son away.”)

Anyway, what could a silly vacation have to do with Drug and Device Law?  Thankfully, not much.   The whole idea of vacation is vacating one’s mind of work.  We travel so as to think of other things.  Or to think of nothing.  But when you are traipsing through Greece and Italy – places whose histories are at the root of our political and legal systems – every once in a while some law-related notion negotiated its way into our noggin, past the sunscreen and limoncello.  When we were in law school, Professor Richard Epstein offered a course on Roman law, which became a running commentary on current legal concepts.   It turns out that the Romans developed a system of strict liability way before Justice Traynor took California tort law to new places.   

While in Rome we drove past the Palazzo di Giustizia, which some local wags refer to as the “Palace of Injustice.”. Apparently cases take a long time to reach resolution there.   Inasmuch as we have had cases where judges sat on dispositive motions for six months, we can relate.    We also wandered the ruined streets of Pompei, a place even more impressive than you expect it to be.  We caught ourselves laughing at the cartoons on the walls of the bawdy house – until we noticed that the Drug and Device Heirs were laughing equally hard.  Didn’t the ancients know anything about the PG rating?  Near the end of the Pompei visit, the tour guide led us into what he called the single most impressive building.  It was huge, with many columns and pedestals still standing.  It was the courthouse.  Interestingly, Pompeians called it the basilica.  Our vacation took us through many basilicas, including St. Peter’s in the Vatican.  To our mind, a basilica is a church.  According to our guide, the courthouse in Pompei was called a basilica because law was invested with religious significance.  

That got us to thinking about law, religion, and the importance of settings.  Cases begin with oaths (or affirmations). Jurors and witnesses hold up their hands and make solemn promises.   When we used to prosecute cases in Los Angeles, we’d often find ourselves strolling past LA City Hall.  It has an inscription from Cicero that almost nobody notices:  “He who violates his oath profanes the divinity of faith itself. ” We know that people violate their oaths all the time – people commit perjury, jurors arrive at compromise verdicts, etc. – and we still find it horrifying.   We don’t want to believe it’s true.  Even in a secular society, most people still see some connection between law and a sense of higher obligation.  

Sometimes witnesses ask how they should dress for court.  Maybe it’s old fashioned, but our usual advice is to dress as if they were going to church, synagogue, or temple.   We told that to a confidential informant, a guy who could not walk down a street without attracting a heroin deal.   He showed up wearing red suede boots and a purple satin shirt unbuttoned to the navel.  Yeesh – that must have been some church that our CI attended.  We want people to take court seriously, and to seem to do so.   There is a video of the entertainer Cher being deposed.  She wears sunglasses, chews gum, takes a cellphone call, and, in general, seems to treat the process as a nuisance.  Not good.  

We have not been to too many courthouses that we would call basilicas, but some are pretty majestic.   Oral argument at the United States Supreme Court is undeniably thrilling.  The process of getting in is something of an ordeal.  It reminds us of the buildup when trudging through a long line at a Disneyland ride.  The Supreme Court’s room is glorious, but given the stakes and the quality of questioning and advocacy, it would probably still be thrilling even if the cases were heard in a bowling alley. 

We have spent a lot more time in rather ordinary rooms with plain brown banisters.  Most of the courtrooms in LA don’t look like anything that Cicero would recognize.  Instead, they are simple and businesslike.  If you have ever seen the old Perry Mason television show, or the not-as-old LA Law show, or the OJ Simpson trial, you know what we mean.  The Roybal building in LA, where the federal civil rights trial relating to the beating of Rodney King took place, is impressive in a modern but antiseptic way.   The Ronald Reagan building in Santa Ana is gorgeous, but it is cold and calls to mind the vast empty and steely spaces of Brasilia.  By contrast, Ninth Circuit arguments in Pasadena take place in a historic, lovely structure.  A secretary assured us that the building is haunted.  Maybe that is because a suicide bridge is nearby.  Or maybe it is because during the Viet Nam War, it received casualties.   Or maybe the place is simply haunted by bad rulings.   

When we moved to Philadelphia, we were astonished to be doing trials in the City Hall.  Don’t get us wrong.  It is one of the most unique, commanding city halls in America (French empire revival).   For many years, no one would construct anything higher than the statue of William Penn atop City Hall.  But there is no getting around that it is an odd place for trials.   In the Summer, the courtrooms get hot.  Really hot   No surprise there.   But some of the courtrooms have old in-window air conditioners that are loud enough to drown out witness testimony.  (Say, maybe that is the way to deal with Dr. Parisian).  So judges make decisions about when to turn the a-c on and off.  In some courtrooms, you can hear the rumble of subways passing underneath.  Many of the courtrooms are jaw-droppingly beautiful.  But the building is quirky, and courtrooms are wedged into some odd nooks and crannies.  Once before a fen-phen trial in Philly, after getting the case reassigned to a new judge, we walked into the courtroom with the plaintiff lawyer, a notorious rascal.   He had left his diet drug clients way behind in the corridor when he took one look at the tiny room and cackled, “There ain’t no way my clients are fitting into this courtroom!”. Good times.  

No defense lawyer likes being in the Edwardsville, Illinois courtroom.  Being there means that a bogus mass tort case has been filed against your client.  Pessimism reigns in our flinty, defense- hack hearts in that Palazzo di Giustizia.  But the room itself is handsome.   It is large and graceful.   When you argue to the judge, the lectern is so close to the judge that you feel like you could reach out and touch the judge.   We cannot think of another courtroom that manages to be simultaneously so daunting and intimate.  It reminds us a little of the courtroom in To Kill a Mockingbird.   That film used a set for the courtroom, but we hear it faithfully reproduced the courtroom from
Monroeville, Alabama, where Harper Lee’s dad, the real-life Atticus Finch, practiced law.  

It is not obvious to us whether, as corporate defense lawyers, we should prefer courtrooms that are plain and business-like or ornate and awe-inspiring.   We have heard some lawyers hypothesize that the side arguing that some serious wrong occurred – the prosecutor in a criminal trial, or the plaintiff in a civil trial – has an interest in heightening the seriousness of the proceedings.   Under this theory, there is a reason why that glitzy Edwardsville courtroom should scare us, besides the drive-through class certifications.  

It is not as if there is any data to shed light on the issue.   Simply on a personal level, we enjoy being in a beautiful courtroom.   The courtroom near our house out in Chester County is physically splendid, but what most halts us in our tracks is the list of presiding judges that adorns the door frame of the main courtroom.   The judges date back to the 1700’s.  Maybe that does not match the glory that was Greece or the grandeur that was Rome, but it makes us want to up our game. Ultimately, it is not the interior decoration of a courtroom that instills respect for the law; it is the doings of its inhabitants.