Every once in a while, a judge issues a colorful order or opinion scolding a lawyer for some gross (at least in the eyes of the judge) misdeed or misjudgment. Last week’s notable “benchslaps” came from U.S. District Judge Sam Sparks, who dubbed a lawyer in one case “anything but competent” and announced that a discovery hearing in another case would be a “kindergarten party.” The blogosphere got a good laugh from the harsh language and everyone had a good laugh, excepting the “incompetent” lawyer, who found the order “hurtful.”

I used to find these sorts of orders hilarious.  When I first started clerking last year, I thought judges (a) too often let parties get away with murder and (b) wrote in an unbearably dry style. I thought both problems could be fixed by “laying into” a party who erred. 

But while parties certainly get away with too much misconduct (particularly in the realm of discovery), I’ve begun to realize that the answer isn’t found in opinions full of histrionics.  These sorts of opinions turn what should be an impersonal exercise (i.e. a judicial edict) into a decidedly personal one. That’s not a good thing. First, it suggests that the judge’s decision is being driven by personal animus rather than detached judgment. Second, and similarly, it hints that the judge is principally focused on self-gratification (and maybe a little media-whoring). And third, it lowers the judge to the plane of the parties, making him (or her) just another party to the dispute, with no higher position and no more forceful opinion.

Yet I think there’s more substantive problem with these benchslaps. There are well-defined standards that apply to sanctions and other punishments for lawyers. Sometimes these standards are not especially easy to meet. I get the impression that sometimes judges use heated rhetoric to inflict the punishment of public shaming while not having to meet the standards that would apply to more traditional sanctions. Frankly, that approach is both lazy (as it avoids the work of imposing the sanction) and dishonest (as it avoids the rightful standard). If a lawyer’s conduct in a case is appropriately condemned, the judge should impose an appropriate sanction–without nasty language–that will send that message. The rhetoric is probably best left to the politicians.

-Michael

Update (Sept. 19, 2011): Apparently, I’m not the only opponent of benchslaps.  Judge Edith Jones, Chief Judge of the Court of Appeals for the Fifth Circuit, sent Judge Sparks the following email recently:

Dear Sam, It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write. Sincerely, Edith Jones.

Yikes.  Benchslapped indeed.