The reverse benchslap - judge's pajama party called off!

Superior Court judge reaches boiling point over lawyers' antics

By Sean O'Sullivan
September 2, 2011

WILMINGTON -- A Delaware judge apparently had enough of what she saw as attorneys' childish bickering in a civil case this week and called them all in to serve detention on Labor Day weekend, advising them to bring their "teddy bears and jammies."

Superior Court Judge Peggy L. Ableman, in an unusually blunt September 1 letter, told attorneys involved in a pair of asbestos personal-injury cases to report to the New Castle County Courthouse on Sunday at 10 a.m. for "a 'special' emergency refresher course in first year ethics and civility ... this gathering is mandatory."

"Attendees are encouraged to bring sleeping bags, toothbrushes, teddy bears and jammies, as the agenda will be exhaustive," she wrote, adding in a footnote, "these terms reflect the court's impression of the childish level to which this litigation has stooped."

The letter stated that special arrangements had been made for the approximately six attorneys involved to gain access to the courthouse through a back door.

Ableman wrote that counsel would not earn any credits "extra or otherwise" for attending, but if all sides conferred before Sunday and were able to reach a settlement "thereby diminishing the need for this special education, the court may reconsider scheduling this seminar to a later, more convenient date, or hold it on an 'as needed' basis."

At least one of the defendants promptly settled with the plaintiffs, according to attorneys.

Superior Court President Judge James T. Vaughn Jr. apparently did not approve of Ableman's unique approach to conflict resolution.

On Friday, Vaughn entered an order canceling the Sunday session, postponed the trial set for later this month and indicated he was taking over the case.

Associate Professor Chris Robinette, who teaches professional responsibility at Widener University School of Law said the letter was, "Highly unusual but not completely unprecedented."

"I don't know what has gone on [in this case] but the allegations in the letter are pretty stark and include misrepresentation in pleadings," said Robinette, adding that a federal judge in Texas recently wrote a similar letter inviting attorneys to a "kindergarten party."

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The only thing that gave Robinette pause was the apparent promise to call off the Sunday session if all sides settled. "That sort of pressure is a little too much," he said, adding all the rest was "a matter of judicial style."

David deBruin, the attorney representing the plaintiffs in the case, said he did not want to get into specifics, but said he did not see the level of acrimony that Ableman apparently saw.

"We had nothing but professionalism and civility," he said, adding the order for the Sunday session "was unexpected and unfortunate."

Loreto P. Rufo, coordinating counsel for defendants in the case, had a slightly different take. "Being ordered in on the Sunday of Labor Day weekend came as a surprise, but the fact that the court was upset did not come as a surprise at all," he said.

"Sometimes colorful behavior leads to a colorful response, and this is what we have got here," he said.

Rufo praised Ableman's dedication to "a difficult and complicated case," which had dozens of defendants when it was first filed in 2010. This week, when the letter was sent, the number of defendants had been whittled to two.

"She works hard and doesn't like it when lawyers before her don't," he said. The letter also indicated Ableman's frustration was with out-of-state attorneys, noting, "counsel's inability to be civil and reasonable with one another does not typically occur in other civil cases involving only Delaware counsel."

Ableman declined to comment Friday. Vaughn could not be reached.

The lawsuits at issue were filed in 2010 by the estate of Robert Morgan and Carl Anderson. Attorneys claimed both men were exposed to asbestos during their employment and suffered medical complications as a result.