Fifth Circuit Argument, US v. Rogers
While the lawyers get pretty well knocked around by the panel throughout, the remarks by Judge Jolly beginning at 26:30 in the argument are pretty devastating. The case, US v. Rogers, was argued May 2nd.
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I am Tom Freeland,
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Ouch! (heard in a Fifth Circuit argument in May)18 comments to Ouch! (heard in a Fifth Circuit argument in May) |
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wow.
Having been present, it was worse in person. Everyone in the courtroom “felt” Judge Jolly, and it was unlike anything I previously experienced at the Fifth Circuit. Who would have thought it would fall on counsel for the City of Jackson to redeem Mississippi that day? Co-counsel and I felt relief that, while vigoriusly questioned, the panel apparently deemed us competent.
Ouch. That will stick with them for a while.
Bad lawyers give us ALL a bad name.
JOHN W. BRADSHAW, Plaintiff, v. UNITY MARINE CORPORATION, INC.; CORONADO, in rem; and PHILLIPS PETROLEUM COMPANY, Defendants
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
…
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.
….
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.
At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine’s lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff’s lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what’s left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action.
In either case, the Court cautions Plaintiff’s counsel not to run with a sharpened writing utensil in hand — he could put his eye out.
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
(Don’t you know Plaintiff’s counsel got a kick out of what happened to Judge Kent?)
Nice post, Tom.
Avista Management v. Wausau Underwriters Insurance
U.S. Dist. Court Mid. Dist. Fla. (June 6, 2006)
“[T]he Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Courthouse. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of ‘rock, paper, scissors.’ The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.”
The quality of the briefs was embarrassing to me ….
So … why did CA5 order oral argument if the briefs and the record were lacking?
Few criminal appeals are chosen for argument … the vast majority are submitted on memoranda and proposed per curiam opinions crafted by the court’s central legal staff. I can probably dig out statistical reports on this point, if pestered.
From what I heard during the recorded argument, this appeal presented nothing facially worthy of oral argument. It arises from a nickel and dime suppression motion and it was accorded nickel and dime attention resulting in a nickel and dime disposition.
So … did A circuit judge perhaps order argument (which one judge can do if dissatisfied with the central legal staff’s proposed disposition) so that he could orally singe counsel, singe the ND Miss. USA’s office generally, singe the ND Miss. USA personally, singe the district judge, singe the quality of legal representation in the ND broadly … singe the quality of the law school’s legal education … singe Life Above Highway 82?
I heard what the judge said. But … as with a candle flame … I sense in his words and tone a red hot core, an outer band of visible yellow heat, and beyond that a broader band of “higher than room temperature” heat. And some smoke, too.
The blowback might get interesting … for some.
So … why did CA5 order oral argument if the briefs and the record were lacking?
Back when I was clerking at a less august institution, the half-joke was that oral argument was necessary mainly when the briefs were too awful for the court to understand the case. Only half a joke, like I said.
I have the sense the judges were suggesting there was almost sort of an issue here and no meaningful response to it
About 25 years ago I was at the 5th Circuit to argue that two 5th Circuit cases should be reversed–I think they were Challoner v. I-can’t-remember, and Brown v. Johns Manville (I think). These cases held that the “Government Contract Specification Defense” did not apply in a non-military product liability action against a subcontractor. The panel included the learned Justice who had written both of those opinions. The learned Justice proceeded to spend my initial 10 minutes ripping me limb from limb. I based my argument on an old U.S. Supreme Court case– York v. Somebody-else. The learned justice left me a mass of quivering jelly without skin and exposed nerve-endings. Two weeks later, the U.S. Supreme Court effectively held in my favor, applying the York case to hold that the defense was available in a non-military action.
Judges need to remember that the targets of their ire or humiliation are people.
However, I must say, Justice Jolly was firm without being rancorous. Appropriate.
I don’t really see the need to highlight this low point in the professional lives of the lawyers involved. Who knows, maybe they were having personal problems at the time they wrote their briefs. Too much schadenfreude for my taste.
The notable thing here is one of the judges on the Fifth Circuit says he still has the capacity to be embarrassed. My observations of that court led me to conclude they were all incapable of it.
I don’t really see the need to highlight this low point in the professional lives of the lawyers involved.
Missing the point. Lawyers want to know about incidents like this because they are cautionary examples. If no one ever gets called on the carpet, we don’t bear sufficiently in mind that it could happen to us.
Hell, maybe Jolly’s comments were totally unfair. I’m not interested in perusing the briefs and evaluating the situation. I just appreciate the reminder to do the best job I can on my *own* briefs.
Phillip, I thought about it a bit before posting. I think this is worthy of posting. I am assuming that Judge Jolly would not have done that blast if there wasn’t a little history. You can tell from the questions from the bench– including from judges who were obviously less perturbed– that there really was a problem, and they are enumerated (not having “the” issue listed in the issues on appeal, for instance). I thought the remarks by the judge, themselves, newsworthy. I also thought the way he directed them at the US Attorneys office was of note.
Finally, while anyway could spend a few minutes on the intertubes and learn the lawyers names (and I think one but not the other identifies themselves in the audio), I did not name them on my post.
Go read opinion @ para 4 in your post:
Something has me wondering
Court stated that (—–) would not be paid by the county. From the transcript, it is clear that the court was dissatisfied with (name deleted to let you draw your on conclusions).
Then check out counsel for Defendant in US v Rogers
yes, these two are like Moe and Larry. I’m sure Curly was in the mix as well. Undoing their mistakes has been monumental for one child who has paid a dear price. Thanks to some very kind, generous and COMPETENT attorneys who have done their job COMPETENTLY, there is a possibility it will be undone. Forever grateful from Chicago.