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.