Category: News Feeds

Above the Law has been writing about Judge Lynn Hughes since 2012. That should give you a sense of the kind of wild card (read: shockingly inappropriate) character we’re dealing with here. In the latest incident, the Fifth Circuit has not only reached out and benchslapped Hughes, reversing his decision, but also taken the extra step of removing the case from his courtroom.

As reported by Law.com, the decision comes in Miller v. Sam Houston State University, in which plaintiff Audrey Miller is alleging discrimination claims against two different university systems, Sam Houston State University and the University of Houston Downtown. Miller had her claims dismissed by Judge Hughes, sua sponte, and told plaintiff’s lawyer he would “get credit for two cases when I crush you.” The Fifth Circuit made the bold move of reversing, remanding, and removing the case on appeal.

As you might imagine, plaintiff’s attorney was quite pleased with the end result, particularly that the case will move forward in another courtroom:

“I was really thrilled that they did that. It’s always a fear that you appeal, and end up in the same court,” said Houston lawyer Terrence Robinson, whose client Audrey Miller will now have a chance to press her civil rights claims against Sam Houston State University, the University of Houston Downtown and the two university systems that run those schools.

….

“The way that he handles the cases makes it sometimes impossible for a plaintiff to present their claims and get a fair hearing,” said Robinson, managing member in TB Robinson Law Group. “Anyone who goes in there, on whatever side he doesn’t like, has the same experience.”

Though this is a great result for Miller, this is far from the only issue in Hughes’s courtroom. Austin attorney Jim Harrington called Hughes “the most intemperate judge that I have ever been in front of. In open court, you just never knew what he was going to say, or who he was going to embarrass, whether you or the other side.” Harrington filed an ethics complaint against Hughes in 2013, but says nothing ever came from it.

In the past, Hughes has been admonished for his racial insensitivity, has called the DOJ “sons of bitches” on the record, and has been called out — repeatedly — for sexist comments. Wonder when the Fifth Circuit will mete out a harsher consequence.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

This year, ATL, along with our friends at Lake Whillans, will be fielding our fifth annual litigation finance survey. Our surveys have told a consistent story over this time period: that of ever-increasing growth for the practice of third-party litigation funding.

Our 2020 findings showed a marked increase in the scale and momentum of the field’s development and acceptance, with a significant majority of respondents — both at law firms and corporate legal departments — with firsthand experience with litigation funding. And these survey respondents with firsthand experience were nearly unanimous in asserting that they would use litigation finance again.

But the last year has obviously been one unlike any other. With all the turmoil and uncertainty, what role will litigation funding play in a legal market driven by new necessities and creative problem solving?

Amidst these challenges, we are asking practicing litigators and their in-house peers for insight into broader industry trends as well as their perceptions of specific litigation finance firms.

Please take our brief (as always) survey and let us know what drives the decision to seek financing, how adoption varies among industries and categories of companies, and other topics. Regardless of the extent of your experience with litigation finance, we want to hear from you!

Last Friday the Supreme Court issued another so-called shadow docket ruling in South Bay United Pentecostal Church v. Newsom. In a split decision, the Supreme Court enjoined enforcement of California’s total ban on indoor worship services in areas of the state with the highest rate of COVID-19 infection (Tier I). Yet, the court left in place California’s 25% capacity limits, as well as the ban on singing and chanting in indoor church services in Tier I designated areas. Although striking down the ban on churches was not surprising for anyone who has been paying attention, given the recent decision in Roman Catholic Diocese of Brooklyn. It was still rather shocking to see many of the Justices double down on analysis that has received so much criticism, including from prominent conservative legal voices.

First, let’s get into the necessary legal background. The basis for the majority’s analysis in both South Bay and Roman Catholic is built upon what’s called the “most favored nation” theory of religious free exercise. Prior to the Roman Catholic decision, however, the general understanding of the theory was that strict scrutiny applied wherever the government was regulating religious exercise while a comparable secular activity was being exempted. To illustrate the application of this theory in these pandemic times, if indoor church services were being banned but movie theaters (where people also are assembled indoors together for longer periods) were not, strict scrutiny would apply.

But the application of the most favored nation theory by the Supreme Court starting in Roman Catholic had a very important difference. The majority dropped the element that the activities being compared must be, well, comparable. In Roman Catholic, the majority chose retail stores as the comparison group for indoor church services. The problem is, the two are not really comparable because people don’t linger for an hour or more next to the same people in retail stores and they don’t engage in group singing. As I wrote about before, a federal district court judge (following California’s state epidemiologist) identified the problem with comparing churches to retail stores noting that unlike indoor religious services:

[R]etail shopping centers, hotels, laundromats, and liquor stores pose a lower risk of transmission than indoor religious gatherings. Staying at a hotel, doing laundry at a laundromat and retail shopping may bring people into relative closeness, but none of these activities would require them to remain in proximity for longer than a brief interlude. Because viral load matters, standing next to someone infected with Covid-19 for fifteen minutes is much less dangerous than standing next to someone infected with Covid-19 for one hour.

By dropping the comparable activity element of the most favored nation theory, the Roman Catholic decision received a lot criticism. Including from one of the staunchest advocates of the theory, University of Virginia Law Professor Douglas Laycock. When discussing the Roman Catholic decision (beginning at 12:15) Laycock noted that churches in New York were in fact being treated better than comparable secular activities (like movie theaters and sporting events), but the court “had to find discrimination somehow. And so they found it by comparing churches to grocery stores. It’s kind of silly.” Yes. It is kind of silly. Or at least it would be silly if the consequences were not so dire in a deadly pandemic.

In last Friday’s South Bay decision, Justice Gorsuch used the comparison of indoor churches to Hollywood singing competitions stating that “if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.” This attempt at comparison, however, was also called into question. This time by other conservative members on the court. Justice Barrett, joined by Justice Kavanaugh, wrote separately to note that the record was “unclear whether the singing ban applied across the board.”

But other problems exist with the most favored nation theory outside of the comparison element. Think about it. What other constitutional right is analyzed under a standard where the extent to which the right is burdened is not a factor at all, but rather, all that seems to matter to the Supreme Court is whether the state values another interest more than the exercise of the right? Why should free exercise, and only free exercise receive such a favorable standard while claims of racial discrimination must suffer under an undeniably more difficult burden to satisfy?

Or think about it this way. Prior to Barrett’s ascension to the Supreme Court, the Chief Justice had joined the liberal members in denying to hear a challenge to Nevada’s COVID-19 restrictions. This was considered to be an outrage to the other conservative justices because Nevada was regulating casinos differently than all other private activities, including churches. But what if a state didn’t single out casinos and simply applied the same public health measures Nevada was imposing on everyone? Under the most favored nation theory, the Nevada public health measures would be struck down, but the exact same public health measures in the next state over would be upheld.

Does that seem rational?

Keep in mind, Nevada has a powerful and compelling interest to both regulate casinos more strictly but also to keep them open. Casinos represent virtually the entirety of Nevada’s economy, supporting hundreds of thousands of jobs. If casinos were effectively banned, Nevada’s economy and the ability to fund a functional state government would collapse. The same compelling interest cannot be said for churches which can still operate essentially the same remotely or outdoors under Nevada’s public health measures.

I can keep going. Many states exempt police and first responders from traffic laws. Now, if you or I try to challenge such exemptions because we don’t get the same treatment we are going to get laughed out of court, likely under some form of rational basis review, rightly so. But if a church challenges this exemption, well, they would be entitled to strict scrutiny under a most favored nation theory.

The fact is nothing about this Supreme Court’s religious liberty doctrine reflects equality or liberty for all — although the free exercise clause has been continually expanded under the most favored nation theory, and states have expanded free exercise protection beyond the First Amendment’s scope. The other half of the First Amendment’s guarantee of religious liberty, the establishment clause, has been continually restricted. The result is a legal reality where religious citizens can be exempt from criminal liability whereas a nonbeliever would not, even if both committed the same act. And while states can expand free exercise liberty, they cannot expand establishment clause liberty. This is not equality or treating the religious liberty clauses with equal respect; it is in fact the epitome of inequality.

What’s more, the consequences of this inequality and legal favoritism of religion are dire, outside the context of even this deadly pandemic. This country is now faced with a unique situation. Where for the first time a large percentage of nonbelievers are living alongside a religious population. For the Supreme Court to create a doctrine that favors one and disfavors the other can only result in widening the already sharp divide.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

For all of the recent efforts by law schools and law firms that have been dedicated to diversity and inclusion in the legal profession, one area that often goes neglected is the makeup of the nation’s top law reviews. For much of the past decade (and earlier), Harvard Law School has taken the lead on these issues.

In 2007, the Harvard Law Review elected its first Hispanic president. In 2011, the Harvard Law Review elected its first openly gay president. In 2017, the Harvard Law Review welcomed the first Black woman to serve as its president. In the same year, the Harvard Law Review selected a majority women editorial class for the first time in history. Now, in 2021, the Harvard Law Review is marking down another historic first.

The Harvard Law Review recently elected Hassaan Shahawy ’22 as its 135th president. Shahawy is the first Muslim to ever serve in this prestigious role. This is what he had to say about his new position in an interview with Reuters:

Shahawy said he hoped his election represented “legal academia’s growing recognition of the importance of diversity, and perhaps its growing respect for other legal traditions.” …

“Coming from a community routinely demonized in American public discourse, I hope this represents some progress, even if small and symbolic,” Shahawy, 26, told Reuters in an email.

Shahawy, a Harvard graduate who went on to study as a Rhodes Scholar, has been working with refugee populations and exploring criminal justice reform. He’s interested in going into academia or becoming a public interest lawyer.

Congratulations to Hassaan Shahawy on his groundbreaking achievement.

Harvard Law Review elects Hassaan Shahawy ’22 as its 135th president [Harvard Law Today]
Harvard Law Review elects first Muslim president [Reuters]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The Democrats have asked Donald Trump to testify as a witness at the impeachment trial. Trump is refusing to testify because, he says, the request for testimony is a “public relations stunt.” Others might think that he’s refusing to testify either because his testimony would be unhelpful or because he’s likely to perjure himself.

This naturally got me to thinking — both about Trump as a witness at an impeachment trial and Trump as a witness at the multitude of other trials in which he’s likely to be called as a witness in the next year or two.

I’m really thinking about Trump testifying live at a trial — either in the well of the Senate or in the witness box of a courtroom. Videotaped testimony that Trump might give outside the Senate or at a deposition before trial would raise different issues.

First, Trump as a live witness, in the well of the Senate, at an impeachment trial:

This would be a complete disaster.

Trials work because juries perceive there to be an impartial person, who’s wearing a robe and overseeing the proceedings, dispensing justice.

Suppose a witness doesn’t answer a question. The judge raises an eyebrow and says gently, “I don’t think you answered the question. Please answer the question.”

Everyone in the courtroom watches closely. The jurors have seen the person in charge gently chastise the witness. The witness is mortified. The witness generally answers the question.

If not, the judge says, in a more stern voice: “I asked you to answer the question. Please answer it.”

Everyone in the room is now wide awake, sitting on the edge of their seat, watching the proceedings with excitement.

When things get really out of hand, the person wearing the robe says, “If I see another outburst like that, I’ll hold you in contempt of court.”

In 20 years of courtroom work, I never saw things get worse than that. The witness always complied.

But, if necessary, the judge could have gone further: “I hold you in contempt of court. Bailiff, put the witness in handcuffs and take him away.”

That’s in part why a trial works: A neutral person is in charge, and the neutral person has power over the witness.

Now, imagine an impeachment trial, with Trump as a witness and Democratic Senator Patrick Leahy as the presiding judge. This is not at all a room in which lay jurors think the neutral person wearing a robe is dispensing impartial justice.

“Please answer the question.”

Does anyone honestly believe that Leahy’s gentle nudge would cause Trump to answer the question?

“Another outburst like that, and I’ll hold you in contempt of the Senate.”

“Witch-hunt! Cancel culture! How dare you try to silence me? The American people have a right to hear what I’m saying!”

“I hold you in contempt of the Senate. Sergeant at Arms (Is that the guy who would do it? Heck if I know), please put him in handcuffs and take him away.”

The Senate could then hold a vote on whether to uphold Leahy’s decision.  The vote would predictably split 50 to 50. There would be endless wailing and gnashing of teeth. It would be a spectacle, but nothing would be accomplished.

I, at least, am delighted that this spectacle will not occur. (It would be great to watch on TV, but it would be terrible for America.)

Second: How about Trump as a witness at other, later, civil trials in which he’s likely to take the stand?

I’m thinking now about Rule of Evidence 608(b):

Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

So Trump could be impeached (we really need another word for this — I’m using it here in the sense of “have his credibility challenged”) to attack his “character for truthfulness,” although “extrinsic evidence” would not be allowed.

This may work for the usual witness, but it doesn’t really work for a loquacious president. When a person has said so much so publicly about matters with which the public is fully aware, simply raising a subject makes the point; there’s no need for “extrinsic evidence.”

For example, here’s a possible introduction to a series of questions to pose to Trump:

On February 26, 2020, you said this about the coronavirus:

You have 15 people, and the 15 within a couple of days is going to be down to close to zero …

Did you believe that to be true at the time you said it? Was that what your scientific advisors were telling you? Blah, blah, blah.

The 608(b) cross-examination about the coronavirus alone could occupy a week or two of trial.

(Actually, it wouldn’t surprise me if one of the “Never Trump” groups took a stab at drafting a generic 608(b) cross-examination of Trump and then posted it on the web for all to use. Those groups would want to be sure that no lawyer screwed this up.)

After the coronavirus cross was finished, the cross-examiner could move on to other subjects on which Trump had spoken publicly in ways that an average juror would likely believe to be untruthful.

Courts had better block out a bunch of time for any trial in which Trump will take the stand.

You thought Trump on the telephone was bad? Trump as a witness will be a true disaster.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Its preemptive protestations of guileless innocence notwithstanding, the Citadel family of companies has attracted precisely the sort of attention in l’affaire GameStop it had hoped to thusly avoid: from angry Redditors and their lawyers; from unfriendly leaders in Congress; from unscrupulous attorneys general who know a thing about securities fraud themselves.

* President Trump’s impeachment lawyer has asked that the impeachment trial be paused for the Jewish Sabbath. Guess he doesn’t roll shomer shabbos… [CNN]

* A Florida lawyer accidentally flashed his medical mamajuana card instead of his driver’s license in a video that has gone viral. [Fox News]

* The Supreme Court has ruled that some of California’s restrictions on in-person worship are unconstitutional. [NPR]

* Kyle Rittenhouse, the teenager accused of shooting protestors in Kenosha, Wisconsin, has fired an attorney who raised a substantial amount of money for Rittenhouse’s legal defense. [Milwaukee Journal Sentinel]

* Subways is offering 15% off tuna sandwiches after a lawsuit was filed alleging the company does not use real tuna. Something smells fishy… [Yahoo News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

There was a tempest in a teapot earlier about a judge granting an alleged Capitol insurrectionist a free pass to party in Mexico — while facing criminal charges and during a damned pandemic — based on a “proposed” order included with the defendant’s filing. After spending a few days “tut-tutting” hyperactive social media voices and explaining that real lawyers could figure out that this was all a misunderstanding and that no self-respecting judge would agree to a self-serving request like this… the judge granted the request.

Ahem.

Judge Trevor McFadden, a 42-year-old appointed to the bench by Donald Trump, has decided that Jenny Cudd gets to leave custody pending trial for a “work-related bonding retreat,” as reported by Buzzfeed’s Zoe Tillman who is all over these riot hearings. You know, Black defendants rounded up for vaguely matching the description of someone who knew someone who once mentioned marijuana should really try the “but what about my vacation” excuse. I’m sure it will be applied fairly!

McFadden — one of the glut of Trump judges pushed through before the ABA could even come up with a sense of whether or not he was qualified (they later produced a split opinion) — wrote in his order that neither the DOJ nor pretrial services bothered to file an objection to the request. And that’s troubling! Whether it’s because the government is infected with insurrectionist sympathizers who want any potential My First Coup Barbie to have a worry-free vacation or because no one thought there was any value in wasting ink on an opposition to an insane request that a judge with a smidgen of professional dignity would deny sui generis is a question for another occasion. There’s enough blame to go around, but the buck actually stops with the judge. That’s why they have the gavel!

I guess McFadden sees his gig as less a lifetime appointment than an opportunity to burnish his resume for a higher position in the D.C. Circuit or Supreme Court. At 42 there’s always the chance that MAGA will come back and reward its most loyal toadies!

When Manhattan DA candidate Eliza Orlins tweeted that it was still hypothetical and she was expressing frustration at the absurd gall it takes to make this request.

Now that’s been topped by the greater gall of a judge forfeiting the rule of law for a vacation.

(Check it out on the next page…)

A Judge Will Let One Of The Capitol Rioters Go On A “Work-Related Bonding” Trip To Mexico [Buzzfeed]

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to a new Law360 survey of partner compensation, what percentage of equity partner respondents that attended a Top 25 law school said their compensation is over $500,000?

Hint: It’s not necessarily that firms paid their partners in accordance to the law school they attended, but grads of top law schools have more opportunities at very profitable firms. As Larry Scott, senior director at recruitment firm Parker and Lynch Legal, said, “Law school is a factor as to where you can go.”

See the answer on the next page.