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Smackdown and Dissent from Smackdown:

A very interesting exchange between Seventh Circuit Judges Posner and Easterbrook in the majority, and Judge Evans in the dissent, about what courts should do about certain kinds of procedural errors by lawyers. Beyond the obvious schadenfreude appeal of such things, and the case's utility as a reminder to lawyers to be careful, there's an important question here about what courts should do in such situations; fortunately, both opinions are thoughtful and eminently readable.

POSNER, Circuit Judge [joined by EASTERBROOK, Circuit Judge].... Before [reaching the merits], we remark the confusion in the parties’ briefs concerning the elements of the diversity jurisdiction. The jurisdictional statement in the appellants’ brief states that the federal district court’s jurisdiction was based on diversity of citizenship “and the jurisdictional amount of $75,000.” In fact diversity jurisdiction depends on the jurisdictional amount’s exceeding $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a).

On a completely unrelated note, let me remark the unusual use of the term "remark" in the first sentence quoted above. It's quite legitimate, even to a prescriptivist, but I don't recall ever having seen it.

Steve:
My goodness. Some associate's head is surely rolling over this.

I would note that it is not particularly unusual, in the real world, for a judge to get increasingly incensed over a common type of mistake made by lawyers, and to finally choose one victim to "make an example of" in disproportion to the actual offense. In their minds, they probably believe that this sort of stinging rebuke will get the attention of the Bar in a way that would be otherwise impossible, but it sure isn't any fun to be the unlucky offender who gets singled out.
11.30.2006 1:06pm
alkali (mail) (www):
On a completely unrelated note, let me remark the unusual use of the term "remark" in the first sentence quoted above.

Come on, why pick on Judge Posner for omitting one little word when it is perfectly clear what he means? (Oh, wait.)
11.30.2006 1:26pm
Simon (391563) (mail) (www):
I like it when courts take a hard line on true incompetence (like obvious, non-correctable jurisdictional defects, or Judge Posner's recent comments about the immigration courts), but I wonder if Judges Posner and Easterbrook would be more forgiving if either had actually practiced law. And I wonder how they would react if the Supremes would take as hard a line on some of their trivial mistakes . . .
11.30.2006 1:33pm
Bobbie (mail):
I have a hard time believing that anyone practicing law wouldn't be in agreement with Evan's opinion. Jurisdiction wasn't an issue. Nobody cared about it. And while the parties should have done a better job about correcting their mistakes, I don't like it when judges take shots at lawyers in opinions, therby embarassing the lawyers, when the lawyers can't respond. As far as the court knows, the jurisdiction sections were edited by in-house lawyers or there was some other explaination.
11.30.2006 1:41pm
Eugene Volokh (www):
Alkali: I'm not picking on Judge Posner -- as I point out, his usage is quite proper. I'm just noting a usage that was hitherto unknown to me, and that I suspect was likewise hitherto unknown to many other readers.

Simon: Frank Easterbrook practiced for five years in the Solicitor General's Office; Richard Posner spent five years working as an assistant to an FTC commissioner, an assistant to the Solicitor General, and as General Counsel of a presidential task force. I suspect that all these jobs required the sort of care and attention to the detail that is required of a lawyer in private practice. I'm pretty sure of this as to Easterbrook's positions, and suspect this as to Posner's.
11.30.2006 1:47pm
Truth Seeker:
Why was it so easy to guess that Judge Evans was a Bill "whatever turns you on" Clinton appointee? With the quality of so much in our society from cars to education to art to customer service getting shoddier every year, It is nice to see someone trying to keep up high standards at least in our Federal Courts.
11.30.2006 2:01pm
Simon (391563) (mail) (www):
Eugene-

I should have acknowledged the judges' time in the SG's office (Judge Posner's other positions appear to me to be legal policy, not practice). But the SG's exalted practice is far removed from the workaday world that most of us legal stiffs inhabit. And, in my experience, judges who spent time in that workaday world tend to side with Judge Evans and Commentator Bobbie refusing to embarass lawyers on trivialities, which, to my eyes, is just a higher form of bullying.

(The "trivialities" point is important. If there was a real question about jurisdiction, or a misapprehended issue that went to the heart of the case, or some other suggestion of misconduct on the part of the lawyers or judges, then of course a hard line is appropriate. But it seems from the excerpts you posted that isn't the case.)

Simon
11.30.2006 2:03pm
Steve:
I have a hard time believing that anyone practicing law wouldn't be in agreement with Evan's opinion. Jurisdiction wasn't an issue. Nobody cared about it.

While my sympathies lie in this direction, the court did direct the parties to file a supplemental jurisdiction statement. At that point, they certainly should have taken the time to get it right.
11.30.2006 2:12pm
A.S.:
Frank Easterbrook practiced for five years in the Solicitor General's Office; Richard Posner spent five years working as an assistant to an FTC commissioner, an assistant to the Solicitor General, and as General Counsel of a presidential task force.

In other words, neither Easterbrook nor Posner ever had to justify to a client billing $X on getting the jurisdiction section of the brief perfect when neither side disputed the jurisdiction.
11.30.2006 2:14pm
A.S.:
BTW - as Steve noted in the first comment, it was probably some poor associate who wrote the jurisdiction section. I sympathize with him/her.

Anybody know what the "large national law firm" is?
11.30.2006 2:21pm
David M. Nieporent (www):
Whether the font chosen is the right one may be a "triviality." Whether the court has jurisdiction to hear the case is not.
11.30.2006 2:23pm
r78:
In the language that follows the quoted part, Posner pointed out a couple of legitimate problems with the way that the parties had characterized the basis for diversity.

Unfortunately, he starts out with a nitpick about $75K versus "exceeding $75K". He's technically correct, but it makes him look petty.
11.30.2006 2:31pm
Befuddled 1L:
I'm a 1L and have my Civ Pro I and Torts I exams next week - thank you, Professor Volokh, for a desperately needed laugh. I feel slightly more competent now.
11.30.2006 2:33pm
A.S.:
Whether the brief says "exceeding" is a triviality. Failing to include the principal place of business is a substantive error - but threatening to sanction the lawyers? Geez.
11.30.2006 2:35pm
Simon (391563) (mail) (www):
David-

Anything can be a triviality, including jurisdiction, if the answer is apparent and not in dispute.

If the panel really cared about being a court of limited jurisdiction, then it would have demanded yet further briefing or dismissed the case because Tokio Marine's state of incorporation is unknown. But instead it chose just to embarass the lawyers and reach the merits of the case.

Judge Easterbrook has properly excoriated lawyers (and lower courts) for missing important jurisdictional points, see, e.g., Belleville Catering. Unlike Belleville, jurisdiction here wasn't really an issue, just an excuse to go off on the lawyers. If these were repeat offenders, then maybe. But that doesn't appear to be the case, either.
11.30.2006 2:44pm
elChato (mail):
Jurisdictional nit-picking is an Easterbrook specialty; just a guess but Posner probably wouldn't have gone off into all this without Easterbrook on the panel, presumably egging it on.

It's a two-edged sword, isn't it? On the one hand, it's a great benefit to have two of the smartest and most capable people in the federal judiciary decide your case. On the other, Easterbrook is known for at times being a complete jerk. Two decades on the bench has an unfortunate tendency to turn some people into bullies. Needless to say I agree with Evans. I assume they are going to fine these lawyers, like they did some others a while back. I think it's ridiculous in the circumstances.
11.30.2006 2:57pm
Greedy Clerk (mail):
Why was it so easy to guess that Judge Evans was a Bill "whatever turns you on" Clinton appointee?

Wow, even in this thread about a funny little incident for appellate geeks, a right winger can't resist the urge to blame everything on Clenis.

Memo to such right-wingers: lighten up. Turn off Rush and Hannity, stop pressing "refresh" every five minutes on Instapundit, Hugh Hewitt &Malkin, and go outside, take a walk, meet a girl, whatever gives you some pleasure. . . .
11.30.2006 3:00pm
Rich B. (mail):
Anybody know what the "large national law firm" is?

COUNSEL: For MAGDALENE M. SMOOT, RYAN M. SMOOT, Plaintiff - Appellant: Peter S. Balistreri, DUBIN, BALISTRERI, FUCHS &SCHELBLE, Milwaukee, WI. USA.

For MAZDA MOTOR OF AMERICA, INCORPORATED, Defendant - Appellee: Jeffrey S. Fertl, HINSHAW &CULBERTSON, Milwaukee, WI. USA.

For TOKIO MARINE AND FIRE INSURANCE COMPANY, LIMITED, Defendant - Appellee: Jeffrey S. Fertl, HINSHAW &CULBERTSON, Milwaukee, WI. USA.
11.30.2006 3:08pm
Davide:
The majority opinion is almost loathsome.

The plaintiff alleged $75,000, which the court tells us is wrong. OK, fine. But $75,000.01, exclusive of interest and costs, would be fine???? Yup.

For the hypothetical error of one penny, one has to be berated and suffer sanctions?!?!?!?!

The court even admits its hyperventilating refers to a "harmless" issue.

They've got a better point on dual citizenship of corporations, but even still -- who cares??? It didn't affect any outcome at all.

Lawyers who are sanctioned need to report that fact on many documents and in many ways -- it can really affect their lives in a negative way. It's really offensive to see how easily judges can mete out such punishment for nothing.
11.30.2006 3:13pm
Suzanna Sherry (mail):
Judge Easterbrook is known as a stickler for jurisdiction, and is especially annoyed when lawyers don't comply with Circuit Rule 28(a). For an example of a case in which it actually mattered, listen to the oral argument in Jenkins v. Martin (and cringe)and then read the resulting order. I played the oral argument for my students and then we talked about it -- I don't think they'll ever make this sort of mistake.
11.30.2006 3:19pm
Bobbie (mail):
Two more things.

Posner's use of the word "malpractice" is also troubling, as this clearly isn't malpractice, yet the lawyers will likely need to inform their malpractice carrier of this incident, which could mean higher payments in the future.

The lawyers here clearly screwed up. I don't think anybody denies that. As Steve noted, particularly after they were directed to check jurisdiction, they should have been more thorough. But lawyers are people and people make mistakes. It's going to happen. I'm sure Posner's ego will even allow him to admit at times that he makes mistakes. So why should a judge be able to publicly embarrass a lawyer for his or her mistakes without allowing the lawyer an opportunity to publicly explain? Although, at times, even that wouldn't be sufficient: often times the perceived "mistakes" of lawyers are client driven and no lawyer is going to blame the client in front of the judge. Again, I think any practicing attorney would agree. I don't like that we treat judges like their semi-gods. They're not. We shouldn't have to say "thank you, your honor" when they rule against us, and we shouldn't have to stand every time they enter the court room. They should, of course, be treated with respect, but they should treat the lawyers with respect, even when they screw up. This is particularly true when, as was the case here, there is no longstanding pattern of the lawyer in question being sloppy.
11.30.2006 3:21pm
Bored Lawyer:

Whether the font chosen is the right one may be a "triviality." Whether the court has jurisdiction to hear the case is not

While my sympathies lie in this direction, the court did direct the parties to file a supplemental jurisdiction statement. At that point, they certainly should have taken the time to get it right


These two comments together indicate why the lawyers deserved being berated. Jurisdiction, esp. subject matter jurisdiction, is fundamental to any federal case. And, when the Court gives you a chance to correct your sloppiness, then shame on you for not getting the not-too-subtle hint.
11.30.2006 3:22pm
M.E.Butler (mail):
If a prescriptivist one must be, then at the very least he should spell prescriptivist in the prescribed manner.

[EV: D'oh! Fixed the typo.]
11.30.2006 3:33pm
Truth Seeker:
Memo to such right-wingers: ... stop pressing "refresh" every five minutes on Instapundit,

Say wha? Instapundit supports gay marriage, flag burning and drug legalization, who taught you that you should lump him in with right wingers? Kos Kids, gotta love 'em!
11.30.2006 3:40pm
PatHMV (mail) (www):
Jurisdiction in a diversity case is never trivial. The Court has an obligation to deny jurisdiction on its own motion once its lack becomes apparent, whether any party objects to it or not. As the majority opinion points out, they are not an investigative agency. They have only the pleadings before them. The pleadings must, by rule and by common sense, allege facts sufficient to support jurisdiction.

Frankly, I think the Court may have even been soft on the parties. They could have simply held that, because no proper allegations of jurisdiction had been made, they had no choice but to remand the case to the state court from which it originated. The rule is simple and straightforward.

Plus, as other posters have pointed out, once the court directs you to file a supplemental pleading on jurisdiction, you better have enough sense to get it right.
11.30.2006 3:40pm
Bored Lawyer:

Jurisdictional Statement

28 U.S.C. Sec. 1332.

Amount in controversy: Exceeds $75,000

Citizenship of parties:

Plaintiffs -- M.Smoot and R. Smoot -- individuals -- Wisconsin

Defendants

Mazda Motors of Am, Inc. -- corporation -- Place of inc. -- California. Principal place of business: California.

Tokio Marine and Fire Ins. Co. -- corporation -- Place of Inc. -- Japan. Principal place of business: New York [or perhaps somewhere in Japan????]


There, that took five minutes. Only unclear thing is the principal place of business of the insurance company, easily checked with the client.
11.30.2006 3:42pm
Bored Lawyer:
One thing missing. Should have stated:

Basis for Original Jurisdiction:

then insert prior post.

Basis for Appellate Jurisdiction: 28 U.S.C. Sec. 1391.
11.30.2006 3:44pm
Bob McHenry (mail):
As to the use of "remark" as a transitive verb, the Merriam-Webster Collegiate gives as the first definition (meaning the earliest sense recorded) "to take notice of: OBSERVE." The usage might be considered old fashioned, perhaps even slightly archaic, but it's perfectly correct.
11.30.2006 4:05pm
Steve:
I can't believe I didn't remember this story earlier.

One year in law school, the chief judge for our moot court final was VC favorite Alex Kozinski from the 9th Circuit. Humorous, since Judge Kozinski had recently written an article calling for the abolition of moot court, but anyway.

The topic was some typically esoteric moot court thing, and the students went up to argue being fully versed in the nuances of Calder v. Bull and the like. Appellant's counsel had not finished a single sentence of his argument before Judge Kozinski interjected his first question: "Counselor, what's the basis for subject matter jurisdiction in this court?"

All I can say is, lucky for me I didn't make the finals.
11.30.2006 4:41pm
Bored Lawyer:

Appellant's counsel had not finished a single sentence of his argument before Judge Kozinski interjected his first question: "Counselor, what's the basis for subject matter jurisdiction in this court?"


To which the only answer is: "It's moot, Your Honor."
11.30.2006 4:46pm
Waldensian (mail):

Unfortunately, he starts out with a nitpick about $75K versus "exceeding $75K". He's technically correct, but it makes him look petty.

Only because he is.

Evans is right, but he didn't identify the real problem. This is a classic example of "Judge-Itis," a malady well known to all litigators who actually go into courtrooms. It tends to strike judges (particularly those appointed for life) after a few years on the bench, as they forget their own failings and secretly long to form a krytocracy.

Of course, it's also possible these guys were asses before they became judges.

I'm heartily sick of what I perceive to be a growing tendency of judges to attack lawyers for minor errors or perceived slights. My evidence is only anecdotal, but I am seeing this kind of crap more and more often out there in the real world.

Never against me personally, of course....

I blame Judge Judy. Or perhaps Chief Justice Burger, who loved to speechify about the poor quality of lawyers.

Of course, there were those who thought Burger wasn't exactly the sharpest tool in the shed, but I leave that topic for another day.
11.30.2006 4:52pm
elChato (mail):
Bored Lawyer,

sorry but your omission will cost you $1000 in sanctions.
11.30.2006 4:55pm
Anderson (mail) (www):
"Remark" in the sense of "take note" is relatively common; it's a fluke that EV didn't remark its use in that sense much earlier.
11.30.2006 4:59pm
3L 5000:
This is pedantic beyond belief. I think if they are going to make an example of someone, they should choose a case where they actually dismiss for lack of jurisdiction. Or make a big stink about it without threatening sanctions. This is a little mean.
11.30.2006 5:04pm
lsu (mail):
Code of Conduct for United States Judges. Canon 3 (A)(3) "A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of those subject to the judge's control, including lawyers to the extent consistent with their role in the adversary process."
11.30.2006 5:19pm
Lonely Capitalist (mail):
I'm heartily sick of what I perceive to be a growing tendency of judges to attack lawyers for minor errors or perceived slights. My evidence is only anecdotal, but I am seeing this kind of crap more and more often out there in the real world.

I'd bet judges see growing tendency of lawyers to make sloppy mistakes.
11.30.2006 5:24pm
Oren (mail):
As an empirical question, are these sort of lashing-outs actually effective at improving lawyerly quality or does it become a "I got judge X so I better not make a mistake in section Y" thing?

I would think that latter in which case, I'm sure smart judges could find a way to express their (completely justified) anger in a way that produces positive results.
11.30.2006 5:53pm
arbitraryaardvark (mail) (www):
The one time I had a case that went to the 7th circuit, I was warned of "fusspots and nitpickers." Two of my briefs were rejected for some sort of procedural defect, and I was unable to move for rehearing en banc because I hadn't used certain magic words those in the know use to get around a certain local rule. Which would have been fine, except that judge Posner got the case wrong on the merits (either on purpose or by accident.) If he'd read the rejected briefs, he might have caught his error.
I think that when plaintiff referenced a jurisdictional "amount" of $75K, they meant the case satisfied a jurisdictional threshold of $75K, not that the amount in controversy was exactly $75K.
11.30.2006 6:43pm
Colin (mail):
As an empirical question, are these sort of lashing-outs actually effective at improving lawyerly quality or does it become a "I got judge X so I better not make a mistake in section Y" thing?

In this particular case, these attorneys would not have known who their panel would be when they filed their briefs. But given the widely-publicized tear Easterbrook has been on, and the relatively small pool of judges sitting on the Seventh Circuit, they would have been well-advised to take more care from the beginning. Especially the attorneys who attempted to correct the initial jurisdictional statement!
11.30.2006 6:46pm
Steve:
In this particular case, these attorneys would not have known who their panel would be when they filed their briefs.

I would assume, though, that the order requesting a supplemental jurisdictional statement would have to have been issued by a particular judge or panel.
11.30.2006 6:55pm
Steve H (mail):

As an empirical question, are these sort of lashing-outs actually effective at improving lawyerly quality or does it become a "I got judge X so I better not make a mistake in section Y" thing?


In my experience, this kind of thing yields to the latter, as you suggested. Courts who pride themselves on rejecting briefs for trivialities simply drive up the costs of litigation, because attorneys have to spend countless additional hours worrying about stuff that simply has NO bearing on the case. And the more an attorney is thinking about the technicalities of the brief, the less time that attorney is thinking about the actual merits.
11.30.2006 7:05pm
Joe Hill:
EV writes: "Beyond the obvious schadenfreude appeal of such things . . . ."

From where exactly does the schadenfreude derive?

To my mind there is no such obvious misfortune at the suffering of the lawyers here. As others have noted, this shows the difference between academics and practicing lawyers, few of whom I imagine would find any "schadenfreude" moment here.
11.30.2006 7:23pm
jgshapiro (mail):
The problem with criticizing Posner and Easterbrook, is that if they ignored the (trivial) mistakes, or if they gently corrected them, at MOST, the parties would have noticed.

On the other hand, by smacking them around publicly, they could be assured that the opinion would get press, including the likes of this post, and everyone who litigates in the 7th Circuit (if not elsewhere) would be careful not to make the same mistakes as these counsel.

So their overreaction may in fact be merited insofar as it acts as a general deterrant to the same behavior by counsel in other cases, including in cases where the mistakes would not be trivial. I suspect that was a large motivator for the language used. The other motivator was probably annoyance that even after requesting a supplemental jurisidction statement, the parties still couldn't get it together. How many bites at the apple do they get?
11.30.2006 7:42pm
David M. Nieporent (www):
It's not clear to me why some people here keep treating jursdiction as trivial. Come on, this is day 1 of law school. Subject matter jurisdiction can't be waived. That's not trivial. And the argument can't be that it's trivial here because there ultimately was jurisdiction in the case; surely people aren't arguing that sanctions should turn on whether lawyers happen to guess right about the issue.

If the lawyers don't say it, then either the court ignores the problem, requests a do over, or has to do its own research into the facts of the case. I'll criticize judges who don't work hard enough, but I don't think it's their job to develop the factual record for the litigants. In this case, the court DID request a do over, and they still screwed up. At that point, what's the court to do?


By the way, Suzanna: that was really painful to listen to. The part about the pro se was the best part, though.
12.1.2006 3:17am
David M. Nieporent (www):
And JGShapiro has it right: they're trying to send a message. If they threatened to have the lawyers disbarred, that would be over the top. But look at the sanctions they suggested: "being compelled to attend a continuing legal education class in federal jurisdiction." It's humiliating, but not exactly career-threatening, and entirely proportionate to the offense.
12.1.2006 3:20am
Simon (391563) (mail) (www):
David-

Why is humiliation proportionate to an offense that was "petty" (the $75K issue) or one that the panel was willing to ignore even though it was unresolved (the incorporation issue)? You can't have it both ways: either the jurisdictional issue is very important and the panel should have dismissed the case because the allegations were facially inadequate, or it's unimportant and the panel shouldn't have wasted its time or humiliated the lawyers. What we have here is the worst of all worlds: the panel pretends it thinks jursidiction in this case is important enough to humiliate the lawyers, but then when the rubber really hits the road (reach the merits or dismiss the case) it fudges.

Jurisdiction as a subject is important. Diversity jurisdiction is in particular can be tricky, depending on the circumstances. But that doesn't mean that properly giving jurisdictional statements can't be trivial.

Again, I wonder how Judgse Posner and Easterbrook would hanlde it if the Supreme Court started granting cert in all of their cases and reversing those with trivial mistakes of law or fact.

As one of the seniormost "bet the company" litigators in Chicago says, the waste and inefficiency in the legal system is almost criminal. He claims the 80/20 rule applies (work/value) but no one has the guts to say to the clients, or the courts, that the 80% result is enough and the rest is a waste of time and money.
12.1.2006 6:48am
David M. Nieporent (www):
Why is humiliation proportionate to an offense that was "petty" (the $75K issue) or one that the panel was willing to ignore even though it was unresolved (the incorporation issue)?
First, humiliation was proportionate because it was the second time they botched it. It's one thing to screw up; it's another thing to have the court tell you, "Go back and do it right" and botch it again. Second, the way Easterbrook feels about the issue, you think they "ignored" it? Obviously they satisfied themselves that jurisdiction existed.

Jurisdiction as a subject is important. Diversity jurisdiction is in particular can be tricky, depending on the circumstances. But that doesn't mean that properly giving jurisdictional statements can't be trivial.
You're missing the point. How do you know if there's jurisdiction if the parties don't properly give the jurisidictional statement?

You're acting as if the problem is that they used blue ink instead of black when you talk about "properly" giving it. But they got the substance wrong, as the opinion showed.

Look, citizenship and amount in controversy are jurisdictional questions; stating them is not. The court has no authority to hear a 1332 case without diversity; it has authority to hear a 1332 case where there's diversity, but improperly alleged by the litigants. But that requires that the court do the work to figure out whether there's actual jurisdiction -- and why should the court have to, especially when the litigants had two bites at the apple to get it right?
12.1.2006 7:51am
Simon (391563) (mail) (www):
Indeed, David, how do we know if they had jurisdiction if they never gave a proper jurisdictional statement? How could the panel satisfy themselves about Tokio Marine's incorporation if it was never addressed by the parties? Did they look outside the record? Take judicial notice of it? Or make an educated guess?

As a practical matter they could have done any of things. Of course, they could have done any of them before starting this little charade. Alternatively, they could have addressed the deficiencies (in both the statements and the lawyering) to the lawyers instead of publicly shaming them. But if you look at their records -- especially Judge Easterbrook -- you know that just isn't their way.
12.1.2006 8:44am
Simon (391563) (mail) (www):
Incidently, as I've said above, I don't always oppose publicly shaming lawyers if the mistakes are of sufficient magnitude. Would a good rule of thumb be that if the shaming draws a dissent, you shouldn't do it?
12.1.2006 8:46am
Mr. Woland:
I certainly understand the need to enforce things occasionally if people are to follow them, but to echo what has been said, is this really the place to do so--where it is clear to everyone that there is diversity jurisdiction? Don't you think two federal district court judges in Wisconsin would know if Mazda USA or Tokio Fire &Marine Insurance Company were Wisconsin corporations? This isn't Delaware or New York we're talking about. It seems to me if you're going to sanction, you ought to do it when the mistakes aren't harmless in the sense of giving the court jurisdiction when it shouldn't have it, or at least when there is a situation that requires a great deal of clarification after the fact because things haven't been made clear.

In any case, I don't read Judge Evans opinion to entirely dispense with jurisdictional concerns for all time. It is more a realization about the silliness of hitting the lawyers so hard in this particular case.
12.1.2006 10:57am
David M. Nieporent (www):
As a practical matter they could have done any of things. Of course, they could have done any of them before starting this little charade. Alternatively, they could have addressed the deficiencies (in both the statements and the lawyering) to the lawyers instead of publicly shaming them. But if you look at their records -- especially Judge Easterbrook -- you know that just isn't their way.
Not to repeat myself for the 73rd time, but you're wrong. They did "do any [number] of things" "before starting this little charade," and did "address the deficiencies to the lawyers instead of publicly shaming them." Quoting once again, from the opinion:
We asked the parties to submit supplemental jurisdictional statements.
Why do you keep ignoring this? They told the lawyers, "You did this wrong; please do it over." They still couldn't bother to pay attention to basic rules.

Did they look outside the record?
Obviously.


Mr. Woland: I don't see why the court's policy should be "be as sloppy as you want, and we won't punish you unless you happen to be wrong." Nor do I see your argument about how it's "clear" that there was diversity jurisdiction. No, I don't think a federal judge in Wisconsin knows if these are Wisconsin corporations. How on earth does a judge know where a company was incorporated (without doing outside research, I mean)?
12.1.2006 3:46pm
Simon (391563) (mail) (www):
David-

I'm not ignoring your point, it's just irrelevant to mine. The panel asked the laywers to submit additional jurisdictional statements. The lawyers did. The additional jurisdictional statements left the panel no better off (at least in reaching the merits of the jurisdictional questions) than they had been previously. So what did they do? They looked outside the record and figured that Tokio Marine was not (or not likely to be) incorporated in Wisconsin.

Why couldn't they have done that first? Or done it after the revised jurisdictional statements were submitted without the additional attacks and, as someone pointed out above, completely inappropriate and borderline crazy suggestion the attorneys had committed malpractice?

Shaming lawyers is for gross negligence and/or willful misconduct. As Judge Evans said, the panel turned some misdemeanors into felonies. The real question ought to be why Judges Posner and Easterbook kept the language in their opinion even though one of their colleagues dissented.
12.1.2006 4:57pm
R. G. Newbury (mail):
Bobbie: "I don't like that we treat judges like their semi-gods. They're not. We shouldn't have to say "thank you, your honor" when they rule against us, and we shouldn't have to stand every time they enter the court room."

And that is how you show your respect for their function? Dark sulking looks when they rule against you and high fives with the associates when you win? Slouching in your chair when the Court is called into session?

Like the man who will not stand for the Anthem, how do we know it is a political statement instead of just plain being rude? If you don't stand, then you are just being rude.

"They should, of course, be treated with respect, but they should treat the lawyers with respect, even when they screw up."

Thanks to Ms. Sherry, I have heard the audio in Jenkins, and I have read the excerpt above, and in both cases I think the judges treated the lawyers with respect and courtesy, even though they had screwed up. Disrespect would have involved something like tossing the brief back at the lawyer or using personal invective, 'you ignorant stupid idiot'....(Not that I would be surprised that that has ever happened in a courtroom!)

Every lawsuit is, in its own way, the history of a mistake. A mistake as to the law, a mistake as to the facts or a mistake as to the application of the law to those facts. We get taught law in a particular way because law has a particular structure which has evolved as lawyers, over the years have analysed the interactions between people who are litigants. And if we are to be considered good lawyers, we must remember the cases we have read, because *those are mistakes we should not make*.

As Will Rogers said:
There are three kinds of men: The ones that learn by reading. The few who learn by observation.
The rest of them have to pee on the electric fence and find out for themselves...

We are supposed to be the ones who learn by reading, or at least by observation..

The failure to properly deal with the jurisdiction question was a mistake by the lawyers, not the parties. It deserved to be raised, and the order in Jenkins makes it clear that it had to be raised and dealt with.

I think the judges were fair. In the end they 'fudged' on the question, so as to avoid visiting the possible cost of the error on the parties. There was clear evidence to sustain diversity jurisdiction provided by the respondent: Mazda is a California corporation. If jurisdiction existed between the plaintiff and one defendant, there is no need for proof of the domicile of the other defendant as diversity jurisdiction is binary, not quantitative.

And the status of the New York office of Tokio Marine is important: how was Tokio Marine served? In Tokio, or through the New York office? And is a 'principal place of business' under the Rules implicitly the 'principal place of business within US jurisdiction' or 'worldwide'? Since that affects the manner of service and the reach of any order including and especially injunctive relief....
12.1.2006 6:09pm
marghlar:
If jurisdiction existed between the plaintiff and one defendant, there is no need for proof of the domicile of the other defendant as diversity jurisdiction is binary, not quantitative.

For someone giving a lecture on accuracy, you need to reread your outline from Federal Courts.

See Strawbridge v. Curtiss, 7 U.S. 267 (1806) (requiring complete diversity between parties in diversity suits, so that if any plaintiff has the same citizenship as any defendant, the courts lack jurisdiction over the entire case until the defect is cured).
12.1.2006 7:39pm
marghlar:
Also, service questions are irrelevant to diversity jurisdiction, which is a subject matter jurisdiction question, not a personal jurisdictional issue.

And each corporation has only one prinicpal place of business, which can be within or outside of the U.S.

Finally, the statement that "Mazda is a California Corporation" doesn't resolve that issue - you need to determine as well where Mazda's principle place of business is.
12.1.2006 7:42pm
David M. Nieporent (www):
Why couldn't they have done that first? Or done it after the revised jurisdictional statements were submitted without the additional attacks and, as someone pointed out above, completely inappropriate and borderline crazy suggestion the attorneys had committed malpractice?
Because it's not their job. It's the lawyers' job to do it, not the court's. The rule isn't "plead whatever you want, and the court will independently research the facts of the case for you and fix your mistakes."

And as for malpractice, I would say that being unable to understand day one of CivPro comes awfully close. How much do you think they billed their clients for preparing the supplemental jurisdictional statements?

What's the difference between this and the Belleville case, or than the Jenkins case linked above by Ms. Sherry? Nothing, except that the lawyers got lucky.

Shaming lawyers is for gross negligence and or willful misconduct.
Screwing up once is negligence. Screwing up the same thing again -- when the court specifically pointed out to them what they needed to get right -- is gross negligence.
As Judge Evans said, the panel turned some misdemeanors into felonies.
As I said, nonsense. (Well, I didn't use the word, but I expressed the sentiment.) They didn't threaten to disbar the attorneys. They threatened to send them to class to learn how to do their jobs properly. If there are felonies for which criminals are sentenced to CLE -- well, the eighth amendment MIGHT apply there -- I'm not aware of them.
12.2.2006 5:12am
Dave-TuCents (www):
I love listening to things like this. The lawyers made a substantial error, failing to dot all I's and cross all T's, and they just might have to take a class.

And a bunch of presumably professional people think it's overkill.

But suing a business out of $50k for having handrails at the wrong height in the restroom is perfectly OK.

Cry me a frikken river, you overprotected, priviledged stuffed shirts. You sure don't show any sign of policing your own profession.
12.3.2006 2:30am