In a Fifth Circuit argument this morning, the appellant was arguing an arbitration should be overturned as outside the bounds of reasonable arbitrations. He just in passing referred to one of the arbitrator’s rulings with the word “ostensibly.”
The presiding judge pounced on that word and said, “Counsel, you use the word ostensibly. That suggests to me that you intend to say that the arbitrator’s real reasons were secret and improper ones. What improper reasons are you implying?”
The lawyer fumbled a bit and evaded a bit (what he should have said and eventually semi-got-around to was that he was arguing that the arbitrator’s procedural failings were so great as to deny due process, and that that was all he was implying, but instead he said something else). He finally after being pressed further said he didn’t know the arbitrator’s real reasons. The lawyer then attempted to move his argument along, and the presiding judge came back to the same point, got further evasions, and finally told the lawyer that “Your argument and use of the word ostensibly tries to create the implication of a major violation of professional responsibility by the arbitrator. If you don’t have a better explanation for it, it begins to me to appear more likely to be a lapse of professional responsibility by you.”
Finishing the argument in one piece became a major challenge at that point, but it got worse. When the appellee was moving along with his argument, he mentioned in passing the case involved attorneys fees. The presiding judge asked him about attorneys fees under Fed.Rule .App.Pro. 38 and §1927 (that is, 28 USC §1927; both of these allow a court to impose attorneys fees for vexatious and frivolous litigation). The appellee’s lawyer said he was not familiar with those, and had not asked for appeals fees yet. The judge responded, “Well, we can do those sua sponte.”
The appellant’s counsel left the courtroom with the grace and dignity of a scalded cat.
My God. I would have crawled out of my skin just watching that unfold.
Kinda gave one pause thinking that tomorrow one would be dealing with the same panel.
Perhaps one is more seasoned and better prepared than that poor lawyer.
That we can rely on, ips. Nonetheless, I hope for NMC’s sake that the presiding judge has a delightful 24 hours ahead, full of whatever floats his or her boat!
I had an awful experience there about 20 years ago. I was trying to argue that the Fifth Circuit was in error limiting a certain affirmative defense to only military contracts. The presiding justice was the one who had written the two key opinions that I contended to be erroneous. She ate me alive. About a week later, the U.S. Supreme Court in an unrelated case upheld my position and I won, but I was raw for months!! As judges, we can get awfully high-handed.
That wouldn’t have been a judge whose name rhymes with Lisa Dawkins Clarksdale, would it?
Anderson: My thoughts precisely. You can always tell a prick, but you can’t tell him much.
wrong guess Anderson, and more of invited ass-chewing than you are implying.
Sure would be fun to understand what y’all are saying.
Ah, we note the implication that Barksdale specializes in *uninvited* ass-chewings. ;)
… Without having been there, I think that once the cour made the lawyer sweat over his misspeaking, that should’ve been it. Oral argument should not be treated the same as a written brief; people misspeak all the time.
Anderson:
1) I reject the suggestion that I am making any such implication, period. I just wanted to make clear I thought the ass-chewing somewhat warranted.
2) At the beginning, I was surprised, but as it went on, I realized two things– first, that the judge wasn’t getting a straight answer, and, second, that the reason the judge was exploring the point was that he thought (I think rightly based only on what I heard in the argument) that the lawyer’s appeal turned on the answer to the question. How could he be there appealing from an arbitration if he couldn’t tell the court what the arbitrator did that was outside the bounds of an abitration proceeding? That was really at bottom what the questions were about, and it started with the misspeaking, which the judge used as an opening.
All proving the adage that the whole goal of oral argument is to survive without hurting your case.
in sum, Anderson, not only do I deny the allegations, but I resent the alligator.
Scalded cats, alligators, fuzzy lawyers . . . admit it, NMC, you’re missing Saddy Animals!
NMC: Re requesting oral argument … ya buys yo ticket, ya takes yo ride.
Having some close experiences with alligators (real ones), I understand when they see me, they see food. Succinct may not be a word normally applied to alligators, but in their presence I better be succinct, because I know they will be.
Lawyer was wrong. Judge was “wronger.”
WTBAL, having had some of that experience, I agree. Not a good time to tarry.
didn’t think barksdale was sitting this week
Judge Barksdale is not sitting and is not in any way involved in the account of the oral argument in the post.
a long time ago I was appointed to a hopeless federal habeas case and, of course, lost in the district court. incredibly, it found its way to the Fifth Circuit and I was ordered to file a brief despite my contention that the case was frivoulous. neither party asked for oral argument, but, again incredibly, it was set. I spun the baseless points in my brief and was subjected to the same repeated question from a judge. I had no point to make and no rabbits to pull from my hat. The presiding judge rolled his eyes with each repeat of the question, but didn’t rescue me. Finally, when mercifully the red light came on allowing me to escape, the presiding judge asked me if I was appointed counsel. Why, yes, I said. He responded by asking if I had asked for the assignment and I made it clear I had not. He nodded and made the final statement that the Court appreciated the efforts.
The offending judge was fairly new to the bench then and, in my view, an arrogant bully. I always wondered if he got the memo from the more experienced presiding judge.
I would guess that the ass-chewer was Grady Jolly.
Just teasing, NMC. No one in his right mind would think that a lawyer blogging under his own name would deprecate any sitting judge, let alone any sitting Fifth Circuit judge.
(U.S. Supreme Court justices seem to be fairer game, but they probably are thicker-skinned. It wouldn’t occur to me to worry, before a SCOTUS argument, that Scalia’s clerk would google to see if I’d said anything bad about his boss.)
I forget her name. It wasn’t Judge Barksdale, however. This was before he got on the Court. Now you’ve made me want to go find her. Back in a few.
Then again, let it go.
The United States Court of Appeals for the Fifth “Circus” is as corrupt an institution as any judicial body within the United States. If anyone doubts my accusation, then let him (or her)review my Petition for Rehearing in Case No. 08-30052, which “the Circus” summarily denied without investigating itself, including Judge Barksdale, who hails from Mississippi (that fact may render him even “more” susciplible to corruption). The Judges who sit on the Fifth “Circus” are, first and foremost, POLITICIANS, who got where they are today as a result of political connections. They owe political favors to a very large group of “persons, firms and corporations”, and believe me, they pay the favors they owe back, in spades. And don’t forget, that “scum-bag” District Judge from the Southern District of Texas, Sam Kent, who recently pleaded guilty to obstruction of justice, was given a “pass” by the Fifth “Circus” in response to allegations of on-the-job sexual misconduct by the Judge towards a female member of “His Dis-Honor’s” own staff. The “Circus” is an embarrassment to our judicial system.
oooh …. this all brings a few painful memories back from years gone by ….
[...] And a Fifth Circuit panel eats him alive. [...]
NMC,
You are correct that one standard for a Court to overturn an arbitration award is fraud or bias on the part of the arbitrator.
I would hope Anderson’s point about Scalia’s clerk not doing a serach is correct. Or a lot of us would be in trouble before him.
Ashton R. O’Dwyer, Jr., you’ve apparently never read or even heard about the 9th Circuit. It’s unusual for its cases that go to SCOTUS to be *confirmed*! It’s overturned so often, it’s pretty much assumed that any ruling from that circuit will be appealed to SCOTUS.
To MF:Yes, I’ve heard of the Ninth “Circus”, which I believe may be the most reversed Circuit in the entire USA. Thank goodness I didn’t practice there before I was disbared! The “point” was and is that the Fifth “Circus”, through its member Judges, is trying very hard to ruin its reputation as an institution, by deciding cases on the basis of “politics” rather than compliance with the oath of office. As I learned in Mississippi as a boy (my family had a summer home in Waveland, which was destroyed by CAMILLE) “shitville” is the same all over the world (our maids lived in “shitville”); and “scum-bags” are scum-bags, whether they sit on the District Court, the “Cirucs”, or SCOTUS. AROD.