Judge Pendleton Gaines, 1944-2011

It was reported this week that Judge Pendleton Gaines has died. That is a tremendous loss to many here in Arizona and around the country. And on this Change of Venue Friday, I recall an entirely enjoyable encounter I once had with Judge Gaines.

The occasion was Law Day in 2008. I had been asked by the State Bar of Arizona to moderate a panel discussion on the Rule of Law. (You always know a topic is important if it gets All Initial Caps.) It was to be held at the Maricopa County Supervisors’ Auditorium in downtown Phoenix, right next to the Superior Court.

Now, I enjoy that kind of gig, but I had to pause. The Rule of Law? The likely audience was (1) students from area elementary schools and high schools, (2) some lawyers, (3) some homeless people who like cookies, and (4) Superior Court Judges in need of COJET credit.

And, as they say, in no particular order. Would they even enjoy this?

I had to ensure that the panel would reflect a variety of viewpoints, for as panelists chatted about a political hot-potato like merit selection of judges, audience members might get riled if all the views were on one side. (“Merit selection” had been fighting words for a while by then, so much so that we titled our February 2006 cover of Arizona Attorney Magazine “Fair Courts Under Fire.” A few months later, another state bar magazine not too far away ran almost the identical cover—but that’s a story for another day.)

I also had to think hard about how we could make this interesting for a diverse group of people.

As it turns out, I think we got a “C+” on the first criterion; most of the panelists came down on one side of the issue. But on the second, we got a (self-graded) “A.” And Judge Gaines played a huge part in that.

The panel I moderated that day in April 2008 had panelists:

  • Barbara Rodriguez Mundell, Presiding Judge, Superior Court for Maricopa County
  • Maurice Portley, Judge, Arizona Court of Appeals
  • Pendleton Gaines, Judge, Superior Court for Maricopa County
  • Dan McAuliffe, State Bar President
  • Ed Novak, State Bar President-Elect

That’s a great group of folks to sit around and talk about anything. But on an issue like merit selection, they were fantastic.

Except for Penny Gaines, I had met and worked with all the panelists before. Judge Gaines, I met that morning.

Maybe that accounts for my pleasant surprise at the Judge. What he exhibited that day was a jurist’s calm, even when fellow panelists (yes, Dan, that would be you) grew impassioned and inflamed at some of my questions. (My favorite was when I asked why we couldn’t add Senate confirmation to merit selection. After all, “Our current system comes from Missouri, not from Moses.” Dan McAuliffe nearly leaped out of his seat at that one.)

Judge Gaines also brought a scholar’s dedication to the task. He had done a remarkable amount of research, and was able to provide facts, figures and anecdotes to our presentation. That took the conversation far beyond opinions and into the realm of education.

He had a courteous and courtly demeanor. Like other effective lawyers before him, he knew that his arguments carried more persuasive value when uttered with a considerate tone.

Finally, he had a dry sense of humor that lightened what could have been a dreary lunchtime meeting. But don’t take my word for it. Read (below) Judge Gaines’ 2006 “Rules on Pending Motions,” specifically his ruling on “Plaintiff’s Motion to Compel Acceptance of Lunch Invitation.” And do not skip the footnotes.

(A hat tip to Udall, Shumway & Lyons attorneys Candyce Pardee and Brian Allen for reminding me of this classic bit of legal humor from Judge Gaines.)

All of these are qualities that seem in short supply these days. I count myself as privileged to have gotten to work with the Judge on that occasion.

As we reported the other day, details on a memorial service for Judge Pendleton Gaines will be released soon by the Superior Court.

In the meantime, here is Judge Gaines, in his own writing:



CV 2003-020242


Docket Code 019

CLERK OF THE COURT: A. Beery, Deputy


FILED: 07/21/2006


Counsel (Plaintiff): DAVID A SELDEN

Counsel (Defendant): DOW GLENN OSTLUND




STE 380



The Court has reviewed the pending motions. Two will be granted. The others will be deferred.

Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to “Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case. The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel.1

[FN1: Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.]

Plaintiff’s counsel replies somewhat petulantly, criticizing Defendant’s counsel’s acceptance of the lunch invitation on the grounds that Defendant’s counsel is “now attempting to choose the location” and saying that he “will oblige,” but Defendant’s counsel “will pay for its own meal.”

There are a number of fine restaurants within easy driving distance of both counsel’s offices, e.g., Christopher’s, Vincent’s, Morton’s, Donovan’s, Bistro 24 at the Ritz-Carlton, The Arizona Biltmore Grill, Sam’s Café (Biltmore location), Alexi’s, Sophie’s and, if either counsel has a membership, the Phoenix Country Club and the University Club. Counsel may select their own venue or, if unable to agree, shall select from this list in order. The time will be noon during a normal business day. The lunch must be conducted and concluded not later than August 18, 2006.2

[FN2: The Court is aware of the penchant of Plaintiff’s counsel to take extended cruises during the summer months.]

Each side may be represented by no more than two (2) lawyers of its own choosing, but the principal counsel on the pending motions must personally appear.

The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant.3 A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS § 12-331(5).

[FN3: Alcoholic beverages may be consumed, but at the personal expense of the consumer.]

During lunch, counsel will confer regarding the disputes identified in Plaintiff’s motion to strike Defendant’s discovery motion and Defendant’s motions to quash, for protective order and for commission authorizing out-of-state depositions.4 At the initiative of Plaintiff’s counsel, a brief joint report detailing the parties’ agreements and disagreements regarding these motions will be filed with the Court not later than one week following the lunch and, in any event, not later than noon, Wednesday, August 23, 2006.

[FN4: The Court suggests that serious discussion occur after counsel have eaten. The temperaments of the Court’s children always improved after a meal.]

Defendant’s Motion to Strike Proposed Amended Complaint

To demonstrate to counsel that the Court has more on its mind than lunch, the Court has considered Defendant’s motion to strike Plaintiff’s proposed amended complaint. The motion will be granted.

Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme. It violates the Court’s order of July 22, 2005, permitting the Plaintiff to file “an agreed-upon form of Amended Complaint to clean up housekeeping matters.” It is not the “short and plain statement” required by Rule 8(a)(2). It is a pleading of a type specifically condemned in Anserv Insurance Services, Inc., vs. Albrecht, 192 Ariz. 48, 49-50 (1998) (trial court should have stricken 269-page, 1322-paragraph complaint). Most importantly, it violates the observation of French philosopher Blaise Pascal, who concluded a long letter with an apology, saying he “had not the leisure to make it shorter.” Since this is a 2003 case with no end in sight, Plaintiff’s counsel has the leisure to make his complaint shorter.


1. Plaintiff’s motion to compel Defendant’s counsel’s acceptance of lunch invitation is granted on the terms and conditions set forth above.

2. The parties are directed to file the joint report referred to above.

3. Further action on the parties’ pending discovery motions is deferred pending receipt of the joint report.

4. Defendant’s motion to strike Plaintiff’s proposed amended complaint is granted.

5. The oral argument set in this division on August 2, 2006, at 9:15 a.m. is vacated.