Benchslaps

Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.

When it comes to depositions, it doesn’t always reach “fatboy” levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.

Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….

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Rarely are the stakes of a benchslap elevated to the level of life and death.

And yet, a federal judge made just such a life and death call recently in swatting down an annoying lawyer wasting the court’s time with a litany of discovery disputes.

Thankfully, despite the stakes it’s a pretty funny benchslap….

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We overuse the word “childish” when discussing the behavior of lawyers. This dispute though is so utterly childish it can be summed up as “Teacher! Denise swore!” and “But, Dan did it first!”

Rare is the opinion with the word “a**hole” (though without the wusstrisks we use on this site) in the opening sentence. But that’s what you get when a judge levels a benchslap against one side for “intemperate language,” which is apparently a thing that lawyers shouldn’t use.

Now lawyers can be a salty bunch, so it takes a serious outburst to earn the ire of a federal judge. And this woman doesn’t disappoint, allegedly drafting an aggressive email peppered with “intemperate language” combined with shady tactics and outright lying. It’s a cocktail of behavior that deserves consideration if you’re looking for case studies for a professional responsibility course. As the judge writes in his opinion, this is one where the lawyer should have hit “delete” instead of “send.”

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So it’s come to this. We live in a world where the headline “Lawyer Smacks Judge Repeatedly With Flyswatter” had to be written. That jumble of words came together to honestly describe an actual event.

If you’re still pining to live in a world of trial by combat, have we got the court for you. Consider this the logical progression from a world where judges feel free to physically benchslap attorneys in the hallway — because now the lawyers are fighting back and there are weapons involved.

Granted a plastic flyswatter lacks the heroic appeal of Prince Oberyn’s spear, but it’s a terrifying weapon nonetheless because nobody wants to be hit in the face with a flyswatter.

Watch the rise of alternative dispute resolution take another unsuspected swerve off the road in this closed circuit video feed….

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* Mitchell Epner breaks down the Donald Sterling trial, which kicked off today. Or “tipped off” today. [CNBC]

* Judge Kopf reviews Keith Lee’s The Marble and the Sculptor. Keith can take heart that His Honor didn’t tell him to STFU. [Hercules and the Umpire]

* MoloLamken offers its comprehensive review of the Supreme Court’s recently concluded adventures from the perspective of businesses. Spoiler alert: businesses did really, really well. [MoloLamken]

* Former seminary dean lied about his religious background and then tried to sue the guy who called him out on it. Benchslapping ensued in a fee decision: “Plaintiff’s sparse trickle of written argument gave way at the hearing to an overflow of objectively unreasonable claims…. Plaintiff either cast unsupported aspersions or asserted boldfaced contradictions, adopting whatever narrative best served him at the time.” In fairness, those sound like they might be assets in organized religion. [Religion Posts]

* If you want to know what’s up in the energy sector, Breaking Energy now has a “Law Firms Perspective” feed. [Breaking Energy]

* Discretion is the better part of valor: gamblers turned down around $1.5 million payout to sue casino for illegal detention… and then lost. [ATL Redline]

* I’ve said before that I find the concept of legal tattoos fascinating. This one is incredibly meta….

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* Judge Judy hears a case about Grindr. “Don’t pee on my leg… unless you’re into that.” [Gawker]

* Supreme Court retirements announced! [Legal Times]

* Most criminals don’t walk around in a giant yellow bird costume. This guy is not most criminals. [Lowering the Bar]

* The Washington Post credits blogger Josh Blackman with coining the term “benchslap.” Professor Blackman corrected the author. Let’s get a Kickstarter going to buy her a Black’s Law Dictionary (affiliate link) so she doesn’t make this mistake again. [Washington Post]

* The Chamber of Commerce didn’t win every case this term. But it came awfully close to perfect when it counted. [Constitutional Accountability Center]

* If you’ve been looking to complete your collection of Second Circuit bobbleheads, behold Judge Denny Chin! If this wasn’t sponsored by the National Asian Pacific American Bar Association, I’d worry this pic was a little racist…. [Squareup]

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* Jury duty is the only major civic duty that no one ever talks about. Professor Andrew Ferguson would like to change that by encouraging jurors to speak up about their experience. Enjoy learning how the sausage of justice is made! [Huffington Post]

* Verizon threatens to sue Netflix for honestly reporting how bad Verizon’s internet speeds are. [DailyTech]

* Hey, after all those threesomes, Case Western Med School is the one in court over “professionalism” concerns. [Cleveland Plain-Dealer]

* Of course a case about using a chemical weapon on a mistress is named “Bond.” Let’s examine Justice Scalia’s curious concurrence, shall we? [Constitutional Accountability Center]

* Dragons and isolationism. Makes sense. [The Legal Geeks]

* Cybercrime is pretty costly. [Lawfare]

* The emerging schism in the LGBT community on whether the term “Tranny” is empowering or a slur. Of course this is Legal Insurrection coverage, so the conclusion here is everyone who’s not with the straight white male program should just keep quiet, but the issue itself is interesting. [Legal Insurrection]

* Judge Kopf was asked to review Uncertain Justice by Professor Tribe and Joshua Matz. He didn’t want to do it, but thankfully he changed his mind. [Hercules and the Umpire]

* Slate Money discussed the Second Circuit’s reversal of Judge Rakoff last week and cited Above the Law specifically for the word “benchslap.” [Slate Money]

* Congratulations to UC Hastings dean and occasional ATL columnist Frank Wu on his reappointment as chancellor and dean! [UC Hastings]

* Lawyer + Cat = Internet win. Here’s the pic that’s going viral… [Imgur]

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Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.

– Judge Laurence Silberman of the D.C. Circuit, condemning a brief for an abundance of acronyms.

(More information — including the identity of the offending professor, and the full opinion — after the jump.)

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Judge John C. Murphy of Brevard County, Florida was feeling a bit like Judge Dredd yesterday morning. Video captured him verbally sparring with an experienced assistant public defender, Andrew Weinstock, before requesting Weinstock visit him in his “Chambers of Doom” (a.k.a. the hallway) for some actual sparring.

Looks like we need to come up with a new term beyond “benchslap.”

Cue Michael Buffer: “Let’s get ready to RUMMMMMBLLLLLLE!”

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“… TO BE SANCTIONED!”

Usher wrote this song called Bad Girl. It’s got a good beat and you can dance to it. Anyway, this guy named — I s**t you not — Dan Marino claims he wrote the song and Usher and his cronies stole it from him. He wants millions and millions of dollars. But rather than trigger the fall of the House of Usher, his lawyer got handed his hat.

He hired a lawyer named Francis Malofiy to zealously represent his interests. To his credit, “zeal” is not a failing of Mr. Malofiy. Courtesy, respect, professional responsibility — these things might be lacking, but he’s got zeal covered.

And, as it so often does, the latter failings (coupled with the former strength) gave rise to an epic benchslap….

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