Benchslaps

Judge Shira Scheindlin is no Jonathan Martin. When the Second Circuit bullied her off the stop-and-frisk case, she didn’t run crying to her parents. Instead, she’s standing up to the Second Circuit, appealing its ruling that she was improperly biased. She notes that the Second Circuit kicked her off the case sua sponte, without giving her any opportunity to defend or explain herself.

It’s funny… Scheindlin is basically arguing that she got stop-and-frisked by the appellate court. She was walking along, judging her own business, but the Second Circuit jumped to conclusions based on her appearance.

Unfortunately, in my experience, telling the people who stop-and-frisked you that they jumped to a conclusion without probable cause usually doesn’t go well…

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When people in the legal profession screw up in major ways, we are there to chronicle the action, providing entertainment and education (in terms of what not to do). For example, sometimes lawyers volunteer to enlarge the size of opposing counsel’s a-holes — and get canned. Sometimes lawyers bill for 29 hours in a day and get taken to task. Sometimes lawyers blush when they accidentally request a trial “on all the c**ts”.

These things do happen, but they’re usually one-time occurrences that would otherwise be missed by the members of the legal community, if not for our coverage here at Above the Law.

On the other side of the coin, when you screw up so many times that a federal judge feels the need to publicly excoriate you with the ultimate insult — by comparing your work to that of a pro se litigant — maybe it’s time to hang your head in shame for the rest of your days…

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That a major law firm would engage in such shenanigans distresses us. The firm’s argument regarding the amendment to the National Union insurance policy is censurable, and we hereby censure it.

– Judge Richard Posner, writing on behalf of a three-judge panel of the Seventh Circuit, issuing a harsh benchslap to Cadwalader Wickersham & Taft for the firm’s “frivolous interpretation” of an endorsement to its client’s Commercial General Liability insurance policy.

When you’re a real litigator — at a firm, in the trenches, arguing stuff and getting your hands dirty — you see and hear the coolest things.

So I’m sharing a couple of litigation war stories with you today, and soliciting you to share others in the comments.

I’m in the California Court of Appeal in San Francisco. My case is third or fourth on the calendar, so I’m watching the arguments before mine. In the first case, the appellant had been convicted of a bunch of gruesome crimes. It was hard to tell without having read the briefs, but the litany plainly included rape, murder, and the desecration of a corpse. Defense counsel had not exactly lucked out in the selection of an appellate panel: He was arguing to three female judges, all of whom had formerly been prosecutors.

For reasons not entirely clear, counsel was trying to reverse the conviction for desecration of a corpse. He insisted that no evidence supported the verdict, because there was no evidence (I kid you not) that the defendant had jammed the stones inside the victim after she had died. As one of several arguments, counsel tried an appeal to reason. He asked the (seemingly) rhetorical question: “But why would my client have shoved rocks inside the body after she was dead?”

The question wasn’t so rhetorical, after all. One of the judges leaned forward incredulously and asked, with a snarl: “Excuse me, but . . .

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* Just in time for Halloween, here’s a real Night of the Living Dead scenario. In Ohio you only have 3 years to challenge a ruling that you’re legally dead. After that, regardless of how f**king “alive” you are, you have to stay dead. [WTAE]

* Remember the epic Ninth Circuit benchslap oral argument? Well, the government read the writing on the wall and has confessed error and vowed to use the video of the oral argument as a training tool for its attorneys. We hope they’ll consider using the ATL write-up as supplemental reading material. [The Volokh Conspiracy]

* Corporette offers some good advice on how to write great cover letters. A good start is not writing one like this guy we profiled awhile ago. [Corporette]

* A fund has been set up to help the man injured in the alleged hit-and-run involving a Hastings student. [We Pay]

* Law schools tell us they’re moving toward a model encouraging practical skills… and keep hiring more professors without any practical skills. #fail [Lawyers, Guns & Money]

* Does anyone remember 16 Tons by Tennessee Ernie Ford? Let’s say you do. Here are revised lyrics for 1Ls. [Law Prof Blawg]

* Infographic telling us what we all knew — the bubble done burst. [Online Paralegal Programs]

* The Ole Miss FedSoc has readopted Colonel Reb, the now departed Ole Miss mascot, who the student body rose up and tried to replace with Admiral Ackbar solely because the collected student body figured out this was racist (prompting one of my friends to create this brilliant image). So as Elie asks, “Is it really news that the Ole Miss FedSoc is raceist?” [Ole Miss]

* A visit with Bill Coleman Jr., the first African-American Supreme Court clerk. [Judicial Clerk Review]

* More about the Stephentown incident in which 300 kids broke into a guy’s house and live-tweeted the $20,000 in damage they did. Some parents have threatened to sue him for identifying the kids who ruined his house — because blaming the victim is awesome! [IT-Lex]

* Today in contrarian arguments, fracking could solve the global water crisis. [Breaking Energy]

There’s no better way to introduce this story than by reprinting the opening paragraph of the Sixth Circuit opinion by Judge Raymond Kethledge (citation omitted):

There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

Trolls. So. Hard.

Want to know the argument that set off the panel? “Like a Good Neighbor, State Farm is there… with a detailed explanation!

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An en banc panel of the Ninth Circuit dropped one-liners, harsh mockery, and severe realkeeping for a little over an hour, and it’s entirely watchable because it’s so damn funny.

A federal prosecutor in California inserted a “fact” into his rebuttal that wasn’t in the record.

Overzealous prosecutor lies to get a conviction? To channel Ralph Wiggum, “that’s unpossible.” Now I can take off my old defense lawyer hat.

After the trial judge responded to these charges by shrugging his shoulders, the case wound its way to an en banc hearing of the Ninth Circuit, where a bevy of judges (including Chief Judge Alex Kozinski) rips into the government for sandbagging the defense out of a fair trial.

And it’s all on video….

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Or at least his laptop. After a conservative state court judge in Kentucky wrote an op-ed for the local paper arguing that the Supreme Court’s recent rulings on gay marriage didn’t affect the definition of marriage under Kentucky law, a retired federal judge called him on the carpet.

Benchslappery ensued. Let’s take a look….

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Judges are a fun lot. When they aren’t busy trawling for strippers or sharing racist remarks on the record, judges can have perfectly entertaining meltdowns over explicitly judicial matters.

Like this judge. She wasn’t too keen on the defendant, and let the jury hear about it when they voted to acquit…

double red triangle arrows Continue reading “When Judges Attack! Judge Rips Jury For Not Guilty Verdict”

Pop quiz, hotshot. A federal judge issues an order to show cause that you should be “sanctioned for repeated failure to prosecute cases” and “barred from practicing in this District.” What do you do? What do you do?

The correct answer begins with “responding,” obviously. And when you’re in trouble over “failure to prosecute,” maybe that should light a fire under you to respond thoroughly and on time.

Yeah… this guy didn’t. Instead he provided a detailed, if legally irrelevant, explanation of how he was just too busy to worry about responding on time. Think of this as “Prelude to a Benchslap”…

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