BeldarBlog

More about the Vioxx verdict

My friend Patterico teases me, justifiably, about some of the longwinded comments I leave on other bloggers' sites. He tells me that I ought to post those remarks here and simply link. He's probably right; I'm a serial bandwidth abuser by nature, and ought to stick to abusing my own.

My most recent series of comments have been on this post over on Prof. Stephen Bainbridge's blog. Prof. Bainbridge has been among the most articulate critics of last week's Vioxx verdict from Brazoria County, Texas, which I first wrote about here on Saturday. But I also vented a bit in comments on Prof. Larry Ribstein's blog, and I'd have vented some more in response to this post by Ted Frank if the Manhattan Institute's Point of Law blog permitted comments.

These are very smart lawyer-bloggers whose opinions I often agree with and always respect. But I part company with them pretty dramatically when they start to disparage, even mock, the civil jury trial system. I won't reprint here my various comments there over the last couple of days — if you haven't visited their blogs, you ought to, and now would be a good time — but suffice it to say that I have a much higher regard for the general decision-making abilities of juries, and I also seem to have a very different view than they do about the ability in general of capable defense lawyers to hold their own for their clients in that system.

I just don't know anyone who's tried a bunch of civil jury cases through to verdicts who holds the system in such disrespect. To the contrary, my subjective personal experience is that real trial lawyers — in my nomenclature, that doesn't mean "plaintiffs' personal injury lawyers," but rather "lawyers who regularly try cases to verdicts rather than settling all their cases" — from both sides of the docket tend to respect the system in almost direct proportion to their experience in it. Scary-smart nonlawyer Megan McCardle (a/k/a Jane Galt) quotes, for example,

[a]n acquaintance who is a securities litigator [who] told me shortly before 9/11 that they try their damndest to keep cases out of court, because the issues are so complex that even the lawyers have a hard time getting a handle on them, and "if you explain it to the jury, it takes six weeks, and they hate you more with every minute — and at the end, they still don't understand it."

How do the jurors decide the cases, then? I asked. She shrugged. "Beats me."

Well, gosh, I'm sorry (because there's no way to say this without being insulting to Ms. McCardle's friend), but that sounds to me exactly like what a candy-assed litigator — someone who doesn't regularly try lawsuits, has never regularly tried lawsuits, has probably not tried many if any total lawsuits of any sort or size, and who is undies-soiling terrified of ever trying lawsuits because of an intense, hidden fear of being proved professionally inadequate to try lawsuits — would say. "Beats me," she says? Yeah, I'd bet pretty much anyone with an ounce of guts (or even the ability to fake having guts) could. If that lawyer's opponents know just how little respect she has for juries, they'd never settle until they had a jury picked and in the box, and then they'd always be sure of getting top dollar.

Back in February 2004, I wrote a long war story about a six-week "bet the company" securities fraud jury trial that I first-chaired some years ago. I was incredibly gratified by how much extremely technical material our lay jury not only followed, but actually mastered. They understood; they didn't hate the lawyers; and collectively they performed a valuable public service that every one of them should be proud of for the rest of their lives.

Yes, I understand that there's a selection bias involved in my experience. It would be odd, I suppose, for me to have run into very many highly successful, experienced trial lawyers who also deeply despise the juries before whom they practice. But also by definition, the population I'm quasi-sampling here includes superb lawyers who've lost some huge cases; and they don't whine about how flawed the jury system is and how dumb jurors always are. The single best courtroom lawyer I've ever seen in my career — one of my early mentors and idols — is the lawyer who first-chaired Texaco's defense in the Pennzoil v. Texaco jury trial. To say that loss "stung" is a multi-billion dollar understatement; but part of what I learned from him, in addition to how to suck it up and soldier on after sometimes getting whipped, is to respect the role and the collective intelligence of civil juries.

As of this moment, Megan's post has some eighty-three comments — quite a few of which I disagree with, but almost all of which I'm impressed with. Now I'll readily agree that the kind of readers drawn to her blog probably don't very closely approximate the average pool of potential jurors in Brazoria County, Texas — or in Manhattan for that matter. But it's not like we're talking about entirely different species — a race of juror-humans, on the one hand, who're pre-literate and still trying to get the hang of flint tools, versus evolved twenty-first century internet-savvy MBAs who can easily run up 83 comments second-guessing everything about the first Vioxx trial. When there's even one juror out of twelve who's a quarter as articulate and bright as Megan's average commenter, he or she can become an opinion-leader who can raise the overall level of a jury's internal discourse immensely. And trial lawyers, on both sides of the docket, do understand that dynamic. (It's quite common, if offensively blunt and usually speculative, for lawyers who are trying to decide how to exercise their peremptory strikes to divide prospective jurors into "leader" and "bench-warmer" categories, for example. You might rather let three fairly hostile bench-warmers onto the jury rather than one merely skeptical opinion-leader.)

When I read through, for example, Ted Frank's criticisms of the results of this trial, I've got to believe that almost every point he makes coulda been, shoulda been, and probably was indeed made by Merck's lawyers in open court. That jury didn't buy those arguments — not because the jurors were stupid or incapable of understanding them, but because they found the arguments and evidence offered by Mrs. Ernst's lawyers and witnesses more persuasive, more accessible, more credible, more sensible. When I read Ted point out what look like gimmicks that the plaintiff's team used to connect with the jury, my reaction is, "So? You don't think Merck's lawyers did their very best to do the same?" These gimmicks are, in the vernacular, guns that purt-near always kick as hard as they shoot; they can blow up in your face or break your chin, especially if your opponent knows a bit of ju-jitsu and can translate your momentum into a huge fall. And your opponent always does get a turn.

Anyway ... having rambled and ranted (or, as I'd prefer to characterize it, "counter-ranted") now both on my own blog and these others, I'll declare a halt now, at least for tonight. I still don't have a strong and confident opinion as to whether this particular verdict was or was not a just and justified one. But golly, I did manage to get riled up anyway after reading what some of these other very bright and articulate bloggers have written, didn't I?

The first Vioxx verdict

Those who care about such things are abuzz today with discussion of yesterday's $253.4 million Vioxx verdict against drug-maker Merck & Co. in Brazoria County, just south of Houston. Several of my readers have emailed me asking for my reactions, which is always flattering, but in this instance it leaves me feeling somewhat inadequate. I don't think I have any particularly interesting or unique insights, and I certainly don't have anything even remotely approaching "inside information." Perhaps some of my speculation is better informed than some others' might be, though, so I suppose I'll share a little bit of that and some general observations along with them. But if you're expecting to learn something new and astonishing, or to read a rant either for or against this verdict, I'll warn you now that you're going to be disappointed when you've finished reading this post.

Over the last 25 years I've appeared many, many times before various judges in Angleton, the county seat of Brazoria County, but less so in the last 10 than in the first 15 years. I don't believe I've ever tried a case to a jury verdict there. By reputation in the local civil trial bar, Brazoria County is still generally regarded as one of the more pro-personal injury plaintiff venues in Texas, but considerably less so now than it was, say, 20 years ago. The entire state has become less pro-plaintiff over that time period; the state-court trial judges there, like most other places in the state now, have mostly been appointed by Republican governors and/or elected as Republicans. And Brazoria County's pool of potential jurors, which historically showed a heavy pro-plaintiff influence from the largely unionized trade/craft workers at several major industrial plants located there, has shifted somewhat toward a better-educated, higher-income, more management/professional flavor as the greater Houston metropolitan area has continuously sprawled across Harris County's southern border with Brazoria County, mostly along (and probably due largely to the recent and ongoing improvements to) State Highway 288. There are certainly still worse places in Texas to be sued from the point of view of a Fortune-500 corporate defendant, but overall I'm sure Merck would rather its first Vioxx trial had been held elsewhere. So to the question "Would this verdict have been the same in Harris or Dallas Counties?" my answer is a resounding "I dunno — maybe, but maybe not."

From the fairly rudimentary AP report on the composition of this particular jury as reprinted in the Houston Chronicle, nothing in particular jumps out at me. I would perhaps hazard a wild guess that the parties' respective jury selection strategies probably turned out to be fairly conventional (i.e., based on occupational, educational, and perhaps ethnic/racial stereotypes). This particular jury was perhaps a little more anglo and a little less well educated than I'd have expected, but not remarkably so. I'm considerably more confident that in this sort of case, both sides had and used jury consultants, shadow jurors, mock trials, focus groups — all the bells and whistles that are designed (depending on your viewpoint) to supplant or enhance a good trial lawyer's gut instincts (which I still tend to value more than any of them, but I'm old-school). I'd love to read the transcript of the voir dire examination, with a particular focus on what challenges for cause were and were not sustained; but that's just idle curiosity on my part, really.

As for the dramatis personae, as identified in another AP story reprinted in the Chron: I'm pretty sure I've never appeared in any capacity before the Hon. Ben Hardin, the state district judge who presided over this particular case, nor do I know anything significant about him by reputation. I don't know plaintiff's counsel Mark Lanier personally, nor anything about him other than what I've read in the popular press. I am acquainted with Gerry Lowry of Houston mega-firm Fulbright & Jaworski, and I've had a handful of cases in which she's been among counsel of record, and I've seen her at a few hearings and depositions, but I've never tried a case with or against her. She has a solid reputation, and I do believe her to be a genuine trial lawyer and not just a candy-assed litigator. (Pardon my crudity, but this is the way most real trial lawyers talk among each other, and regular readers will know that recognizing someone as a genuine trial lawyer is the most profound compliment I can bestow on any lawyer who has an adversary practice.) Fulbright has loads of experience and an awfully deep bench; using Fulbright as its Texas counsel was a safe, if conventional, choice for a company like Merck. I don't know anything about the Williams & Connolly lawyers, and I have no idea, as between them and the Fulbright folks, who had what responsibilities and roles. So if there's an obvious scapegoat, I don't know who it would be. [But see my update below — Beldar.]

So what's my reaction to the size of the verdict? Well, it certainly got my and lots of other folks' attention, as the jury quite avowedly intended. But as most of the even semi-in depth press accounts are reporting, based on fairly recent Texas tort-reform legislation, all but the tip of that iceberg is essentially certain to be trimmed away by the trial judge by the time he turns that verdict into a judgment. And just based on its ratio to the rest of the actual (i.e., non-punitive) damages awards, it wouldn't surprise me at all if either the trial judge or the appellate courts trim deeper into the "mental anguish" award than what the statutes mandate. If pressed to guess, my hunch is that the trial court will eventually sign a judgment that's still in the low to low-ish eight figures.

Beyond that, though, folks, I really don't have a strong opinion about either the size or the propriety of the verdict. I didn't see the trial; I don't know the evidence and have no basis to assess the various witnesses' credibility; and I don't trust anyone in the popular or legal press to pre-digest those things for me, at least not to voice a public opinion here on them. Can I imagine a set of facts that might justify an award of the size that this will likely turn into? Oh, sure. Can I likewise imagine circumstances that would peg this as a jury run amok, an aberration? Ayup. But I'd just need to know a whole lot more than I know now in order to pick between those alternatives. And I really can't comment intelligently yet on the likelihood, for example, of this jury's verdict and a trial court judgment based on it being overturned on appeal.

Fortunately, since I'm a blogger rather than a network correspondent or professional pundit, I don't have to force out a stronger set of opinions about this case than I actually have, just to gratify the sponsors or drive up the ratings. If I read something about the case elsewhere that prompts me to comment, or develop stronger opinions, I might write more later.

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UPDATE (Sat Aug 20 @ 9:30pm): But there will inevitably be attempts to scapegoat, and they may have already started in tomorrow's NYT:

To be sure, some one-time factors did cause the Angleton case to be particularly disastrous for Merck. In the future, its lawyers will presumably avoid cross-examining 60-year-old widows for 90 minutes, as Gerry Lowry — one of Merck's lead lawyers in this case — did to Mrs. Ernst. Ms. Lowry, for example, repeatedly questioned her about Mr. Ernst's relationship with his adult children from a previous marriage, whom Mrs. Ernst does not know and who were not a part of the lawsuit.

Mr. [Peter A. ] Bicks, [an] outside [defense] lawyer [with Orrick, Herrington & Sutcliffe's New York office who is not involved in the Merck litigation], said Ms. Lowry's approach was fraught with unnecessary risks. "Conventional trial wisdom is that there is no reason to personally attack a person who has lost a loved one."

That kind of remark made in this sort of context frankly tends to chap me. Yeah, that is indeed the conventional wisdom. And again, I lack personal knowledge sufficient to weigh in on whether Ms. Lowry's cross-examination of Mrs. Ernst was or wasn't particularly high-risk, insensitive, or over-the-top. Maybe attorney Bicks would have done it differently; maybe I would have too, but I don't know enough to say so with confidence. But however aggressive Ms. Lowry's cross-examination was, I'm extremely confident that its length, tone, and topics were deliberate tactical choices, and that they were choices made not by Ms. Lowry alone, but almost certainly after considerable internal consultation with other lawyers on the defense team, and very probably also with in-house lawyers from Merck and/or jury consultants. Indeed, whether and how to challenge a potentially sympathetic plaintiff would be exactly the kind of issue — in a case like this one, with these sorts of stakes and a defendant with effectively unlimited resources and motivation to prepare incredibly thoroughly — likely to have been a specific point of testing and inquiry in secret mock trial/focus group sessions, quite possibly using videotape from Mrs. Ernst's actual pretrial deposition in this case. In short, if it was "fraught with risks," this cross-examination was almost certainly calculatedly so, with the risks knowingly assumed by the client as being justified by hoped-for gains.

Perhaps attorney Bicks, with whom I'm not acquainted, was quoted out of context or his comments were truncated; perhaps he watched the whole trial in person; or perhaps he has inside sources from the defense team that I lack. But the sort of Monday morning quarterbacking — with its dripping implication that the defense team just made a stupid blunder — that this comment at least seems to reflect is overly facile, probably misleading, and offensive as heck. That the NYT would fall for this kind of ersatz wisdom — or, possibly, solicit it; or, possibly, even create it through selective reporting and editing — doesn't surprise me. I watched it go on for many months in the media circus after Pennzoil v. Texaco. But I hope that attorney Bicks wasn't just trying to make sure that the NYT spelled his name right for his and his firm's marketing purposes. And I guarantee you that Ms. Lowry and her partners at Fulbright & Jaworski don't need lawyers from New York City, nor the New York Times, to come to Texas to teach them how to try jury cases.

Did my side lose, or did the other side win?

Commenting on my post from earlier this week about the jury trial I just lost, one of my readers wrote:

Judging by your oblique description, seems to me that the other side won the case, rather than you losing it.

Does that make any sense given the context to which we aren't totally privy?

That's a really interesting, and implicitly flattering, question, for which I thank him heartily. It certainly does make sense. But as much as I'd like to use that excuse to help lick my wounds, I don't think it really fits this particular case (about the specific details of which, I still can't really comment).

Important warning: By the time a lawyer has tried a case to a jury verdict, his or her objectivity has almost always been thoroughly shredded. When I sat down after my final chance to talk to this jury — after my rebuttal to the lead defense lawyer's closing argument — I was absolutely, positively "drunk on my own fumes" and convinced we were about to win a big one. In hindsight, I was obviously very, very drunk on my own fumes, to the point of hallucination; but that's actually entirely normal by that point in a case. It takes enormous effort and discipline to try to maintain (or recapture) any objectivity. In fact, when the stakes permit one the luxury, it's a great idea to have "shadow" or "standby" counsel for your team (maybe a senior lawyer who's been brought in at the last minute) mostly observing from the sidelines with the express instruction and intention not to breath your side's fumes! Which is to say that I can't fully trust my own observations about this particular trial yet, and I'm likely to be somewhat more objective in, say, another year or two thinking back about it than I am now, while the wounds are still oozing.

However, trying to be objective, I think I can say this: My opponents were very capable lawyers with at-least-adequate prior experience, and probably more than that, and certainly with real guts. I seriously doubt that their team, collectively, has as much jury trial experience as I have, and I think that I was probably more entertaining than they were. But they'd certainly been to the big dance enough not to trod on their own toes, and their overall approach was very conservative, not at all flashy — which certainly seems to have turned out to be the winning approach with this particular jury. (I won a lot of defense verdicts as the less flashy, less experienced lawyer when I was uniformly on that side of the docket earlier in my career.) "Entertaining" doesn't always mean "effective."

As I wrote in my earlier post, I was generally satisfied with my own overall performance. Although new to this particular case, I was the first-chair for our side: I did both the jury selection (the "voir dire" examination) and the closing arguments, and handled all of the expert witnesses (presenting our own experts, and cross-examining the defendant and the defense team's experts) in a very expert-intensive case in which quite a few of the experts hadn't previously given oral depositions. My colleagues handled the opening statement and the presentation of our clients and another member of their family, and did a very solid job on that. But for a variety of reasons, our expert witnesses, both in-person and via videotaped depositions, were candidly obliged to acknowledge some of the weaknesses in our case, and we had some post-verdict indications that their concessions — which the defense team very skillfully exploited — had a much bigger impact on the jury than anything that either set of lawyers said or did.

If that's true, it's probably a good thing, in the big picture. The relative skill of the lawyers sometimes does decide close cases. (This is called "value-added lawyering," which I'll probably write more about in the future.) But in a just and perfect world, it ought not, and unless there's a huge imbalance — which in this case, there certainly wasn't — it usually doesn't. Likewise, the trial judge's rulings can sometimes swing a case one way or the other in a dramatic (and possibly erroneous) fashion, which is why there are appellate courts to review those rulings. But most appeals end up with the trial judge being affirmed, which is also probably a good thing overall.

So no, I don't think we got out-lawyered, nor (obviously) did our opponents; I don't believe that the quality of either sides' lawyers determined the outcome of this particular case. Other factors, cumulatively, did that. And our "side" lost — meaning by that our total presentation, including everything that the jury heard from our clients, from our experts, from the other side's witnesses, and, yes, what they heard from me and my colleagues. In the hoary aphorisms, victory may have many parents and defeat may be an orphan. But in the real world, I have to admit that I'm one of the parents of this defeat, if by no means the sole parent. And the other side's victory does indeed have many parents, being neither immaculate nor miraculous, but rather the result of how the cards of our respective hands were played out, where the chips fell, and the guts their side displayed in seeing their wager all the way through to a verdict (for which I give them great credit; willingness to take a verdict is one of the key distinctions between "trial lawyers," who are rare, and "litigators," who are legion).

In other words, they won it and we lost it — using "they" and "we" in their broadest senses. That, too, is still some comfort — it's certainly better than a result after which one is left doing serious self-second-guessing (like "Oh my stars, I knew I shouldn't have called Witness Jones, and I never should have made that fifth hearsay objection, that just killed us!"). But I can't duck my share of the responsibility for the loss, and neither would I deny our opponents their due glory (considerable, but not unlimited) for the win.

The bottom bottom-line, once again, is simply this: We got whipped, and they whipped us — so said twelve citizens good and true. And that's why we have juries in the first place. I genuinely do respect this one's verdict, including the portion of the verdict that, inevitably, must legitimately reflect poorly on our side's lawyering. And to the extent I can learn something from it, I'll try to. Ask me about that again in, oh, say, about a year, or maybe two. But for now, my wounds having mostly scabbed over, it's time to dust myself off, stare down that bronco out of one bleary eye, and climb back on for the next ride.

Report from the trial court trenches

When I was a pup, new to the practice of law as an associate at Houston's Baker Botts, among the many superb trial lawyers I tried to learn from was Walter E. Workman. Way back in 1982, Walter sat an incredibly light (i.e., incredibly patient and forbearing) second-chair for me on my first-ever state district court first-chair jury trial. And I learned more about our shared profession from his comments during the gaps in that trial than I've probably learned in any five other trials put together.

I remember one of Walter's comments that came after I'd expressed my frustration in front of the jury when a series of my objections had been overruled. I'd been fidgeting, playing with a rubber band and a paper-clip while I was listening to my opposing counsel (very effectively) cross-examine my company representative. And to my horror, just as I was sitting back down after the judge had overruled my fourth or fifth (absolutely valid!) objection, the paper-clip accidentally slipped out of my clammy fingers and, propelled by the rubber band, shot across the room — loudly TWACKing the hollow wooden front of the judge's bench.

"And I object to Mr. Dyer shooting his paper-clip across the room when he loses his objections!" thundered my opponent.

"Sustained!" thundered back the judge, glaring at me. Whereupon I pouted, conspicuously, for at least the next ten minutes (but with my hands clenched, empty, under the table).

So that same night, over a couple of beers (one a bit tear-diluted), the following conversation ensued: "Bill," Walter E. Workman (Senior Partner at Baker Botts and a Fellow in the American College of Trial Lawyers) calmly asked me, "what do you think the jury thought about that little tantrum this afternoon, when you shot the paper-clip?"

"I dunno," I said sullenly, still angry at the judge, and angry at Walter for not being angry along with me.

"Well," said Workman gently, "there's exactly three possibilities. The jurors who're already in your camp, if there are any, figure that you didn't mean to shoot that paper-clip, so they're feelin' sorry for you and mad with you at that mean old judge. But they're already in your camp, so that's no help to our side."

Workman paused to take a controlled sip of his own beer. "But the ones who are already against you," he continued, "however many they may be, now have their proof that you're a little snot who badly needs a whippin', and they'll be lookin' forward to givin' it to you."

Another sip, and then he dropped his jaw and locked my eye. "And then there's the ones who're on the fence. They're the ones who count most; they'll decide this case in the end. So tell me, Bill — do you think your tantrum helped persuade them? If so, which way did it tilt 'em?"

Yet another slow sip from his beer. "Brother Dyer," he softly concluded, "can our client really afford another tantrum like that from you?" Workman assumed a broad grin that brooked no answer out loud, and then he finished that beer. Thus endeth the lesson.

At this point, I vividly recalled an old Navajo phrase I'd learned as a Boy Scout in the Order of the Arrow: "Oooh-whadd ... tan-naaah ... sigh-aahm!"

The only way I can ever hope to repay the kind of debt I owe to old hands like Walter Workman is by my sharing their lore with younger lawyers I encounter. So some of the war stories I tell now are ones originally told to me by Walter, and some of them are stories I've been told by others about Walter, and a few (like the one I've just told) are stories that I've lived with Walter and amazing trial lawyers like him. Telling all those stories is one reason I write this blog.

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Another such story that I've heard from multiple sources — all purporting to have been eye-witnesses, or to have gotten it from someone who was, of course! — is about the time Walter was soundly whipped in the mid-1960s while defending a worker's comp case in Angleton, some miles south of Houston down in Brazoria County.

Apparently, for whatever reasons and despite Walter's best efforts, this particular jury just hated Walter and his client — and they showed it by answering every single question they were asked against Walter's client just as forcefully as the judge's instructions permitted. The judge was reading aloud their entire verdict, and each successive answer from the jury was just like another punch landing squarely on Walter and his client — uppercut to the jaw, jab to the nose, jab to the nose, roundhouse to the temple, bam-bam-bam, they're down for the count!

When the distinguished trial judge had finished transmitting this methodical thrashing from the jury, he looked up from the verdict form and solemnly asked the lawyers present for both sides the ritual question: "Do I hear any motions?" The judge and everyone else was expecting the plaintiff's lawyer to give the ritual answer appropriate to the big win he'd just been handed — something to the effect of, "I move that the jury's verdict be duly received by the Court and filed among the papers in this cause."

But before the plaintiff's lawyer could speak, Workman bounded to his feet. "Yes, Judge, I do have a motion!" The judge was startled; the plaintiff's lawyer froze in his seat, stunned. "You have a motion, Mr. Workman?" the judge asked incredulously — perhaps figuring that Workman was already planning his motion for new trial or some other clever if premature set-up for an appeal.

"Yes, Your Honor!" said Walter Workman earnestly, "I respectfully move the Court to grant me and my client a fifteen minute head-start toward the county line before you discharge this dad-gummed jury!"

*******

I believe that to be a true story, but if it's not, it oughta be. Conventional (and largely valid) wisdom among trial lawyers, from any side of the bar, criminal or civil, is that if you're not losing any cases, you're settling (or pleading out) way too many. And another bit of conventional (and largely valid) wisdom among trial lawyers is that real trial lawyers' real measure of success isn't how many cases they've won or lost, but how many cases they've lost that they shoulda won, and how many they've won that they shoulda lost.

That's conventional wisdom that's intended to be a comfort when you've just gotten your butt kicked and needed a fifteen-minute head start out of town before the jury was discharged, and it was about the only comfort I did have after the results of my most recent jury trial, which was in a rural county somewhere north of Houston.

Oh, I guess there were a few other comforts. I think I did my best, or pretty close to it, as did my colleagues on the case. We had a good judge, and very worthy opponents. We basically had no choice but to try the case — there'd been no settlement offers at all — and we and our clients knew going in that, given the dance of the pretrial testimony from expert witnesses, our case had some bald spots that needed something of a comb-over to look presentable. Some of the courthouse regulars who'd watched the trial privately professed surprise at the result and had nice things to say. (Which is peachy, but won't buy a dab of coffee at the very fine and friendly local cafe across the street from the county courthouse — "Y'all come back now, y'hear?") And while this particular result was a disappointment, it doesn't shake my confidence in either myself or in the jury system; the good folks on this particular jury weren't buyin' what my team and I were sellin', but they were doin' their best to follow their oaths, and I do genuinely respect and appreciate that. The fact remains that we got whipped, and that's the bottom bottom-line.

I can't go into more details about the particulars of the case at this point for a variety of reasons, some legal and tactical, some simply having to do with taste and decency. But I'll tell you just how lopsided this particular loss was: The bailiff hadn't even gotten the exhibits sorted to send back to the jury room before they had a 12/0 verdict against us! They took all of thirteen minutes — less time than it usually takes for most juries to re-read the court's charge aloud and select their "presiding juror" (f/k/a "foreman" or "foreperson").

In fact, as fast as these folks were, I genuinely don't believe a fifteen-minute head start toward the county line would've been nearly long enough. But I think had I had the presence of mind to make the "Workman Motion," it certainly would have been granted. "Fly like the wind, Mr. Dyer! You'd better!" I believe the trial judge woulda said.

Oh well. Onward and upward.

Georgetown Law Prof. Peter Rubin distorts Judge Roberts' opinion in the Hedgepeth "french fry case"

My faithful readers will no doubt conclude that I've become obsessed with U.S. Circuit Judge (and SCOTUS Associate Justice-nominee) John G. Roberts, Jr.'s opinion for a unanimous three-judge panel of the D.C. Circuit in the "french fry on the Metro" case, Hedgepeth v. Washington Metropolitan Area Transit Authority, 386 F.3d 1148 (D.C. Cir. 2004). They're right. But the Left gives me new cause to renew my obsession with each passing week! And my newest target, Prof. Peter Rubin, is indeed a slippery one, but no fish in a barrel.

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Here's the recap, which my regular readers (or those only casually interested) may wish to skip:

On what coincidentally turned out to be the day before President Bush announced Judge Roberts' nomination to succeed retiring Justice Sandra Day O'Connor, I'd written a post entitled "Not my job!" I quoted Justice Thomas' dissent in Lawrence v. Texas, and I gave this advice to Dubya with respect to the then-still-open slot on the Court (boldface in original):

I am not empowered to fix this. That's the essence of what Justice Thomas said, and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming. The result will certainly, inevitably be that many things that ought to be fixed — by Congress or state legislatures or those other entities mentioned above — just won't get fixed, or may get bollixed up even further. Sometimes those entities are obviously falling down on the job, with heartbreaking or alarming or unfair results. But when the Supreme Court seizes power that doesn't belong to it, and exercises it in a way that can't be effectively checked by the voters or the other branches of government, then over the long run, not just the rule of law but our entire system of government are likely to perish.

When Judge Roberts' nomination was announced on the very next day, I quoted rejoicingly from the opening paragraph of his opinion in Hedgepeth in a post entitled "Judge Roberts can say 'I am not empowered to fix this' despite the temptations." I thought then — and continue to think, after acquainting myself better with Judge Roberts' other written opinions as a U.S. Circuit Judge  — that this case gives a marvelous insight into what kind of Supreme Court Justice he'll make.

But it was already clear from pre-nomination speculation about Judge Roberts that the Left would do its very best to use Hedgepeth to alarm, rather than to reassure, the American public. It was an obvious tool for that sort of mischief, precisely because the same natural and very powerful sentiments that might have prompted an activist judge to twist the Constitution to grant poor little Ansche Hedgepeth some relief can also be used to make Judge Roberts seem quite the ogre — simply because he voted against her!

Here is how the Washington Post briefly and quite accurately described Judge Roberts' opinion in Hedgepeth on October 27, 2004 — shortly after it was released, and well before Judge Roberts became a SCOTUS nominee (boldface mine):

The U.S. Court of Appeals for the District of Columbia yesterday upheld the arrest of a 12-year-old girl by Metro police for eating a french fry in a train station in fall 2000.

The court affirmed a lower court ruling that Metro's "zero-tolerance" policy and the child's subsequent arrest were constitutional, although Judge John G. Roberts made it clear that he was no fan of the policy.

But once Judge Roberts became the nominee, the Left and its MSM allies immediately began broadcasting what may be aptly called the "Roberts wants to jail children for eating french fries"-meme, and they continue to do so. On two successive days last month, for example, WaPo published a balanced and factual discussion of Hedgepeth and a ridiculously over-the-top and inaccurate op-ed (which concludes that Judge Roberts is too heartless even to qualify as a Scalia-type ogre).

Playing whack-a-mole with the idiots-at-law of the popular press is a fun and worthwhile pass-time for lawyer-bloggers, but I'm particularly keen to challenge distortions being made by those who possess law degrees (and therefore should know better) and who occupy bully pulpits from which they've spread their distortions on legal matters. Thus, I could not let pass this snarky comment about Hedgepeth by Slate's senior editor, Stanford Law grad, and frequent legal commentator Dahlia Lithwick:

[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).

Trying to illustrate the line between justifiable snark and outright distortion, I posted a challenge to Ms. Lithwick. I asked her "to either substantiate [her] statement with even a single paragraph from the opinion itself which even 'seemingly' supports the view that Judge Roberts saw anything 'good' (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that [she] c[ould]n't." Ms. Lithwick responded promptly, graciously, and (I believe) wholly inadequately by email, and I posted our email exchange, along with some of my further observations, to let my readers decide (and comment upon) whether she'd adequately met my challenge.

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But comes now Peter J. Rubin, a tenured professor who teaches constitutional law at Georgetown University Law Center. Professor Rubin is a graduate of Harvard Law School, where he was an editor of its prestigious law review, and served judicial clerkships at both the Circuit and Supreme Court levels — impressive credentials that, coincidentally, he shares with Judge Roberts. Prof. Rubin was also the founder of the American Constitution Society for Law and Policy, self-described as "one of the nation's leading progressive legal organizations," and he apparently had a high-profile private appellate practice before becoming a law professor. In an August 11th appearance on PBS' News Hour program, Prof. Rubin proved himself just as eager to misrepresent Judge Roberts' opinion in Hedgepeth as Dahlia Lithwick had been a few weeks earlier — but even more baldly so, without any trace of snark, and to a broader audience (boldface mine):

But from opinions [Judge Roberts has] issued in the court of appeals, for example, we see him relying on methods that result — for example, there's a case now that's somewhat well-known about the arrest of a junior high school, an African-American junior high school girl here in Washington for eating a single French fry on her way home in the Metro station.

And he said that was a reasonable seizure of her, the arrest of her under a mandatory policy. And the method he used to reach that result, it's just a tea leaf, but it is a conservative method not unlike that used by, for example, Justice Antonin Scalia.

Indeed, the case is now "somewhat well known" enough so that, to her considerable credit, even the News Hour's Margaret Warner knew better than to leave their viewers with Prof. Rubin's undiluted misimpression. She quickly pointed out, correctly, that Judge Roberts had actually written words to the effect that "it's not up to us [judges], it is not our place to second guess such legislative judgments." And Prof. Rubin's conservative counterpart on the segment, Prof. Douglas Kmiec of Pepperdine (who once worked with John Roberts as a government lawyer), politely expanded on Ms. Warner's polite correction:

I don't think we should super size the McDonald's case, however interesting it may be.

The fact of the matter is, in that particular case the challenge was is that the Metro in Washington had drawn a distinction on the basis of treating adults different than children, and the simple legal issue was whether or not it was rational for the government to draw that distinction, and Judge Roberts, following precedent, following well-established constitutional doctrine, held that it was.

McDonald's actually wasn't involved — young Miss Hedgepeth purchased her after-school french fries from a vendor named "Cafe Med" — but Prof. Kmiec's description was otherwise accurate. Had I been in his place, though, I likely have reacted less like a hale fellow well met, and much more like Bob Dole — that is, I'd probably have snarled something like, "Stop lying about Judge Roberts' record!"

So I snarled something very like that in an email to Prof. Rubin late that same evening. (Law faculty members can usually be emailed at least indirectly through their law school websites, although some such websites don't make actual email addresses public, and I shan't make Prof. Rubin's email address public either.) Prof. Rubin replied promptly, graciously, and (in my estimation) disingenuously. But when I then asked for his express permission to quote in full our initial exchange and anything further he wished to add, he declined. I'll honor his preference, but I'll send him another email with the URL for this post; he's more than welcome to use my comments section to respond if and as he chooses; and I repeat here my offer to publish even more prominently than in my comments section any rejoinder that he may wish to offer.

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Unlike Ms. Lithwick's offhand reference in Slate, Prof. Rubin's description of the case in his News Hour TV appearance was not an occasion where misinformation can be even partially excused as snark, sarcasm, or exaggeration. In being paired opposite Douglas Kmiec, he was obviously the News Hour's choice of a "progressive" (i.e., liberal and prominently Democratic) legal talking head, and his credentials do indeed make him well-suited for that role. But even in that role, when in a forum like this one, his ethical obligations as a lawyer and a legal educator oblige him to be at least as careful to avoid factual distortions as he ought to be in arguing before an appellate court. And friends and neighbors, while I probably haven't seen or participated in nearly as many appellate oral arguments as either Prof. Rubin or Judge Roberts, I can definitely assure you that any advocate who played this fast and loose with the facts in an oral argument would be sliced into confetti, and deservedly so, by the appellate judges before whom he was arguing.

Let's start with the easy part — Prof. Rubin's assertion of fact that Judge Roberts, in Hedgepeth, "said that was a reasonable seizure of her, the arrest of her under a mandatory policy." The overwhelmingly obvious meaning of that assertion, when made to a lay audience, is that Judge Roberts thinks it's "reasonable" — a good thing, wise, proper, appropriate, sensible — to arrest first-offender french-fry-eating schoolgirls. But anyone who has actually read the first paragraph, or even the first sentence, of Judge Roberts' opinion in Hedgepeth knows that's exactly the opposite of what he wrote. At this most basic level — and that's by far the most important level, when attempting to educate a lay audience about legal matters — Prof. Rubin has engaged in such a gross inaccuracy that one must doubt that it could have been accidental. It's like writing, "Lincoln thought the dissolution of the Union was a fine idea," or "Churchill was a big Nazi-sympathizer."

But let's shift gears, out of lay impressions, and instead into constitutional law. Prof. Rubin's reference to the "mandatory policy" is an unmistakable signpost to the Hedgepeth opinion's equal protection holding; and while there were indeed several other holdings in the opinion, that was by far the most important one, since it addressed the merits of the main argument raised by the Hedgepeth family's lawyers. I won't repeat here my earlier response to Ms. Lithwick about "rational relationship" constitutional analysis, but will summarize it simply by noting that under long-established constitutional principles — under the same general method of constitutional analysis used not just by Justice Scalia, but by, for instance, Chief Justice Burger in Brown v. Board of Education — the D.C. law and policies had to be completely irrational in order to be unconstitutional. That a statute is profoundly silly, or massive overkill, or downright stupid, or very unwise is not a sufficient basis to rule it a violation of the Fourteenth Amendment's Equal Protection Clause (or, as here in a case not involving a State, the Fifth Amendment's comparable component), at least where the classification being made by that statute is based on the difference between minors and adults (here, the "mandatory policy" to which Prof. Rubin referred, whereby first-offender minors were arrested but adults were only ticketed). Any professor who teaches constitutional law must understand these distinctions. And any professor of constitutional law would flunk a law student who conflated them the way Prof. Rubin did on the News Hour. Saying, or implying, that Hedgepeth held that the mandatory arrest policy was "reasonable" is a gross misdescription of that case's equal protection holding — and again, such a huge misstatement when coming from one with credentials like Prof. Rubin's that one must seriously suspect it to have been an intentional and knowing distortion, rather than an instance of innocent mistake or misspeaking.

Hypothetically, however, Prof. Rubin might object that I've misunderstood him. Hypothetically, he might protest that despite his reference to the "mandatory policy," he wasn't actually referring to Hedgepeth's equal protection holding, but instead to one of its subsidiary holdings. The Hedgepeth family's lawyers, he might (correctly) point out, had made not just an equal protection argument, but also a separate argument under the Fourth Amendment, which prohibits "unreasonable searches and seizures." Hypothetically, Prof. Rubin might defend his comment on the News Hour by arguing that Hedgepeth held that young Miss Hedgepeth's arrest, a Fourth Amendment "seizure," was indeed "reasonable." And such would be a very clever argument, were Prof. Rubin (hypothetically) to make it. He (hypothetically) might quote from the Fourth Amendment discussion in the lattermost part of the Hedgepeth opinion to bolster his argument — but he wouldn't quite be able to find the quote he'd be casting about for, something to the effect that young Miss Hedgepeth's arrest "was reasonable."

The reason he wouldn't find a particular quote like that, though, is because the Hedgepeth opinion very emphatically does not so hold. In fact, Judge Roberts expressly recognized, and clearly wrote, that under the clear holding of a very recent case from the U.S. Supreme Court, federal courts were prohibited from engaging in any analysis of the "reasonableness" of Ansche Hedgepeth's arrest:

Given the undisputed existence of probable cause, Atwater [v. City of Lago Vista, 532 U.S. 318 (2001),] precludes further inquiry into the reasonableness of Ansche’s arrest under the Fourth Amendment.

The Atwater case had challenged as unreasonable the arrest (rather than ticketing) of a Texas woman who'd violated a state seatbelt law. Not only was it controlling precedent that absolutely bound Judge Roberts and his fellows on the D.C. Circuit, but it had specifically cited the facts of Ansche Hedgepeth's arrest in footnote 23 — giving the lower federal courts, in effect, an advance advisory opinion on the outcome of any Fourth Amendment challenge she might make! Might Prof. Rubin simply disagree with Atwater? Well, sure he might — notwithstanding the fact that it was written by Justice Souter, for whom Prof. Rubin himself had clerked. But while law professors are free to second-guess the Supreme Court, Circuit Judges aren't, and Judge Roberts didn't. Thus, for Prof. Rubin to argue that Judge Roberts held in Hedgepeth that Ansche Hedgepeth's arrest was "reasonable" would not only be disingenuous, but spectacularly, breathtakingly wrongheaded — again, to the point that one must wonder whether such a misstatement could possibly have been unintentional, when coming from one with Prof. Rubin's qualifications and position.

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To me, however, the most troubling part of Prof. Rubin's comment about Hedgepeth was its race-baiting. It's somewhat obvious from the transcript, but extremely obvious from watching the actual video replay, that Prof. Rubin stopped himself mid-sentence to deliberately add young Miss Hedgepeth's race to his description of her in the set-up for his comment about Judge Roberts' opinion in the case.

Why? What does her race have to do with anything?

No mention of Miss Hedgepeth's race is made in either Judge Roberts' opinion for the unanimous D.C. Circuit panel or in the opinion written by the district court. Apparently, no argument of racial discrimination was ever advanced in either court by her very capable counsel (who otherwise demonstrated themselves fully willing to tilt at windmills on their clients' behalf). There is no doubt that her counsel well knew that a claim of racial discrimination — whether based on the statute and policies, or simply on the DC Metro's actual practices in enforcing them — could immediately catapult their case out of "rational relationship" equal protection analysis and into other legal realms where their chances of ultimate success would be vastly better. Did they simply fumble the case?

It would seem that Prof. Rubin lives and works in the Washington, D.C. area. Yet he might, hypothetically, assert that when he injected Miss Hedgepeth's race into the News Hour discussion, he was unaware of any evidence to show that white children had also been victims of the same statute and Metro's same mandatory arrest/no tolerance policy. And indeed, let us give him every benefit of the doubt. Let us assume that despite being a professor who teaches constitutional law in that same city, he entirely missed the front-page first-section article in the WaPo on November 16, 2000, that brought Miss Hedgepeth to public attention — which revealed that in the "week-long undercover crackdown on violators last month, ... a dozen plainclothes officers cited or arrested 35 people, 13 of them juveniles [and o]nly one adult was arrested." Perhaps he also missed WaPo's front-page metro-section article from the following day (boldface mine):

An article on the arrest appeared in yesterday's Washington Post and quickly became a topic of discussion.

Ansche was sought out by the ABC television show "Good Morning America," the BBC in London and a radio station in Australia. Hundreds of readers weighed in on the newspaper's Web site.

Many chastised Metro for overzealous enforcement, though some did complain that too many people were eating in the system. Others cheered Metro for the crackdown.

Some wondered whether Ansche was arrested because she is black.

Metro reported 25 arrests at the Tenleytown station this year. Of those arrested, five were white males, eight black males, eight white females and three black females. One was listed as a Hispanic female, who could be of any race.

So let's presume that as he sat there speaking to the public on the News Hour, Prof. Rubin somehow remembered Miss Hedgepeth's race, but didn't know, or had forgotten, that neither her lawyers nor the WaPo had come up with any facts to suggest that she was the victim of racial discrimination, and that the WaPo's investigation had pretty much exploded that notion.

Even under that most charitable interpretation, I submit to you, friends and neighbors, that someone in Prof. Rubin's position has a moral and ethical obligation to get some facts before he publicly plays the race card against a Supreme Court nominee. I submit to you, ladies and gentlemen, boys and girls, that a law professor at Georgetown, speaking as an "expert" to a national audience on public television, ought to be held to a higher standard of factual accuracy than a layman phoning into a talk radio show or posting on the WaPo's discussion board. I submit to you, gentle readers, that whether intentionally or not, by injecting Miss Hedgepeth's race into a discussion over a lawsuit in which race was not in any way an issue, Prof. Rubin left his viewers with the distinct, predictable, extremely ugly, and absolutely unjustifiable impression that U.S. Circuit Judge John G. Roberts, Jr. is a racist.

And that is simply disgraceful, indefensible, and repulsive.

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David Seldin, Director of Communications for NARAL Pro-Choice America, abruptly resigned almost immediately after NARAL was forced by public pressure to pull its factually misleading anti-Roberts advertising. I'm not demanding that Prof. Rubin resign. But his distortions of fact about Judge Roberts are roughly as bad as those in the NARAL ad, and he lacks even the "everyone knows we're a special interest group that might say anything" defense. I respectfully suggest that Prof. Rubin ought to make a public apology to Judge Roberts, and that he should request that the News Hour broadcast it.

And to you, patient readers, I predict that you'll continue to see these same distortions made about Judge Roberts until, and probably after, he becomes Justice Roberts. Don't be fooled, and if you care about the truth, try not to let others be fooled either.