Speak out if judge napping, lawyers told

Appeal of 2006 trial of `drowsy judge' denied due to counsel's silence
Jun 12, 2008 04:30 AM
Tracey Tyler

It was Julie Rosenthal's first trial, but she was embroiled in a dilemma even experienced lawyers would find awkward.

The judge appeared to be falling asleep.

If that should happen during a trial, lawyers should waste no time speaking up about the problem, the Ontario Court of Appeal ruled yesterday in a $1 million legal dispute decided by a "drowsy judge."

On one side of the case was a small Canadian movie studio, Leader Media Productions. On the other, a group of film financing companies, including Sentinel Hill Productions, accused of pulling the plug on funding for two movies.

In the middle, Justice William Somers, who, according to affidavits filed with the appeal court, had dozed off frequently during the one-day trial in 2006 though only for brief periods. He ruled that Sentinel Hill had to pay Leader Media $1 million.

Rosenthal and other lawyers at her firm talked it over and decided that, instead of confronting Somers with their concern he might have been sleeping, they would "wait and see how things played out," according to one of the affidavits.

When the companies lost the case, they appealed, arguing among other things the Superior Court judge had been unable to follow the evidence because he had repeatedly fallen asleep.

Writing for a three-judge appeal panel yesterday, Justice Jean MacFarland rejected that argument, saying it isn't enough for lawyers to just take note if a judge appears to be nodding off and hold it in reserve if the verdict doesn't go their way.

"While the appellants' trial counsel was not experienced ... the record discloses that she did consult with senior litigation counsel in her firm about the judge's inattention. Together, they made the decision to do nothing about it at the time but to, as (Leader's) counsel put it, `roll the dice.'"

"Counsel was obliged to bring the trial judge's inattention to him at the time," said MacFarland. "Having decided to wait and see what happened, they cannot now raise that inattention for the first time as a ground of appeal."

Justice Somers, meanwhile, retired in February.