Metropolitan News-Enterprise

Thursday, December 20, 2001

Page 9

Perspectives (Column)

Judge David M. Schacter Does It His Way—the Wrong Way

By ROGER M. GRACE

Television producer Brad Waisbren is among those who have been “Schacterized.” That is, he’s been a victim of the whims of David M. Schacter, a notoriously cantankerous and erratic member of the Los Angeles Superior Court, sitting in Burbank.

Waisbren’s experience in Schacter’s courtroom was alluded to in an unpublished Court of Appeal opinion, filed Tuesday by this district’s Div. One. The opinion directed that Judge Charles Stoll honor Waisbren’s request for a jury trial in his action against Jon Douglas Company—an action that was filed July 27, 1995. An earlier waiver of jury trial didn’t count, the panel said. That waiver came prior to a trial before Schacter which ended in a Court of Appeal-ordered mistrial.

Div. One said in its per curiam opinion (joined in by Presiding Justice Vaino Spencer and Justices Robert Mallano and Reuben Ortega):

Bradley Waisbren sued Jon Douglas Company. After he posted jury fees prior to the original trial date, he waived jury trial in the belief that a court trial would be faster than a jury trial. The court trial commenced on July 10, 2000, and was conducted over one year in 23 sessions of no more than a few hours each, with several weeks separating most of the days on which testimony was heard. At the time, Waisbren was being represented by counsel, who moved for a mistrial. When the motion was denied, Waisbren filed a writ petition for review of that order.

We notified the parties of our intention to grant a peremptory writ in the first instance. We then issued an opinion and order granting relief. In our discussion, we remarked, “Waisbren is entitled to a mistrial and to a new court trial in a courtroom with a judge available to conduct trial on a regular basis until trial is completed.” Our disposition states: “[L]et a peremptory writ issue, commanding respondent superior court to vacate and set aside its order denying petitioner’s motion for mistrial, and to issue a new and different order granting same, in Los Angeles Superior Court case No. EC018109, entitled Bradley Waisbren v. Jon Douglas Company et al., and to transfer this matter to a judge other than the Honorable David M. Schacter, to set and conduct trial on a regular basis until the matter is completed.”

On June 25, 2001, the matter was transferred to Judge Charles W. Stoll. At the July 30 status conference, Waisbren (still being represented by counsel) stated that he wanted a jury trial. Judge Stoll did not have the file and continued the matter so that he could review the file. By September 28, Waisbren was representing himself. He requested that the matter proceed via jury trial, but Judge Stoll denied the request. This petition followed.

Waisbren is entitled to a jury trial. Waisbren’s previous waiver of a jury trial was extinguished upon our order that a mistrial be granted. It is well established that a remand for a new trial revives a party’s right to have a jury trial….

Trying a case a few hours at a time, at sessions spread weeks apart? That seems incredible.

Yet, stretching a trial out in this fashion is apparently not an unusual occurrence in Schacter’s courtroom.

Div. One’s June 6 unpublished opinion terminating proceedings before Schacter came just four days shy of the one-year anniversary of the start of the trial. It contains these recitals:

In January 2001, Waisbren’s counsel, Enid Ballantyne, complained about the scheduling. Respondent court pointed out that it had made many dates available to Waisbren, but that Ballantyne had turned them down. Respondent court went through the minute orders, reading them into the record to show that Ballantyne’s office had been contacted but refused to appear as to a number of dates in October, November, and December 2000 and on January 16, 2001. Ballantyne responded that she had a maximum of two days’ notice; as a busy criminal attorney, she could not comply at short notice….

Waisbren moved for a mistrial. On May 18, 2001, respondent court conducted a hearing on the mistral motion. At the hearing, Ballantyne stated that she “came into this case as plaintiff’s attorney late in the game. The case was set for a jury trial. Mr. Waisbren posted jury fees. We were right on the five-year limit on the case, and I recommended to him that, to speed resolution of this case, that we waive jury and opt for court trial in the belief that that would lead to a speedy resolution of the issues raised in the complaint. Only after I had done that was I informed that it is the court’s policy to fragment court trials into hour sessions starting at 3:00 p.m., scattered over months. I have found this to be a nightmare, keeping track of what was said months before by a witness even with the help of the transcripts from the court reporter, keeping witnesses in line.”

Ballantyne pointed out that the inconsistent scheduling has led to problems with witnesses. She stated that she had witness Ingrid Goulding under subpoena and has already paid her witness fee. When informed of the date and time of the last hearing, Ballantyne telephone Goulding and left a message on her answering machine. Goulding did not return the call, and Ballantyne scheduled another witness.

Ballantyne further stated: “I am a criminal defense lawyer. In the time period in the last 10 months since this case was set, I have completed five criminal jury trials from beginning to end. I have completed two civil court trials.”

After counsel for defendants stated that it was more convenient to conduct trial in this manner, Ballantyne responded that she was concerned “about the court’s ability to recall not just what was said, but how it was said, the demeanor of the witness, things like that, stretched over one-hour sessions over years because that’s what this is going to take.” She continued on by stating that conducting the trial in this manner was expensive for Waisbren, because he had to pay for transcripts and to pay her “to track down witnesses who were subpoenaed 14 months ago.”

Respondent court denied Waisbren’s motion for mistrial.

In issuing a writ of mandate, Div. One pointed to the requirement of Government Code §68607 that judges act “to eliminate delay in the progress and ultimate resolution of litigation.” The panel found it “clear” that Schacter, “[b]y conducting this trial in dribs and drabs over nearly one year, with no completion in sight,” had failed to fulfill the mandate of that code section.

The two opinions emanating from Div. One reveal arrogance and arbitrariness on the part of Schacter—qualities oft attributed to him by grumbling lawyers.

Waisbren is not a lawyer, but he is grumbling. He notes that his lawyer had 50 witnesses lined up, and muses that at the rate the trial was going in Schacter’s courtroom—only three or four witnesses had been called—it would have taken several more years to complete.

Schacter “uses the slow-trial technique as a sanction against litigants,” the producer charges.

When his lawyer, Enid Ballantyne, protested the delay, Waisbren recounts, Schacter responded that “that’s the way he does his trials.”

He maintains that the judge was “very sarcastic, flippant, rude.” Waisbren notes that his lawyer has Parkinson’s disease and says that Schacter on occasion “yelled at her,” exacerbating her shaking.

Waisbren faxed me some notes he had made during court sessions before Schacter. Here’s one notation:

“I don’t like the way he treats my attorney. He laughs at her when she drops things (and did not admonish the defendants when they laughed) and smirks at the defendant’s attorneys when she is having trouble speaking….”

The litigant reports that he has talked to numerous attorneys about Schacter and that “everyone has a horror story about David Schacter’s courtroom.”

I checked yesterday with some attorneys, myself. One well-known lawyer, who heads a law firm, labels Schacter “awful” as a judge. He comments: “He is retaliatory, doesn’t know or care about the law, etc. We will not agree to have matters heard before him and will challenge him at all opportunities.”

The lawyer recalls being seated in the audience in Schacter’s courtroom some years back when the judge “ridiculed a person who had some surgical problems” with a hand. Mocking the person, Schacter “began eliminating the fingers that were held up as not being usable and thereafter left an inappropriate appendage showing and laughed and laughed and laughed,” the lawyer recounts. He adds: “The people in the courtroom were shocked. Maturity was not his personality strength.”

Another attorney in his firm asserts that Schacter routinely denies ex parties without consideration, “punishes people who affidavit him,” is “very inflexible and not very bright,” and “is not efficient in the handling of his calendar.”

A leading practitioner tells me that Schacter “has no backbone and will go with whomever he feels will cause him the least political flack.”

Yet another prominent lawyer remarks that Schacter is “a disaster” in law and motion, though he credited him with being “a decent trial judge.” He called the jurist “very erratic.” Providing a clue as to why Schacter is overbearing on the bench, the lawyer says of Schacter’s wife: “She presides at home.”

A person who has held key posts in bar organizations says that Schacter has “a general reputation of being nasty, arbitrary, rude.” The lawyer adds: “He does it his way, and doesn’t care about anybody else.”

A former Court of Appeal research attorney says this:

“The writs attorneys referred to him as ‘Crazy Dave.’ I think it was the rulings that were startling, not what he said in the reporter’s transcripts. Basically, the writs attorneys’ job was to give the justices reasons to deny writ petitions. But when we saw a writ petition with Schacter’s name on it— a frequent occurrence—it was a presumptive grant.”

A person currently working at the Court of Appeal comments that Schacter “is better than he once was,” noting: “He was once a consistently reversed judge. He has learned a great deal from his mistakes.”

The jurists in Div. One who ordered a mistrial based on Schacter’s prolongation of a trial might disagree.

Jon Douglas’ attorney, Charles G. Brackins, did not return a phone call. Schacter didn’t either, but he might not have received the message. It was left on his chambers voicemail; phones in the courtroom weren’t answered. I also did not hear back from Ballantyne.

Schacter, 60, was appointed to the Superior Court by Gov. George Deukmejian on Oct. 10, 1985. He received his law degree in 1968 from University of San Fernando Valley College of Law (now University of La Verne College of Law). Schacter served as senior research attorney for Court of Appeal Justice L. Thaxton Hanson (since deceased) from 1973-75.

In my next column, I’ll discuss some published Court of Appeal opinions dealing with Schacter’s actions.