Interesting things about judges, courts, cases and lawyers

In Chambers…
A commonplace book of interesting legal things
Compiled by boppananny@gmail.com
November 2009
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Before we begin, let me say that if you find any mistakes in this web site please know that they were put there intentionally. Some folks like to look for mistakes and I want to have something for everyone.
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Footnotes

“Put no substantive point in a footnote – none, at least, that you consider important to your argument. There are several reasons for this, but the best is that many judges don’t read footnotes. Some courts have even announced that they won’t consider any argument raised exclusively in a footnote. Ah, yes, you are accustomed to seeing lengthy footnotes in judicial opinions and in law-review articles. But the authors of judicial opinions don’t win or lose by keeping their audience’s attention. And law-review writers are generally most interested in demonstrating their scholarship. Whatever the value of substantive footnotes in those contexts – and many think they ought to be seriously curbed there as well – they have no place in a brief. If the point is not important enough to be in the text, it’s not important enough to be in the brief.

“You may recoil from the blackletter admonition here. But a year or two after deciding that you’ll never put a sentence in a footnote (reference notes containing only bibliographical material are okay), you’ll probably be surprised at how easy that resolution is to keep.”
[From “Making Your Case: The Art of Persuading Judges” by Antonin Scalia and Bryan A. Garner, in “An Almanac and Reader 2009” published by The Green Bag.]
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My Mother Always Said It’s better To Stick Together and Hold Hands

In April 2009 Chief Judge William J. Zloch denied attorney Peter Mavrick’s request for attorney’s fees for $150,000. The judge was quite miffed. For a case that should have taken 19 hours of an attorney’s time, the judge said, this took 3 years, built up thousands of pages of court files, 276 filings, and “an untold burden on the court’s scarce judicial resources.” Mavrick got 3% of his request, $4,900.
The relationship between Mavrick and Norkin, the opposing attorney, began to sour right off. “Norkin claimed that when Mavrick called him to schedule a deposition, Mavrick started the conversation by saying, ‘Dickhead, when can we do this deposition?’
” ‘I went around the office, stunned, telling everyone, this guy just called me a dickhead,’ Norkin said.
“But Mavrick claimed that Norkin called him a dickhead, and put the accusation in court papers. He also said Norkin called his client ‘a bitch.’
“At that point, Mavrick said, he refused to communicate orally with Norkin and insisted all communication be done in writing. So the two sides did not speak for many months.
“Then came an incident involving a court reporter. According to a report and recommendation filed by Magistrate Judge Snow, defendant Bosem asked court reporter Ellen Fehr to close the door during a deposition at Bosem’s office so they could have privacy.
“But Mavrick told her to keep the door open. Bosem abruptly closed the door, which knocked Fehr, an older woman, out of her chair.
“When Fehr commented that she had never been treated this way in her 30 years of being a court reporter, Norkin acknowledged telling her, ‘Maybe you’ve been doing this too long. ‘ Fehr started crying and left the proceedings.’ ”
[From the April 25, 2007 Daily Business Review, an article by Julie Kay]
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The Marx Brothers Were Better Anyway
[From the August 17, 2009 Daily Business Review, an article by Jordana Mishoryh]
“Judge David Young snapped his fingers, danced with his bailiff and launched plenty of innuendo from his TV bench.
” ‘There is only one queen in this courtroom and that’s me,’ he declared in one episode. But after two seasons, viewers apparently didn’t connect with his flamboyant antics. Sony Pictures Television pulled the plug on the former Miami-Dade judge’s courtroom television show.
“The last episode of ‘Judge David Young’ airs (now “aired”) Sept. 4 after a two-year run. …
“Young isn’t the only jurist dumped from the TV bench recently. Sony also axed former Miami-Dade County Court Judge Karen Mills-Francis’ show “Judge Karen” after its first season….
Alex Ferrer, the star of “Judge Alex” and a former Miami-Dade circuit judge, said his former colleagues are the victims of market oversaturation.
[Oh, no they’re not, Alex; their victims of their own poor taste and were overdue. Isn’t it comforting, though, to know that they are all former judges?]
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Corporate Personhood
“Now the court (U.S. Supreme Court) is considering what should be a fairly narrow campaign finance case, involving whether Citizens United, a nonprofit corporation, had the right to air a slashing movie about Hillary Rodham Clinton during the Democratic primary season. There is a real danger that the case will expand corporations’ rights in ways that would undermine the election system (declare it to be the same as a person).
“The legal doctrine underlying this debate is known as ‘corporate personhood.’ ”
[New York Times editorial, September 22, 2009]
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Big Court Needs Help

A bunch of law professors, former state supreme court justices, and practitioners are urging the attorney general and the Senate and House to consider four changes in the operation of the U.S. Supreme Court:
1. “[R]egular biennial appointments of new justices selected by the president and Senate in order to assure timely rotation within the membership of the Court.
2. “[I]t would be the duty of the chief justice to advise a justice who can no longer perform his or her duties to retire and report that to the Judicial Conference of the United States.
3. “[L]imit the term of a chief justice to seven years, subject to automatic extension
4. “[A] body of experienced appellate judges would have the power to designate a substantial number of cases that the high court would then be required to decide on their merits.
Paul Carrington, a professor at Duke Law School, said “the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, ‘You’re part of an enterprise that we have some power over.’
“[From an article by Marcia Coyle in the February 12, 2009 The National Law Journal.]
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Courthouse Photographer
[From the August 3, 2008 The New York Times, an article by Colin Moynihan]
“The Manhattan Criminal Court building has featured a long parade of marquee malefactors, like Robert E. Chambers Jr. or Remy Ma, whose misdeeds have been exhaustively reported by the city’s newspapers and radio and television stations. But relatively little attention is paid to the supporting cast, who number in the tens of thousands. …
“So for the last few months Steven Hirsch, a freelance newspaper photographer, has been photographing and interviewing some of the unheralded defendants who pass through the court system and posting the results on a Web page, http://courthouseconfessions.blogspot.com
“Mr. Hirsch transcribes recorded interviews, deleting his own questions, so that his subjects’ words are presented to readers in an uninterrupted flow. They talk about what sent them to court and ruminate on the legal systems or their own lives. Many of the interviews have an intimate and confessional tone, as people describe the transgressions they are accused of.
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Certifying Questions
“A federal appellate court recently focused attention on a rare method of obtaining review by the U.S. Supreme Court when it certified a question to the justices in the high-profile prosecution (pdf) of James Ford Seale for the 1964 kidnapping-murder of two black teenagers.
“The question that troubled the 5th U.S. Circuit Court of Appeals: Although Seale committed the crime in 1964, he was not prosecuted until 2007. Did the law require the prosecution for kidnapping within five years of the crime, or is there no time limit? A three-judge panel of the 5th Circuit ruled last September that because of changes in the law in 1972, the clock ran out on the government’s prosecution of Seale…
“As the dissenting judges in the certification vote noted, the Supreme Court has accepted Rule 19 certifications only four times in the last 63 years — even though it originally received jurisdiction to answer certified questions from equally divided circuit courts in 1802.
“The Supreme Court has warned that certification is warranted only in “rare instances” because it’s the job of appellate courts to decide the cases coming before them.
“It’s a practice that has fallen out of favor partially because the Supreme Court has sort of implicitly suggested it is disfavored, and also because the court has more frequently issued these so-called GVR orders [grant, vacate and remand in light of a recent decision], which basically serve much the same purpose,” explained Vladeck (Professor, American University Washington College of Law).
[From The National Law Journal, August 3, 2009, an article by Marcia Coyle]
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Deposition on YouTube?
[From Texas Lawyer, December 9, 2008, an article by Brenda Sapino Jeffreys]

“Jeffrey Weinstein’s client was so outraged by the deposition testimony in her fraud suit against a Houston car dealership that Weinstein posted an excerpt from the deposition on YouTube and put a link to the video on his firm’s Web site.
“But the video isn’t on YouTube anymore.
“Although law professors say lawyers can, under most circumstances, do what they want with deposition testimony, the defendant in the litigation secured a court order on Dec. 3 that forced Weinstein to take down the video on the ground it wasn’t a public record. This is a cautionary tale for lawyers who may be thinking of using YouTube — a Web site that allows users to load videos — or other online mediums such as MySpace or Facebook to disseminate deposition testimony.
“Titled ‘It’s Not a Kickback — Its a Fee”, the six-minute video features a small portion of the deposition of the chief financial officer of Mac Haik Ford Ltd., the dealership-defendant in Elizabeth Harper v. Mac Haik Ford Ltd. Weinstein says he decided to post the YouTube link because Harper asked him to and because he’s trying to provide easily accessible information about his caseload to clients and others.”
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Yo-Yo Head
“A Mississippi woman embroiled in a custody battle has won a new trial from the state’s Supreme Court, which found that the she was badgered by a lower court judge who accused her of having ‘diarrhea of the mouth.’
“The Mississippi Supreme Court found that Glenn Alderson, a chancery court judge in Oxford, Miss., violated the state’s Code of Judicial Conduct when he told the plaintiff that she ‘schemed’ to keep her child away from her ex-husband, and when he called her expert witness, a psychologist, a ‘yo-yo-head.’
“The Supreme Court’s decision reverses an appeals court ruling, which found that although Alderson’s conduct was improper, it was harmless error and did not warrant a new trial.
“The judge’s remarks in Schmidt v. Bermudez, No. 2006-CT-00765-SCT, stemmed from repeated questions he asked the plaintiff, Amanda Bermudez Schmidt, as to why she had signed a separation agreement and a joint child custody and visitation agreement but later sought full custody of her child. ‘You wanted out of a marriage to marry your sweetie and get out of Dodge, that’s what it boiled down to,’ the judge said at one point, according to the decision.
“Alderson did not return phone calls seeking comment about the decision. A transcript of the hearing showed that Schmidt said several times that she signed the agreement because she was afraid of abuse from her husband. She said she was seeking custody because she feared for her child’s safety. At another point, the judge said, ‘Everything that’s come out this morning and this afternoon from you has been venom from you.’
[From the March 11, 2009 The National Law Journal, an article by Leigh Jones]
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Justice O’Connor’s Game
“Retired Supreme Court Justice Sandra Day O’Connor’s “Our Courts” Web site, aimed at middle-school students, has gone live with two interactive animated games that will, she hopes, engage young people in learning about and appreciating the role of courts in their daily lives.
“The game that engaged us the most was Supreme Decision, in which a hypothetical female swing-vote justice — hmm, who might that be? — asks you, the player, to help her reach a decision in a First Amendment case, Ben v. Hamilton Middle School. The dispute involves a student barred from wearing a t-shirt bearing the name of his favorite band, called ‘Hall of Rejects.’ After brief arguments on both sides, the swing justice, named Irene Waters, comes out of the Court’s conference to seek research help from her law clerk — that would be you — on how to decide the case. You then get to listen to mini-debates between justices on each side of the issue, answer questions about their views, and then vote which side to support. The issues imbedded in the dispute are well-explained and presented in an interesting way.
“The game’s full court, by the way, is composed of five women and four men, and the chief justice, male, is named Zimmer. Justices Mendez and Hsu are among the nine. We won’t tell you how it all ends.
[ From the August 25, 2009 The National Law Journal, an article by Tony Mauro]
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Deduplication
“Deduplication has become a mainstay of electronic data discovery processing where documents, such as word-processing files and e-mail messages, are assigned an algorithmically calculated alphanumeric value (typically an MD5 hash) and compared to all other electronic files in a data set. Documents with the same MD5 hash values are considered duplicates. As simple as this process seems, there are two different bases for deduplication: by custodian and by case. Both have their advantages and pitfalls.”
[A Special to Law.com, August 27, 2009, from Alex K. Schiller]

[Personally, I’ve always catered to the MD 7 sans hash]
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On October 23, 2007 the Arizona Republic carried a story about “the city’s new economic development director who fills a post that’s been vacant almost two years. When asked “What exactly does an economic development director do?” the new guy said:
“I really view my job as one of facilitation, one of interaction and building partnerships so we can all as a community benefit by the economic growth that’s happening and will continue to happen in the near future.”
[He’ll fit in just fine.]
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Stare decisis is the way judges seek the safety of the herd. (ouch)
Jon Roland