Lawyer's Sin in Court
-- Disrespect -- Gets Visited on Clients. WWJD?

By Alan Childress
January 29, 2007

UMKC's Nancy Levit kindly passed along this link to the ABA Journal's on-line story about a lawyer [and law professor] who was sanctioned some $17,000 by the Utah Supreme Court for offensive and disrespectful arguments about a lower court in his briefs and oral argument.  But the court also dismissed the appeal without considering the merits (apparently acknowledging that the court below had erred, though not intentionally as the lawyer had implied) and affirmed the ruling against his clients.  The court was also irked, relates the opposing attorney, by the prof's oral argument style, stating that justices expressed then that “they weren’t accustomed to being lectured in the Socratic method on the proper role of a certiorari court."

The additional decision to dismiss the case without deciding the merits is, to me, a poor choice.  Focusing the remedy on the attorney himself is more appropriate. [UPDATE:  Carolyn Elefant argued this point too, and first, here, and a commenter diasgrees.]  It reminds me of the [worse] example of this approach in which a Virginia court of appeals dismissed an appeal as "a nullity" because the lawyer filing it, unknown to client and even lawyer, fell under a 30-day bar suspension exactly during the appeal period. 

Of course the courts have the power to treat lawyers as agents of the client in this unrelenting way -- to punish the client for the agent's acts.  But they ought to temper that power to the extent possible by exercising their duty to decide.  If the Utah court is really saying the party would have won had its representative asked nicer, then the decision comes across to distant observers like me as more protective of its sensibilities than its core functions.  I am all for a court policing the temper and civility of its advocates, and support the ethics and good advice of using decorum in the courtroom. But policing it ought not come at the expense of parties who properly invoked its jurisdiction to judge. 

The Fifth Circuit, by contrast, recently reversed a sanction of dismissal just because the attorney slipped:  “it seems a basic principle of fairness and good judgment that no party should lose a case solely because his lawyer listed the name and address of a law firm above, rather than below, the lawyer's signature."  Note that Judge Jerry Smith says "no party should lose...."  Sounds right to me.  And he adds, the dismissal “must appear to the casual observer to be judicial petulance.”  Exactly.

The Seventh Circuit has an agenda to sanction attorneys left and right for barely incomplete jurisdictional statements (prompting Howard Bashman to wonder whether they've "gone off the deep end"), and thus appears to be overly "Socratic" in its own way.  But at least it sanctions the attorney and decides. 

Are such rulings prime examples of what Nancy Rapoport calls the Judge Judy-fication of Legal Ethics?  Here we have, more directly, judges emulating her impatience by swatting lawyers' noses with newspapers -- or in the case of the Socratic professor, making him drink judicial hemlock along with his clients.  Just like Judy would.

Maybe her influence extends so broadly since she is more successful via the American yardstick:  she makes more money than all of them combined.

http://www.typepad.com/t/trackback/7667645

Decorum on Appeal: When Judges Are Under Attack

Howard J. Bashman
Special to Law.com
01-29-2007

Some judges are crooked. Others are idiots. And some ignore or distort the facts and applicable law to reach results more to their liking than the facts and law, honestly portrayed, would allow.

When appealing from a ruling of an incompetent or dishonest trial judge, appellate lawyers often must wrestle with the extent to which the trial judge's incompetence or dishonesty should be directly condemned in the brief. Similarly, when an appellate court judge believes that colleagues have reached an incorrect result, the appellate judge must decide the extent to which any separate opinion should condemn the other judges' stupidity or dishonesty.

In my experience, in an appeal that is challenging the substance of a trial judge's ruling, it is preferable to demonstrate as clearly as possible that the ruling is wrong rather than to try proving that the trial judge was dishonest or incompetent.

As appellate judges are well aware, even the smartest and most highly qualified trial court judges can sometimes reach erroneous results, and thus a direct assault on a trial court judge's qualifications or motivations is usually, in the appellate court's eyes, irrelevant to the central issue of whether the decision should be upheld or overturned. Also, an attack on a trial court judge's integrity runs the serious risk of offending the appellate judges -- not typically the best way to convince another person to agree with the position that one is advocating.

Experienced appellate judges recognize that the intensity of an advocate's rhetoric often bears an inverse relationship to the strength of that argument. And no advocate needs to tell an experienced appellate judge which trial judges are not especially intelligent or are typically prone to results-oriented jurisprudence; the appellate judges usually know this better than any lawyer because they're frequently reviewing the work of the same trial court judges.

Of course, there are some instances when a direct assault on a trial judge's motives or competency cannot be avoided, such as when that judge's failure to recuse is at issue or where a writ of mandamus challenging an egregiously wrong interlocutory ruling is being pursued. But, in the vast majority of appellate cases, attorneys should avoid condemning the decision maker whose work is being challenged, and instead focus on demonstrating the errors that plague the decisions themselves.

The Supreme Court of Utah recently issued a ruling that demonstrates the risks of ignoring the advice that I am offering here. In a case in which that court had granted discretionary review to resolve an important but unsettled issue of Utah law, the court ended up affirming the case as punishment for attorney misbehavior after the attorneys for the losing parties in the intermediate appellate court filed briefs that were, in the words of Utah's highest court, "replete with unfounded accusations impugning the integrity of the court of appeals panel that heard the cases below." According to the Utah Supreme Court's opinion, the offending appellate briefs "include[d] allegations, both direct and indirect, that the panel intentionally fabricated evidence, intentionally misstated the holding of a case, and acted with improper motives. Further, petitioners' briefs are otherwise disrespectful of the judiciary."

Once a lawyer is sanctioned for disrespecting a lower court judge in an appellate court filing, a common refrain from some commentators is that the lawyer's offending remarks were no worse than some of the more provocative dissenting opinions that U.S. Supreme Court Justice Antonin Scalia has filed. I am not writing to defend the Utah Supreme Court's rejection of an appeal for one side's bad manners or to examine the extent to which the First Amendment should protect such attorney speech. That constitutional question presents a hornet's nest that the U.S. Supreme Court is currently facing in pondering whether to step into in a case involving controversial Michigan attorney Geoffrey Fieger. Rather, my point here is simply that condemning the lower court judge usually detracts from the persuasiveness of a brief that should instead focus on demonstrating the errors inherent in the rulings under consideration. And demonstrating that a given ruling is wrong does not usually require demonstrating that the judge who issued the ruling was crooked, incompetent or in pursuit of an improper agenda.

Although the manner in which Justice Scalia may have publicly harangued some of his judicial colleagues is irrelevant to the question of what level of personal attack attorneys should employ against judges in appellate briefs, Scalia's behavior is directly relevant to the question of how judges should behave toward one another. It is not unheard of for appellate judges serving on the same court to dislike one another and even to question each other's intelligence and motives. Yet, appellate judges must remind themselves that their jobs are to apply the law as they understand it -- not to vindicate personal grudges or launch messy feuds that have little relation to any particular cases or controversies and that will impede their ability to reach common ground in deciding cases.

Here again, the most effective appellate judges are those who are capable of finding common ground when necessary, mindful of the fact that on multijudge appellate courts, precedent cannot be created unless a majority of judges is willing to sign on to a particular outcome and set of reasons for reaching that outcome. And when common ground is incapable of being found, the most effective appellate judges can write a dissent that exposes all the errors of reasoning in the majority's outcome without personally attacking those judges.

Appellate judges are called on to decide many matters of great importance, and particular judges understandably believe that their own views are superior to the differing views of their colleagues who would decide a given case some other way. It appears to me, as a close observer of appellate court rulings, that those appellate judges who are able to deal internally with whatever personal affront arises from disagreement over cases are, in the long run, more effective in commanding respect from their colleagues and assembling majorities than those judges who write dissents that cause personal offense to colleagues because the dissents question the motives or qualifications of those in the majority.

It is not always easy as an advocate to refrain from attacking a particularly wrong trial judge as idiotic or results-oriented, and I imagine that it is not always easy for an appellate judge to refrain from questioning colleagues' motives or integrity when they reach a particularly wrong outcome. But, in both instances, the better course is to focus on the dispute's merits rather than engaging in personal attacks. In an appellate brief, an attack on the trial judge is likely to undermine the persuasiveness of the merits of the argument. And an appellate judge's attacks on colleagues themselves, rather than on the merits of their reasoning, are sure to undermine that judge's own ability to effectively assemble majorities in the future.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.

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