Friday, December 23, 2011

Have A Raleigh Jolly Christmas

As the 2012 Judicial Elections begin in earnest, we at Outlier Magazine are taking a look at these judges we have given so much power to rule over our lives. Case in point. Business Court Chief Judge John R. Jolly, Jr. (kinda rolls right off your tongue doesn't it?). I once drove an hour and a half to appear before him for a Monday morning calendar call. When I got there, he proclaimed my case wouldn't be held that day, but later "sometime" during the week. Maybe Wednesday or Thursday. He wasn't sure. (scheduling...hey it happens).

I asked him if he could let me know the day so I could get a hotel room in town the night before or schedule the case for the afternoon of whatever day he chose so I could be sure to be there because I-40 is a bear in the morning and the inclimate, snowy weather was brutal. He simply said "No!"

Well, I arrived the morning of the hearing about 35 minutes late. As I walked into the courtroom, he pronounced loudly and with glee, "You weren't here and I dismissed your motion!" His subsequent order stated the motion was dismissed due to "failure to prosecute!" No mention of my request to be informed of the hearing date early enough to get a hotel the night before or to have a afternoon hearing out of concern for the inclimate weather. Pretty slick there Jolly!

Anyway, Not wanting to jump back on the road during rush hour traffic, I sat and watched the next case. The attorney was from the same law firm as the one I was facing (YMW) although I didn't know this one.

I was initially confused. The YMW attorney was representing a white lady (let's call her Lucy) whose child had been bitten by a dog owned by a black pro se litigant (let's call him Martin). Martin looked like he was some simple under-employed guy and I was left wondering why Lucy had paid all this cash to a high priced law firm to go after some guy that looked like he didn't really have any cash. I later found out that the guy and his brother (no, not's call him Bill) owned their home and Lucy was going after that asset.

First the YMW attorney told the judge that they had served the Complaint on Martin and Bill and although Bill had replied, Martin had not, within the time limit and therefore he was in Default. There was a little problem... They had served the Complaint on Martin and Bill (let's call it "Peterson"), when in fact Martin and Bill were actually named (let's call them Philips).

The attorney and Judge Jolly knew that failure to serve someone under their correct name should have voided the service and the Motion for Default should have been dismissed, so he asked Jolly to rule the improper service was inconsequential. Surprise civil libertarians...Jolly did just that!

Now that Martin could not object to the improper service, they moved to have Jolly rule that the failure to timely respond was fatally consequential. Jolly did and granted the Default. No, no gets better!

Martin was now in Default. He was going to have to give up some cash. The only question now was "How Much?" So they had a hearing. Lucy was sworn in and testified that Martin and Bill's dog jumped up, bit their little girl's face and she needed medical care and stitches. There wasn't a dry eye in the house.

Then Lucy testified that her husband went over to Martin and Bill's house and said that Martin threatened to whip up on him and called him names yada, yada, yada. She also testified that the child had long-range school issues, had made statements of fear of dogs and continuing medical issues "according to the doctor..."

As I am sitting there, I am wondering when Judge John R. Jolly, Jr. was going to stop the witness from testifying for the hospital, the child and the husband, but the pro se litigant had no clue this was improper and Jolly did nothing to protect his right to cross-exam the non-present testifying witnesses.

We later learned that the child had left Lucy's house, walked across the street, climbed over the fence and was bitten by the dog IN THE ENCLOSED YARD of Martin and Bill. It is doubtful any jury would have given Lucy a dime under these circumstances. Nevertheless, Jolly, not a jury was the trier of fact and Lucy won; and although Bill had responded to the Complaint, it didn't matter because Martin lost the home as a Default judgment.

Now did Jolly do anything illegal? Probably not. But was justice applied fairly in this case? Ask yourself had the parties been different, would the results have been the same? A black child climbs a locked fence of a white couple, the complaint incorrectly misnames the Defendant, the black litigant testifies for her husband, child and the hospital; and in the end the black couple ends up with the white couple's Wake County, North Carolina...Judge John R. Jolly presiding.... Ya think?

The courts are very crowded in Wake County. I propose to streamline the system: Take all of the cases where a litigant is black or pro se or ESPECIALLY BOTH. Have the judge's clerk send them a note that simply says "YOU LOSE! Pay the man!" In the alternative, make the parties pay $20 to file any motion. That way in civil litigation cases that typically end after dozens of motion, the pro se litigant can be outspent and lose that way. What? Oh I forgot. The $20 rule went into effect October 1, 2011.

North Carolina Business Court Chief Judge John R. Jolly, Jr. With Liberty and Justice for Ya'll.....

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