7th Circuit

Benchslap of the Day: Judge Easterbrook Benchslaps Biglaw

By David Lat

Chief Judge Frank Easterbrook: do not mess with this man.

Aficionados of appellate law are familiar with the Seventh Circuit’s reputation for procedural punctiliousness. The court has a track record of benchslapping lawyers who fail to follow rules, lawyers who seek to deviate from rules without justification, lawyers who engage in substandard advocacy, and lawyers who are “menace[s]” to their clients.

Lately the Seventh Circuit has been laying down its pimp hand. Last Friday, for example, Chief Judge Frank Easterbrook declared one Bridget Boyle-Saxton, who allegedly blew deadlines and ignored multiple orders to show cause, “unfit to practice law in this court.” Ouch.

Now, snobs might think, “Sure, Boyle-Saxton might be a well-known Milwaukee lawyer — but she works at a small law firm, apparently with two relatives of hers. What can you expect from such an outfit? This is why people hire the large white-shoe law firms. You pay through the nose, but you expect (and receive) perfection.”

If that’s your attitude, think again. Biglaw just got a big benchslap — from none other than Chief Judge Easterbrook.

Which firm incurred His Honor’s wrath, and for what alleged infraction?

double red triangle arrows Continue reading “Benchslap of the Day: Judge Easterbrook Benchslaps Biglaw”

Was Judge Posner a Dodo in His Ostrich Opinion?

By David Lat

Of course not! But the headline got your attention, didn’t it? The notion of Judge Richard Posner as being anything other than a genius will certainly make people sit up and take notice. There’s a reason why there’s a Facebook group called Richard Posner for Philosopher King (of which I am a proud member).

It should be noted, however, that Judge Posner’s opinion in Gonzalez-Servin v. Ford Motor Co. was not 100 percent perfect. It initially contained some infelicitous wording — which has since been fixed.

Let’s look at the language that was perhaps imprecise….

UPDATE (4 PM): Additional comment from Judge Posner, added after the jump.

double red triangle arrows Continue reading “Was Judge Posner a Dodo in His Ostrich Opinion?”

A Reverse Benchslap? Chastised Lawyer Lashes Out at Judge Posner

By David Lat

On Thanksgiving Day, while you were enjoying your turkey (or tofurkey), we wrote about a different bird: namely, the ostrich. In a somewhat snarky opinion, Judge Richard Posner of the Seventh Circuit compared a lawyer appearing before him to an ostrich: “The ostrich is a noble animal, but not a proper model for an appellate advocate. The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.’”

Ouch. Judge Posner even included a photo (above right) of a man in a suit burying his head in the sand.

What did the lawyer in question, David “Mac” McKeand of Houston, have to say for himself? And what did McKeand have to say about Judge Posner?

double red triangle arrows Continue reading “A Reverse Benchslap? Chastised Lawyer Lashes Out at Judge Posner”

Thanksgiving Greetings from Above the Law!
(And a bonus benchslap from Judge Posner.)

By David Lat

Happy Thanksgiving, from your friends at Above the Law. As always, we give thanks to our readers, our tipsters, our advertisers, and even our commenters.

We also give thanks to Judge Richard Posner. This brilliant and hilarious jurist has just given us something to chuckle over as we munch on our Thanksgiving turkey.

This opinion by Judge Posner, handed down yesterday, could be viewed as “giving the bird” to an offending attorney. And the bird in question is not a turkey. Can you guess which bird is involved?

double red triangle arrows Continue reading “Thanksgiving Greetings from Above the Law!
(And a bonus benchslap from Judge Posner.)“

Benchslap of the Day: A Billy Madison Style Rambling, Incoherent Complaint

By Staci Zaretsky

'At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought.'

It’s not every day that attorneys repeatedly file “unintelligible” complaints that are “riddled with errors.” (Okay, maybe it is every day.)

But it’s really not every day that Drew Peterson’s attorney — yes, that Drew Peterson — attempts to file the same complaint three times, appeals to the Seventh Circuit only to get smacked down, and is then ordered to show cause as to why his federal license to practice shouldn’t be tossed out.

Let’s take a look at what Walter Maksym attempted to file, and why he faced the wrath of the Seventh Circuit earlier this week….

double red triangle arrows Continue reading “Benchslap of the Day: A Billy Madison Style Rambling, Incoherent Complaint”

Quote of the Day: Judge Posner Is Not a Kindergarten Teacher

By David Lat

There must be no more of this childish abuse…. No more or there will be sanctions. In more than 29 years as a judge, I have never encountered such bickering, quarrelsome lawyers. You are wasting my time and your clients’ money.

– Judge Richard Posner of the Seventh Circuit, sitting by designation as a district judge (N.D. Ill.), ruling on motions in limine in Chamberlain Group, Inc. v. Lear Corp. (PDF).

(The context of this quotation, which contains additional benchslappery, appears below.)

double red triangle arrows Continue reading “Quote of the Day: Judge Posner Is Not a Kindergarten Teacher”

Quote(s) of the Day: Oh, professionalism is overrated.
(Or: Mess with the Easterbrook, you get the horns.)

By David Lat

Greco is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how Greco has treated [his clients] Lee, Washington, and Moore.

– Chief Judge Frank Easterbrook of the Seventh Circuit, benchslapping attorney Michael J. Greco in Lee v. Cook County.

(Additional gems from the opinion — this is just the tip of the iceberg — appear after the jump.)

double red triangle arrows Continue reading “Quote(s) of the Day: Oh, professionalism is overrated.
(Or: Mess with the Easterbrook, you get the horns.)“

Quote of the Day: The Best Brief Is a Brief Brief

By David Lat

We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words.

– Judge Richard Posner, in a benchslap that denied appellants’ motion to file an oversized brief — and summarily affirmed the district court (full opinion here, via How Appealing).

Non-Sequiturs: 03.07.11

By David Lat

DNA is pretty, oh so pretty.

* The Supreme Court opens the door, but just a crack, to prisoners seeking access to DNA evidence. [SCOTUSblog]

* The legal job market is getting better, right? Right? [Vault]

* Hall, J., dissenting — from the grave. [How Appealing]

* Harvard Law School is always ready for its close-up: first The Paper Chase, then Legally Blonde, and now The Five Hundred. [Deadline.com]

* Are computers better than attorneys at document review? Maybe — but they’re definitely more attractive. [Constitutional Daily]

* Protip for litigators: “Pull Your Pants Up Before Going to Court.” [Gothamist]

* Elsewhere in fashion news, a Seventh Circuit panel (Posner, J.) holds that it’s constitutionally protected to wear a t-shirt that says “Be Happy Not Gay” to your high school. But it’s still really… gay. [WSJ Law Blog]

* Litigation to advance a worthy cause (although it seems odd, in a “cart before the horse” sort of way, to file the press releases before the actual lawsuit). [The Snitch / SF Weekly]

* Blawg Review #301: it’s all about communication. [Not Guilty via Blawg Review]

* Congratulations to Professor Brian Fitzpatrick of Vanderbilt Law on receiving the 2011 Paul M. Bator Award (won previously by a long list of blawg celebrities, including M. Todd Henderson, Orin Kerr, Jonathan Adler, Eugene Volokh, and Randy Barnett). [Federalist Society]

What Is To Be Done About Super-Old Judges?

By David Lat

Judge Wesley Brown will be 104 in June.

When I clerked on the Ninth Circuit years ago, one of the judges on the court at the time was extremely old — and didn’t seem very “with it.” His law clerks seemed to take on a large amount of responsibility. One of his clerks that year, a law school classmate of mine I’ll call “Mary,” would negotiate over the phone with Ninth Circuit judges over how particular cases should come out — a responsibility well beyond the legal research and opinion drafting done by most clerks.

On one occasion, a vote on whether to rehear a case en banc emanated not from the judge’s chambers account, but from Mary’s personal email account. Even more embarrassingly, it was written not on behalf of the judge or the chambers, but in the first person: “I vote YES to rehearing en banc.” A law school classmate of mine who was also clerking for the Ninth that year remarked, “I thought only judges did that. When did Mary get her presidential commission?”

Some of us jokingly referred to that chambers as Weekend at Judgie’s. What appeared to be going on over there reminded us of Justice Thurgood Marshall’s famous quip to his clerks: “If I die, prop me up and keep voting!”

We joked about this delegation of Article III authority to a newly minted law school graduate. But as Joseph Goldstein suggests, in a very interesting article just published by Slate and ProPublica, the issue of superannuated jurists is no laughing matter….

double red triangle arrows Continue reading “What Is To Be Done About Super-Old Judges?”

Judge of the Day: Rudolph Randa

By David Lat

It’s hard out here for an immigrant. Arizona has immigrants in the crosshairs, as we all know. Immigrants might also be unable to clerk for federal judges (or at least get paid for it).

And when they commit crimes and get sentenced, immigrants are sometimes subjected to snide remarks by judges. The Seventh Circuit recently vacated a sentence and remanded for resentencing by a different judge, after trial judge Rudolph Randa (E.D. Wis.) made some unfortunate comments in sentencing defendant Jose Figueroa. From the Seventh Circuit opinion, by the fabulous Judge Diane Wood:

During the hearing, the district court digressed to discuss Figueroa’s native Mexico, the immigration status of Figueroa and his sisters, and the conditions and laws in half a dozen other countries—not to mention unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog.

Chávez, Iranian terrorists, and Hitler’s dog. Those are all § 3553(a) factors, right?

So how exactly did Judge Randa achieve the impressive feat of working all of these topics into a routine sentencing?

double red triangle arrows Continue reading “Judge of the Day: Rudolph Randa”

Quote of the Day: What Crawled Up His Robe?

By David Lat

I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt.

– Chief Judge James Holderman (N.D. Ill.) of Chicago, berating government lawyers — before a unanimous panel of the Seventh Circuit removed him from the case, in the middle of trial. Judge Richard Posner’s opinion cited Judge Holderman’s abuse of discretion and “unreasonable fury toward the prosecutors.”

Morning Docket: 07.16.10

By Kashmir Hill

Seventh Circuit nominee, Victoria Nourse

* The Gulf gets a temporary respite from the oil flow. [New York Times]

* Dancing with the Lawyers: Erin Andrews sues the hotels that booked her stalker in an adjoining room. [CNN]

* University of Wisconsin Law School professor Victoria Nourse gets the Obama nod for the Seventh Circuit. [Milwaukee Journal Sentinel; State Bar of Wisconsin]

* Will the Treasury Department make an offering to plaintiff lawyers? [The Hill]

* Lynne Stewart, who helped her suspected terrorist client smuggle messages out of prison, is sentenced to 10 years. [Reuters]

* Judge says that the Dole banana worker sterility lawsuit and its $2.3 million award are rotten and throws them out. [Bloomberg Businessweek]

* Judge Richard Posner and Chief Judge Frank Easterbrook clash on Blago jury anonymity. [Chicago Tribune]

* Louisiana law firm’s ‘crack’ decision was the right one. [National Law Journal]

Judicial Sight-ations: Justice Stevens, and Several Potential Successors, in Chicago

By David Lat

For Article III groupies, the InterContinental Hotel in Chicago was the place to be last night. The annual meeting of the Seventh Circuit Bar Association and Judicial Conference of the Seventh Circuit attracted a bevy of judicial superstars, who mixed and mingled at the conference’s grand banquet.

The most notable luminary was Justice John Paul Stevens, the Circuit Justice for the Seventh Circuit (and a former judge of the Seventh Circuit himself). The 90-year-old Justice Stevens, who is stepping down from the Supreme Court at the end of this Term, was joined at the dinner by several of his possible successors.

Justice Stevens actually had the job of introducing one of them, Solicitor General Elena Kagan, who delivered the keynote address. In the audience were several other short-listers, including Judges Diane Wood and Ann Claire Williams, of the Seventh Circuit, and Judge Ruben Castillo, of the Northern District of Illinois (Chicago).

So, what went down at the dinner?

double red triangle arrows Continue reading “Judicial Sight-ations: Justice Stevens, and Several Potential Successors, in Chicago”

Morning Docket 04.22.10

By Kashmir Hill

Judge Diane Wood

* Arizona State is paying out $700,000 for turning the Havasupai tribe into unwitting genetic guinea pigs. [New York Times]

* Jan Crawford confirms shortlist of ten potential Supreme Court nominees with the White House. There are some new names there, including Seventh Circuit judge Ann Claire Williams and someone named “Elana Kagan.” [Crossroads/CBS]

* If Judge Diane Wood can handle Posner and Easterbrook, she can handle Scalia and Kennedy. [New York Times]

* New addition to the Third Circuit: Judge Thomas Vanaskie. [Wilkes Barre Times Leader]

* Doing civil rights work just got even less lucrative. [Washington Post; New York Times]

* The Pennsylvania spycam school explains the 56,000 web shots that turned up in discovery. [True/Slant]

Posner for President!

By Kashmir Hill & David Lat

Posner.jpgShould Judge Richard Posner leave the Seventh Circuit and run for president? He certainly has the beginnings of a platform.
And, despite some possible leftward drift, Judge Posner’s tendencies still seem to point in a libertarian direction. From The Atlantic:

1. Remove all limits on the immigration of highly skilled workers, or persons of wealth. (This should be done gradually, so as not to increase unemployment while the unemployment rate remains very high.)
2. Decriminalize most drug offenses in order to reduce the prison population, perhaps by as much as a half, which will both economize on government expenditures and increase the number of workers. (Again and for the same reason, phase in gradually.)
3. Curtail medical malpractice liability, which increases medical costs gratuitously (because the courts are very poor at identifying actual malpractice) and, more important, engenders a great deal of very costly, and largely worthless, “defensive medicine.”

These are just the first three planks. Check out the rest of Posner’s policy proposals — he’s more willing than most sitting judges to opine on current affairs (see also his many books) — over here.
Is Paul Krugman a Realist or a Dreamer? Toward Refocusing on Economic Growth [A Failure of Capitalism/The Atlantic]

Seventh Circuit Rules Dungeons & Dragons A Threat to Prison Security

By Elie Mystal

Dungeons Dragons dice.JPGPredictably, I used to play Dungeons & Dragons in high school. Just as predictably, I didn’t lose my virginity until I stopped. It’s an established fact that Dungeons & Dragons is a bigger threat to human reproduction than all the gay marriages in the world.

But I did not know until this day that D&D could also pose a security risk. A Wisconsin prisoner, Kevin T. Singer, sued Wisconsin’s Waupun Correctional Institution after the guards confiscated his D&D materials.

Why did the prison guards take away this guy’s D&D paraphernalia? I’ll let Judge John Tinder of the Seventh Circuit explain:

Waupun’s long-serving Disruptive Group Coordinator, Captain Bruce Muraski, received an anonymous letter from an inmate. The letter expressed concern that Singer and three other inmates were forming a D&D gang and were trying to recruit others to join by passing around their D&D publications and touting the “rush” they got from playing the game. Muraski, Waupun’s expert on gang activity, decided to heed the letter’s advice and “check into this gang before it gets out of hand.”

A gang? A gang that needs to be checked? I’ve never been to prison, but I have watched Oz. I’m forced to believe one of two things: (a) any D&D “gang” member would find themselves tossing salads faster than you can say “saving throw against horrific prison justice … fails,” or (b) if you could beat up the D&D kids in your high school, then you can go to Wisconsin, commit violent crimes with impunity, get sent to prison and live like a God.

Singer sued the prison for violating his First Amendment rights. The district court ruled for the correctional facility on summary judgment, and the Seventh Circuit affirmed.

Does that mean we get to hear the Seventh Circuit argue that D&D is gang-like? Yes it does. Will that be hilarious? More fun than hacking through an encampment of goblins with a dwarven ax of immolation….

double red triangle arrows Continue reading “Seventh Circuit Rules Dungeons & Dragons A Threat to Prison Security”

A Benchslap for Kirkland & Ellis, from Judge Posner and the Seventh Circuit

By David Lat

kirkland ellis logo.JPGIs the customer always right? In the legal profession, not necessarily. As a lawyer, sometimes your job is to talk some sense into your client — and to refuse to move forward if your client, ignoring your advice, orders you to prosecute frivolous (or borderline frivolous) litigation.

Perhaps this lesson needs to be learned by Kirkland & Ellis. The super-prestigious firm, known for its world-class litigation practice, recently got benchslapped by the Seventh Circuit. From Judge Posner’s opinion:

[T]he defendants’ motion for sanctions should not have been denied. The plaintiffs’ lawyers [at Kirkland] may secretly agree, for they make no attempt to counter the arguments for sanctions made in the defendants’ brief even though the district judge denied the motion without explanation. They follow suit by merely asking us, without explanation, to affirm the denial.

The motion complained that Carr is harassing the defendants with repetitive litigation, including a suit — this suit — that borders on the frivolous, even though he is an immensely successful lawyer represented on appeal by one of the nation’s premier law firms, Kirkland and Ellis, as well as by his son Bruce Carr of the Rex Carr Law Firm, which the plaintiff formed after the break-up of his old firm.

At least Judge Posner referred to K&E as “one of the nation’s premier law firms.” Slap that up on the Kirkland website?

double red triangle arrows Continue reading “A Benchslap for Kirkland & Ellis, from Judge Posner and the Seventh Circuit”

Legal Eagle Wedding Watch 7.12: French Kissing

By Laurie Lin

champagne glasses small.jpgRejoice, wedding fans! We have some compelling mid-summer material for you this week: Wachtell, SCOTUS, lesbians, French nobility — read on for the details on all of that and more, as reported in the New York Times and filtered by us.
Our finalist couples:

1. Rebecca Gutner and Rodman Forter Jr.
2. Laura Hammond and Christopher Hemphill
3. Laure de Vulpillières and Vanessa Dillen

Admire these couples’ achievements, after the jump.

double red triangle arrows Continue reading “Legal Eagle Wedding Watch 7.12: French Kissing”

Judge Richard Posner Knows His Sex Toys

By Kashmir Hill

Posner.jpgIt’s an exciting day here at ATL when we can find three excuses to cover the salacious beat (see #1 and #2). Judge Richard Posner brings us our third opportunity.

Judge Posner issued a ruling [PDF] Friday in a patent infringement case involving “sex aids” companies. Posner brings his dry humor and excellent wit to the decision, starting off by defining the nature of the business the plaintiff and the defendant are in:

Both firms produce what the parties call “sex aids” but are colloquially referred to as “sex toys.” A more perspicuous term is “sexual devices,” by analogy to “medical devices.” The analogy lies in the fact that, like many medical devices (thermometers for example), what we are calling sexual devices are intended to be inserted into bodily orifices, albeit for a different purpose.

Never before has patent infringement been so sexy… and sex toys so un-sexy:

The devices are generally in the shape of rods of various curvatures and are made out of rubber, plastic, glass, or some combination of these materials. Until the plaintiffs began manufacturing their patented sexual devices, glass sexual devices were made out of soda-lime glass, the most common form of glass.

We are not as well-versed in the nature of sex toys as is Judge Posner. We didn’t realize there were such things as glass dildos — despite the presence of this commenter in our threads — but apparently there are, and they have been around for a long time. The plaintiffs in Ritchie (Know Mind Enterprises/Topco) v. Vast Resources Inc. claimed to innovate the glass dildo design, obtaining a patent for those made with borosilicate glass (the stuff used by Pyrex). Adding silica makes the devices “slippery,” “lubricious,” and “resistant to heat, chemicals, electricity and bacterial absorptions.” While we like chemistry in bed, electricity might be a bit much.

Ritchie sued Vast Resources for violating its patent, and making their own slippery glass rods. The Seventh Circuit, in Judge Posner’s opinion, reversed the lower court’s decision in the plaintiff’s favor, ruling that Pyrexing sex devices is not patentable. It’s an “obvious” invention, an example of “modest, routine, everyday, incremental improvements of an existing product or process that confer commercial value… but do not involve sufficient inventiveness to merit patent protection.”

Posner is a judge on the Seventh Circuit but sat on this Federal Circuit case by designation. Like us, Posner likes writing on salacious topics. After all, having penned the book Sex and Reason in 1992, Posner is a judicial sexpert.

Decision [Federal Circuit]

Slippery Sex Toys Aren’t Inventive, U.S. Court Says [Bloomberg]

Slick Glass Dildos are an “Obvious” Improvement! [The Legal Satyricon]

Judge Posner at the Federal Circuit: Patent on Sex Aid is Obvious [Patent Law Blog]