D.C. Superior Court Judge Frank E. Schwelb has all due respect for phrases like "may it please the court" and "comes now the United States" and all the other timeworn and stilted verbiage of jurisprudence that makes most judicial opinions read like excerpts from Black's Law Dictionary.
But Schwelb, a bespectacled and upbeat rookie judge, prefers a bit more literary class. To wit, Volume I of the Complete Works of Frank Ernest Schwelb, judge laureate of the D.C. Superior Court, who has written enough flowing legal prose to account for an estimated 25 percent of all the pages of opinions published last year by the 44-judge court.
Schwelb quotes William Shakespeare on juvenile justice, John Keats on trash and, in an opinion rendered in Landlord-Tenant Court, notes that Gilbert and Sullivan opined in "The Mikado" that "My object all sublime/I shall achieve in time/To let the punishment fit the crime/The punishment fit the crime."
In his first opinion from the bench, Schwelb wrote enough about a routine case of dog bites man to suggest that it was the long awaited case of man bites dog. Schwelb even found a way to cast his own misfortunes in mocking but humorous literary form.
On March 16, two men tried to rob him and wound up shooting the judge in the side. Referring to the incident in a subsequent opinion, Schwelb wrote of being accosted by "two prospective participants in the criminal process of the Superior Court" who "unsuccessfully attempted a redistribution of the wealth by demanding the Court's wallet." The two men "failed in that endeavor," he said, but then noted that they had "left a lead bullet in the Court's abdomen."
In some court circles, Schwelb's opinions are greeted with skepticism and rolled eyes. "On occasion, he probably goes overboard," said one local attorney familiar with Schwelb's work. "It may cause him some problems in the eyes of other talented jurists [who believe he] demeans his opinions. Over a period of years, the more trivial stuff you probably won't see."
But some think otherwise. "His opinions have humanity to them," said Schwelb's fellow judge Luke C. Moore. "He makes the law come alive."
Schwelb, 48, a Czech-born, Harvard law school graduate, was named to the court by President Carter just before Christmas 1979. A former Justice Department lawyer active in civil rights cases, Schwelb kept busy in his first year as a judge, churning out literature from a trial bench where written opinions are rare and usually written with a sophisticated legal air.
A rabid sports fan, Schwelb often writes his opinions overnight. He declined to be interviewed, but has said in the past that his standard requires that opinions be "human" and understandable to those who appear in court before him.
"There is a tendency for [judges] to regard themselves as tin gods," said Hershel Shanks, a local attorney and Schwelb's law school roommate. "Lawyers all day are bowing and scraping as they say 'May it please the Court' or 'Your Honor please.' The courts are the last bastion of this kind of deference -- except for the pope. Here is a man that comes across as very human rather than some authority on high."
The dog-bite case, in which the opinion ran on for nine pages, launched Schwelb's literary career.
"The dog is known as Man's best friend," Schwelb began his opinion. "Nevertheless, he sometimes bites his human companion. When Ms. Winona Redwood's dog bit Mr. Benjamin Lawrence Williams in February, 1979, he (or she) probably did not foresee the intriguing procedural and substantive problems which the incident would present to . . . this Court." In that case, he awarded the plaintiff $100.
One year later, while presiding mainly over routine cases in Small Claims and Landlord-Tenant Courts, Schwelb filed more than 100 court opinions and orders. He is known for the clarity of his opinions and his sharp pen.
In a case heard last Feb. 14, in which a man named Cummings sued the Safeway Food Stores, Schwelb wrote: "Although this case came on for trial before the Court on Valentine's Day, 1980, Mr. Cummings' heart does not belong to Safeway, and the converse is equally true."
In a juvenile case of "substantial importance" last spring, Schwelb criticized city lawyers for submitting a skimpy legal brief. "Counsel for the District of Columbia apparently agree with Shakespeare that 'it is better to be brief than tedious,' [Richard III, Act II, scene 2], and that 'brevity is the soul of wit,' [Hamlet, Act II, scene 2]. The Court would nevertheless have preferred a more searching analysis . . ."
In an opinion of which parts resembled a novel, Schwelb described a defendant before him: "He was articulate, relaxed, and self assured," Schwelb wrote.
After discovering that a man who had filed a lawsuit had apparently falsified his claim, Schwelb wrote, "From childhood, we are exposed to such homilies as 'Honesty is the best policy' and 'Crime does not pay.' The high incidence of dishonesty and the staggering crime rate suggest that if these maxims are treated as rules for conduct for one's life, they are, in the words of William Shakespeare, more honored in the breach than in the observance."
On another occasion, Schwelb observed that one landlord-tenant case last January was a "rather confusing dispute between two very nice people who seem to have turned against each other as a result of poor communication."
Sometimes Schwelb begins his opinions with stories. Last November he wrote of an American University professor who "jogged three miles every day" but filed a lawsuit after he happened to break his nose jumping off a train at Union Station.
"Mr. Albert Waterston is a perfectly delightful man of 73 who displays an engaging zest for life," Schwelb noted in his opinion. "Apparently, however, Mr. Waterson is more proficient at running than at jumping.
But the fact Schwelb even writes opinions, in the relatively time-consuming Landlord-Tenant and Small Claims courts is impressive, says attorney Florence Roisman, who has taught at Catholic and Antioch law schools. Litigants know that Schwelb "has thought about the case, what the facts and issues truly are, and has reached a rational judgment," she said.
Possibly Schwelb's strangest opinion involved a dispute over the location of a trash dumpster.
"Garbage is generally regarded as a markedly unromantic subject," he wrote. "The English poet John Keats, who addressed an entire ode to a Grecian urn, has no published work about a trash dumpster.
"Indeed, so far as the court is aware, the subject of garbage has been avoided or ignored by most or all of the major poets. None of Shakespeare's tragic heroes was a trash collector, and even those poets who, like E. E. Cummings, have made their point so trenchantly by not capitalizing proper names have tended to apply this form of expression to aspects of life other than the collection of trash.
"Nevertheless, garbage has its more interesting attributes. Like death and taxes, it is always around. It has to be kept somewhere before it is collected. Eventually, it has to be removed. Imaginative disposal of trash and garbage is essential to our environmental well-being, and there are aesthetic considerations as well. It is therefore not at all surprising that people argue about garbage . . . . "
However Schwelb later admitted that the case was his first literary misstep. In a subsequent opinion, Schwelb noted that after describing the subject of garbage as "prosaic rather than poetic," he had been corrected and informed that in fact garbage had caught the attention of at least one American poet.
"A reader has since invited the Court's attention to Wallace Stevens' the Man on the Dump,'" Schwelb wrote, "which gives the subject a truly lyrical air."