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You Know You're in Trouble When

the appellate court handling your constitutional appeal begins its opinion by putting "civil rights" in quotes:

This "civil rights" case is about ....

Thanks to Decision of the Day for the pointer.

Mike& (mail):
This is the link you want to use. The link that appears in the URL of the opinion is a "tmp" link.
3.10.2008 8:57am
American Psikhushka (mail) (www):
Yeah, that is a little excessive. It's not like she was involved in drugging and raping him, filming him naked without his consent, filming him having sex without his consent, making false claims about him, libeling / slandering / defaming him, etc.
3.10.2008 9:13am
Chris 24601 (mail):
Evil CA7 temporary links!
3.10.2008 10:53am
Anderson (mail):
I think Psikhushka is confusing the Jessica Cutler case with the case EV pointed out, due to the link problem. Mike&'s link works.

The full first sentence of the EV-linked op is,

This "civil rights" case is about disgruntled parents who disliked their daughters' high school softball coach.

How do you get a show-cause order against you for filing an appeal? This decision illustrates one method.

It also has the lovely description of summary judgment as the "put up or shut up" moment in a case, which I am now going to try to find in a Mississippi decision for future use.
3.10.2008 10:59am
Hoosier:
I'm not a lawyer, so I assume this was known to all but me: In "the instant case"--I've never run into that phrase before.
3.10.2008 11:18am
Anderson (mail):
That is indeed legalspeak, Hoosier -- a bit old-fashioned, but still in service.
3.10.2008 11:19am
John (mail):
I am the first to criticize judges for overreaching, but I was actually very impressed with this opinion. The circumstances were trivial--parents griping about their kids' treatment by a school--but the opinion was temperate, thorough, careful and well written. It's a shame that our appellate courts have to deal with this stuff (and I agree with the court's inclination to award fees), but it is a pleasure to see that when the courts do have to do this they do it well.
3.10.2008 11:30am
tarheel:
As a former high school coach who had to deal with psychotic parents regularly, I think there should be a heightened pleading standard for any 1983 claim against a coach. (I'm only half kidding)

In my day, when the coach cut me or buried me on the bench, my parents shrugged and told me to work harder. Today, the first call is to a lawyer.
3.10.2008 11:42am
Adam J:
I'm less upset with the overprotective neurotic parents then the attorneys- they should have told the parents there was no case and they wouldn't pursue it for fear of being sanctioned by the court.
3.10.2008 11:56am
john:
"Because this appeal can be disposeed of on this ground alone [no evidence of retaliatory motive], we need not decide whether the district court erred . . . in its . . . standing determinations."

Shouldn't the court first have satisfied itself of at least Article III standing? (See Steel Company)
3.10.2008 11:58am
alias:
Sports parents are a strange breed. Sometimes their strangeness is just defending themselves against other sports parents. But until you've spent a few years in that world, it's hard to understand from the outside. .

The opinion in this case reads a bit like Judge Jacobs's dissent from a while back ("this is a case about nothing..."). There is a little bit of gratuitous language in there, but I have no quarrel with the substance. "Their witnesses are lying" usually isn't enough to get past summary judgment, at least not since the 3 big SJ cases from the mid-80s
3.10.2008 12:03pm
martinned (mail) (www):
L.S.,

Yet another example of why the US might consider changing the general rule for legal fees. To my knowledge, in most countries the rule is that the loser pays either real costs, or some standardised version of real costs. (To discourage deep pocket parties from frightening potential plaintiffs by running up the tab.) Having a standard loser-pays rule seems like a pretty straightforward way to discourage frivolous litigation.
3.10.2008 12:13pm
Eugene Volokh (www):
Mike&: Thanks, fixed!
3.10.2008 12:19pm
JosephSlater (mail):
Would have ben even better if, during oral argument, the judge had used his hands to make "air quotes" when saying the phrase "civil rights."
3.10.2008 12:42pm
TerrencePhilip:
I'm less upset with the overprotective neurotic parents then the attorneys- they should have told the parents there was no case and they wouldn't pursue it for fear of being sanctioned by the court.

I wondered about that too. I sure hope whatever attorney represented them didn't take this on a contingent fee basis (actually I sort of hope he did, so he can get zeroed for his horrible judgment). But my experience with people who call a lawyer wanting to bring a lawsuit over something trivial like a sports dispute- here, one utterly without merit- are terribly gung-ho to sue, but darn sure don't want to pay. When I get calls like this I tell people "sure, I will require a $25,000 retainer and $XX per hour" and they get off your phone fast.

These people, and their lawyer, are just lucky they did not have Easterbrook on the panel. Bringing a frivolous appeal about some mundane personal dispute when he's on the panel, is about as smart as the kid dangling his leg over the tiger case in San Francisco a few months back, and tends to produce the judicial equivalent response.
3.10.2008 1:02pm
Randy R. (mail):
Hoosier: "I'm not a lawyer, so I assume this was known to all but me: In "the instant case"--I've never run into that phrase before."

It means that you have a case that is so easy, all you have to do is add hot water, and presto! A decision appears.
3.10.2008 1:04pm
Anderson (mail):
It means that you have a case that is so easy, all you have to do is add hot water, and presto! A decision appears.

Like when the 7th Circuit ordered that Wisconsin official freed immediately after oral argument in the case, before even issuing their opinion. THAT was an instant case.
3.10.2008 1:11pm
Arkady:
I liked this in the opinion:


The plaintiffs are ordered to show cause as to why they should not be held responsible for the defendants' costs and attorneys' fees on appeal.


And, of course, the Conclusion:


For the foregoing reasons we AFFIRM the judgement of the district court. Moreover, we ORDER the plaintiffs to show cause why they should not be sanctioned for filing this frivolous appeal.


Who says TANJ?
3.10.2008 2:40pm
hattio1:
I liked the fact that they brought their lawyer to the first meeting. That's a sign of someone who's goign to be a pain in your ass.
3.10.2008 3:15pm
Oren:
Like when the 7th Circuit ordered that Wisconsin official freed immediately after oral argument in the case, before even issuing their opinion. THAT was an instant case.
Link?
3.10.2008 3:16pm
TerrencePhilip:
Oren, see here.
3.10.2008 3:52pm
Gideon Kanner (mail):
Eugene:

I think I can top that one. Some years ago I represented a land owner who was ordered to cease planting a citrus grove without an EIS (even though agricultural activities were exempt from the EIS requirement by statute). The trial court nonetheless ruled for the county and we appealed. At oral argument, I did my thing and sat down. My opponent stepped up to the lectern and said "May it please the court," whereupon he was interrupted by one of the judges who said: "Counsel, it does not please the court." Why? His brief argued that growing citrus fruit in Florida was a nuisance.
3.10.2008 5:07pm
Bill Poser (mail) (www):
The "instant" of "the instant case" also turns up in expressions like "the third instant", which would be the third of this month, March. The usage is a bit old fashioned, but not unheard of.
3.10.2008 5:37pm
Steve P. (mail):
Gideon:

I believe that former counsel for the DoD Haynes once argued in a brief that bombing a nesting site for migratory birds would be good for birdwatchers, under the assumption that birdwatchers get more enjoyment out of looking for rarer birds.
3.10.2008 5:41pm
Gideon Kanner (mail):
Steve P.

Thanks for an amusing anecdote. What we are both dealing with is the "government lawyer" syndrome whereby government lawyers become accustomed to courts deferring to them even when they say strange things but win anyway. With the passage of time they become convinced that the nonsense they spout at times is actually brilliant lawyering. It's amusing and would be even more so if the results weren't tragic at times.

Herewith an excerpt from a DOJ argument in the 9th Circuit:

JUDGE FLETCHER: Can I get at your definition of "conceivable?" To take an outer-boundary sort of example
boundary sort of example . . . .

MR. YELLIN: Sure.

JUDGE FLETCHER: . . . not related to this case. Is it conceivable that space aliens are visiting this planet in invisible and undetectable craft?

MR. YELLIN: Is it conceivable?

JUDGE FLETCHER: That's my question.

MR. YELLIN: Yes, it's conceivable.

JUDGE FLETCHER: And that would be a basis for sustaining Congressional legislation, if . . . the person sponsoring the bill said, "Space aliens are visiting us in invisible and undetectable craft, and that's the basis for my legislation," we can't touch it?

MR. YELLIN: If Congress made a finding of that sort?

JUDGE FLETCHER: That's my question.

MR. YELLIN: Your Honor, I think if Congress made a finding of that sort, I think, Your Honor, it would not be appropriate for this Court to second guess that.

JUDGE FLETCHER: Okay, in other words, "conceivable" is "any piece of nonsense is enough."

MR. YELLIN: Your Honor, I don't think . . . . It is largely unbounded. It is not completely unbounded. There are the outlying—

JUDGE FLETCHER: How can you say it's not completely unbounded when you agreed with my absolutely preposterous example of what's conceivable?

Audio Recording of Oral Argument, Alaska Cent. Express, Inc. v. United States, 145 F. App'x 211 (9th Cir. 2005) (No. 03-35902). The court ruled for the government without addressing the legal implications of ET's invisble cousin's vist to earth, and government counsel chalked up another victory.
3.10.2008 6:05pm
TerrencePhilip:
Gideon:

I can only say I doubt the government lawyer thought his lawyering was brilliant that day.
3.10.2008 6:27pm
Tony Tutins (mail):
Instead of "instant" should lawyers refer to "this here case"?
3.10.2008 7:26pm
Gideon Kanner (mail):
TerrencePhillip:

He won, didn't he?
3.10.2008 7:39pm