7th Circuit, Federal Judges

Judge Posner: Lawyers Still Suck At Their Jobs

Judge Posner looks over the legal landscape and delivers his verdict.

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Judge Richard Posner believes in speaking his mind, whether he’s calling out Supreme Court justices, or demolishing a pro se defendant, or schooling his colleagues on basic logic. In a Seventh Circuit opinion handed down yesterday, Judge Posner went after the legal profession as a whole. The verdict: you’re all terrible.

Well, maybe that’s not entirely fair. To be precise, Judge Posner dissented from the opinion of his colleagues Judges Easterbrook and Manion, dismissing a case over a technical error, reasoning that these ticky-tack dismissals have empirically failed to reduce careless errors or improve the overall quality of lawyering.

Concluding his dissent in Reserve Hotels v. Theodore Mavrakis:

I want in closing to remark a general issue of federal practice that this case illustrates. Recall that the district judge’s main reason (mysteriously ignored in the majority opinion) for dismissing Balagiannis’s suit was his four-month delay in filing the second letter. The second letter is crucial to his case. I find myself increasingly uncomfortable with basing dismissals with prejudice on harmless procedural bobbles. The only argument in favor of such summary justice that I can imagine is that by punishing parties for their lawyers’ mistake we improve the quality of the bar; the lawyers who disserve their clients attract fewer new clients and eventually perhaps are forced to leave the practice—an example of the positive effect of competition on the quality of goods and services that a market provides. But while this is plausible in theory, I have to say that in more than 33 years as a federal court of appeals judge I have not noted any improvement in the average quality of the lawyers who appear before us. I find it difficult to believe that punishing Balagiannis and his lawyer by in effect a “fine” of $925,000 will promote the quality of legal representation in the courts of this circuit.

Not to quibble with Judge Posner, but to play devil’s advocate, Judge Posner’s dissent overlooks that there are two sides to the incentives coin. Even if draconian dismissals fail to raise the profession to new heights, they may be responsible for keeping the profession honest. It’s possible that things could get even worse without the prospect of throwing away your client’s case through carelessness.

That said, I agree with Judge Posner — it’s hard to imagine that lawyers would risk embarrassing themselves in front of the federal bench just because there’s no risk of dismissal. One hopes the profession still has enough pride to self-police on that count.

On the other hand, patent trolls exist, so maybe professional pride isn’t as ubiquitous as you might hope.

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(As usual, the full opinion — both the majority and Judge Posner’s dissent — is available on the next page.)

Earlier: Quote of the Day: A Time-Out in Posner v. Scalia?
Judge Posner Lights Into Pro Se ‘Sovereign Citizen’
Judge Posner Schools Colleagues On Marriage, Basic Logic

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