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Randy Johnston, a legal malpractice attorney and past president of the local trial lawyers group, puts it in even more concrete terms: "Marshall plays games up there. I never know what I am going to end up arguing in his court. The points he brings up come out of nowhere and everywhere. I might end up having to argue about the Magna Carta and whether Charlemagne had the best interests of the Holy Roman Empire at heart. Other judges bring up issues that I might not be prepared to argue, that I didn't think of, but you can always see how the judge came up with them and why they think they may be important. Not with him.
"The only good thing I can say is that he doesn't seem to have an agenda," adds Johnston, who says he has won in Marshall's court and has no ax to grind. "That is, he's not totally against all plaintiffs' lawyers or defense lawyers the way some judges are. In every case, he early on thinks who should win and ignores evidence and fits the law to accomplish that result."
Around the civil courts, lots of gossipy stories about erratic rulings and wacky comments abound, although most are either impossible to prove or would identify the source, most of whom wish to remain anonymous. Given that a Marshall win would put these lawyers in the awkward position of standing in court before someone they have so openly opposed, there's an understandable reluctance to speak out by name.
"I'm hosed anyway," says the trial lawyers' Liebbe, who agrees with Baron that Marshall's habit of having his rulings overturned on appeal is a sign of poor performance. "Quite a lot of the Bar has had enough of this nonsense. It's time for a new judge."
Fit and vigorous from practicing tae kwon do, John McClellan Marshall has the patrician look of a headmaster at a New England prep school. Boyish and youthful at 56, he puts off a formal, courtly vibe as he takes a seat in an upholstered swivel chair in his courthouse office. It's not surprising that he lists heraldry -- the study of coats of arms -- as a hobby on his résumé, which boasts knighthoods in sacred orders, memberships in chivalric societies, and Mensa, the club for certified geniuses. Between his extravagantly detailed 18-page résumé, his two decades on the bench, the various controversies surrounding him, and his volunteered knowledge of everything from court and legal history to missile guidance systems to his own genealogy, there's a lot to talk about.
Given his long and strenuous answers, he seems to enjoy the sound of his own voice. Marshall volunteers during his answer to the very first question that he is a direct descendant of John Marshall, the fourth chief justice of the Supreme Court, the legal giant who established the court's powers in the early days of the republic. He is connected through an almost uninterrupted line of lawyers.
"He has been an inspiration in a great new way over the years, certainly in my present career," says Marshall of his great-great-great-grandfather. "In the 35 years he sat as the chief justice, there were numerous occasions where the decisions that were rendered by that court were not, shall we say, popular in some parts of the community."
As an example, Marshall recounts, the chief justice wrote an opinion that the Cherokee Nation should by virtue of a treaty with the United States be treated as a sovereignty, as if it were France or England. He ruled that their land in Georgia should be protected from state interference and left intact. President Andrew Jackson responded with his famous quote, "John Marshall made his decision. Let him enforce it," and ordered the Army to evict the Cherokees, sending them on the Trail of Tears. "That took courage then, and I think some of the decisions that it has been my privilege to participate in have been ones that at the time were not universally popular," Marshall says.
The comparison is grandiose, but it fits well with the legal community's criticism of Marshall's courtroom style. Rather than simply interpret the law, Marshall seems to be striving for something more creative, more active, they say.
Two generations after the chief justice, the Marshall line arrived in Dallas in the late 1890s. Marshall's grandfather was returning to Virginia after joining the Klondike Gold Rush of 1896. He detoured to Dallas to see a cousin who was practicing law. The cousin offered him a job, and he stayed. "My grandfather built the first house in the town of Highland Park...at 3601 Lexington," Marshall says. "The house is still there."
Taking after his father, a rare engineer in the family tree, Marshall recalls building model rockets and firing them off in Goar Park, not so unusual a pursuit in the Sputnik-inspired '50s. "Some of them actually flew," he says.
Graduating from Highland Park High School in 1961, Marshall moved on to college at the Virginia Military Institute, a sort of kinder, gentler Citadel that Marshall says has had a big impact on his life as a judge, and in most other things. With its strict honor code, which says "a cadet does not lie, cheat, steal or tolerate those who do," Marshall says VMI instilled him with important life lessons. "Truth is truth...There is such a thing as objective truth. Aristotle said so," he says. "There are a lot of lawyers and a lot of professors who would snicker at that statement. They would say, 'Well, Judge Marshall is very quaint.'"