January 16th, 2014

Justice Scalia Rips Lawyer for Reading Notes

Justice Antonin Scalia decided to have some fun with a lawyer a couple days ago. By publicly humiliating him.

The crime that needed to punished? The lawyer, Steven Lechner, was reading his argument to the Supreme Court in Marvin Brandt Revocable Trust v. United States. It was his first appearance before SCOTUS. And Scalia didn’t like someone walking into his home to do that — to read.

This was how it played out:

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­

JUSTICE SCALIA: Counsel, you are not reading this, are you?

I feel his pain.

Lyle Denniston, writing at SCOTUSblog follows up with his personal observation after the judicial taunt:

Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.

Two points to make here.

First, it’s completely understandable that any lawyer appearing before the Supreme Court of the United States for the first time is going to be nervous. Very nervous. As in, it’s-hard-to-sleep-for-months-before nervous. That kind of nervous.

Anyone that’s tried cases or argued appeals, of course, knows this, albeit on a reduced scale. Performing in a local play isn’t the same as your first appearance on Broadway, but it’s enough to scare the bejesus out of most of us. You are about to walk on a high wire and there is no net. We desperately want something to hold onto, a crutch to grab, if you don’t mind me mixing my metaphors of Broadway, high wires and crutches.

The problem with this is that juries and judges hate it when you read to them. There is nothing in the world like the immediacy of eye contact. From a purely tactical standpoint, you don’t want to put your head down and read because it’s less effective. That’s why Presidents use teleprompters.

On those occasions when I must read, because I need to actually quote a piece of testimony, a line from a judicial opinion, or a statute, I will likely apologize for doing so in advance, thereby both keeping the attention of the audience and accentuating (I hope) the words being read.

The solution to the problem is not to take a speech to the lectern. Which is scary. But at that point, you know your case pretty darn well. A one-page outline of points to hit during your remarks should suffice.

Can’t make it fit to one page? Then get rid of extraneous words.  Two to three words is all you are likely to need to remind yourself of the concept you want to address.

But there is a second point about this incident to make, and that is the abuse from Justice Scalia. While this may be his home court and he may be perfectly comfortable up their on the bench, he knows damn well that a rookie appearance before this bench will twist any rational soul up in nerves. He embarrassed someone merely because he could, because he wanted to. In the language du jour, he bullied him just for the sake of it.

Leaving aside his jurisprudence, there is a part of me that has a soft spot for Scalia ever since he gave my brother screenwriting advice on the issue of state secession, as well as for his writing ability. But this conduct was unacceptable.

More, elsewhere:

Oyez! Oyez!: Justice Scalia Confronts Lawyer Over Reading From Notes (Turley)

An Embarrassing Supreme Court Moment (Blog of Legal Times)


November 6th, 2013

Did CJ Roberts Trash His Role as “Umpire” In Facebook Cy Pres Case?

Chief Justice John RobertsWhen Chief Justice John Roberts appeared before the Senate in 2005 for confirmation, he famously stated that his role as Chief Justice would be “to call balls and strikes and not to pitch or bat.”

He seems now to have fully discarded the umpire’s uniform in his pursuit of making policy.

On Monday the Court denied certiorari in Marek v. Lane, which was a cy press settlement matter. Cy pres is where class action settlement proceeds don’t go to the victims due to the difficulties or expense of distribution, but go instead to a charity of some kind as being “as near as” possible to getting the funds to the actual victims. This was, as per Adam Steinman (Civil Procedure and Federal Courts Blog):

closely watched class action against Facebook. Four class members had objected to the settlement of that class action, which included as a cy pres remedy “the establishment of a new charitable foundation that would help fund organizations dedicated to educating the public about online privacy.” The settlement was approved by the district court and on appeal to the Ninth Circuit, prompting a petition for certiorari by one of the objectors.

But while the issue of whether it’s appropriate to send the funds to a charity is a hotly debated one, created in a legislative vacuum, neither its rightness or wrongness is the issue I want to address. (See Public Justice Foundation in favor and Ilya Shapiro at Cato for opposing view.)

Instead, I draw your attention to a statement issued by C.J. Roberts (via Overlawyered), accompanying the denial of certiorari, where he discusses his desire not to call the balls and strikes, but rather, to affirmatively make decisions about policy:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

This call to action (‘Send me a good case so we can put our imprimatur on the issue!’),  goes quite a ways away from merely umpiring for the people on different sides of an issue.

Roberts didn’t  ask Congress to step up to the plate, he asked instead for a suitable case so that the judiciary can perform a legislative function.

In a blog post back in 2009, the Drug and Device Law Blog — very much a defense oriented blog — raised the same issue in excoriating the concept of cy pres. They wrote:

Under our tripartite system of government, the legislature is supposed to make the laws and the executive to enforce them. Where is the law or regulation allowing, as a consequence of some legal violation, one private person’s money to be taken away and given to some other private person(s) whom the violator didn’t injure? There isn’t any. If there were, there’d be no need to resort to cy pres, because the statute or rule (assuming it were constitutional – which is a stretch) itself would provide the distribution scheme, not some vague notion of “equity.” The government can impose civil or criminal fines for conduct that’s illegal, without regard to causation or damages, but the money in those situations goes to the government as the sovereign enforcer of the laws.

But while they argued there shouldn’t be any such thing as cy pres, C.J. Roberts isn’t suggesting that it be abolished (though he is certainly open to it). What he asks is that the judiciary regulate them, hence his conclusion that the Supreme Court “may need to clarify the limits on the use of such remedies.”

And you will not find any mention in his statement suggesting that Congress resolve the matter.


April 1st, 2013

April Fools’ Day Quiz, Justice Alito, and Baseball

Justice Sam Alito (or not?)

Today is April 1st. It’s also opening day for most baseball teams. So if you’re a Mets fan like I am, it’s an interesting happenstance, no?

But if you came here hoping for an April Fools’ Day gag, you’re going to be disappointed. It’s just a quickie quiz on Supreme Court Justice Samuel Alito and baseball.

Hoaxes have simply become too complicated and difficult for me to coordinate. The last couple of years I went through hundreds of emails setting up elaborate cock-and-bull stories. In 2011 it involved a 23-blog web ring. Last year I created a new web site just to hide what I was doing with over a dozen co-conspirators, since so many people were assuming I would use this site for trickery. If I did this again, my wife would kill me. Then she would divorce my rotting carcass. Even fun has its limits.

Also, it’s nice to retire before I go stale and start putting out lame crap.

But just because I’ve retired from gags doesn’t mean I can’t bring you a modest little quiz regarding law and baseball and focusing on Justice Alito pictured here at right on a baseball card from a fantasy baseball camp.

Or maybe it’s a fake card. This is, after all, April Fools’ Day and do you really believe anything I write? I can almost see your brain cells pulsing as you look to see who will get hornswaggled.

Cheating on this poll is easy, as anyone over the age of eight can use the Google. But if you cheat, a kitten will die and someone will turn you into an anti-kitten Facebook meme that will quickly devour the web because that’s what the web does best and it would really suck for you and then your spouse, kids and siblings would divorce your dead rotting carcass. I’m sure you don’t want to test that theory.

And you know I’m right, anyway, or you wouldn’t have read this far.

Where was I? Oh yeah, the poll.

Each question has a link. The link contains the actual answer. But you have to answer the poll first before you click the links to see if you were right. It’s all about the kittens, remember? If you didn’t remember the kittens from three short paragraphs ago then you’ve got bigger problems than I can deal with here.

But cheating is also about your soul. Don’t screw with your soul, it ain’t worth it for a little quiz, and someone might scratch “cheater” on your headstone one day, and that one day will probably be April 1st just for the karmic kicks.

In this quiz, everything below is true, except for one item. Which item below is false for SCOTUS Justice Alito?

1. He once went to a Philadelphia Phillies fantasy baseball camp that produced the baseball card you see above (link)

2. He was born on April Fools’ Day (link)

3.  Because he plays in a fantasy baseball league he recused himself on a case dealing with the sale of baseball statistics to statistical services for fantasy leagues (link)

4.  There is a website that compares all Supreme Court justices to people in baseball.  John Jay, for example, is compared  to the first baseball commissioner, Kenesaw Mountain Landis. Justice Alito  is compared to flame-throwing right-hander Jonathan Papelbon, because Papelbon was supposed to be the next Roger Clemens while Alito was touted at his confirmation as the next Scalia. (Papelbon is now with Alito’s beloved Phillies.) (link)

5.  His childhood ambition was to become commissioner of baseball. (link)

Which of the above statements is false?

View Results

Loading ... Loading ...

You didn’t cheat, did you?


May 8th, 2011

Would Scalia Like The Original Supreme Court?

The poorly lit Old Supreme Court Chamber, as it existed on April 22, 2011 when I visited

Scott Greenfield reports that there are major problems over at the US Supreme Court due to ongoing renovation. Seems that the Court would like to continue using the building while the renovators due to their thing. Anyone that has ever lived in a house while it is being renovated can appreciate the predictable problems. As Greenfield notes (via a walled off Tony Mauro story):

U.S. Supreme Court Justice Antonin Scalia was making a presentation to foreign dignitaries at the court a few years ago when the sound of a hammer drill erupted nearby.

In 2006, Chief Justice John Roberts Jr. was in the midst of a filming session when a noisy construction worker interrupted.

Vignettes like these from the long-running $75 million renovation of the court’s majestic building in Washington are central to a sharp dispute that has broken out between the construction company doing the work and the government agency overseeing the project.

Conflicts between the Court’s desire to continue using the building and the contractor wanting to get the job done have resulted in$40M in overruns. And some of that work has even taken place while the Court is in session:

In another incident in 2006, Grunley [Construction]  workers were found using a hammer drill and pouring concrete while the court was in session.

“When questioned, Grunley’s superintendent was not even aware that it was a court day,” according to a report from the Architect of the Capitol.

So this is my humble suggestion, which should go over well with the originalists on the court: Use the original Court. It was used from 1810-1860 and sits vacant in the basement of the Capitol building across the street. Chief Justice John Marshall presided here, as did Roger Taney who succeeded him. The robe rack for Taney is still there, labeled with his name, and waiting for his ghost or a successor to come use it.

I visited two weeks ago, and took the pictures you see here. Yeah, it’s a bit dark and dungeon-like (hence the low quality picture quickly snapped with an iPhone), but hey, it’s original. Who can argue with that?

(More history and virtual tour at this Senate site)


June 3rd, 2010

Elena Kagan In Private Practice (And Her First Amendment Experience)

I know, you’ve been sitting there on the edge of your seat waiting for this, ever since I discussed the serious lack of private practice work by Elena Kagan. Which wouldn’t be so bad except that only Justice Kennedy seems to have had any private practice experience. Basically, 98% of the legal time for Supreme Court justices has been in academia or public service.

So  Kagan’s Senate Judiciary questionairre was released, and with drool running from my mouth I searched for all that I could on her private practice — much as I did with Sonia Sotomayor when I found her little private firm, Sotomayor & Associates that had no actual associates and subsequently became  a minor issue.

And it turns out, while at the BigLaw firm of Williams & Connolly between 1989 and 1991, Kagan actually did some First Amendment work that was interesting. In fact, of the 10 “most significant litigated matters which you personally handled” that the the Senate Judiciary Committee asked her to list, five had to do with the First Amendment. And, despite being a very junior associate, she was actually given the chance to argue a couple of times in court.

[Note, Eugene Volokh has written about her First Amendment scholarship that followed the years of private practice. This post is only about the real-world experience that preceded it. A full round-up of her career, including scholarship but missing the real-world stuff, is at SCOTUSblog]

OK, here is the set-up —  you’re sitting down, right? — on page 71…

I have had private clients only during the time I was an associate at Williams & Connolly. Those clients included business entities in civil litigation, press organizations defending themselves in libel and related actions, and white- collar criminal defendants.

She goes on to write that her private work was “primarily” in federal court and that it was divided 2/3 to civil and 1/3 to criminal. She concedes having never tried a case to verdict. That wouldn’t be so bad, of course, if the high court had others that had done so for private individuals.

Now to the meat and potatoes: On pages 188-195 she is asked to “Describe the ten (10) most significant litigated matters which you personally handled, whether or not you were the attorney of record.”  As you can see below, some of this stuff is anything but interesting, which gives a bit of insight perhaps in to what happens to junior associates at BigLaw firms.

So here is Elena Kagan’s Top 10 List of private cases. The First Amendment ones can be seen below as d-h. (I’ve listed all 10, in case people find any of the other stuff interesting — two are criminal matters):

(a) Federal Realty Investment Trust v. Pacific Insurance Co., No. R-88-3658. We represented a real estate investment trust in an action against an insurer for the costs of defense associated with a prior litigation. I began work on the case in the middle of the litigation; I did some late discovery and drafted most of the pre-trial motions. On the eve of trial, Judge Norman Ramsey of the U.S. District Court for the District of Maryland ruled in favor of our position on the appropriate standard for allocating defense costs between covered and uncovered parties and claims (760 F. Supp. 533 (1991)). This ruling immediately produced a settlement favorable to our client.

(b) In re Seatrain Lines, Inc., Nos. 81 B 10311, 81 B 10916, 81 B 11059, 81 B 12345, 81 B 12525, 81 B 11845, 81 B 11004, 81 B 11512. We represented Seatrain Lines, Inc., a debtor in bankruptcy, in U.S. Bankruptcy Court in the Southern District of New York (Judge Burton Lifland presiding) in connection with an application by Chase Manhattan Bank and Milbank, Tweed, Hadley & McCloy for legal fees associated with the bankruptcy case. In response to the filing of the fee application, our client counterclaimed against Chase for the recovery of the costs of preserving and disposing of certain properties subject to Chase’s security interest. I handled some of the discovery and drafted most of the pleadings. When the court denied Chase’s motion to strike our counterclaim (and a subsequent motion for reconsideration), the parties settled on terms favorable to our client.

(c) Toyota of Florence, Inc. v. Lynch, Nos. 4-89-594-15, 4-89-595-15. We represented Southeast Toyota Distributors, Inc. in a suit brought by one of its franchisees alleging fraud, intentional interference with contract, violations of RICO, and a host of other claims. I drafted numerous pleadings in the case, including an opposition to the plaintiff’s motion to remand (granted by Judge Hamilton of the U.S. District Court for South Carolina at 713 F. Supp. 898 (1989)), as well as motions to dismiss and discovery motions (ruled on by Judge Edwin Cottingham of the Court of Common Pleas for Darlington County). I also handled some of the discovery. I left the firm prior to trial. Ultimately, a verdict for the plaintiff was dismissed on appeal.

(d) Byrd v. Randi, No. MJG-89-636. We represented defendant Montcalm Publishing Corp. in a libel action arising from an allegation that the plaintiff was in prison for child molestation. The case presented issues relating to the “libel-proof plaintiff” doctrine, the definition of a “limited purpose public figure,” and the actual malice standard. I did most of the discovery, drafted our summary judgment motion and other pleadings, and argued the summary judgment motion before the district court. After initially denying the motion, Judge Marvin Garbis of the U.S. District Court for the District of Maryland dismissed the case a few months later on a motion for reconsideration.

(e) In Re Application of News World Communications, Inc., Nos. 89-3160, 89-212. We represented the Washington Post and WRC-TV in this effort to compel release to the public of unredacted transcripts of audiotapes to be received in evidence at a criminal trial. I argued motions before Judge Charles Richey of the U.S. District Court for the District of Columbia to compel release of the transcripts and to prevent redaction. Judge Richey granted both motions, with the latter reported at 17 Media L. Rep. 1001 (1989). The Court of Appeals for the D. C. Circuit, with Judges Wald, Silberman, and Sentelle hearing argument, denied a motion to stay this order (17 Media L. Rep. 1004 (1989)).

(f) J. Odell Anders v. Newsweek, Inc., No. 90-715. We represented Newsweek, Inc. on appeal from a jury verdict in its favor in a libel action filed in the Southern District of Mississippi. The case raised questions about the actual malice standard, as well as numerous evidentiary issues. I drafted the appellate brief urging affirmance. The U.S. Court of Appeals for the Fifth Circuit held in our favor by unpublished opinion (judgment reported at 949 F.2d 1159 (1991)).

(g) Luke Records, Inc. v. Nick Navarro, No. 90-5508. We filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit on behalf of the Recording Industry Association of America and numerous record companies, challenging the decision of the district court that a musical recording was obscene under the standard set forth by the Supreme Court in Miller v. California. I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law. Judge Lively, joined by Judges Anderson and Roney, reversed the district court’s decision (960 F.2d 134 (1992)).

(h) Bagbey v. National Enquirer, No. CV 89-2177. We represented the National Enquirer in this libel action brought by a person mistakenly identified in the publication as being Jimmy Swaggert’s father. I drafted all pleadings and did all discovery in the case, which began in Louisiana state court but which we removed to the U.S. District Court for the Western District of Louisiana (Judge F.A. Little, Jr.). We eventually settled the case on terms favorable to our client.

(i) Chuang v. United States, No. 89-1309. We represented Joseph Chuang, a former bank president, on his appeal from a criminal conviction for numerous counts of bank fraud. The principle issues in the case concerned the propriety of two warrantless searches of the bank, one by the Office of the Comptroller of the Currency and one by the FDIC. I drafted most sections of the brief, which argued among other matters (1) that the statute authorizing the OCC’s search failed to provide a constitutionally adequate substitute for a warrant, as required by the Supreme Court, and (2) that the FDIC’s search was invalid because it went beyond the bank premises into Chuang’s law firm offices. The Second Circuit affirmed the conviction, with Judge Timbers writing and Judges Newman and Altimari joining (897 F.2d 646 (1990)).

(j) United States v. Jarrett Woods, We represented the former head of the Western Savings Association, a failed savings and loan, in both a grand jury investigation and a number of civil suits brought against him. The Federal Home Loan Bank Board had declared the S&L insolvent and placed it in receivership after discovering various suspect real estate loans. In addition to trying to keep the civil suits at bay, we tracked the grand jury investigation of Woods closely for more than a year – interviewing each of the many people brought before the grand jury – before Woods became unable to afford the representation. Woods was subsequently indicted and convicted of numerous counts of bank fraud.

So I was all prepared to say that we were about to put on the Supreme Court another person without any real private practice experience at all. But, in fact, she has a very small amount. Nothing earth shattering for sure, but a tiny amount nonetheless.

One quirk I noticed in (h), Bagbey v. National Enquirer: She says that “We eventually settled the case on terms favorable to our client.” I wonder if there was a non-disclosure agreement regarding that settlement, and if so, if her comments about settling on “favorable” terms violated it.

Update: I could see how some Senators might review some of her First Amendment briefs, which should be publicly available in court files, to inquire as to whether she actually believed in some of the positions that she took. That could put her on the spot to either defend, or distance, herself from a position that she advocated.

Update x2 — Elsewhere: