It's old news, I guess, and many of you may have seen this already -- but I hadn't (thanks to my student, Angela Giampolo, for passing on the citation to me), and it's more than worth another look in any event. The case is Bradshaw v Unity Marine (147 F.Supp.2d, S.D. Texas 2001) -- available online here or here. Some choice tidbits:
"Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins. . . .
"Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff "cites" to a single case from the Fourth Circuit. Plaintiff's citation, however, points to a nonexistent Volume "1886" of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. (What the . . .)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). . . ."
"After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED."
I don't really see what's productive about a judge going out of his way to ridicule the attorneys appearing before him. Sure, rule against them, but all of the overboard references to crayons, etc., are just unprofessional. And I'm going to go out on a limb here and say that it may violate the applicable cannons of judicial ethics re: judicial temperament (I haven't spent the time to look them up though, so I may be wrong on this point).
The fact that he goes out of his way to ridicule the attorneys simply demonstrates that he is a mean-spirited bastard.
And someone with far too much time on his hands, too.
I can understand a judge losing patience in the midst of a hearing or trial, but to draft, edit, reflect upon and then publish an opinion like this shows a remarkable lack of judgment, maturity, judicial temprement and fairness.
The judge abused his position and authority. End of story.
I am sad to say that I knew this cite long before going to law school (or knowing how the citation system works), thanks to an old buddy who preceded me into the maw of legal practice.
You can read my essay on the Green Bag site:
www.greenbag.org/Lubet%20Bullying%20from%20the%20Bench.pdf
You can read my essay on the Green Bag site:
www.greenbag.org/Lubet%20Bullying%20from%20the%20Bench.pdf
But bravo to the court (I'm being ironic) for the shout out to little Ruby Cawthon. I wonder if she was the 11-year-old or the 13-year-old.
Judge Kent is undoubtedly a funny writer, and there are several other opinions you may want to read if you thought this was funny: http://www.thesmokinggun.com/archive/skent1.html
http://www.thesmokinggun.com/archive/obiwan4.html
both are short, and well worth the read
It's unlikely that any of Judge Kent's comments could fall under violation of any type of ethical standard (i don't see how 'temperment' would apply)—but there has been criticism of Judge Kent's 'civility' in at least one law review article
http://72.14.209.104/search?q=cache:jfpQytuMDH8J:
aja.ncsc.dni.us/courtrv/cr38-3/CR38-3Resource.pdf
the links broken up..not wasting time w/tags
with regards to Judge Kent's writings, the author of the critical law review article "notes that the zealous
advocacy upon which the legal system
depends may be tempered by a desire
to reduce the risk of public humilia-
tion from a judge who regularly
engages in such conduct."
So the question comes down to—lawyers are afraid of being publicly humiliated for piss poor work or frivolous requests.
Now I know this may not play well with the general readership of VC, but if you ask the average person (who's impression of a lawyer is unfortunately often a money grubbing, slick talking, two faced, frivolous lawsuit bringer) [a law review article citing public perception of lawyers in the movies and in general seems to butress this http://www.usc.edu/schools/college/
politicalscience/gillman/
look for the bad lawyers article
then perhaps a judge who chastises such ineptidude isn't such a bad thing (a karma type just desserts for lawyers)
either way—-if its humor in opinions you have a problem with—-that's been debated already in review articles
if you can't stand the fact your shotty work or argument might called upon in court—considerng the fact that it doesn't appear Judge Kent's opinions generally fall under any ethical violation—-i would guess he'd suggest you 'grow a pair'
http://www.lawhaha.com/strange.asp
Kent has a couple more near the bottom.
And don't forget that the case was about a serious physical injury. I doubt that the plaintiff got a kick out of Judge Kent's zingers.
Humor has a place in judicial opinons, but there are a couple of requirements: (1) It has to be funny; and (2)it has to be fair.
(And before anyone ripostes that I lack a sense of humor, please check the NPR archives for my satiric commentaries on Morning Edition.)
i also wonder about how ethical it is to challenge the judge's opinions and entire jurisprudence because you dislike the style of his response in several opinions...
as for the plaintiff in that case...what you will notice was conspicuously missing during the 'humorous' comments was any reference to the plaintiff..when it came to the judges order about the seriousness of the case, he did his job
in fact the only thing that Judge Kent seemed to comment upon was the lawyers' work, he notably didn't make any comment about the merits of the case.
Agreed, it was very thoughtful and well written.
Mean people suck, but mean judges are just the worst.
Surely, in the movie version, the judge would be the comic figure!
Well, it has been over a quarter of a century since I read it, so I hope you will pardon my poor memory.
And you wonder why people hate lawyers? Poor babies, can't take getting slapped down by a judge.
No. It's just that it's a severe breach of professionalism by the judge. If the work was that bad, below the standards of minimal competence for the legal profession, I suspect the judge could have referred them to the bar for disciplinary proceedings, for breaching their duty to zealously and competently represent the clients. The courts, and we lawyers, do quite enough to bring shame on ourselves without committing premeditated breaches of the Canons and Model Code.
I enjoyed the judge's punchy writing style and, as a former federal law clerk who was sometimes frustrated by sloppy lawyers, I can understand the urge to mock them.
On the other hand, I appreciate that the Judge is in a position of authority, and, like a CEO mocking or berating a subordinate, it can be a bit unfair to use that authority to attack someone who won't fight back. So, I guess it would depend on how bad the briefs were, and how little effort the lawyers put into them.
Amen. Attorneys and judges cover entirely too much for each other, and the public is the loser.
If you don't want to be ridiculed, don't be ridiculous.
www.greenbag.org/kent_scanned.pdf
I believe I recall that the Chief Judge called Kent on the carpet, but I don't know the details.
If I were one of those lawyers, and the choice were between monetary sanctions and being publicly ridiculed by a federal judge in a written opinion that would be immortalized in the national reporter system, I would take monetary sanctions any day of the week.
Today's Washington Post has an article on Cobell v. Kempthorne: At U.S. Urging, Court Throws Lamberth Off Indian Case. I guess the government's strategy of pissing the judge off until he snaps finally worked. I don't think anyone should be happy here. I certainly don't like it.
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would this apply equally to the judge? If he had made a foolish error in an opinion, do you think it would be appropriate for a lawyer to file a motion for reconsideration that contained the same kinds of statements that Judge Kent's opinion did?
If so--- what do you think would happen to a lawyer who put such statements in a motion before Judge Kent?
Allas, it never seems to happen.
Until that time, lawyers, who seem to be willing to disparage any decision made in any profession that they do not personally understand, when in one case it did not work out, whther it e medical practice or designing lawnmowers w/o considering whter people would trim hedges with them, should be willing to get a little abuse back, occassionally.
Case ruled for the Judge.
Including a sentence or two criticizing bad lawyering is both fair and useful, but making bad lawyering a theme puts the lawyering above the issues. It also encourages lawyers to do the same in their briefs.
A smart judge can zing a bad lawyer in a sentence and move on. That's a skill Judge Kent clearly lacks.
What has made this brief famous, however, makes it less effective in my eyes. The only reason this brief is famous is because of the over the top, nasty, condescending, gratuitously insulting stuff about crayons and so forth. The judge could have done his job effectively without resorting to this tactic. Professor Lubet’s point is valid. An intemperate opinion like this casts doubt on the judge’s willingness to thoughtfully consider issues of first impression or novel legal arguments. In my experience, the nastiest judges are also the least competent. Vicious yet brilliant judges like Scalia and Easterbrook are the exception, not the rule. This judge, at least to my eye, was doing his job in pointing out the errors, but the tone of the opinion reads like a bully getting his kicks.
I realize many people don’t like attorneys or the legal profession, and I think that motivates some of the responses here. God knows many in my profession do much to bring it into disrepute. But there is simply no cause for anyone to treat anyone in this manner simply for the crime of incompetence. It’s no way to treat opposing counsel, a subordinate, a copy clerk, a legal assistant, or a grocery clerk.
One useful method I use to measure whether I am reacting proportionally to something is by asking myself, “if I found out tomorrow that person X’s mother died, or dog was put to sleep, or house burned down, or he lost his biggest client, would I still think the way I reacted was justifiable?” I don’t claim to do it perfectly, and I don’t mean to use it as an excuse for ignoring competence. No matter what the circumstances, poor legal work should be criticized by judges. But twisting the knife the way the judge did in this case is no way to behave in a civilized society when dealing with real people with emotions, problems, good days and bad days, etc. That he did it to people who have no way of responding is even more repugnant.
Professor,
Do you teach your students to write like Judge Kent--focusing on the lawyering instead of the issues? If so, you are doing them and the profession a grave disservice.
Unfortunately, yes, it did. To be fair, if you read the opinion, it's quite valid. The court agreed with many perjorative descriptions of the government that Lamberth used in his decisions, and spent quite a bit of time pointing out that it isn't wrong for a judge to have developed biases based on continued poor behavior on one side. However, it's clear he overstepped the broad judicial authority he was given, having been unanimously overturned eight times in a row (I believe), and spending ninety percent of his last decision in invective directed at the government.
Hopefully the next judge will be able to lambaste the DOI without going too crazy.
http://raddial.com/stuff/texasjustice.txt
Uh, Kent's opinion more than adequately addressed the issues, specifically plaintiff's absurd misreading of the law (and nonexistent cite) without which there'd be no case.
Quick, without looking, explain the substantive decision of the case. Don't remember? That's because the opinion is memorable for the vitriol dripped on the lawyers rather than the legal points.
The same goes for briefing and motion practice. If your writing contains pithy attack after pithy attack against opposing counsel, the legal arguments you make in between will have less impact.
For my clients' sake, I'm usually happy when prosecutors take the time to attack me. They obscure their good points and allow me to gain credibility by focusing on the issues.
None of this excuses bad lawyering. And I agree that judges should do a better job at pointing out the bad work of many lawyers. But a good judge can do that in a single, well-written sentence. Judge Kent apparently lacks that skill.
When I see an opinion like the judge wrote in this case, I usually assume that the judge is an arrogant buffoon. I haven't read the lawyers' pleadings in this case, so I can't say how bad they were. At worst, they were negligent. You can't say that for the judge.
Does anybody have any clue as to who I'm talking about?
Professor Post, do you think this is a good example of legal writing? Is this a model for your students?
I think the ridicule and scorn approach is the best way to discourage poor lawyer practice - particularly citing a 40 page opinion without a page reference or quote. That sort of laziness by a lawyer wastes the court's time, and means the court then has less time to devote to other matters - such as reading carefully crafted motions like mine. It takes just a few seconds for a judge to add a snarky line of text, but hours to wade through third rate lawyer drivel.
And if a lawyer gets his feelings hurt by the "crayon" remark, he shouldn't be a litigator.
Agreed, but if a judge can't set an example of civility, he shouldn't be a judge.
Once we get past that distant hurdle, then I might start to care about whether a judge is sufficiently civil. Beggars can't be choosers...
Once we get past that distant hurdle, then I might start to care about whether a judge is sufficiently civil. Beggars can't be choosers...
Is it too much to ask of judges with jobs for life to read the briefs carefully, follow the law, and to act with civility?
Civility does not mean docility. The judge can and should criticize bad lawyering in a variety of ways.
Also, from a lawyer's point of view, the sting a judge's criticism is directly proportional to the judge's reputation for civility. A forceful rebuke from a known hothead will sting a lot less then an expression of disappointment from a judge with a reputation for being levelheaded. Guess which category Judge Kent is in.
What Judge Kent wrote was little more than a temper tantrum.