Author Archives: Michael Williams

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

The Future of Law Firms: The Electronic Whip

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Former Big Law partner Stephen Harper loves to complain about law firms’ increasing tendency to focus on “metrics.”  Having enjoyed the good life by jacking up “billable hours” and “collectibles,” many big firm partners are trying to find new ways to squeeze more productivity–and thus more money–from their leveraged model.

I fear they may find their answer at Disneyland.  A recent piece in the Los Angeles Times details how Disney has begun cracking the “electronic whip” on its employees:

In the basements of the Disneyland and Paradise Pier hotels in Anaheim, big flat-screen monitors hang from the walls in rooms where uniformed crews do laundry. The monitors are like scoreboards, with employees’ work speeds compared to one another. Workers are listed by name, so their colleagues can see who is quickest at loading pillow cases, sheets and other items into a laundry machine.

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Isabel Barrera, a Disneyland Hotel laundry worker for eight years, began calling the new system the “electronic whip” when it was installed last year. The name has stuck.

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Employees in the Anaheim hotels are required to key in their ID when they arrive, and from then on, their production speed is displayed for all to see. For instance, the monitor might show that S. Lopez is working at an efficiency rate of 37% of expected production. The screen displays the names of several coworkers at once, with “efficiency” numbers in green for those near or above 100% of the expected pace, and red numbers for those who aren’t as fast.

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According to Barrera, the whip has led to a sort of competition among workers, some of whom have tried to race to the head of the pack. But that has led to dissension and made other employees worry that a reasonable pace won’t be enough to keep the boss happy. Barrera and Beatriz Topete, an official with Unite Here Local 11, said employees have been known to skip bathroom breaks out of fear that their production will fall and managers will demand an explanation. They say they felt bad for a pregnant employee who had trouble keeping up.

It’s easy to see how this kind of policy could be implemented at a law firm. Associates could have an application running on their desktop that tracks their billable hours in real time. Or perhaps the program could show how much “collectible” work the associate has done over some period of time. The program could then compare all associates’ performance in a ranking system, showing associates exactly where they stand and whether they need to pick up the pace. For a group of people already prone to competition and angst, that could provide quite the motivation to work harder. Maybe they could even have their status delivered straight to their Blackberries, where the numbers are there to “encourage” them at all hours of the day.

Nevermind that such a program could generate a spirit of competition amongst associates. Or that it might drive some people to work too much, just as the board at Disneyland encourages workers to skip bathroom breaks. I still have a feeling that we’ll be seeing this kind of tool put in place at some law firm somewhere at some point down the line.

-Michael

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A radical professor has proposed a troubling new law school curriculum, one which includes a required international law course but has no apparent constitutional law requirement.

No, I’m not talking about Elena Kagan. I’m talking about Gustavus Schmidt, founder of the Louisiana Law School, now the Tulane University Law School. In 1844, this rogue proposed making international law a required centerpiece of his new institution.

Shocking. I suppose this is yet another example of crazy liberals trying to force their new-fangled “foreign law” into our U.S. courts.

Is This Blog a Legal Liability? (Part Two)

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Just after Susan and I started this blog, I asked whether we were unintentionally opening ourselves up to liability. Today the Virginia State Bar issued a decision that might again suggest, at least at first glance, that we are.

A Richmond criminal attorney, Horace Hunter, ran (and continues to run) a blog. He wrote about things he knew: the law, the news, and, perhaps misguidedly, his own cases. The Virginia State Bar evidently didn’t care for Hunter’s writing, smacking him with a formal misconduct charge premised on his website. Among other things, they faulted Hunter for failing to include a disclaimer when he talked about prior cases. (Virginia felt he should include the ordinary stuff along the lines of, “Prior results do not guarantee future success.”) Today, the misconduct charge was upheld, evidently finding that the blog was indeed meant to market the firm and therefore amounted to advertising.

Some people are going to take this case and extrapolate big things from it. The bar is going to come after lawyers who blog! It’s the end of social media for lawyers! Delete all the blogs! But I think we needn’t panic yet. The ruling only covers blogs wherein an attorney talks about his own cases, which realistically can raise a number of issues even absent the VSB’s ruling. (Client confidences, anyone?) And Virginia’s disclaimer rule only seems to reach those “prior case” posts, so everyone else should be ok.

Still, I think this case provides another reminder that lawyers should think carefully before jumping into the social media frenzy. It seems a lot of lawyers–especially lawyers my age–think social media is the gravy train to success. Mr. Hunter’s unfortunate case reminds us that some caution might be in order before hopping on.

-Michael

“The Emergency Court”: Another Example of the Overcomplication of Government

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The AEI-Brookings Continuity of Government Commission (what an exciting title!) released a report yesterday that imagines an attack on the Supreme Court. It’s not that the Commission was trying to bring back 24; no, the report instead considers the consequences of a terrorist attack on the Court in the hopes of finding some possible solutions to the problems that would result. From the ABA Journal:

While the president of the United States would have the power to appoint temporary justices on an emergency basis without congressional approval, this could create political problems and legal uncertainty, especially if a large number of justices had to be replaced, the report explains.

It would thus be better, the report proposes, to create an emergency court ahead of time with an agreed panel of judges. Members of the emergency panel would fill in empty seats and decide cases, along with the surviving supreme court justices, until the nation’s top court could resume its usual operations.

The Commission’s report explains that any “emergency” court could be composed of either (a) the remaining Supreme Court justices and the chief judges of the Courts of Appeal; or (b) judges drawn from a pool of active judges (previously selected by the President), retired Supreme Court justices, and chief judges of the Courts of Appeal. The first option would produce a huge court of 18 or 19 people, many of whom might have been appointed by the same President. The second option would require a rather complicated process of appointments, lottery selections, and the like.

Perhaps I’m crazy, but I think simpler would be better in a time of crisis. If we’re really going to have an “emergency court,” why not make it the U.S. Court of Appeals for the D.C. Circuit? The court has eleven seats (with eight presently filled), making it a reasonable size. It represents a diversity of political perspectives. And from a practical standpoint, the judges are already in Washington and therefore well-positioned to hear cases there. It’s also a reality that the D.C. Circuit is perhaps the most well-respected of all the Circuit Courts (with apologies to my beloved Fourth Circuit), so these judges get a thorough vetting when they go through the nomination process in the first place. Given that the D.C. Circuit is often called a stepping stone to the Supreme Court, why can’t it be a stand-in as well?

But here’s hoping all this turns out to be a moot point.

-Michael

You Can’t Spell “Shpoonkle” Without “Poo”

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Update: At some point after I wrote this post, Shpoonkle took down the blog post I discuss below. I suspect that one could pick apart many of the posts on the site in the same fashion, but I simply don’t have time to do so.

Shpoonkle is a reverse auction site for lawyers, where clients post their legal problems and lawyers bid to provide the cheapest solution. The site was founded by a recent New York Law School graduate who couldn’t figure out what to do after law school. Above all else, this little web project is an awful idea with a terrible name. And now, a new blog post on the Shpoonkle website provides reason to question the competence of the people behind this project. I suspect folks using Shpoonkle are meant to be comforted by the fact that the managers of Shpoonkle are lawyers. But apparently, lawyers they ain’t.

Continue reading →

Bifurcated Habeas?

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Over at PrawfsBlawg, Lee Kovarsky of Maryland Law is raising some interesting points about the law of habeas. Professor Kovarsky believes that law schools are increasingly teaching habeas law as two separate bodies of law–”one that pertains to executive detention, and one that pertains to post-conviction review of criminal judgments.” Whereas executive detention (i.e., the Gitmo detainee issues) is a sexy issue right now that’s well-covered in law schools, post-conviction review is a less popular body of law that’s getting short shrift in CrimPro and FedCourts classes. Kovarsky theorizes that this split is then “reflected in the diminishing quality of habeas workmanship on the federal bench,” which treats executive detention issues seriously while writing almost summary opinions in the post-conviction context.

I completely agree that law schools–or at least the one I went to, GW Law–don’t give much attention to the post-conviction aspect of habeas review. I really have no idea why that is. Perhaps it’s because so many of the post-conviction cases are (at least in practice) entirely lacking in merit, or maybe it’s because the kind of student who attends a so-called “national” law student typically does not aspire to do post-conviction work. (An exception might be those who want to be prosecutors, but in my experience even prosecutors view post-conviction work as bitter medicine that must be tolerated to get to the “good” work.)

Still, I disagree with Professor Kovarsky’s suggestion that this “bifurcation” explains the inattention federal courts seem to give to post-conviction habeas cases. To some extent, I think the fact that the executive detention cases get a more thorough treatment stems from their novelty; the legal issues are really unsettled and judges can get excited about tackling some difficult questions. But more importantly, I think the difference comes from what’s actually being “reviewed” in each of the two types of cases.

In an executive detention case, a court essentially reviews the executive’s assurance that an individual is dangerous or has otherwise merited detention under the laws of war. Judges routinely question the choices made by the legislative and executive branches, and some judges particularly approach executive assurances with a heavy degree of skepticism. These cases are the bread-and-butter “constitutionality review” cases that federal courts have loved for hundreds of years.  See Marbury v. Madison, 515 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”)

In the post-conviction context, on the other hand, federal judges are reviewing the decision of a state court judge (and usually a state court jury). In contrast to the executive and legislative branches, these state courts are supposed to be on equal footing with the federal courts when it comes to resolving legal questions. Moreover, federal judges are often intimately connected to the state courts they’re reviewing–many federal judges start their careers in state courts and maintain close connections there. Consequently, federal judges are likely less troubled by the decisions of their state court colleagues, a fact that’s reflected in the sometimes almost flippant treatment given to state post-conviction review.

In any event, I do think Professor Kovarsky is right in hinting that law schools should consider putting more emphasis on the post-conviction stuff, whether as part of a “unified theory” of habeas or otherwise. Post-conviction law has some really interesting stuff buried inside of it, so professors shouldn’t let the “hot” research trend take too much away from the time spent on tried-and-true post-conviction review.

-Michael