Media and Journalism, Reader Polls, Rudeness, State Judges, State Judges Are Clowns

The Sidley Brief in the McKinney Matter:Was It Appropriate?

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In today’s Morning Docket, we mentioned the recent benchslap administered to Sidley Austin by Judge Diane Cannon (pictured), an Illinois state court judge. Lynne Marek of the NLJ reports:

A court hearing on Tuesday in Chicago at which former Northwestern University journalism students planned to fight a subpoena for their records and grades turned into a judicial lambasting of their Sidley Austin lawyers.

It started when Judge Diane Gordon Cannon of the Cook County Circuit Court called the lawyers, partner Richard O’Brien and associate Linda Friedlieb, to the bench before prosecutors from the Cook County State’s Attorney’s Office had even arrived. She asked who had written the brief she was holding. O’Brien and Friedlieb responded that they had submitted the reply supporting the motion to quash the subpoena.

Judge Cannon was, suffice it to say, not happy about the Sidley Austin brief.
Her Honor’s complaints — plus discussion of whether they were justified, and a reader poll — after the jump.


It sounds like the government lawyers here weren’t super-professional:

Assistant State’s Attorney Celeste Stack arrived a half-hour late to the hearing, citing “computer issues,” and then offered up a supplemental response against the motion to quash. Prosecutors contend in the 30-page response that the students paid a witness for a statement saying [convicted murdered Anthony] McKinney wasn’t at the crime scene. O’Brien told the judge that he couldn’t reply on such short notice, scoffing that such “an important issue” deserves “an opportunity to be fully briefed” by both sides.

But it was the Sidley lawyers who got torn a new one:

Cannon, who was a state prosecutor before being elected a judge in 1996, turned on O’Brien, saying the case was “no laughing matter” and castigating him for submitting a brief that, she said, didn’t include attorney names and was “dripping with sarcasm.” “It is reprehensible,” a steaming Cannon said, calling the Oct. 5 brief an editorial not fit for court.

The judge said an imprisoned pro se litigant had submitted a more appropriate brief in another case earlier that day and added that Karen Daniel, a Northwestern University School of Law professor who represents McKinney, had never submitted such a brief. O’Brien had difficulty interrupting her to call attention to the attorney names on the last page with Friedlieb’s signature.

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Based on the copy of the reply brief in support of the motion to quash that was posted in the comments — thanks, commenters! — the attorney names appear on page 14.
Was Judge Cannon’s copy missing page 14 (in which case some poor paralegal is probably out of a job)? Or was Judge Cannon a moron in the wrong?
Setting aside the signature block issue, was the Sidley brief appropriate? Judge Cannon condemned it as “reprehensible” and “dripping with sarcasm.” But based on our quick read, the brief didn’t seem particularly intemperate. Talking to the media after the hearing, Sidley partner Richard O’Brien said that the brief wasn’t any different from the numerous briefs he has filed over thirty years in practice.
One ATL reader said of the brief, via email, “Doesn’t seem overly awful to me.” Most commenters on Morning Docket agreed:

18 – “I read that brief and it is ‘utterly’ unremarkable, except for a heavy reliance on ‘utter.’ It’s funny but civil judges are more accustomed to vigorous advocacy than criminal judges (after all criminal defense lawyers have to deal with the same prosecutors every day). I suspect part of this is the judge’s unfamiliarity with the tone of most civil briefs. And that she is in the tank for the state. But there is nothing overly sarcastic or improper about Sidley’s brief.”

19 – “In the grand scheme of briefs it is not that bad, it is a reply brief and a brief is suppose[d] to be advocacy, not merely a recitation of the law. This brief could have been better written, but you get what you pay for.”

21 – “The brief fails several tips on good brief writing, with the main one being don’t use adjectives and adverbs as a crutch. I believe you when you say the other side is ‘wrong.’ When you say the other side is ‘clearly wrong,’ now you sound like you’re stretching. Similarly, the narrative in the introduction could have been more persuasive if it presented the State’s positions in a less outlandish nature. That said, the writing was poor, not offensive.”

But these are just isolated opinions. Let’s take a more systematic survey of reader reaction. Read the brief (PDF), then vote:

Chicago Judge Lambastes Sidley Lawyers Over Brief [National Law Journal]
Did Northwestern Students Pay Witnesses for False Testimony? [WSJ Law Blog]
Earlier: Morning Docket: 11.11.09

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