One More Oral Argument Meltdown:

Since I'm in the mood, one more good oral argument exchange in a different case. The case is on appeal because the plaintiff's case was dismissed because his lawyer failed to file his expert witness list by the deadline set by the court. As a result, the court refused to admit expert testimony on behalf of the plaintiff and dismissed the case.

Plaintiff appealed, arguing that the district court's deadline was unreasonable. But more than that, he claimed in his brief and oral argument that his failure to file the pleading in time was and act of civil disobedience against the high-handed practices of the district court judge, "like Ghandi, Martin Luther King, and the brave Americans who stood up to the tyranny of King George." (Coincidentally, the district court judge's first name was "George").

Which led to the following exchange:

JUDGE: Counsel, you say that your failure to meet the deadline was an act of civil disobedience, designed to demonstrate the injustice of the court's approach in this case? And that as a result, we should reverse the trial court's dismissal of the case and remand?

COUNSEL: Yes, your honor.

JUDGE: Now counsel, you do understand how "civil disobedience" works, don't you?

COUNSEL: I don't understand the question, your honor.

JUDGE: Well, the way that civil disobedience works is that you believe the law to be unjust, and so you are willing to be punished for violating it in order to demonstrate the injustice of the law. For this to be a true act of civil disobedience, therefore, you would have to be willing to accept the punishment, and through that willingness to accept the punishment, you demonstrate the injustice of the law. So, for instance, Martin Luther King's act of civil disobedience was his willingness to be arrested and go to jail in order to demonstrate the injustice of the laws. So, if this was a true act of civil disobedience on your part, aren't we obliged to affirm the ruling of the district court dismissing the case?

COUNSEL (after long pause): Um, your honor, I would like to amend my argument...

Paul Gowder (mail):

I think the correct, if gutsy answer there is: "No, your honor. I was engaging in civil disobedience, not my client. I accept the punishment: hold me in contempt if you will, but don't punish my innocent client."

But then again, anyone desperate enough to try a civil disobedience defense to a pretrial deadline isn't going to have the chutzpah to go all the way with it like that!
7.11.2005 12:54pm
Gil (mail) (www):
No, I think the correct response is something like:

"No, your honor. I am confident that this court is enlightened enough to appreciate the injustice hilighted by this symbolic gesture and take the correct actions before any unfair punishment is meted out."
7.11.2005 1:07pm
Chris Lansdown (mail) (www):
What about a motion for retrial because of incompetent representation?

In all seriousness, what does it usually take to get one? I've only heard of that motion in one case, the Long Island gunman who represented himself, got convicted, and then appealed because of incompetent representation. (I never heard the outcome, and moreover I'm purely a lay person, I'm neither a lawyer nor a law student.)
7.11.2005 1:19pm
Cheburashka (mail):
You can't get a retrial of a civil case for inadequate representation, because the constitutional affirmative right to counsel latches only in the criminal context. If I recall correctly, on arrest or indictment for a felony. (Although weren't misdemeanors with prison terms an open question?)

Frankly, I think putting that argument in an appellate brief is sanctionable.
7.11.2005 2:22pm
Is there a source to this, or is it online anywhere?
7.11.2005 3:08pm
Dilan Esper (mail) (www):
Funny story, but it raises a serious issue-- I don't think a lot of people understand how civil disobedience works. I've seen arguments, for instance, that the judge who held Judith Miller in contempt of court should be impeached. During the Clinton impeachment scandal, there were arguments made that Clinton shouldn't have to answer questions truthfully at his deposition and before the grand jury because the entire inquisition of his sex life was illegitimate. Lots of groups, such as Operation Rescue, who purport to engage in civil disobedience then go running to court to argue that their arrests were, in fact, illegal.

Civil disobedience would be real easy-- and thus would carry little moral force-- if you didn't have to go to jail as a result of it. The whole point is to take the punishment and essentially become a martyr. There are a lot more people out there who would like to think of themselves, or the public figures they admire, as acting in the spirit of Ghandi and Dr. King but who have no understanding of what actually gave their actions such moral force.
7.11.2005 4:01pm
Zywicki (mail):
Not that I know of. It was from a brief and oral argument from way back in 1993-94 when I was clerking on the 5th Circuit. If I recall correctly, the panel finally just affirmed with a one sentence unpublished order.
7.11.2005 4:51pm
vic (mail):
just a point of order that is causing me some consternation:
it is Gandhi not Ghandi
7.11.2005 8:38pm
David Chesler (mail) (www):
I don't think a lot of people understand how civil disobedience works.

On the other hand, sometimes a protest is simply a protest.

My freshman year in high school (which means you should probably stop reading here) just as NYC was going into its financial crisis, the Bd of Ed dumped a teacher from HQ onto Bronx Science, causing us to lose the most junior faculty member. A bunch of us protested. The Times picked up the story (Dec. 4, 1975, IIRC). We assembled outside the school for a few periods after lunch.

The next day our social studies teacher said "I am allowed to deduct 5 points from your final grade for cutting a class, but I will not do so, but I expect a 10,000 word essay tomorrow on why you (who were not here) were cutting class." We groaned. He said "Those of you who groaned have just demonstrated that you were not out there in principle, you were out there to skip class. When I marched across the Brooklyn Bridge in 1968 to Jay Street, I knew that I could lose my job, but I was willing to do that, because that was the price of civil disobedience. Blah, blah, blah." (He ultimately told us we didn't have to write the essays.)

A few months later he was "excessed" as the budget crisis deepened. I saw him leaving the school. I thought but didn't ask him if he was glad he had lost his livelihood, and if he wasn't, did it prove that he was a hypocrite for telling the students that were not sincere for demonstrating against budget cuts and reassignments.
7.13.2005 2:44pm