5th Circuit, Benchslaps

Lawyer Writes Stupid Brief, Fifth Circuit Lets Him Know

Lawyer tries to get cute in his briefing and gets mocked hard.

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smack slap benchslap benchslapsHonestly, this isn’t so much a benchslap as a targeted killing. Like a snarky little assassin, Judge Edward Prado modeled his two-page opinion — for a panel that included Judge Leslie Southwick and Judge James Graves Jr. — to mirror the contrived, superfluous opening of the motion at hand and left it bleeding on the floor.

This is just brutal.

Chad Flores of Beck Redden was probably trying to have a little fun when he kicked off his motion with the imagined transcript of a lawyer and client discussing the case. It’s hokey and entirely unnecessary, but sometimes a routine motion needs a little something to jazz it up. For the record, this is not the little something he should have gone with. For there’s a time and a place for light-hearted antics like this and “on appeal before the Fifth Circuit” apparently isn’t it. Here’s what he wrote:

Sometimes, in deciding a case, the Court ought to put itself “into the shoes of the attorney” before it. Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 261 (5th Cir. 2001) (Smith, J., dissenting from denial of rehearing en banc). Consider the conversation that naturally flows from the Court’s opinion here:

Lawyer ……. I regret to inform you that the court of appeals affirmed.
Client…….. What reasons did they give?
Lawyer ……. They said that they were persuaded by the trial judge’s reasons. Hmm.
Client…….. What did they say about personal jurisdiction?
Lawyer ……. Well, I just told you that they adopted the trial judge’s reasons.
Client…….. But the judge didn’t give any reasons. He made no findings or conclusions on jurisdiction. Remember? You were the one who told me that last year.
Lawyer ……. Oh, yes. You’re right. The Circuit affirms for “the reasons” given below, but there weren’t any on jurisdiction.
Client…….. So what do we do?
Lawyer…….. We move for panel rehearing.
Client…….. But how will that change anything?
Lawyer…….. All institutions make mistakes. Panel rehearing’s purpose is for overlooked matters like this. Trust the system.
Client…….. That’s a little challenging right now.
Lawyer…….. Have faith. The 5th Circuit has to tackle thousands of cases a year, so mistakes will happen once in a while, but the Court is conscientious about fixing them on rehearing.

Yep. That’s really what he wrote. Imaginary voices haven’t played such a prominent role in a filing since… well, the last time a “sovereign citizen” challenged a parking ticket. Judge Prado was not a fan and trolled back hard:

Sometimes, in litigating a case, lawyers ought to put themselves in the shoes of the judges before them. Consider the conversation that naturally flows from Appellants’ Petition for Panel Rehearing here:

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Judge 1: Did you see Appellants’ petition for rehearing?
Judge 2: No, what do they say?
Judge 3: Well, they begin the petition with a strange hypothetical conversation between a lawyer and client.
Judge 1: I cannot imagine why they thought that was a good idea.
Judge 2: What’s their argument?
Judge 3: They say that we made a mistake by not expressly addressing their personal jurisdiction argument.
Judge 2: That’s silly. It goes without saying that there was personal jurisdiction here.
Judge 1: I agree. The company reached out to Appellee in Texas, traveled to Texas to negotiate the contract, and entered into a contract with a Texas corporation.
Judge 2: So what do you think we should do about their petition?
Judge 1: Deny it.
Judge 3: I agree. Deny.
Judge 2: Sounds right.

Ooof.

(Check out the full motion and opinion over the next couple pages…)

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