We lawyers are supposed to be rule followers. We read the court rules and are expected to follow them to the letter, except when we don’t. Why not? Do we think the rules don’t apply to us too, that we’re somehow exempt, or that we can ignore them just this one time because well, just because, and we have a good reason for flouting them?
I don’t know about you, but I hate footnotes. To me, it disturbs the flow of the writing when I need to look down at the bottom of the page for a footnote to explain something to me. It’s akin to “Hey, you, since you obviously didn’t get the point in the text, I will explain it to you in greater detail in a footnote.” In a 1985 essay, Judge Abner Mikva, then a judge on the D.C. Circuit, made it clear his dislike of footnotes, calling them an “abomination.” Make sure you read this link to the end, especially footnote 4. Mikva was right on.
The battle about footnotes continues to this day with a federal judge benchslapping the DOJ for excessive footnotes.
Here’s a benchslap that is a little bit out of the ordinary, and it doesn’t involve footnotes. Normally, ATL benchslaps when a court chews out counsel for one reason or another. It can be for excessive use of footnotes (see above) or something more egregious like setting a motion during the early days of the pandemic.
I have a different kind of benchslap to report: this is one where the reviewing court took the lower court to task for several errors that could have been avoided but weren’t. Yes, I understand that it’s the job of the appellate court to review what the lower court did or did not do but rarely is the case returned to a different judge. In this case, a pro per judgment debtor made several post arbitration motions, including one that would have allowed her to appear by phone since she lived out of state. All her motions were denied.
While the kerfuffle was pre pandemic, in a recent opinion the appellate court benchslapped the trial court, finding that its actions were inconsistent with California law, especially the one that allows litigants to participate in court proceedings telephonically. That slap is bad enough, but there’s more. The Court of Appeal specifically said that “… in the interests of justice all further proceedings shall be heard before a trial judge other than the judge whose orders are affected by this decision.” Ouch.
Here’s another thing I don’t understand. This is 2020, and although it’s a year that most of us want to forget, we can’t forget that inappropriate conduct is still a no-no. The pandemic has not changed that.
Several recent examples: a Pennsylvania judge has apologized for calling a domestic abuse victim a “little blonde honey … and too dumb to leave her alleged abuser.” Now the woman has been victimized twice. Although the court granted the women a protective order that she had sought, the Pennsylvania appellate court found his remarks “shocking, sexist, offensive, and egregiously inappropriate.” Coming to the judge’s defense, in a manner of speaking, the attorney representing the woman said that while her client didn’t like the judge’s remarks, she thought it was a “generational thing,” since the judge was in his 70s.
So, a judge in his 70s is ipso facto going to engage in sexist comments? Is that ageist? I thought that sexist, demeaning comments know no age.
Removal or retirement? Those are the choices for a Massachusetts judge accused of groping a court employee at a court-sponsored event. The hearing officer found not only that the judge had engaged in the claimed misconduct, but even worse was the finding that he lied during the investigation. One of the problems with lying, as I am sure we have all found out with clients from time to time, is credibility. Was the witness lying then or is he lying now? So, what is it with some judges that they can’t STFU or they can’t keep their hands to themselves?
A high-speed chase in the Florida Keys ended with a suggestion that the lawyer and the arresting officer go out for pizza. The lawyer, who had been a partner with a firm in Fort Lauderdale (notice the past tense) told the cops that she was with a big law firm and hung out with celebrities. The lawyer also said that she was a “great litigator and knows how to get stuff done.” Isn’t that the job of every lawyer, knowing how to get stuff done? But pizza? Was she going to pick up the tab?
The slicing and dicing (aka whacking) of lawyers has started. Rahm Emanuel, President Barack Obama’s first chief of staff and subsequently mayor of Chicago, said, “You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things that you think you could not do before.” Biglaw firms are taking that advice to heart and are now starting to cut loose both equity and nonequity partners. It’s not going to be pretty.
I think this is just the beginning of “right sizing” or “reductions in force,” by aligning firms with the new realities of legal practice forced upon them by both the pandemic and innovation. The British call layoffs “redundancies.” I call them heartless amid a pandemic. God forbid that there should be a sharing of the economic pain in this time of great pain.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.