Benchslaps

Judge Loses Patience With Government's Sloppy Work

This is an undergrad-level mistake.

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Some judges are known to be persnickety. As the ultimate masters of their domain, they have wide latitude to enforce standards as they see fit. Today’s benchslap is not about a lawyer failing to meet a judge’s incredibly high standards, but rather failing to meet one of the most basic lessons of writing — one you should really have picked up in undergrad — don’t misquote your sources.

In the patent case of ClearCorrect v. ITC and Align Tech, Federal Circuit Chief Judge Sharon Prost is clearly unhappy with the International Trade Commission’s work. It seems the Commission cited a Senate Report in their briefing and, well, weren’t exactly meticulous about it. As Patently-O reports:

In particular, it appears that the commission altered the Senate Report in a way that supports the commission’s ultimate conclusion that non-good electronic transmission count as “articles” under the statute.

Well, that doesn’t sound good. And Chief Judge Prost’s words make it clear she doesn’t believe it was some easily understandable mistake as she indicates the deletion of the phrase “in the importation of goods” changes the meaning of the report:

The Commission’s omission of the phrase, “in the importation of goods” is highly misleading; not only was a key portion of the quote omitted, but it was omitted without any indication that there had been a deletion. Furthermore, while we may agree that the quote, as incorrectly stated by the Commission, would indicate a broad authority for the Commission, the phrase “in the importation of goods” clearly limits the Commission’s authority. And as we discussed above, it limits it in such a way as to exclude non-material things. Because the Commission uses this misquote as its main evidence that the purpose of the act was to cover all trade, independent of what form it takes, the Commission’s conclusion regarding the purpose of the Act is unreasonable.

If only that were the only issue in the Commission’s submission:

Chief Judge Prost also highlights a second important citation problem in Footnote 21:

It is noteworthy that this is not the Commission’s only failure to cite evidence correctly. The Commission additionally states that “goods, commodities, and merchandise” have the same definition as “articles” as defined in the second edition of BLACK’S LAW DICTIONARY. Final Comm’n Op. at 43. However, BLACK’S LAW DICTIONARY does not provide the cited definition.

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This is looking… terrible for the Commission:

Taking this “in sum”, Chief Judge Prost writes that the Commission’s opinion “represents a systematic pattern of the Commission picking the wrong conclusion from the evidence.”

Words you never want to hear in the same sentence for $100, Alex: “systematic patterns” and “wrong conclusions.”

No Deference for Misquoting your Sources [Patently-O]

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