Back in my minuscule office, I took stock of the situation. Having the Omri Tal case assigned to Justice Ehood Morag was an unfortunate development. Although Morag was a fair minded man and an excellent lawyer, his sympathy was bound to be with the victim of the accident.

Originally, Ehood Morag’s liberal orientation had come as surprise to the legal fraternity of Tel Aviv. Prior to his elevation to the Bench, he had been one of the leading advocates engaged by insurance companies in road and industrial accident cases. He was an accomplished cross-examiner. He had also been renowned for driving a hard bargain when cases were settled before trial.

When his appointment was announced, insurance companies and industrials firms smirked gleefully. At long last, the Bench would be graced by an incumbent who could be trusted to see matters their way. Their jubilation, though, was short lived. Justice Morag’s philosophy bore no resemblance to the sentiments expressed by him in his years as an advocate. In that earlier role, he owed a duty to his clients. On the Bench his duty was to do justice. He made use of his first-class knowledge of the tight fisted, often unfair, attitude of insurance companies and of industry. He readily thwarted their untoward manoeuvres. In no time he became the champion of the cause of the little man, whose overworked and often poorly remunerated lawyer was no match for the skilled gladiator engaged by the business world.

In our case, his sympathy was bound to be with Omri Tal. This was the first handicap Hannah and I would face. The second hurdle, alluded to by Jacob Keren, was of a more personal nature. One of Ehood Morag’s passions in life was dancing. For years he and his charming wife, Varda, held the trophies awarded by the Tel Aviv Classical Dances Society for the Tango and for the Waltz. Eventually, they lost the latter to a younger, more sophisticated, couple. But they clung to the former. Indeed, Morag’s nickname in the profession was ‘the Tango King’! From all the judges in Tel Aviv, he was the one most likely to feel empathy for Valentino’s mental sufferings when his dancing career came to such an abrupt and untimely end.

Obviously, Jacob Keren wanted to see Morag off the case. The oblique instruction given to me was clear. Morag’s weakness was his hot temper and his inability to suffer fools lightly. On two previous occasions, his outbursts in reaction to stupid remarks of advocates were used as grounds for appeals against what were, in reality, well balanced judgments. Sending the cases back for rehearings, the Court of Appeal pointed out that justice had to be both done and seen to be done. How could a party to a case be expected to believe he had been given a fair hearing, when the judge had ridiculed and abused his legal representative!

Jacob Keren’s idea was to utilise the tension, which he knew existed between Morag and myself as lever for getting the case set before another judge. I was to use picador tricks to induce the Judge to charge! It was a daring stratagem, manifesting Keren’s trust in my discretion and tactical ability. But despite the hidden compliment involved, I was not pleased with the task allocated to me. I had developed a great deal of respect for Morag’s intellectual ability and trusted his integrity. I had no wish to sour the relationship, which went back to my second year in Law School, beyond repair. At the very same time, I feared to gain a bad mark from Keren for failing to carry out his instruction.

As I tried to decide how to deal with the Hobson’s choice fostered on me, I let my mind run through my years of interaction with Ehood Morag. Shortly after his elevation to the Bench, Morag was constituted an Adjunct Lecturer at the Hebrew University of Jerusalem. In my second year of studies, I had enrolled in his course on the ‘Law of Civil Wrong (Torts)’ and admired the clarity of his lectures and the brilliance of his stimulating and highly imaginative analysis. Despite his acid tongue, I took his own tutorials in the course and discovered that Ehood Morag appreciated a good argument in class and was willing to consider novel and unorthodox points. In no time, I became his star student for the year.

The scene changed in my next year at the University when I enrolled in Morag’s optional course on Commercial Transactions. He took the course over for just one session to fill a gap created by a resignation of another lecturer. It soon dawned on me that Ehood Morag had no aptitude for the subject. He read his lectures out perfunctorily and evaded any intricate question raised from the floor. Indeed, my own understanding of some of the topics, gleaned during periods I had spent as a cadet in banks, surpassed my teacher’s.

The sensible reaction would have been to keep silent and to outshine the rest of the class in the examination. But I was a contentious young man and, in addition, chagrined to find that my idol had feet of clay! To give vent to my disappointment, I started to raise confusing points, asked daunting questions and made observations highlighting absurdities in Morag’s ill conceived analysis of the topic.

Ehood Morag was a fair man. Notwithstanding my boorish behaviour, I got a high distinction in Commercial Transactions. His Honour, though, had a long memory. When, after two years of articles in Jacob Keren’s firm, I was called to the Bar and started to appear in interlocutory matters, Ehood Morag gave me a taste of my own medicine. True, he listened attentively to each argument I developed and remained objective in his decisions. But he gave me a rough time whenever an opportunity presented itself.

Jacob Keren’s instruction provided a legitimate opportunity to turn the tables again. One inner voice whispered that I ought to go ahead. Another, more sober voice, counselled caution. True, Morag’s taunts and jibes were humiliating; but they had remained harmless. The same voice reminded me that Ehood Morag was a fine judge. Why should I damage his reputation and standing?

My chance to test the ground materialised some five weeks later, on an exceptionally hot day in late spring, when our application came up for hearing. As soon as Boaz Tamir and I took our appropriate seats on the two sides of the oblong table in the small conference room, Ehood Morag entered through the door leading to his Chambers. Having nodded politely when we rose to welcome him, he sat down unceremoniously and mopped the sweat off his brow.

Morag leafed rapidly through the file in front of him. Although he was well into his forties, his deportment displayed the vigour of youth. Notwithstanding his massive head, which appeared out of place on his short and stocky torso, he projected the aura of upper-class elegance and self-assurance.

When he was done, Morag closed the file and replaced the thick reading glasses he had been using with a pair of sleek, lightly tinted, spectacles.

“Quite a neatly drafted application, Mr Berger,” he observed with a tight smile. “But you do cross all the T’s and dot all the I’s!”

“An old weakness, Your Honour – not easy to shake off!”

“I am not saying it’s a weakness. Still, it has a bearing on the length of your documents.”

“In this regard, my Learned Friend is in the good company of Emanuel Kant and Karl Marx,” chimed in Boaz.

“No wonder I never finished the first page of The Critique of Pure Reason. Quite a book,” observed the Judge dryly.

“But, surely,” I retorted, trying to sound just as detached as the Judge, “the object of this first page is to warn off the casual reader!”

Ehood Morag, who was the Honorary Treasurer of our Philosophical Society of Israel, ground his teeth. Boaz Tamir tried hard to suppress a chuckle. He did, at the same time, give me a wink. Obviously, the first round went to me.

The next move was up to Ehood Morag. In open court, he would have followed the rules of procedure and asked me to address him in support of my application. In the less formal ‘camera meeting’ – where we did not wear our gowns – most judges tended to speed up the proceedings. In this spirit, Ehood Morag turned directly to the points that concerned him.

To start with, he instructed both of us to supply details of the other party’s alleged negligence. When that issue was settled, he turned to the main point of contention.

“Mr. Berger, you request that the plaintiff supply particulars of his other hobbies or interests, if any. Isn’t that a fishing expedition? Why should he provide details of his personal life and interests?”

“I agree that a ‘fishing expedition’ is improper in an application of this type, your Honour …”

“Quite,” observed Morag sternly. “Even in cross-examination a person’s private life should not be exposed more than is absolutely necessary.”

“Of course. But my Learned Friend has opened the flood gates, if I may use the expression!”

“How?”

“In clause 24(3)(ii) of the Statement of Claim, which deals with the plaintiff’s loss of enjoyment of life, it is averred that ‘dancing constituted the plaintiff’s main hobby and interest as well as a major source of pleasure and satisfaction”. Aren’t we then entitled to explore whether his other hobbies or interests will minimise or mitigate that loss?”

“But why should that affect the plaintiff’s claim based on the sufferings caused to him by the sudden end to his dancing activities?”

“If your Honour has already decided that no other interest or hobby can mitigate the plaintiff’s loss on this count, our request for further particulars on the points in question ought to be denied!”

Stung by Morag’s dismissive tone, I had carried out Keren’s instruction. The angry flush that spread over the Judge’s face and the look in his eyes showed that the barb had gone home! Morag was about to erupt; but just before he did, Boaz Tamir stepped in.

“Perhaps I could clear the matter up. The plaintiff’s only other hobby and interest is chess. He has played fifth and occasionally fourth board of the Emanual Lasker Club in national tournaments. We are prepared to provide the particulars, although I do not think they have a direct bearing on the count.”

His words smoothed the stormy waters. Ehood Morag’s face cleared and the fire went out of his eyes. Deliberately, he replaced his glasses again and pushed the documents to the corner of the table. I in turn, bestowed a grateful glance on Boaz, whose expression had remained immobile throughout. If he sensed how deeply I regretted my antic, he showed no sign of it.

“Dancing and chess: not an ordinary combination, I suspect.” Morag was again his composed self. “I know nothing about chess. What is the Emanuel Lasker Club – something akin to our august Philosophical Society of Israel?”

“In some ways – except that there are far more chess players than philosophers,” answered Boaz.

“And how would you rate the Emanuel Lasker Club?”

“It’s the best,” affirmed Boaz.

“What then is this 4th and 5th board business all about?”

“Ranking. First Board is top; fifth is the lowest.”

“Is either of you gentlemen a chess player?” asked the Judge, showing a flicker of interest.

“I’m pretty lousy,” I told him openly.

“Ditto,” said Boaz. “My Learned Colleague usually wins six of every ten games we play!”

“I though it was the other way round,” I said uneasily. “Still, neither of us would be invited to play for the Emanuel Lasker Club. They’d rather arrive short of one player and concede the set.”

“I don’t understand,” said Morag testily.

“If one of us played, a chess columnist might have something to say about the remarkable standard of the fifth player of club,” muttered Boaz.

“I see.” Morag broke into a smile. “So why do you imply that the plaintiff’s achievements at chess are irrelevant?” he asked Boaz, adding uneasily; “but perhaps we should not touch on this. It has to settled in the trial. Unless you wish to discuss it informally.”

“I do. Such a discussion is bound to be of considerable assistance,” opined Boaz.

“I agree, your Honour.” My words gave the Judge the assurance that our deliberations would be kept out of the official record of the case. A breach of such an undertaking was unthinkable in our tightly knit legal community. A transgressor would become a pariah.

“Very well then. Let’s proceed.”

“The plaintiff’s performance as an amateur dancer was outstanding, Judge,” said Boaz. “As a chess player, he is mediocre!”

“Do you agree with this analysis, Mr Berger?”

“Our investigations confirm my Learned Friend’s statement. Omri Tal is unlikely to rise to second or even third board at the club: he ain’t a chess champion. Still, many people would be proud to play 4th board! If I may say so, Judge, I’d rather play 4th board in the Emanuel Lasker Club than be acclaimed a dancing champion!”

“Quite a line for somebody who might make an exhibition of himself on the floor!” countered Morag dryly. Boaz Tamir chuckled. Obviously, the second round went to the Judge.

“The matter has to be left for the trial. The Judge will decide the issue in reliance on the ‘objective bystander test’: would a young man like Omri Tal get over his ‘loss’ and enjoy other hobbies. Agreed?”

“Agreed, Judge,” conceded Boaz.

“So, anything respecting the ‘victim’s’ hobbies is relevant. Well then, let us turn back to our session,” said Morag, indicating the off-the-record discussion was at its end. “Unless you have an objection, Mr Tamir, I propose to grant the application.”

“I have none, Your Honour.” Boaz reverted to the more formal form of address. “Still, I should like to reserve the right to serve a similar application. Can I have three weeks?”

“Mr Berger?” asked the Judge.

“I have no objection, Your Honour.”

“Very well then. But, before we adjourn, I should like to ask why this case has not been settled. The liability issue, for instance, speaks for itself. Have the parties discussed it?”

“We negotiated with the insurers, but reached no agreement,” explained Boaz.

“May I ask the parties to have a further go? Even if no agreement is reached as regards the amount, a consensus on the liability issue is bound to save a great deal of time.”

“May we have Your Honour’s tentative views on this issue?” I asked with some hesitation. “Copies of the main depositions are attached to the pleadings.”

“Off the record?” Morag asked after a pause.

“Of course,” said Boaz and I in unison.

“Fifty-fifty as a starting point. What do you say, Tamir?”

“I agree, subject to a variation of 10 per cent either way depending on the outcome of the cross.”

“Berger?” asked the Judge.

“Quite.”

“So why not use 50-50 as a base for apportioning liability?” Morag trod carefully. “From the documents available to me at this stage, I cannot form any impression about the damages due under the different counts. Perhaps you could consider these as well?”

“We’ll sure try, Judge” affirmed Boaz.

“Can we then fix a date for the hearing – just in case you get stymied?” suggested Morag.

“There may be a need for further applications, Your Honour,” I said apprehensively.

“Depending on the ‘better particulars’?” asked Morag.

“Yes, Your Honour!”

“But in that case, we shall be unable to fix a date before the June break.” Morag spoke testily.

“Also, Your Honour,” stepped in Boaz. “I appear with Israel Silver in a major industrial accident case, which has been set for the last week of this term.”

For a few minutes Morag was lost in his thoughts. When, at long last, he spoke, he let his disappointment show: “When the Registrar referred the case to me, we both thought it could be tried either before the break or at the very beginning of the next term. It now appears we were unduly optimistic. May I suggest that, if the parties wish to take any further procedural steps, they discuss them amongst themselves. Where each party agrees to the requests of the other, there is no need to revert to the Court. I’ll schedule the case for a pre-trial hearing in chambers in the second week of the next term. I shall be away during the first week.”

“Very well, your Honour,” said Boaz. I, in turn, nodded.