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Saturday, June 23, 2007

Beldar responds to a reader's comments about contempt of court and the "few French fries short of a Happy Meal" incident

Reader Gregory Koster left a thoughtful comment on the second of my two previous posts about the "few French fries short of a Happy Meal" lawyer (William P. Smith) that I think justifies a response in this new post.

There's truth in Shaw's (character's) observation that all professions amount to conspiracies against the laity, but it's not the whole truth. A fair portion of this blog is critical of my profession, or elements of it. My second post about Mr. Smith started with a sentence acknowledging that lawyers are only occasionally effective at policing our own; I know that's also true of physicians, and it's probably true of other professions as well. Some of what should be "career-ending moves" go entirely unpunished, and many lesser transgressions do, and those all exact a substantial cumulative price from both laity and professionals. Conspicuous cases like these in which we've gotten it right are worth acknowledging.

Regarding Mr. Nifong's cohorts, I haven't done any research (online or other) into them, and have only followed the entire lacrosse team prosecution with moderate interest from a great distance, so I just don't have enough information to do more than speculate. Mr. Koster's questions and inferences regarding Nifong's enablers and possible co-conspirators are intriguing, but I, for now anyway, have no answers or thoughtful reactions.

Nothing in either of my posts disapproving of Mr. Smith's "French fry" remark was predicated on him being before a federal judge or a bankruptcy judge or a trial-court level judge. His remark would have been inappropriate before any tribunal. Mr. Koster mentioned some judges and courts whom he holds in low regard, and they may deserve that. But I've appeared on (fortunately rare) occasions before judges who were genuinely senile. There were indeed remedies for that available either in the appellate courts or else judicial conduct commissions. And even when those remedies were not entirely satisfactory — and I can well recall one instance in which they weren't, and my client quite literally paid a heavy price as a result — I would not have been justified in trying to ridicule them on the record during my court appearances before them.

I don't know any more of Judge Isicoff than the little bit I've read in connection with this incident, but I think that her conduct in it has been impeccable. This week, I read a comment on another website that suggested she'd been aiming for dramatic effect when she took a five-minute recess before announcing her decision. That's so spectacularly stupid and misguided an observation that I didn't bother to contest it, because — like her original restraint in withholding comment on the remark during the hearing itself, and only issuing the show-cause order later — it manifestly evidences her intent to be thoughtful and deliberative, and to resist the natural human instinct to give voice and effect to emotions or whims of the moment.

I don't find her comments personally pompous in the least. They do, however, reflect her altogether appropriate appreciation of the dignity that holders of her job description must maintain and the respect that job description must be shown in order for our legal system to function. I don't know her personally, but essentially all of the many judges whom I do know are continuously aware that the pomp which attends them really only attends their office, and they almost all work hard not to internalize it. Some are more successful than others at resisting. But they all recognize — as must our profession generally — that without ritualized procedures and norms expressly designed to maintain courtroom decorum, our adversarial system of justice would quickly become indistinguishable from televised wrestling matches or, worse, bad neighborhoods in today's Gaza Strip.

Thus, Judge Isicoff would have been doing a disservice — not just to her fellow judges of every type and stripe, but to the lawyers and the litigants who appear before them all — had she simply ignored Smith's smart-ass, juvenile insult. It is very unlikely that she wanted to become nationally known as "the judge accused of being a few French fries short of a Happy Meal," and she's doubtless also aware that some portion of the public, and even of the profession, will perceive her as having acted out of selfish motivations. But without regard to whether she did take personal offense at Mr. Smith's remark — which would be understandable; I'd take offense if someone said that of me in court, even advocate-to-advocate — she had a duty to defend the dignity of "the bench."

Mr. Koster wrote that if Judge Isicoff were "a customer service rep for a computer firm[, when she found herself u]nable to throw folks in jail on her say so, she'd blow up in a week." I don't know if that's true or not, but I do know that she's not a mere "customer service rep." Regardless of her personal tolerances, we as a society, collectively, cannot tolerate a court system so loosey-goosey that lawyers get to imitate Don Rickles, working the audience for snickers at the expense of the dignity of the presiding official. It's a short step from disrespecting the office to disregarding its rulings, so those boundaries have to be policed aggressively. Fortunately, most lawyers understand that, and they stay well on the respectful sign of the lines. But for those who don't, it's in all of our long-term interests for them to be called on it.

What Mr. Smith did was nowhere near as threatening to the long-term integrity of the system as what ex-prosecutor ex-lawyer Nifong did, but it still was bad behavior that couldn't be tolerated. The big-league manager who kicks dirt on the umpire's shoes gets ejected, and maybe fined or suspended for a few games; but the big-league manager who punches an umpire (or who gets caught having bet on his own team while he was a player) may end up being banned from baseball.

Finally, Mr. Koster notes that "[c]ompared to Nifong and his legal enablers, Smith has been hit far harder  — at least in the pocketbook." On an absolute dollar basis, that's probably true. But that's a function of the fact that Mr. Smith was, until recently, a department head of an enormous money-making enterprise. To the extent that the "French fry" comments will have a harsher fall-out on Mr. Smith than they might have had on some comparatively obscure and inexperienced practitioner, that's because he had more to lose and more reason to have known better.  In a relative sense, however, Mr. Smith's punishment is much lighter than that already inflicted on the entirely disgraced and disbarred Nifong, and appropriately so.

Posted by Beldar at 01:16 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Beldar responds to a reader's comments about contempt of court and the "few French fries short of a Happy Meal" incident and sent a trackback ping are listed here:

» Re: Disposition from MilBlogs

Tracked on Jun 24, 2007 4:01:04 PM


(1) Alan made the following comment | Jun 23, 2007 1:39:03 PM | Permalink

It could have been worse. He could have said "A few Stukas short of a full squadron."

(2) Mark L made the following comment | Jun 23, 2007 3:37:10 PM | Permalink

As far as senile judges go, you are right. Even then the comment would have been inappropriate. As long as the judge is on the bench the presumption is that the judge is in full control of his or her faculties. It may just be a polite fiction, but you have to act on that basis regardless.

(3) vnjagvet made the following comment | Jun 23, 2007 9:21:43 PM | Permalink

A colleague (not a litigator) emailed me the other day that a former partner of his who practices regularly in Bankruptcy Court in complex business cases said that there were many times when he wanted to say something like this to particularly dense BR Judges, but held his tongue.

My comment back was that most experienced litigators have had the urge to make a wiseguy comment to a dumb or biased Judge (there are such individuals, after all), but uniformly resisted such urges.

Beldar's reasoning on this matter is right on. The remedy for a wrong decision against you is an appeal. In my experience, being a wiseguy at trial doesn't help one bit in getting the trial judge reversed.

(4) DRJ made the following comment | Jun 23, 2007 11:42:17 PM | Permalink

This is a good example of why I like the internet. A good comment and a thoughtful, well-reasoned reply.

(5) ed in texas made the following comment | Jun 25, 2007 6:50:16 AM | Permalink

Between gavelling in and gavelling out, the judge is the personifaction of "the law" in a courtroom. If you are not prepared to deal with that, you probably shouldn't be there.
This little vignette is, in effect, little different from the character that cannot resist smarting off to a cop on the street. Is it personally gratifying? Possibly. Is it personally profitable? Unlikely.

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