‘I try not to read that many cases, Your Honor.’
When judges preside over law school moot court arguments, like the one at Columbia Law School last week, they often dish out this compliment to the student advocates: “You’re better than most of the practicing lawyers who appear before us.”
And maybe they’re not just being nice. If we had gotten to this item a bit earlier — it’s from last week — Roger Phipps would have been a Lawyer of the Day. We’re happy to declare him our Lawyer of Last Week.
Over at the Legal Profession Blog, Professor Alan Childress draws attention to this per curiam opinion (PDF) by the Fifth Circuit. Here’s an excerpt:
[W]e would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful. [FN4]Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.
Ouch. So what did Phipps do to incur the court’s wrath?
Read the text of footnote four, after the jump.
Update: For a postscript to this story, see here.
Here is Roger Phipps’s ill-fated exchange with the court:
Phipps: … so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. … She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.Judge: That’s not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right … . And as far as whether even Ricks should apply, I don’t think it should.
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.
As for which Loyola Law School graduated Phipps, there’s some ambiguity on that score. Read the full post over at Legal Profession Blog for more details.
In the end, Professor Childress (jokingly) concludes: “I will just assume that Mr. Phipps is a proud graduate of Loyola-Los Angeles.”
Home of Loyola 2L, of course. Holla atcha boy!
Update: For a postscript to this story, see here.
Never Saw This Argument To The Fifth Circuit Before: “I Try Not To Read That Many Cases, Your Honor” [Legal Profession Blog]
Hartz v. Tulane Educational Fund (PDF) [U.S. Court of Appeals for the Fifth Circuit]
(98) Comments
Comments
"nope" - around the parts where i live, saying that to a judge will not get you far. not that it got this assclown far, either.
That is awesome
"It's my North Star"
Is he courting the cases or citing them as precedent?
This is the kind of stuff that makes me feel so much more confident in my own abilities.
I would also add, as a former district court clerk, that judges are not just being nice when they compliment moot court students. Most of the lawyers that appeared before the court when I clerked (EDNY), including most of the AUSAs, couldn't write a coherent paragraph to save their lives, much less undertake anything more than a superficial discussion of the law.
This guys is a real tool, BUT...
He has a point with respect to oral argument in general (not that he articulated it), it is pretty much useless. The parties have briefed the court, and in 99% of the cases the court should be able to decide the case from that. Oral argument is the biggest waste of time primarily used to allow the judges hear themselves talk. Appellate judges bitch and moan about the caseloads, and then they allow for oral argument is every damn case. He is right, why drag the lawyers into court for oral argument and cost both sides incredible expense when they court can easily decide the case based upon the briefs...you know, the record in the case.
Appellate courts are the most inefficient wasters of time and money you will find anywhere in judiciary. I am willing to bet this was a straightforward case, like 90% of cases appealled, and the appeal is little more than a strategic move, like 90% of cases appealled.
The guy is still an a-hole, but the judges are not far behind.
"It's my North Star."
Sounds like he took the term Starry Decisis a bit too far.
I don't blame this lawyer for being bitter. Tier 2 schools don't teach much. They are nothing more than overpriced diploma mills that churn out unemployed/debt-ridden graduates. The only purpose of these schools is to provide cush jobs for lazy professors and administrators. I wonder if any of these pompous judges ever adjunct on the side at any of these tier2/3/4 toilets.
"That's why I wore a suit today."
That Morgan case is a mere chimera.
Sincerely,
Nino Scalia
I have to agree with 11:47. As a former law clerk for an appellate judge, oral argument is a huge waste of time and money for both the government and clients. Big Law pushes for oral agument because it enables them to justify huge hourly rates for lawyers who are perceived as being excellent oralist and will somehow change the judges' minds with their excellent speaking abilities (which I never experienced - sure, Judges would say that so-and-so did a good job, but never would change their minds based on such).
This guy is a schmuck. I can't believe people are defending him. If he isn't aware of ON-POINT SUPREME COURT PRECEDENT, he could at least have the good grace to act embarassed.
11:53=
Well played.
I think Professor Childress is also pretty unprofessional. The whole, "Imagine my relief that the indicted law school was not mine, Tulane, but Loyola" bit makes him sound like a prick. Which he is.
--Former student of Childress.
I am actually a fan of oral arguments---if the judges are making a tough decision, and deciding on where to draw the line, the questioning can allow them to explore the contours of the subject.
I've clerked in two appellate courts, and both times, my Judge and I talked a lot. I didn't just write memos.
No beats Michael Dorf (now of Cornell, formerly columbia) for being a jerk of a professor.
Childress v. Dorf for biggest jerk professor. any takers?
"Appellate judges bitch and moan about the caseloads, and then they allow for oral argument is every damn case."
Well, no, they don't, actually.
who is this infamous Loyola 2L and where is a link where i can read more?
Given the judge's confusion between Tulane and Loyola, and the fact that this is a 5th circuit case, I think this is probably a Loyola New Orleans graduate.
11:53 - Smuggest comment ever. There are plenty of outstanding attorneys out there from Tier 2, 3, and 4 schools. They work at big law and head organizations such at the Army JAG and the DEA. Of course, the Tier 1 schools have plenty of outstanding lawyers as well, i.e. Alberto Gonzalez.
How embarrassing. I am a 3L at Loyola Chicago, I certainly hope he didn't attend law school here. Although I certainly would not be surprised if he did, given the tool-to-regular person ratio here...
I'll agree with 12:09 - sounds like a Loyola-NO guy.
Which is why I have said that there should be no more than 50 law schools. Have the top 50 and get rid of the rest which produce loser lawyers from schools like Loyola (both of them).
12:15 - they have to justify wasting their lives somehow. Why not with a misplaced feeling of superiority? You must be new here, this blog's comments are filled with the empty-headed musings of stampeding BigLaw buffalo.
Childress is not a prick. He's a decent guy who knows the material he teaches very well.
- another former student of Childress
12:19 - not new, just appalled as usual.
12:15 - amusingly, you've blundered. You meant 'e.g.' instead of 'i.e.', unless AG AG is the only attorney you wish to fault Tier 1 for producing.
One of the judges on the 5th Circuit panel (Stewart) is a graduate of Loyola (Louisiana) . . . !
D'oh!
Nice catch, 12:32. You have to love it when lower-tier grads get all cocky and then self-pwn.
12:32 - My apologies. In the future, I will consult my Bluebook prior to posting comments on ATL.
12:15 (12:39) - you're just digging yourself a hole, buddy. That's not a Bluebook question. I'm pretty sure "i.e." doesn't even exist in the Bluebook, and e.g. is just used as a signal.
The difference between i.e. and e.g. is actually a pretty significant one. It's amusing that you screwed up because you attempted to use latin where you could've just said "like" or "for example." So, you're actually TRYING to be prestigious, but failed.
Anyways, since you didn't learn it in LRW (or undergrad... or 11th grade english...), recommend you look it up before you use it again.
- 12:32.
12:17 (3rd posting @12:17) - truer words have never been said.
12:39,
i.e./e.g. is one of those distinctions that you are just supposed to know. It's not like a spelling slip - it's a very revealing and embarrassing mistake.
12:36 wins. End of thread.
It is so ordered.
12:46 et al:
cf Ray "Bones" Barboni in Get Shorty:
"E.g., i.e., f#ck you! The point is this... is that... when I 'jump,' you say 'OK,' okay?"
http://www.imdb.com/title/tt0113161/quotes
Isn't ignoring on-point supreme court precedent a pretty serious malpractice risk?
12:32/12:39,
What seems even more elementary than the distinction between id. est. and exempli gratia is the need for a subject and a verb in an independent clause. Consequently, I'd consider your "recommend you look it up" gaffe to be more embarassing than confusing i.e. and e.g, which are often used interchangeably in the vernacular anyway.
Also, you failed to put spaces between the dots in your ellipses. Maybe you shouldn't be so quick to dismiss the need to consult the Bluebook after all.
"Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola."
Best. Transcript. EVER.
Why would he say to a Judge that the lower court got it right? Then what is he doing there?
Of course we all know the Judge was going to rule against him no matter what, and probably read the decision into the record immediately following the oral argument. But as lawyers we at least have to put on a suit and make an attempt.
Isn't ignoring on-point supreme court precedent a pretty serious malpractice risk?
No putting anything past you, 1:01 . . .
Actually 1:03, the use of an imperative statement with an understood subject is perfectly acceptable vernacular. Confusing i.e. and e.g. is embarrassing.
1:03,
Your suggestion that "i.e." stands for "id. est." exposes your own ignorance. "Id" and "est" are complete Latin words; they are not abbreviations, as wrongly believed them to be based on your use of a period after each of them. I hope you found this helpful.
12(b)6 is where lawyers who charge to much hide from lawyers who know how to try cases.
malpractice liability here we come, ignoring on-oint SCOTUS precedent is a bad/grossly neglgient move indeed.
As a Loyola Los Angeles alum, I can tell you they teach us not to be a bonehead like this moron. Given that this took place in the 5th circuit, I'd bet this d-bag came from Loyola in Chicago or maybe New Orleans.
right
id est are words, not abbreviations
one way to remember the difference between i.e. and e.g. is:
i.e. means 'in essence'
e.g. means ' for EGxample'
...or "example given," which is how I was taught.
This is directed at those commenters who are oblivious to any sort of context clues:
The Judge asks this jagweed if he went to Tulane. His response is Loyola. Tulane is in New Orleans. Loyola (NO) is too.
Despite them not giving the physical address of the law school, don't you think it's a safe bet that's the source of the confusion?
Why is everyone arguing that the use of "i.e." by 12:15 was wrong. You are assuming 12:15 meant to say "for example" and not "that is" or "in other words." Either might be correct, depending on whether the purpose of the sentence was to put down some first tier grads or to put down AG AG.
1:03 = FAIL. Try again next time.
1:57,
That argument might be colorable if 12:15 hadn't acknowledged the error at 12:39.
Man, you must all have tiny penises.
is there a link to the OA anywhere? Granted, I only looked for like 30 seconds, but I'd like to hear what this guy sounded like. Why can't the 5th Circuit be more like the7th and post OA on the court's website? To the extent that they do and I just missed it . . . well I've put my foot in my mouth worse than that in the past.
"Why would he say to a Judge that the lower court got it right? Then what is he doing there?"
Pretty sure he was defending his client's victory below, which the court ended up reversing.
2:04,
Did 12:15 really acknowledge that particular error? 12:15 did make an error at 12:39 by wrongly assuming the problem stemmed from the Bluebook. That is not the same as admitting he used "i.e." improperly.
Guys at my high school used to mess up i.e. and e.g. while attempting to bash former AG AG on a thread not about him all the time, it was no big deal.
Okay, Childress may be a prick, but he's one of the most reputable experts in the field of Professional Responsibility.
-former Childress student
With this transcript you can see how the "I didn't learn anything in law school" excuse only goes so far. If there's one thing we were taught to do, it's to read the damn cases.
12:15 here. I admit that my usage of "i.e." was incorrect. I am not, however, particularly embarrassed by that mistake, given that it occurred within an ATL comment and not a legal brief.
I also am not trying to "put down" first tier grads. I am sure that many of you who graduated from those law schools work very hard and are talented attorneys. My original post was merely an attempt to point out the problem with generalizations like those made by 11:53. I am continually dismayed by the disdain many commenters on this website exhibit toward lower tier law schools and the presumption that all lower tier law school graduates are inferior attorneys. If you want to turn that into a grammar debate, feel free. I just felt that the point needed to be clarified.
The guy definitely went to Loyola - New Orleans. The Loyola - Los Angeles thing was a joke. Read the complete post (esp. the "Update"):
http://lawprofessors.typepad.com/legal_profession/2008/04/i-have-never-se.html
2:27, When you are walking down the street and some shitbum insults you, you should either ignore him and keep walking, or if you feel it necessary, tell him to have a nice life and keep walking. It is not necessary for you to challenge him to a duel, unless you are actually a shitbum and want to hide that fact.
Can you imagine the personality of a person who judges a man by his education? He is either a member of the English landed gentry or a small pricked asshole. In either case it is not necessary to respond to him. If you do, you will end up in an inane debate over the correct usage of i.e. and e.g. in comments.
HA! I'm definitely gonna use that "English landed gentry" quip sometime soon. Good one!
how does "to wit" fit into all of this?
12:00, what's wrong with Dorf? I'm sitting in his class right now, he's a decent guy.
I don't understand what the lawyer meant when he said "That's why I wore a suit." As in, they didn't teach me much at Loyola law school so to make up for that I'm wearing a suit? Am I missing a joke or what?
Childress is most definitely not a prick. He is an excellent teacher and one of the best I ever had. I learned a lot in his class at Tulane.
- another former (foreign) student of Childress
Dorf--isn't that the name of the Klingon on Star Trek?? Didn't realize he taught Legal Ethics.
I can hear him now: "THERE IS NO HONOR IN NOT READING ON POINT SUPREME COURT CASES. PHIPPS--YOU HAVE NO HONOR! I SHOULD STRIKE YOU DOWN WITH MY BATLETH YOU WHERE YOU STAND!!!"
1:25:
"Id." is an abbreviation for "idem." Idem is Latin for something that has been mentioned previously.
"Id." is similar in meaning to "ibid." Ibid. (also an abbreviation) is short for "ibidem." The literal translation for the Latin word "ibidem" is "the same place."
Read my books before playing grammarian.
Regards,
Bryan A. Garner
OMG Bryan Garner reads ATL! Swoon.
If I were the lawyer, the best strategy is just pretend that YOU are right and the judge is wrong: "Morgan? Yeah, I read Morgan. It's not on point at all! In Morgan, the girl was incapacitated. That's not the case here."
As long as you seem very confident, the judge will start doubting himself and drop it -- he'll just assume that you know more about the case than he.
Ding Dorn.
To all those who says that OA isn't a big deal because the case has been briefed. Do you really think this guy included the case in the brief when he admits that he never read it.
To all those who says that OA isn't a big deal because the case has been briefed. Do you really think this guy included the case in the brief when he admits that he never read it?
i gotta pee so bad it's crazy!
3:59 Id and idem are two different latin words. One means "that" or "it" and the other, as you noted, refers to something previously mentioned. You would know this if you had ever thought about where the whole "id" "ego" "superego" thing comes from, just as an example. So stop trying to sound smart.
3:59,
"Id." IS an abbreviation for idem, but i.e. does not stand for "idem est," it stands for "id est". Thus 1:25's point stands.
*** ALL: WE CAN END THE "id." / "idem." / "Ibid." / "Ibidem" DEBATE ***
3:59 (aka Bryan A. Garner) is on point.
Id. is the abbreviation for "idem" (p. 302 of Garner's Dict. of Modern Legal Usage). Ibid. is the abbreviation for "ibidem" (p. 302 of Garner's Dict. of Modern Legal Usage 239). I'm no bookworm, and don't get on me for my typing, I'm just an overpaid, underworked associate, who just so happens to have an authoritative book on hand.
4:37 here. Typo in my previous post -- "Ibid." / "ibidem" is discussed on p. 239 of DMLU, not p. 302.
SCORE: One for 3:59. Zero for 4:29.
4:29(2): huh?
4:29(1): huh?
4:29(1) here. I believe 4:29(2) is making the same point I was--i.e. that id and idem are two separate words, and while id. also happens to be an abbreviation for idem, the i in "i.e." stands for id and not idem.
4:37, I recommend picking up a latin-english dictionary, and looking up the word "id"
4:29(2) here. I meant what 4:29(1) said in both his original post and at 4:45. 4:37 is a moron.
You guys are all absurd with too much time on your hands. For all of you who believe that all of the law schools below tier one should be dispensed with, enjoy your six figure debt. I went to a 2nd tier law school because I received a full ride. Now I work in a top law firm, debt free, with a better education and skills than many of my 1st tier counterparts.
Many pulitzer and nobel prize winning writers have said that one should never use "i.e." and "e.g." under any circumstance.
3:54 - you are a failure as a nerd. It was Worf.
Wow: even without the audacious moment of bragging about being an idiot, this case is malpractice from beginning to end- (1) he failed to make an EEOC charge against one of the parties sued, guaranteeing dismissal for failure to exhaust; (2) failed to timely file the discrimination charge with EEOC; (3) failed to make his hostile work environment claim administratively.
Dr. Hartz has been a doctor for 35 years (according to the complaint this doofus filed in district court). Maybe she had a good case, and maybe not. Though I will note there might have been SOMETHING to it, since some of her grievance appeals had some success. In any event she deserved to have a REAL lawyer handle her case- one who could at least get her a hearing on the merits, either via summary judgment or trial. If you can't even do that what good are you as a lawyer?
I am a plaintiff's lawyer, if I ever let the SOL run on a case or failed to exhaust a claim, I wouldn't be able to sleep at night (I'd be afraid of losing my license and my malpractice insurance, if not my house). For this guy to come into court and BRAG about not having read cases that the defendants made a point of in their brief, just blows my mind. He is all but directly saying to the appellate judges (to whom he appealed the case) that he doesn't give a damn. Did he think they would think he was cute?
I hope at least the case was contingent and the doctor didn't waste any money on him. He is lucky he was not in the Seventh Circuit. Easterbrook would have fined him 20 grand for that- and for once it would've been justified.
6:21--you're an idiot. It was a play on the fact that the actor who played Worf was named Michael Dorn! Michael Dorf was just too darn close of a combination of the two to not make a comment, and any true nerd would have made the connection.
Isn't conduct like this grounds for arming judges with shotguns and just letting them waste a piece of crap like this right on the spot? Just a thought; might force some idiot lawyers to clean up their act and to stop smearing all of us so efficiently.
I love the Loyola LA commenter who then suggests that the attorney in question was from Loyola Chicago because the case was in the 5th Circuit. Apparently Loyola LA can't figure out where the 5th Circuit is.
Yeah, sorry, but whoever thinks 'id est' is actually an abbreviation of some kind for idem est should try taking Latin before they pretend to speak it.
Bryan A. Garner should perhaps review a Latin dictionary.
I was watching The Office recently and sometimes Ricky Gervais' character says "i.e." when he's making a point. I recall noticing that he used it correctly, i.e., not when e.g. would be proper. Apparently David Brent pwns T2.
christ almighty. to any non-lawyers out there who stumble across this crap - funny story with lots to discuss turns into a pedantic nitpickfest of Latin words and their meaning - are you as sick of these jerks as i am?
p.s.: i'm taking bets on which of the rich white dudes reading this will find something irrelevant to dissect.
9:39, I agree with you but wonder where all these idiots actually are. They're either not in my NYC biglaw firm, or they stay well hidden when not on ATL.
The administration of Loyola - New Orleans has sent out an email to the student body stating that this individual is NOT a graduate of that school:
Students and local attorneys have been emailing me concerned that this nationally circulated document will precede their applications for job search purposes and/or is an embarrassment to our school.
The bad news is that, "yes, this is embarrassing representation on behalf of the attorney."
The GOOD NEWS is that the attorney mentioned is NOT a Loyola New Orleans graduate.
The administration of Loyola - New Orleans has sent out an email to the student body stating that this individual is NOT a graduate of that school:
Students and local attorneys have been emailing me concerned that this nationally circulated document will precede their applications for job search purposes and/or is an embarrassment to our school.
The bad news is that, "yes, this is embarrassing representation on behalf of the attorney."
The GOOD NEWS is that the attorney mentioned is NOT a Loyola New Orleans graduate.
It appears that the school may have sent out that notice before reading the entire post. As 2:34 wrote, The guy definitely went to Loyola - New Orleans. The Loyola - Los Angeles thing was a joke. Read the complete post (esp. the "Update"):
http://lawprofessors.typepad.com/legal_profession/2008/04/i-have-never-se.html
Rich white dudes to 190k!
Lat's all over this. See the update post:
http://abovethelaw.com/2008/04/correction_loyola_of_new_orlea.php
Limit the number of law schools to a maximum of 50? I'm not sure Milton Friedman would agree . . .