Tag Archives: judges

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

Not So Smart?

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“One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.”

Judge Richard Posner, judge on the United States Court of Appeals for the Seventh Circuit, commenting on judges

Updated: Are “Benchslaps” Really Appropriate?

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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.

Warning

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NewsOK (via the ABA Journal) reports that University of Tulsa law school dean Janet Levit was on the verge of a nomination to the U.S. Court of Appeals for the the Tenth Circuit.  Unfortunately for her, the nomination was scuttled when Sen. Tom Coburn (R-OK) expressed concern over Levit’s “background” in international law. There is nothing in the article (or anywhere else) indicating that Levit believes international law should be actively employed in domestic cases. No, Coburn apparently quashed the nomination only because her academic specialty is international law and she is a member of that liberal-commie-pinko organization, the American Society for International Law.

So, if you study or work on international law issues, please know that your troubling interest will forever bar you from becoming a federal judge.  At least in Oklahoma.

-Michael

Publish or Perish: How Federal Appellate Courts Manipulate Precedent Using Publication Rules

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As How Appealing reported, the Ninth Circuit issued a rather strange unpublished decision yesterday.  The decision, Tuite v. Martel, reversed the denial of a state prisoner’s habeas petition.  In essence, the court disagreed with a California court’s decision that an admitted Confrontation Clause error at the defendant’s murder trial was harmless error.  I don’t really understand the decision (for instance, why isn’t there any mention of AEDPA‘s deferential standards?), but the really strange thing about this opinion isn’t the disposition–it’s the first footnote in the opinion.

Right at the beginning of the opinion, in a little starred footnote, is this odd caveat:

This disposition is not appropriate for publication and is not precedent except as provided by [a Local Rule].  The panel finds that a published opinion might cast unjust aspersions upon those not before the court. 

The little “unjust aspersions” line is simply a fancy way of saying, “We’re worried this opinion might make someone look bad.”  (I think the court is referring here to an expert for the prosecution whose testimony spurred the confrontation clause problem.)  Evidently, the court is now worried about non-parties’ reputations in criminal cases. Nevermined that this “unpublished opinion” is available online, on Westlaw and Lexis, and will be printed in the Federal Appendix, where people can draw whatever conclusions about the witness’ character they wish.

This case strikes me as another example of an appellate court abusing its ability to designate cases for publication. When cases are published, they are, of course, deemed precedential; they therefore provide lower courts and litigants with guidance in resolving often complicated issues. Here, however, the Ninth Circuit decided to render this analysis on harmless error a nullity merely because they were worried it might accidentally besmirch the name of a non-party.  Nevermind that the facts recited are all true.

As Orin Kerr recently recognized, some courts have a tendency to issue a lot of unpublished opinions. To be sure, many of these unpublished cases are one or two page shots that simply deal with the clear and easy cases. But in some circuits, especially my “old” circuit (the Fourth Cicuit), courts routinely issue full but unpublished analyses on new or difficult issues of law or in other significant cases.

That practice is extraordinarily disappointing, as the only thing it does is encourage confusion and uncertainty, just so an appellate court can avoid having to live with the consequences of its own reasoning.  Judging is tough, but that’s why we supposedly pick such talented people to fill the role. To allow circuit courts to “get away” with throwing out a bad decision in a single case (with no fear of any long-term consequnces) is to allow them to shirk their important responsibilities.  And as Judge Richard Arnold suggested, it might even be a violation of Article III to allow judges to irrationally “change their minds” on an issue by issuing conflicting unpublished opinions:

We can exercise no power that is not “judicial.” That is all the power that we have. When a governmental official, judge or not, acts contrary to what was done on a previous day, without giving reasons, and perhaps for no reason other than a change of midn, can the power that is being exercised be called “judicial”? Is it not more like legislative power, which can be exercised whenever the legislator thinks best, and without regard to prior decisions?

In my view, if appellate courts are going to use a case to opine on the state of the law–in other words, if they offer more than a summary disposition–then we should hold them to it. Such an approach would bring greater clarity to issues of law, keep collateral issues (such as a party’s potential embarrassment) from affecting the development of important precedents, and force appellate judges to consider carefully the consequences of their reasonings in each case.  (Plus, it would put an end to those infuriating opinions wherein an appellate court scolds a party for relying on an unpublished opinion because it is “not precedent.”  If you didn’t want the opinion to be read, why write it? And of course counsel are going to go out and read an unpublished opinion that’s on point an effort to anticipate the judge’s thinking, so why not allow him to rely on it?) It would be better if judges stopped “publishing” these little footnotes and odd local publication rules entirely and focused more on getting every case right.

-Michael