I was not with Roy and Harvey at the court sessions. Finally, the transcripts arrived.
What I read was shocking—just as Harvey described.
The judge was confessing and admitting to the lawyers that she did not know judicial procedure and how to decide the law. Often, she spoke in American slang. A portion of the court transcripts shows verbatim, word for word, as follows:
“THE COURT: (Judge Marks)
I have to confess. I’m sort of shooting from the hip in trying to respond to your question about when and how do you want the Court to decide on the law, I guess. But I would encourage you to file an early motion in limine.”
It was extremely troublesome. The judge was already suggesting the filing of a Motion in Limine where the trial evidences would be sorted out. And she had not figured out the issue or would know when and how to decide the law—as she told the lawyers. Roy and Harvey were likewise very concerned at such basic role of a judge that wasn’t done.
“I mean no disrespect,” I said in desperation. “The judge may be giving us a message that someone should take over her role. She seems uncomfortable in this lawsuit. I’m terrified. It’s my personal case involving my profession.”
“Erlinda, we’ll file the motion that she wanted, and hope for the better.”
My lawyers and the opponents filed their Motions in Limine as the judge suggested. The motions were heard. My situation did not become better as we hoped. It became far worse.
Harvey described the court scene. The judge was attacking me and my legal practice in front of attorneys. And her personal attack was completely out of their topic and the issue.
Verbatim, word for word, the court transcripts show:
“THE COURT (Judge Marks):
I think one of the things would probably come out, and I’m guessing, but that she ran the office in, sort of parceled things out to people, so that the guess is so they could not steal her coffer.”
***
“Roy, please ask the judge to step aside,” I pleaded. “The opponents know how she looks down at me and my legal practice and this is a malpractice case. They’re taking advantage of that. You’re so right, it could be much worse if she sees me in court with you. I’m so uneasy with her performance.”
“Erlinda. Give her a chance… she will come around. Too early for worries… and don’t make the situation worse. Judges learn on the bench. Nobody is perfect.”
***
Again, I contacted the paralegal of Roy. “If you have urgent need for me, please call. I will make myself available through my busy schedule.”
“Hold on, Ms. Dominguez. Roy wants to say something.”
“Come immediately, Erlinda. We have to talk,” he said. He sounded so different from when he spoke of his close and affectionate affiliation with Justices Duffy and Nakayama of the Hawaii Supreme Court.
I dropped all that I was doing and travelled to my lawyers’ office. Roy and Harvey were surrounded with files, records, charts pertaining to my case. It was almost the eve of trial.
“Something happened?” I asked.
“We are dead in the water… we’re dead in the water,” Roy repeatedly mumbled. “We just came from the court of Judge Marks. Trial is upon us.”
“What are you talking about?” I asked with alarm.
“Judge Marks insists that the jurors shall interpret the international Hague treaty,” said Harvey. “Then they will decide if you violated their interpretation on how to serve civil summons to a foreign citizen in Japan.”
“That’s unconstitutional. Judges interpret laws. Treaty is a law!” I exclaimed. “Lay people have no way of knowing how to interpret and construe the law.”
“The judge fails to realize her role to interpret the law,” they said. “We submitted written briefs and orally argued. She disagrees but she’s the judge and we’re just lawyers.”
***
“Listen, Erlinda. We have to tell you all that happened. The judge said that affidavits and papers from the opponents can come in as they are,” added Harvey.
“You’re really jesting!” I exclaimed. “That does not happen in any trial. You’re both telling me bad jokes.”
“No time for jokes. We have little time left before trial begins,” they said, looking so serious and grim.
“As Roy told you, the judge’s performance might later turn out alright,” said Harvey. “We should not feel hopeless and defeated.”
“How much later? When it’s too late?”
***
Williams testified, repeating what the opposing counsel told Mr. Davis during the arbitration hearing. No changes, nothing new—the opponents’ guesses of the Hague interpretation that annoyed the arbitrator.
I kept on staring at the judge and sending her a silent message. “Why don’t you do something now and interpret the Hague law? Even the jurors are going through hell Aren’t you tired of the witness guessing the laws in Japan and in the United States? What a crying shame to American justice!”
Roy’s cross-examination was long. As though written on the jurors’ faces were, “Stop, stop…this is not what we are here for…those technicalities are making us dizzy…we want to go home!”
But Roy suddenly opened a heavy book of American jurisprudence and raised it high for all to see. It somehow excited any juror who was about to sleep. As if he was enjoying his role as the questioner in a stage show. All, at my expense.
Verbatim, word for word as it appears in a small portion of the court transcripts, is as follows:
“MR. CHANG:
Q. But my question relates to Article 15, all right? And my question was: If the Hague Convention does not require a returned receipt and Hawaii law does require a returned receipt that is signed, which of the two laws takes precedence?
(MR. WILLIAMS):
A. For the purpose of exercising jurisdiction and the enforceability of an action, you would have to look to the Hague.
Q. Because the Hague supersedes any state procedural law.
A. Not in total.”
My mind was screaming, “What lay person would understand that? You’re all wasting taxpayers’ time. You’re toying with my constitutional rights. You’re just performing drama before a large audience.”
“Look at the jurors. Some are slightly shaking their heads,” I whispered to Harvey.
He just said, “Shhh, shhh.”
***
The judge went along with the request of the opposing counsel. She ordered Roy to read the technical citation from the book of American Jurisprudence. This was supposed to help the jury interpret the Hague treaty and the attorneys to better understand each other. Shocking!
A portion of the court transcripts shows verbatim, word for word, how Roy complied with the court order:
“THE COURT (Judge Marks): Please…
Mr. CHANG: AmJur Second, Section 379 under the Process section of the AmJur.
***
In a matter of minutes, Jury Communication No. 1 was out. The jurors wanted to see the Treaty of the 1970 Hague Convention.
The judge asked the lawyers how they wished to respond. If there was disagreement, she would rule her own way—one of her many powers subject only to possible appeal.
Pages of the Hague Treaty had been sitting in the jury room. The jurors were simply directed to that exhibit. They were commanded to interpret an international treaty. Again, it provoked a helpless feeling.
The proper question on a lawyer’s Judgment Call immunity—the nationwide rule that absolves lawyers from liability for their reasonable interpretation of the law that was not interpreted by the courts—was missing. Without that rule, lawyers would fear to practice their profession.
Roy and Harvey, my lawyers, missed my fundamental defenses in the volumes of jury instructions that were filed. Our long discussions and their promises were meaningless. My late and long visits to their office were trashed. They submitted what they chose.
I was despondent. What did I do to myself retaining the services of Roy and Harvey? Too late… too late…
***
Any more communications from the jury would be conveyed to the lawyers by the clerk. I would hear from Roy and Harvey or simply drop by their office a short distance away.
Then, Communication No. 2 was out. The jury said, “We need clarification of question 8-A.” They were referring to the question 8-A in the jury verdict form which would require them to interpret the Hague treaty.
My prediction was happening! The verdict questions made no sense to them. They couldn’t say a word in the jury box even when Roy and Williams, my opponents’ legal expert, argued from the American Jurisprudence book. This was the jury’s time to speak.
That verdict question 8-A that the jury wanted clarified asked if I was negligent by choosing service by mail and/or service by publication when I represented the plaintiffs in their federal lawsuit against the company in Japan. That was asking them how to interpret the Hague law. A function of the judge that she had completely refused to do.
***
“The court needs our response to the jury’s communication right now,” exclaimed Harvey. “Let’s hurry up! Let’s hurry up!”
“Just how do you suggest we should respond, Erlinda?” Roy quickly asked.
“I know that the judge wouldn’t clarify the question. So, just have her instruct the jury to tell the truth. If they cannot answer, they should say so,” I said.
“It would cause a mistrial.”
“I don’t care!” I exclaimed. “Otherwise, they would be guessing, just as the judge admitted to you—that she was guessing the law and judicial procedure!”
The clerk had the phone line open. The judge couldn’t wait much longer and she proposed the response to be worded this way: “Rely on your collective memory of the evidence.”
Before I could say a word of dissent, Roy immediately agreed with the judge. And the call was over.
I felt I was watching a weird, confusing horror movie of legal life and there was no way out.
“The jury was asking for clarification. It has nothing to do with collective memory of evidence,” I said in desperation. “This is insane! This is really insane!”
“We are not the judge. We don’t make the rulings,” justified Harvey.
“It’s easy for you to blame her, but you’re both compounding the problem,” I mumbled softly, fearing that our conversation would turn unprofessional.
Then I thought, “Just how can justice be accomplished with rulings and orders that are so plainly out of topic and non-sensible?”
We were silent. I was already thinking of appeal. I will prevail, and never have to see the faces of my lawyers, the opponents, the judge again.
***
We were literally in horror. The docket list was bursting with garnishee orders, subpoenas, summons against me. They were released by Judge Marks onto schools, travel agencies, hotels, banks, credit unions, the Honolulu Police Department, various companies all over Hawaii, even the military bases. It must have been the wildest civil execution in the entire United States against a private person.
“No amount of hate fits this… it’s criminal, it’s criminal,” mumbled Harvey looking so pale, obviously not knowing what to do. “The court has gone wild!”
“That’s pure harassment,” I exclaimed. “I don’t have money in those entities and the judge should know. She saw my sworn statement… Help me get out of this hell!”
“Erlinda, if the judge signs the orders, there’s no harassment,” said Roy defensively. “Your opponents asked for those.”
“How can I pay my creditors? My office space? My litigation expenses? Even basic necessities? I will not accept handouts from you and your staff,” I said.
They looked genuinely worried. Our conference led to no remedy. I felt that I was fighting the whole judicial and legal system, even Roy and Harvey for whom I toiled so much to pay their fees.
We were quiet. I recalled how Sharon Himeno and Kenneth Okamoto of the Pohl firm admired the long list of my clients not only in hotels but in the U.S. military. One officer I serviced so well spread the word to his comrades. Now, the judge made orders that would certainly humiliate me in those offices. She knew what would hurt me the most.