Judge Posner Rips Poor Winston & Strawn Lawyer

Judge Posner and Judge Hamilton tag team a litigator given an impossible task.

We’ve chronicled Judge Posner’s biting questioning style and incapacity to suffer fools. Frankly, it’s why we love him — a honey badger of a snark monster worthy of every accolade this publication can bestow.

Which is why we relished this audio clip from a recent oral argument where Judge Posner held out all of nine seconds before interrupting to announce, “Look, I have to say, I do not understand your position at all.” And so begins the worst 10 minutes of this lawyer’s life. Poor Joseph Torres of Winston & Strawn had the unenviable task of representing industrial giant Caterpillar and having to defend the indefensible. After a worker died tragically, representatives of United Steelworkers immediately sought access to examine the scene of the accident to ensure the safety of its members. Caterpillar refused and offered a DVD showing the machinery from one angle, citing Holyoke Water recognizing that the right of employers to control their property must be balanced against the rights of employees to be responsibly represented by a union.

(Clip edited to include just Caterpillar’s initial argument. You can listen to the entire oral argument including all parties here.)

Judge Posner’s exasperation over Caterpillar’s inability to identify any harm in honoring the union’s request hits its crescendo at the 9:24 mark when he proclaims, “Yeah, but, you know, the problem with the balancing test is there’s nothing on your side of the balance!”

More somber but no less scathing is Judge David Hamilton (Judge Manion was also on the panel but remained out of the Torres inquisition). In Caterpillar’s opening brief, it argued:

The critical inquiry is whether access is required in order for the union to undertake its investigation. If not, the employer’s competing property interests prevail, whether the underlying issue that the union seeks to investigate an industrial accident or a leaky faucet.

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Judge Hamilton did not appreciate this line of argument. At 3:39, he scolds Torres for suggesting that a workplace fatality falls on some sliding scale just an uptick from a leaky faucet, a rhetorical flourish that he probably regrets today.

The whole argument is worth a listen. Throughout the clip, Judge Posner can be heard mocking the idea that a non-employee union representative would be stealing industrial secrets or sneaking onto the premises for any reason other than the death of an employee. The lashing elicits more than a couple laughs — I’m particularly fond of Judge Posner’s exacerbated “oh come on!” in the middle of an answer to a Judge Hamilton question — even if the underlying case is no laughing matter.

For Torres, he can’t really be blamed for having to put lipstick on the pig Caterpillar handed him. Stonewalling the union after someone died made for a pretty hard sell. At least Torres can take heart that a thorough beating from Judges Posner and Hamilton may be an unpleasant professional experience, but in the grand scheme of things, it’s much closer to a leaky faucet.

Earlier: The Benchslap Dispatches: I Pity The Fool Who Tries To Talk Over Judge Posner
Judge Posner Lights Into Pro Se ‘Sovereign Citizen’

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