Monthly Archives: November 2011

Posner Joke Costs Taxpayers $19

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Update:  Reuters is now reporting on Posner’s use of these pictures. Apparently he doesn’t ask for permission to use them and doesn’t pay for them.

Remember the Department of Justice’s much-criticized $16 muffin? How does that compare to a $19 joke (and not a very good one at that)? A recent opinion from Judge Posner gives us reason to ask.  The Wall Street Journal Law Blog explains:

Last week, the good folks at Above the Law and How Appealing put us on to an opinion by Judge Richard Posner of the 7th Circuit in which he compared a Houston lawyer to an ostrich.

The money quote: “The ostrich is a noble animal, but not a proper model for an appellate advocate.” To illustrate his point, Posner included an image of one of these noble animals with its head buried in the sand. Below it, he added another photo of a guy in a suit with his head buried in the sand[.]

The Law Blog shows a picture of “guy in a suit,” but I’m not going to show it here. Why? Because I don’t want to pay the royalty fees, as the suited man picture is apparently a stock photo. So that means one of two things: either Posner is a copyright pirate (unlikely) or he went out and bought the right to use the picture just to make the joke. Assuming he doesn’t have a Shutterstock membership, that means he plopped down $19 for the pic.  Interestingly, however, Posner may have thrust the picture into the public domain by using it in his opinion, as judicial opinions themselves are uncopyrightable and exist in the public domain.

Regardless, I continue to insist that Posner’s best use of a picture in an opinion is (and forever will be) this one [see footnote]. If he paid money for that one, I forgive him.

-Michael

First Thing We Do, Let’s Retrain All The Lawyers

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Newt Gingrich has an idea: implement an aggressive program of tort reform. Not exactly novel or particularly worthy of note. But Newt’s a nice guy and he’s not unreasonable. So he proposes additional step that does raise some eyebrows: he wants to retrain the lawyers that would be rendered obsolete by his reform. No word yet on what they would be retrained to do. Apparently Newt was too busy answering questions concerning whether the idea (and some of his others) were “serious proposals.”

But it’s an interesting thought experiment, isn’t it? If we were to find ourselves with a glut of unemployed lawyers (hypothetically, of course), what could we use them for? Perhaps:

  • Janitorial services: Lawyers are comfortable cleaning up the messes of others;
  • Librarians: Lawyers are at home amongst large collections of books;
  • Bloggers: Lawyers are skilled at writing rambly (often incoherent) pieces of writing read by few; or
  • Telemarketers: Lawyers love to talk.

Any other professions that could use the services of reformed attorneys?

-Michael

Unrelated note: Newt has an interest in international law! As part of his “Day One” plan, Newt emphasizes that “[e]ach sovereign nation, under international law and custom, may designate its own Capital.”  Ummm … interesting.

Should Federal Courts Do More to Protect Good People From Bad Lawyers?

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“We have no idea whether [Plaintiff] had a good claim against [Defendant]–but we do know that, if she had, [her lawyer] massacred it.”

So says Judge Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, in a decision issued last month. That decision details an unfortunate pattern of conduct by a lawyer representing a woman in an employment discrimination suit against the Navy. Among other things, the lawyer (a) treated the initial lawsuit in district court as an “appeal” when it quite obviously wasn’t; (b) argued that judgment should be granted in his client’s favor because she was too sick to participate in discovery; (c) didn’t do anything in the case for over a year, leading to its dismissal for non-prosecution; (d) filed an “ex parte” motion to vacate the dismissal of his case, arguing that a clearly constitutional rule was unconstitutional (without explaining why); (e) filed a nonsensical appellate brief; and (f) declined to file a reply on appeal or seek oral argument. The Seventh Circuit, shocked by performance that it called (among other things) “wretched,” ordered the attorney to show cause why he should not be suspended from practice or disbarred. Easterbrook reasoned that the attorney’s conduct “implies that [he] is not competent to protect the interests of litigants in federal courts.”

One would expect this kind of performance to be unusual in federal courts. Unfortunately, it isn’t. Most everyone who has worked in chambers can tell you a story about an incoherent brief or nonsensical argument made by a represented party. But despite the shoddy work federal judges often see, you don’t often hear of this kind of discipline being considered for bad lawyers, save perhaps in the Seventh Circuit (which seems to take a more aggressive approach to policing attorney misconduct).  So should there be more of these kinds of opinions? More sanctions? More disbarments?

In my opinion, the answer is a resounding yes. Notions of professional courtesy seem to lead judges away from imposing sanctions. And when judges do snap, they sometimes use colorful rhetoric and childish punishments to make their point. Maybe it’s reasonable for judges to resist imposing discipline too often, as clients are free to sue for malpractice and impose a little discipline themselves. But clients are in a weaker position and lack the money or the time to pursue such a suit (and they’re probably skittish about hiring even more lawyers). Sometimes, they don’t even realize they have grounds to sue. Judges, on the other hand, have the means to punish readily available and should have a special ability to spot incompetence. Why not let them bring the smackdown?

Lawyers, of course, would complain that judges sit in a privileged position far from the daily realities of busy litigation practice. Things fall through the cracks, mistakes get made, and cases that should be winners sometimes lose. But I’m not calling for punishment each time an attorney turns in a sub-par performance. All I’m asking is that lawyers who provide consistently inadequate legal representation be prevented from doing further harm. As servants of the public, judges should step in (as Judge Easterbrook did here) and stop amateur-hour attorneys before they have a chance to massacre another case.

-Michael

The Risk-Averse Law Clerk

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In his new book Five Chiefs, Justice John Paul Stevens offers an interesting explanation for the decline in petitions for certiorari that the Supreme Court grants (as compared to prior years).  Justice Stevens speculates that the “cert pool” pool is to blame, because “[a] recommendation to deny is less likely to produce an unfavorable reaction from any of the justices than a recommendation to grant and is therefore attractive to a risk-averse clerk.” Although I’ve never even met a Supreme Court (ok, maybe one), the explanation makes a certain amount of intuitive sense.

And that got me to thinkin’.  Judges at all levels place more reliance on their law clerks than they did in the past. At the circuit level, judges might now have three or four clerks. At the district court, judges usually have two clerks (with an extra clerk for the chief judge). Although every judge is certainly different, some judges give their clerks an extraordinary amount of latitude–sometimes even allowing a young clerk to the write his/her opinions (with appropriate supervision, of course).

If Stevens is right that some degree of risk-aversion drives the decisions of Supreme Court clerks, the same might be true of these increasingly important lower level clerks, as well. The risk-averse clerk would probably always take the path of least resistance, choosing the outcome that falls well-within the existing case law. Thus, clerks might drive the case law (at least over time) in a more conservative (“little c” conservative, that is) direction. Moreover, much like Supreme Court justices might prefer to deny a cert petition, district court judges might prefer outcomes on motions that shrink their docket faster. Thus, a clerk might lean towards granting a motion to dismiss early on in a case for fear of earning the judge’s wrath when the cases start piling up.

Of course, a good clerk will learn over time what the actual preferences of the judge really are. (For instance, a clerk for Judge Stephen Reinhardt would probably be less afraid of taking some risks because he knows his boss likes to take them, too.)  And a good judge will resist any kind of risk-aversion-based bias when supervising the clerk. But at least over time, and at the margins, it certainly is conceivable that risk aversion would have an impact.

Consequently, judges should probably be careful in responding to the recommendations of their clerks. It would likely also be helpful to make clear at the beginning of the clerkship that there are no “wrong answers.” If the clerk understands that a particular type of outcome actually bears no “risk,” he might be less likely to color his recommendations in the way that Justice Stevens suggests.

-Michael

The Stupidity of Nominal Damages

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Imagine you’re the victim of a constitutional violation; perhaps the the cops walked into your house without a warrant (or any other legal justification) and took a look around. You’d probably be pretty perturbed and perhaps you’d sue. If it’s anything like the ordinary case (at least one that doesn’t settle), you’d go through months of motions and discovery to finally get to a jury trial, invest thousands in attorneys fees and costs, and then go through a trial of a few days (or more).  And after all this, imagine the jury agreed that your rights had been violated. Huzzah! But let’s also imagine that the jury decides they can’t place a value on your violation. So what do you get? Nominal damages, usually amounting to somewhere around $1.

That outcome doesn’t seem satisfying to anyone. The defendant has just been smeared as someone who violates constitutional rights. The plaintiff has just been rebuffed–almost mockingly–by a jury who feels that the violation is unworthy of remedy. And taxpayers who want their court system to promote efficient choices won’t be happy, as months of litigation have just resulted in a fundamentally meaningless verdict.  (The Supreme Court would disagree, but the Court’s take on nominal damages seems pretty clueless.  See, e.g., Farrar v. Hobby, 506 U.S. 103, 113 (1992) (“A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”)).

But perhaps there’s room for punitive damages? Maybe, but the fact you only received nominal damages is going to complicate things. Many places don’t allow punitive damages in a case involving only nominal damages.  Even if the law of a particular place allows such an award, courts often use a rough ratio of compensatory-to-punitive damages to determine when punitives go too high. If you only got a single buck, your punitive award can’t go very high. And what about attorney’s fees? There is an attorney fee provision applicable to certain civil rights cases, for instance.  But if you happen to be a prisoner, your attorney is going to have a whopping pay day of $1.50 because of a fee cap. Other fee caps may be lurking in other laws.

Nominal damages serve no real purpose and should be abandoned. Yes, they make one party (at least nominally) the “prevailing party,” which is important in some ways. But why can’t we recognize that the same thing could be done if the jury just issued a declaratory judgment that the plaintiff was harmed? Why can’t we adopt presumptive sums for constitutional violations, akin to statutory damages? Either of these approaches would avoid the nasty side effects of screwed up punitives and crazy attorney fee awards that come with our current practice. And we could finally retire the facially silly practice of awarding a single greenback once and for all.

-Michael