BeldarBlog

Beldar's tale of Trump and Rudy G in 1984

I will share here a personal anecdote about Rudy Giuliani and Donald Trump, one which strikes me as particularly ironic in this season of insane lame-duckery:

Like most Americans who don't live in New York City, the first time Donald J. Trump ever pinged my personal radar screen was when he was mugging for the cameras at Herschel Walker's highly publicized signing by the USFL's New Jersey Generals in early 1983. But his name didn't stick with me at the time.

In early 1984, however, as a third-year associate at Houston's Baker Botts, I was privileged to be the most junior assignee to the litigation team representing T. Boone Pickens, Mesa Petroleum Co., and their deal partners in connection with their partial tender offer for Gulf Oil Corp. Although Mr. Pickens' bid was treated by the financial markets with great skepticism, it nevertheless had caused a big jump in Gulf's historically undervalued stock — action which in turn attracted all the bottom-feeders and sharp traders eager to do their drilling for oil on Wall Street instead of in the oil patch.

Among my tasks was to review and help our clients respond to civil investigative demands — basically administrative subpoenas demanding documents and information — which had been served by a joint task force from the SEC and the U.S. Attorney for the Southern District of New York, one Rudolph William Louis Giuliani.

Rudy G had only been in that job since the previous summer, but he'd already made waves and grabbed headlines as a crusading crime-fighter, so much so as to have already repeatedly stepped on the toes of the SEC's New York office, which considers that to be its job when it comes to insider trading and the like. So our litigation team was fully prepared when the SEC and SDNY jointly demanded that Mr. Pickens, Mesa, and their partners immediately turn over documents and information regarding any and all contacts between, on the one hand, any of our clients, and on the other hand, any of a long list of well-known arbitrageurs, sharks, and sharpies who were leveraging multi-million-dollar options one way or the other on Gulf stock.

These requests were of course incredibly broad, but my emphatic marching orders were to help our clients comply with them as quickly and with as little quibbling as possible: The last thing we wanted to see was any kind of action by the SDNY or SEC that might impede or even cast shade on our side's bid. And in fact, complying fully and honestly was easy, because Mr. Pickens, his company, and his partners — for whom this was not their first rodeo — had very deliberately and carefully avoided any contact with any of these arbs, sharks, and sharpies.

Still, we had to go through their requests carefully, individually, and with all due diligence — both complying and being seen to comply, leaving a full written record thereof. And I was therefore already in phone contact with my opposite number — someone extremely junior at the SDNY — to try to get a few clarifications that might make things go more swiftly.

I already was acquainted, by reputation from the financial news, with names like Ivan Boesky and Carl Icahn, so it was no surprise seeing that they were included in the SEC/SDNY demands. But one name was new to me, as a non-New Yorker: "Who," I asked my SDNY counterpart, "is this 'Donald J. Trump' guy you're asking about?"

"He's a schlub, but his daddy is a big slumlord here," he said, "and now Junior is trying to become a player on the Street. We think he maybe has been hanging around with some of the other people we've named, looking to scrape up the crumbs that might have fallen from their tables."

"Ah," I replied, "Thanks for that clarification, which I'll use to make the appropriate inquiries from our clients right away." (None of whom, it turned out, had ever heard of Trump, either.)

Thus I was unsurprised, during one of the GOP presidential primary debates in 2016, that when he was asked about his potential cabinet picks, Trump trotted out the name of Carl Icahn — who'd ended up bottom-fishing, and then unloading, Trump casinos decades later as they went through the wash-rinse-repeat cycle in the bankruptcy courts.

But it was a little bit surprising to me when Rudy G became such a Trumpkin, knowing that at least in 1984, when Rudy was the top law enforcement official on Wall Street, Trump had been on the SDNY's radar screens as a potential inside trader.

Yes, I knew about the hurricanes before I moved here!

[Reprinted from a post I left on Facebook at 11:09 p.m. on Thursday, August 24, 2017, as Hurricane Harvey approached the Texas Gulf Coast:]

I was on Galveston Island for Tropical Storm Claudette in July 1979, which washed out the bridges to the mainland and forced a mid-trial recess in the jury trial I was helping out on as a summer law clerk.

Hurricane Allen greeted me a couple of days after I moved full-time to Houston in 1980; it was a record-setting Cat 5 over the Gulf and parts of Mexico but had diminished, fortunately, by the time it got here.

I had a jury deliberating in Judge Hugo Touche's 129th District Court in the old Civil Courts Building well into the late afternoon hours, as Hurricane Alicia approached on Thursday, August 18, 1983, with its eye already predicted — accurately, it turned out! — to pass directly over downtown Houston at about midnight. We'd done our closing arguments the prior afternoon, and our jury had started deliberating that morning at 9:00 a.m. Now we were the last folks in the courthouse; all the windows were taped, and some were boarded with plywood. But the edges of the blinds on some of the courtroom's windows still flashed red and white in crazy patterns — from the cherry-tops on the law enforcement vehicles parked to block the streets outside: Downtown Houston had been evacuated and its entrances barricaded by uniformed HPD officers.

The jury sent out a note which asked, pithily: "What happens if we don't reach a verdict before the Hurricane?"

Judge Touche wrote a reply which said, "If you cannot reach a verdict today, I will discharge you until next Tuesday." Being quite literal, the jurors interpreted "today" to mean "on this calendar day" — in other words, that he was planning to kept them deliberating until midnight! In fact, he was willing to let them go as soon as they wanted to, since it was already after 5pm. But with this incentive, we had a verdict in about four minutes. The time pressure helped move a holdout from the 9/3 vote in my client's favor that they'd been stuck on since noon, to the 10/2 required for a valid civil verdict.

Alicia was a lady to me, as Frank Sinatra might have said, or sung, if he'd had a jury out in a hurricane.

I tried to visit my office that Sunday, but downtown was still cordoned off, and the streets were covered for blocks with fine, sharp-edged shards of deep green glass — formerly the curtain wall of what was then Allied Bank Plaza (now the Wells Fargo Plaza), whose glass would've been fine except for the gravel roof on the Tenneco Building across the street: Alicia turned those bits of roofing gravel into 100 mph projectiles. It was surreal. All judicial deadlines in state and federal courts around Houston were extended across-the-board, no questions asked, for two weeks IIRC, and more than a few lawyers I knew had had the entire contents of their offices sucked out into the storm.

I've survived all the other storms 'tween then and now, and I've been consistently lucky. I've avoided being conspicuously stupid in any of those past storms and floods. I know the drill for sheltering in place. My tank's full, my provisions are in place, I have fresh batteries and my devices are charged, etc. Houston is home, and hurricanes are part of living here. Beats earthquakes and tornadoes IMHO, but YMMV.

On the demise of Dewey & LeBouff

This Wall Street Journal report, reporting on the settlement of debt litigation against ex-partners of the bankrupt New York law firm Dewey & LeBoeuf LLP, may generate considerable schadenfreude among those who dislike lawyers in general or NYC-based BigLaw firms in particular.

It made me remember a clear fall day in 1979, however, on my very first trip to New York City. I've previously written about other adventures on that same trip in a 2004 post featuring Dick Cheney, John Edwards, the Plaza Hotel, and supermodel Cheryl Tiegs.

Earlier in the day I described in that post, I'd had my first "fly-back interview" with the NYC firms with whom I'd interviewed some weeks before on campus at UT-Law. The morning interview was with what was then called "Dewey, Ballantine, Bushby, Palmer & Wood." The first name partner, former NY governor and two-time GOP presidential nominee Thomas E. Dewey, had died early in that decade. But my first interview of the morning was, as I recall, with name partner Wood — whose Christian name I am embarrassed to admit that I cannot recall, perhaps since it never occurred to me that I'd ever have occasion to address him by it.

Altogether contrary to my confident expectations, however, and notwithstanding the many decades' gap in our respective ages (I was all of 21), Mr. Wood actually might not have minded at all if I'd called him by his first name. He was among the most comprehensively charming gentlemen I've ever met in my life, and he put me instantly at ease — I don't remember how, so I can't rule out the possibility that hypnosis was involved, but it was entirely effortless and instinctual on his part.

Not far into our interview, he said this: "So, Bill, how big a chip did you carry up from Texas on your shoulder?" And he winked. Somehow I knew he wasn't voicing a criticism, but rather an insight — and an absolutely accurate one.

I answered: "I think it may have been a pretty big chip, but I didn't expect any of my interviews here to be like this one. I'd like to clerk in New York next summer so I can compare it to what I saw last summer in Houston and Dallas, to see whether the difference would justify a permanent move here after my judicial clerkship. And so I hoped to learn about your firm's practice today. But I frankly didn't expect to be this much at ease, especially with a name partner in one of the most distinguished firms in New York."

This seems trite or smarmy as I re-read it here, but at that moment in his corner office, it was an entirely genuine statement of exactly what I was feeling: I had abandoned any expectation of trying to "manage" this interview since he seemed entirely capable of reading whatever was on my mind, so there was no point in trying to spin him.

He nodded thoughtfully. In my memory he may have fiddled with his pipe, perhaps re-tamped and re-lit it, before he continued:

"Most of this firm's partners came here from other states. The reason we're so good is not because we're in New York. Rather, we're so good precisely because we draw the best talent from everywhere. And to keep them, we've always done whatever is necessary for non-New Yorkers to be comfortable and productive here."

I was utterly convinced of his wisdom and his trustworthiness at that moment. The chip had flown from my shoulder without him or anyone having knocked it off. We were also both aware that I was aware that he was flattering me outrageously and far beyond any merit I could yet have demonstrated. But he was entirely confident in the merits of his pitch, and our mutual awareness of his outrageous flattery did not detract a whit from his style and panache in troweling it on. And as they sometimes say on the prairies of west Texas whence I hail, "If'n you got the what-for to back it up, then it ain't exactly braggin' now, is it?" Mr. Wood had a lot of what-for.

The rest of the day's interviews were pleasant enough, but none was nearly so memorable. I ended up working elsewhere in NYC that summer at one of Dewey Ballantine's archrivals. Years later, when I was at Houston's Baker Botts during the 1980s, I worked against Dewey Ballantine's mergers and acquisition lawyers on a couple of contested tender offers. (As expected, they were quite formidable, but not superhuman.) Their merger with LeBoeuff, Lamb in 2007 to become "Dewey & LeBoeuff LLP" seemed a longshot even at the time, and I don't know many of the details of the merged firm's demise, but I'm not at all convinced that its collapse is any kind of deathknell for BigLaw.

It's by no means certain that even someone as gracious and polished as Mr. Wood could have piloted their ship through the competitive storms of the last two decades. "First-world problems," my kids would probably say, and I won't lose any sleep worrying about the ex-Dewey & LeBoeuff partners having to pay "clawback" settlements. But based on nothing more than my sentimental memories of that extraordinary interview, I'm slightly sad to watch the firm so spectacularly dashed on such financial reefs. And I still count myself lucky to have met and spoken with Mr. Wood, even if the sort of law firm and law practice he symbolized and represented no longer can compete effectively on a national or international stage.

The Obama Administration, women, and the nunc pro tunc son-of-a-bitch rule

Regular readers may recall that after law school and a one-year judicial clerkship, I spent six years in the early 1980s working as an associate in the Trial Department of Texas' oldest law firm, BigLaw stalwart Baker Botts. When I started there, in keeping with the practice of that firm at the time, I assisted more senior lawyers on some very big cases, but I was also handed a "docket" of my own — a collection of already-in-progress small and medium-sized cases deemed appropriate for handling by an associate — with the instruction to "do the necessary." When new cases of that sort came in, the department head or his assistant typically distributed those among the department's associates. This, in turn, was accomplished by walking into the chosen associate's office and dropping the file (typically comprising only a new lawsuit just served on a firm client and a transmittal memo) on the associate's desk, always with the instruction to "handle this to conclusion."

The firm wasn't prone to hiring idiots, so we knew that implicit in these dramatically sparse instructions was the expectation that we would seek guidance, instruction, inspiration, review, and criticism in connection with our own efforts to "do the necessary" and "handle to a conclusion." And the available teaching faculty included a very deep and very diverse set of several dozen Trial Department partners and associates whose experience ranged from other just-starting lawyers to senior partners with individual experience measured in decades and jury verdicts numbered in the hundreds.

It was a wonderful system. Through it, in some respects I taught myself my profession; and in other respects, through it I learned my profession studying at the knees or elbows of those with more, and sometimes great, mastery.

*******

The system did have some dark aspects to it, though. And one of them related to the "up or out" nature of BigLaw associate status. Most associates didn't become partners; most left before they were up for partnership consideration, sometimes because they'd decided BigLaw wasn't for them, some because they wanted to go in-house with clients or become entrepreneurs; some wanted to change practices (e.g., by moving to a plaintiffs' personal injury firm); and a relatively small number were gently nudged into looking elsewhere because their performance was thought below the firm's expectations. And every time an associate left, his or her entire docket had to be re-assigned.

I remember discussing that process one day with a more senior associate whose advice I had sought in trying to figure out one of the personal injury defense cases I'd inherited from a just-departed associate whom I'll call "Bob." The case was dangerous; its development by Bob had been just barely adequate; and it urgently needed lots of work, much of which (like finding and working up expert witnesses) could have been done better if it had been started much earlier. "Wow," I commented, "I'm surprised the firm thinks I can handle this."

My older colleague said, "Well, you know, there's a benefit to you in getting to take over a case like this that's already so close to trial. Are you familiar with the 'nunc pro tunc son-of-a-bitch rule'?"

"The what?"

"You know the Latin phrase 'nunc pro tunc'?" he asked.

"Sure," I replied, "it means 'now for then.' Like with a revised judgment submitted for the purpose of completely replacing an earlier judgment that had some important error in it. Something the law deems a complete and retroactive replacement, as if the earlier version had never even existed. Neat phrase, powerful stuff! But what's that got to do with Bob handing over this case to me when he left the firm?"

"It means," he answered, "that Bob is your ready-made 'nunc pro tunc sun-of-a-bitch'!" But I continued to stare blankly at him.

"Look," he explained more patiently, "You took over handling twenty-something of Bob's other files, the whole docket for [Valued Firm Client from the Fortune 500 List], when he left. You've seen his work closely and in volume now. Was Bob a good lawyer?"

"Yes," I said truthfully. "This is the only case he was working on that really seemed to have gotten a bit beyond him."

"That's right," he said, "and while he was here, everyone liked Bob, and they all genuinely wish him well in his new job. He'll be a respected alumnus of this firm for the rest of his career, and we may refer some business his way or support him if he decides to run for some judgeship. Bob's a great guy, and a solid, competent lawyer. I mean that.

"But," he continued, "every case has the potential to go south in a hurry. This looks like one you're going to have to take all the way to a verdict; I don't think it can be settled at anything close to what our client is willing to pay, or that the client should be willing to pay. If you're not losing any cases —"

We both finished the sentence in unison: "— you're not trying enough cases!" This is a truism, a fundamental tenet of the trial lawyer's faith, already drilled into me when I'd been a mere summer clerk, and at more than one very fine law firm.

"And yet," the older associate continued, "you don't have to worry about the microscope only being put on you if you end up taking a thrashing from the jury, or about taking all the blame yourself, because Bob is ...." He waited for me to finish this thought too.

I answered hesitantly: "... the son-of-a-bitch who screwed this case up before I ever touched it?"

He made the "Charades" gesture: index finger to the tip of his nose. "Exactly! Bob's a great guy, but now he's gone. So if need be, he becomes a son-of-a-bitch. Retroactively. Just as if he'd always been a son-of-a-bitch. Nunc pro tunc, now for then. And it's an irrebutable presumption."

"Meaning," I said, "not just a presumption, but really a pre-determined conclusion that can't be challenged."

"Meaning exactly that, yes. And also meaning that Bob's not around anymore to rebut it. He'll probably never even hear about this. He'll never know that, for purposes of this case, 'Bob's a hale fellow well-met' got replaced with 'Bob was a lousy son-of-a-bitch who screwed this pooch beyond rescue.'"

I rubbed my chin and pondered this for a minute. Then I asked a question that seemed obvious, and was: "The nunc pro tunc son-of-a-bitch rule won't impress clients a bit, will it?"

"No," answered my slightly older and much wiser colleague. "This client's legal department in Chicago probably hasn't even noticed that you've taken over this file, despite your letter. We're all just fungible Baker Botts associates to them. You score no points at all by blaming Bob to them, so don't even think about it. You may have a nunc pro tunc son-of-a-bitch in waiting, but you still better win the case if it possibly can be won."

I thought a little more. "And the Trial Department head who assigned this case to me —"

"— knows exactly how big a challenge he just handed you," he confirmed. "The 'nunc pro tunc son-of-a-bitch rule' won't work on him, either, nor on anyone in the partnership who's evaluating your progress. You should always assume that they already know everything, but then point out everything important anyway, as a back-up and because you're supposed to, and then send them a memo as a back-up to that too. But yeah, they know they've just given you a big challenge, and they're waiting to see what you do with it."

"So who will the 'nunc pro tunc son-of-a-bitch rule' really help me with?" I asked.

"Only people who don't know any better," said my friend, "like, maybe, your parents or your girlfriend or your buddies at some other firm, when you're trying to explain to them how the firm's good client got tagged by the jury for umpty-ump million dollars while you were defending them." He stopped and seemed to contemplate the consequences of what he'd just said as if something new had occurred to him. "I guess," he finished, "it only works on people who are clueless and who are willing to be fooled."

"I see," I said.

*******

I thought of the nunc pro tunc son-of-a-bitch rule, and who it may be effective in fooling, when I watched the video of White House Chief of Staff Bill Daley blaming his immediate predecessor — famed ballet dancer, idiot savant investment banker, and Chicago-Way politician Rahm Emanuel, now mayor of Chicago — for reports that women staffers felt they had been "marginalized" by senior male members of the early Obama administration. If you can't figure out why I made that association, then you're precisely the sort of person the 'nunc pro tunc son-of-a-bitch rule' was created in order to influence.

California Prop 8 and Beldar's tale of a trial judge who based his ruling on a coin flip

Back when I was a BigLaw lawyer and regularly represented mostly big companies, one of my best and favorite clients was an international investments concern whom I'll call "Big Mall Owner Inc." for purposes of this war story.

Big Mall Owner Inc.'s investments portfolio included lots of commercial real estate, and in particular it was the owner and landlord of a large, multi-level indoor shopping mall built on what were then the outskirts of Houston in the late 1970s. Although the mall was originally a fairly posh location, its surrounding neighborhood had since declined. Big Mall Owner sought my services as its courtroom lawyer on this occasion because the mall's anchor tenant — a large Texas department store chain, which I'll very creatively call Large Department Store Corp. — had recently decided to make that location into its "discount outlet," at which Large Department Store would sell seconds, returns, and remaindered goods at a discount.

This angered the other tenants, and they complained to Big Mall Owner and threatened not to renew their own leases. Big Mall Owner was concerned, too, because every such mall looks to its anchor tenant(s) to set the tone, and draw appropriate crowds, for the entire mall.

But Large Department Store was still paying its rent in full and on time. It insisted that it was doing nothing contrary to the lease, and refused to negotiate any change in its use of this location.

The relevant lease documents, like most such, were the product of arms'-length bargaining, but they still generally favored the property owner. They contained several requirements about the standards that the anchor tenant was to maintain, but those were necessarily somewhat subjective. And in general, it's much, much harder to evict a tenant who's paying its rent, and who has ample resources to fight back over an alleged non-monetary default.

Nevertheless, per its rights in the lease documents, Big Mall Owner's representatives (at my direction) did a snap inspection during which they documented, in writing and on video, several dozen different conditions which we thought amounted to breaches of Large Department Store's obligations under the lease. Not all of those violations had been cured 30 days later, but we weren't quite ready to exercise self-help remedies like a lock-out. (Lockouts done through self-help can lead to big consequential damages awards if they're later found to have been wrongful, and Large Department Store was threatening exactly that sort of lawsuit.) Instead, we filed an eviction lawsuit.

*******

Under the Texas state constitution, claims seeking a court order for the immediate possession of leased premises, whether residential or commercial, can only be filed with the appropriate Justice of the Peace of the precinct in which the property is located. Jurisdiction is both mandatory and exclusive: Even if you have a lawsuit pending in another level of the court system, and no matter whether the monthly rent is $100 or $100,000, an evicting landlord can only get the "writ of possession" it wants from a Justice of the Peace.

Texas' Justice of the Peace Courts (sometimes just called "Justice Courts") do offer jury trials to those who demand them and pay the specified jury fee, but they are not "courts of record" — meaning (among other things) that they quite literally have no court reporter who can make a record of the proceedings therein. They do keep other sorts of records and files, of course. And whether for a writ hearing or for a jury or bench trial, they do swear in witnesses and take testimony and written evidence. But their presiding Justices of the Peace need not even be lawyers.

Upon paying a nominal fee or filing a pauper's affidavit, anyone dissatisfied with the judgment rendered in a Texas Justice Court may appeal to an "of record" court, typically the "County Court" or, in large metropolitan areas like Houston with specialized county courts, to the "County Civil Court-at-Law." And since there's no "record on appeal" from the J.P. Court, one's "appeal" actually consists of a "trial de novo": The judgment of the Justice Court is vacated; everything that happened there is wiped out; and everyone starts over, almost as if the case had just been filed there to begin with.

*******

So on behalf of Big Mall Owner, I duly sued Large Department Store in the appropriate precinct's J.P. Court, and I jumped through the appropriate hoops to try to get the earliest possible hearing date: No on-going business wants to be evicted, and now that we were definitely at war, Big Mall Owner wanted to put the maximum pressure possible on Large Department Store.

On the appointed day and at the appointed time, both sides waited our turn among the folk of Harris County who had business with the court that day. The courtroom was absolutely packed, and not with lawyers but with people representing themselves: There were many other civil evictions on the docket, plus a wide range of other civil cases (mostly "small claims") and misdemeanor criminal cases too. Some of those folks grumbled (very quietly, because there's no court reporter but there is a bailiff with a gun) when the Justice of the Peace announced that on this fine morning, he was going to first hear — out of order and before anything else — the case of Big Mall Owner Inc. vs. Large Department Store Corp.

Probably six or eight lawyers trudged up to the bench, looking a bit sheepish at the professional courtesy we thought we'd just been extended. Adding in the half dozen or so client representatives and witnesses for each side sitting in the front couple of rows, our case collectively involved maybe only 10% of the people in the room, but something like 20% of the frequent bathers, and 90% of those wearing business attire.

"Who's lead counsel for Big Mall Owner?" asked the Justice of the Peace. I identified myself. "Okay then, Mr. Dyer," he said, "Since you represent the plaintiff, that means you get the privilege."

I was puzzled. We were ready to start, but we hadn't begun putting on any evidence yet, so I couldn't imagine what exactly he meant. "The privilege, Your Honor?"

"Yup," he answered. "Whatever I say to you folks today, no matter how I decide or what I decide, the loser is going to appeal and get a trial de novo in county civil court-at-law. Right?" No one disputed him, nor could anyone have.

"And I've got fifty, sixty folks out there waiting for my attention today," he continued, gesturing to the crowd filling the rest of the courtroom. "As interested as we all may be in whether Large Department Store gets to keep operating its discount outlet at Big Mall Owner's mall, I just don't have time for y'all to argue about signage and trade dress and Class A versus Class B." 

"So, Mr. Dyer," he announced, as he produced a quarter-dollar coin from a pants pocket under his robe, "Call it in the air — heads or tails!"

The whole courtroom laughed, except for me and the judge. "Tails," I said very seriously just before he caught the coin and slapped it onto the back of his opposite hand.

"Tails it is," said the J.P., "meaning the Court will enter judgment for Big Mall Owner."

Another laugh, slightly disbelieving this time, from the crowd (including the corporate representatives from both sides). But before the laugh had died down, the J.P. literally began waving a hand, shooing us away from the bench while looking down to see what was next on his docket.

"But Judge!" I gulped. "Since I won the coin toss, doesn't that mean I get my pick of the possible results?"

The J.P. stroked his chin and said, "Yes, I imagine that's right. So?"

"In that case," I responded, "please enter judgment for Large Department Store Corp."

Now the whole courtroom was silent, and my co-counsel and my client's representatives looked at me as if I had gone completely mad. I put on my best "Trust me!" face and kept the J.P.'s eye for the two or three eyeblinks it took for him to suddenly smile and wink at me.

"Done!" he exclaimed. "Now y'all are excused, next case!"

I snagged the sleeve of my lead client representative and tugged him out into the hallway. "I know you think I'm crazy," I told him. "But if we end today as the winner in this court, Large Department Store can let ten more days run off the clock before they even have to file their appeal. We'd much rather lose today, and file our appeal today, and start the clock running on the eviction proceedings in County Civil Court-at-Law today — wouldn't we? After all, it's a trial de novo. All that matters here is that we've gone through this court en route to one where it really matters."

*******

All other things being equal, when on appeal one would usually rather be appellee than appellant. That is, one would usually rather have won in the trial court than have lost. That's especially true when the issue being decided is factually intensive. Appellate courts traditionally and properly give great deference to the decisions of the trial court fact-finder — the jury if there is one, or the trial judge if it's a bench trial — on the weight and credibility of evidence. Appellate courts conduct only a very limited review of the trial court's factual conclusions. But they are obliged to give no deference at all to a trial judge's legal conclusions, and instead they're completely free to substitute their own views as to the law for those of the trial judge.

If there are no disputed facts — if the issues in a lawsuit depend solely on the proper application of legal principles to underlying facts that are undisputed — then for most purposes on appeal, the trial court's decision simply doesn't much matter. 

Such is the context in which I left the following comment on my blogospheric friend Aaron Worthing's guest-post at Patterico's about this ruling from a federal trial court in California, a post entitled Breaking: Motion to Vacate Proposition 8 Verdict Denied (slightly edited for clarity):

With due respect, this is a sideshow, Aaron.

The “trial” was a circus. No material facts were genuinely in issue. The resolution of the case can and will be made at the appellate level based on undisputed and indisputable facts; the fight on appeal should be, and will be, how the law applies to those facts.

Nothing this judge did or didn’t do will end up mattering. It’s a waste of everyone’s time and emotional energy to pay attention to it. The judgment of the district court is either going to be affirmed or reversed — I continue to believe the latter is most likely, but not before the SCOTUS gets it — but nothing this trial judge did or didn’t do will have any bearing on that outcome.

*******

"But Beldar!" you may protest. "What about ... [cue three dramatic, descending organ chords] ... the fate of Big Mall Owner and Large Department Store?"

By the time I'd reached the parking lot, Large Department Store's lead lawyer had caught on and caught up.

Within ten minutes we'd agreed on a nonbinding mediation before a retired state district judge, and by the end of that we'd discovered that Large Department Store was willing to move its discount outlet to a new location at another, slightly less posh shopping mall which was also part of Big Mall Owner's investment portfolio. An acceptable deal was found for everyone in our dispute, much corporate face was saved, rents were paid and profits made, and all the lawyers got paid (including me). Peace was restored to the kingdom.

Beldar on Katyal's quip to the Eleventh Circuit

Ann Althouse posted today about a first-hand report by Volokh Conspirator Sasha Volokh about a quip made at today's oral argument of the Eleventh Circuit case on Obamacare. The quip was from Acting Solicitor General Neal Katyal, who said, on behalf of the government in defending the constitutionality of the statute, that the individual mandate provisions of Obamacare “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Prof. Volohk caught Prof. Althouse's eye with Prof. Volohk's own counter-quip about Katyal's quip — a pretty obscure one about Lockner v. New York from long ago. I approve of legal humor, obscure or ribald, on blogs.

But I'll share here (slightly edited but not blockquoted) the comment I left on Prof. Althouse's blog:

--------------

As for oral arguments, speaking as a former Fifth Circuit clerk who watched lots, and who's since had a handful of chances to make them, there are exactly two rules about jokes:

1. If one of the judges makes a joke, it's always funny.


2. If one of the lawyers makes a joke, it's always wrong.

As an appellate advocate, you're trying to project the image of an earnest scholar of the law who's trying to help the court do its duty and write good precedent. (Precedent which will also — Quel miracle! — help your client.) You aren't trying to be Jon Stewart.

Lawyers who crack wise in appellate oral arguments are servicing their egos and dis-serving their clients, in my humble opinion.

This goes for smart-assedness in court in general, and it's a lesson I was taught in my first big first-chair jury trial, long, long ago.

--------------------

UPDATE (Thu Jun 9 @ wee-smalls): I just found out that Katyal is Jeffrey Rosen's brother-in-law. (Excuse me, that would be "The Jeffrey Rosen.") The universe is sometimes surprisingly orderly that way, I guess. But believe it or not, I'm actually planning (and have long procrastinated actually writing) something fairly complimentary of The Jeffrey, and so perhaps seeing his name again will remind me to do so.

"Marketers, it turns out, are just really good at giving us stories we want to steal"

I was fascinated by Jonah Lehrer's article at Wired entitled Ads Implant False Memories, the ending sentence of which I've quoted in the headline above. (Hat-tip Prof. Oren Kerr at Volokh Conspiracy.)

Follow-up bonus questions:

Trial advocates are, in some respects, another sort of "marketer," and the most effective ones are inevitably good story-tellers. Could lawyers find a way to take advantage of the phenomenon described in this article?

And if we could, would it be ethical?

King & Spalding's craven ethical collapse in withdrawing from a politically controversial representation

During a period of brief temporary insanity near the end of the 20th Century, I considered returning to the BigLaw corporate litigation practice. I was privileged to be granted a job interview with a partner from the then-new Houston office of Atlanta-based King & Spalding.

The firm enjoys an excellent reputation as one of America's top law firms, and it would be on anyone's short list of prestigious big firms headquartered in the American south. My occasional brushes with its lawyers during my dozen years of BigLaw practice — typically on big cases in which it and my then-firm represented cooperative co-defendants — gave anecdotal confirmation that reputation was justified.

The firm did not offer me a job, which I quickly realized was fortunate for them and me both. I nevertheless enjoyed the interview, and I particularly remember one particularly frank theme of it: The firm's Houston office was expected to parallel the entire firm's practice areas and client list, specifically including its long-standing and sometimes controversial representation of corporate clients considered socially toxic (and sometimes literally toxic). This included, prominently, tobacco companies, asbestos companies, pharmaceutical companies, various other chemical and industrial companies, and so forth.

I was asked — forthrightly and appropriately — whether that would give me any moral or ethical problems. I said I'd represented lots of target defendants in the past, often in hostile venues. I said that I was secure in my own ethical compass and integrity, and thus not over-concerned that I might be subverted into any impropriety by any client or colleague. I said that I believed in my own ability to stick to the rules in an adversary system which permits even the wicked to hire the best advocates available. I explained my appreciation, from past experience, that a lawyer has parallel but distinct duties: He or she must act as a zealous advocate for clients in public. But he or she must also serve as a private counselor, which includes helping troubled companies comply with their legal obligations and resolve their disputes on fair terms.

These were truthful answers, and I believe the same things today. These things are fundamental premises for anyone who aspires to be any client's champion in our adversary system.

*******

I was reminded of that interview yesterday upon reading of the circumstances of Paul Clement's resignation as a partner in King & Spalding's Washington office. (Yes, besides litigation, that branch office exists in part to lobby for many of those same toxic companies.) My reaction to the story was surprise, then dismay and disappointment. Clement is a star who will prosper wherever he practices. And I'm sure there must be many K&S lawyers, including many partners, who'd have rather seen handled things differently in hindsight. But the firm's management speaks for the firm, and the downstream lawyers' ratification, reluctant or otherwise, is more or less implicit in their continuing to show up for work every day.

King & Spalding now owns this precedent. It has raised a white flag of surrender, rather than stick to its commitment to this particular controversial client. Therefore its commitment and resolve with respect to any and every controversial client in the future must be weighed against this betrayal.

I never thought I'd have occasion to use the word "gutless" to describe King & Spalding or any of its partners. But yeah, that's the one that fits. It's hardly an Atticus Finch moment for the old firm.

*******

And then I came upon this blunt and provocative assessment from Glenn Reynolds:

Just remember: King & Spalding is now responsible for the views of any client it chooses to represent, now that it’s clear they’re being vetted for political correctness.

Maybe K&S' client list has changed radically since my interview back then. Casual googling and the current firm website suggest not, however. If someone's more curious and diligent than me, there's always PACER. The firm has a genuine claim to a national practice in both trial and appellate courts, state and federal — so there would be lots of courthouses to check.

"Oh," you may say, "there are differences among these noxious clients. Some are much worse than others." And that is true. But the time to consider those differences — the time to decide whether conflicts or mere "taste" issues would interfere with diligent representation — is before agreeing to take on the particular case and client.

As a lawyer, the whole concept of being a fiduciary necessarily implies that you've weighed, and resolved, any moral, ethical, or other personal subjective issues before you accepted the representation. Thereafter, you reserve and suppress your personal judgments, and you scrupulously guard against their potential interference with the objectivity and diligence you owe each client.

Once a lawyer and his firm have agreed to be hired, and have indeed been hired, and have publicly announced as much, and have thoroughly embarked upon their representation of that client in that matter, both lawyer and firm are ethically and morally committed. Neither firm nor lawyer is free to disavow their commitments to controversial clients on grounds that the firm no longer likes being involved in the particular controvery which brought the client to them in the first place. That would be like the doctor who's supervising your chemotherapy suddenly deciding, mid-infusion, that "Chemicals are icky!" and jerking the needle that could save your life out of your arm.

How much damage will this do to King & Spalding in the long run? As trial lawyers here in Texas are wont to say: "That gun kicks as hard as it shoots, pardner." King & Spalding will survive, and may thrive, but I suspect it will come to regret pulling this particular trigger.

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Note to commenters: Please stay on or near the topic of K&S' reversal of its original commitment to represent the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. That doesn't require long arguments about the merits of that defense, the constitionality of DOMA, federalism, or the propriety of gay marriage in general; save that for other posts, please. This post is about legal ethics, and the fact that the issue arises out of this particular context isn't especially material because, yes, it could just as easily instead be about tobacco, guns, asbestos, lead paint, et cetera — and we're not going to debate any of those in connection with this post either.

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UPDATE (Tue Apr 26 @ 8:10 a.m.): I've blogged before about John Adams and his famous representation of the British soldiers who committed the "Boston Massacre." But for another example of a famous lawyer championing controversial causes or clients, ponder this historical factoid and its potential relevance:

The lead appellate lawyer who defended segregated schools before the Supreme Court in the consolidated appeals decided by Brown v. Board of Education — the lawyer who lost to Thurgood Marshall — was John W. Davis of New York City's Davis, Polk & Wardwell. William Henry Harbaugh's Lawyers Lawyer: The Life of John W. Davis is among the best portraits of a practicing trial and appellate lawyer that I've ever read. And every time I pass the old Rice Hotel in downtown Houston, I'm reminded that the Democratic Party nominated Davis as its presidential candidate during its convention there in 1924.

A legendary figure in his day, Davis argued before the U.S. Supreme Court 140 times. And either in Harbaugh's book or elsewhere, I recall reading that Marshall did not begrudge Davis his role, and indeed, that Marshall said it was appropriate that such an important case be championed by the best advocates available in order that the resulting decision have its maximum credibility.

Perhaps you believe that the DOMA is as repugnant as school segregation and Jim Crow. If so, then, you may think that Paul Clement today occupies a role comparable to Davis' in Brown. Were he alive to do so today, though, Thurgood Marshall would patiently explain to you that it is precisely their steadfast performance of their duties to even controversial clients that made Davis, and make Clement, a "lawyer's lawyer."

Headlines that seem to explain a lot

From the dead-trees version of today's Houston Chronicle, from page B5 on the continuation of an article from page B1:

It turns out that the lawyer in question wasn't speaking about himself, and that "Bustamante" is actually the client. I suppose I should have known that no lawyer would have been that honest about himself/herself. No word yet, though, on the mental acuity of the Chronicle editor who wrote this headline.

While I wasn't blogging, I was lecturing lawyers on ethics

I had many distractions from blogging during my hiatus, but one was preparing a continuing legal education paper and lecture. I like lecturing on ethics topics. That's not because I consider myself an expert on legal ethics. I'm not — and indeed, I begin every such lecture with full disclosure that I'm nothing more than one of the audience members' peers who's tried to practice in an ethical fashion for almost 30 years now.

But it's appropriate, I think, for the rank-and-file members of a profession that is almost entirely self-regulated and self-policed to interact at least some of the time with one of their own, rather than an "expert" (perhaps from academia), on ethical topics. It's useful to bounce around some ideas, do some of the "issue spotting" exercises that we all remember so well from law school, and see whether (to use some very tired but appropriate clichés) we're speaking the same language, working from the same page, and playing in the same ballpark.

In particular, I'm genuinely interested in the way that the traditional Canons of Ethics and their modern-day equivalents find application in the day-to-day practice of law, particularly in civil litigation matters of the sort I handle. And — although I know that there will be dissenters from the statement I'm about to make — after such CLE teaching expeditions, I'm generally reassured and comforted about the degree to which my fellow professionals seem to share with me a common understanding of our basic ethical responsibilities.

*******

So last December, I called up the good folks at one of Houston's several local law schools, South Texas College of Law, to volunteer my services. South Texas runs a monthly luncheon series called "Just Ethics" on the second Friday of every month, each of which delivers a nicely catered lunch plus 1.0 hours of CLE credit for ethics education (toward the satisfaction of any Texas Bar active member's required 3.0 ethics hours each year). I volunteered to be the speaker for February (with my speech to be replayed again on video at the March session).

For my specific topic, I chose Insurance-Generated Ethical Concerns in Business Litigation. The main reason I picked that topic this year was that the Texas Supreme Court recently decided a very significant case on that subject, Unauthorized Practice of Law Committee v. American Home Insurance Co., 261 S.W.3d 24 (Tex. 2008), which had been working its way up through the system since back in the days when Bill Clinton still had a law license and lived in the White House, Barack Obama was a state senator and part-time con-law lecturer, and George W. Bush lived in the Texas Governor's Mansion.

As it happened, not long after I'd volunteered to speak for the February "Just Ethics" luncheon presentation, South Texas asked me to fill in on short notice for a genuine expert on legal ethics — William J. Chriss of the Texas Center for Legal Ethics and Professionalism in Austin — who'd been scheduled to present a paper and speak during their three-day Texas Insurance Law Symposium in January. Chriss left big shoes to fill, and I don't think I did a very good job of it. I think even the title of his proposed presentation, in fact, may be the best one I've ever seen for a CLE ethics talk: "Ethical Challenges of the Brave New World of Litigation: How to Cope with the Death of Perry Mason." Whatever good I may have done, I'm quite sure I didn't equip any of the lawyers in the audience to cope with the death of Perry Mason. I even failed in my effort to use as my "time's-up alarm" the Perry Mason theme music that I have as a favorite ring-tone on my cellphone. But in any event, I ended up preparing and giving essentially the same speech twice (and then once more by video), albeit to three different audiences. And we all survived (and got our CLE credit).

Broadly speaking, the UPLC v. American Home Assurance case represented the State Bar of Texas' attack on the growing national practice by major liability insurance companies of using either "captive law firms" (all of whose business comes from one such company) or the insurers' own staff-attorney direct employees to defend their insureds on claims and lawsuits filed by third parties. The UPLC took the position that so doing constituted the illegal practice of law by those corporate insurers themselves, and that it also required unethical conduct (mostly but not exclusively of the "aiding and abetting" variety) on the part of the individual lawyers so employed.

The insurance companies won this protracted battle, for now anyway. But the case came up in a pinched, odd procedural context — no lawyers were parties by the time it went up on appeal, so no one's license was at stake, and the factual record from the cross-motions for summary judgment in the trial court was laughably thin from both sides. There are good reasons to question whether their win was as broad as originally interpreted, and indeed in many respects, Justice Hecht's majority opinion forms a road-map for private-party plaintiffs who may wish to sue their insurers and/or their insurers' staff-lawyer employees for ethics-related malpractice whenever there's been a judgment above policy limits. If you're genuinely interested, you can read the paper I prepared in connection with the speech, the bulk of which is devoted to that case.

*******

The paper doesn't contain, however, a long-winded first-person war story with which I started each speech — a story that might be entitled, "How, as a Young Whippersnapper, Dyer Got His Law Firm Fired from Sixty Cases in One Day by Its Best Client's Insurance Company Because Dyer Was Being Too Damned Ethical." It's basically a whistle-blower story from a multi-party multi-million dollar wrongful death lawsuit, a story that (as my suggested title hints) is still somewhat painful to me over 20 years later.

But even though the insurance companies involved are now long out of business and their culpable personnel long since retired, and even though the client has been restructured under a different name, and even though I'm probably the only one around who still remembers it in much detail — and even though I think it is indeed instructive, and I've told it to dozens of young lawyers as a cautionary tale, and I still think in hindsight that I didn't do a damned thing wrong, and I would do it all exactly the same way if I had it all to do over again — it's a story that I'm still not comfortable blogging about. Sorry for the long tease here. Maybe in 20 more years. (Of course, by then, it'll be too late for Julia Roberts, or even Matt Damon, to play me in the movie version.)

The moral of the story, though, I can tell, and it is this:

Don't forget, young corporate defense-lawyer Jedi, that your actual client is the named defendant — and not the insurance company who pays your firm's bills but whose interests may not always coincide with those of your actual client! This was a time when there was a personal and professional cost to me from "the zealous pursuit of my client's interests within the bounds of the law." But that's part of the job, and if you can't deal with that prospect, you ought to find a different profession.

Docs opining on McCains' prognosis divide into two groups: Those who know what they're talking about, and those who're guessing

My latest guest-post at HughHewitt.com distinguishes between those doctors who've actually examined and treated John McCain, who say his prognosis from his 2000 cancer surgery is quite good, and those who are just guessing, who want to scare people into thinking that it's not. This brings out my cross-examination lust, which unfortunately is likely to go unsated.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar).

Like many courtroom lawyers, a large part of my professional life has involved questioning and cross-examining expert witnesses, and I've dealt more with physicians, by far, than with any other profession. During the first decade or so of my practice, anywhere from a third to a half of my cases involved either personal injuries or health insurance coverage matters (which typically involved cutting-edge medical procedures and/or drugs), and each such case typically had multiple physician witnesses. I'd guestimate that I've put questions to somewhere north of seventy-five different MDs at one time or another — ranging from country general practitioners to some of the world's finest research scientist/physicians. It's a challenge, one that takes both preparation and experience, and it can be a whole lot of fun.

Lawyers who regularly examine physicians have a couple of different terms of art to describe a certain kind of doctor. I'm referring specifically to the kind of doctor who hasn't actually ever examined the patient, and who sometimes hasn't even had personal access to all of the patient's medical records, test reports, and other data. Nevertheless, this kind of doctor will confidently stride into court, take a solemn oath, and then proceed to second-guess the patient's own highly qualified and well-credentialed doctors.

Typically these "experts" are testifying for money, so the rather obvious term of art courtroom lawyers use among themselves to describe such witnesses is a vulgar word meaning someone who sells him- or herself for money. (The word rhymes with "floor.")

But the doctors who are eager to spread alarm about John McCain's cancer prognosis, as quoted in Saturday's Washington Post, aren't giving their opinions for money, but instead out of other motivation. So for them, I'll use the second term of art that courtroom lawyers use to describe doctors who opine without having access to either patient or full records — a term which captures the joy we take in getting to cross-examine them:

Pinatas.

[# More #] Jurors almost always immediately grasp that, when all other things are roughly equal, the doctor who hasn't actually examined the patient cannot be trusted, at least not in comparison to the doctor who has. When the non-treating but testifying physician hasn't even seen all the relevant records and data, then it becomes obvious even to the average ditch-digger that he's just making guesses, and not particularly well-educated guesses at that.

If you read the WaPo article carefully — and not just the headline ("Questions Linger About McCain's Prognosis After Skin Cancer," which of course is biased against McCain) — then even without the assistance of a cross-examining lawyer, you'll quickly come to a confident pair of conclusions yourself:

• There are doctors who, in giving opinions about John McCain, actually have a basis to know what they're talking about, based on first-hand examinations of the patient and complete access to his medical records and tests and pathology slides and all the other relevant data. They all present a very favorable prognosis for McCain, especially given his long period without a recurrence of the skin cancer removed in 2000.

• And then there are doctors who are guessing, based on assumptions stacked on second-hand reports, who haven't seen the patient or had access to all his records or the other data. Their conclusions are completely untrustworthy because they can be no better or more reliable than the quality of the input, which is what they've gotten second- or third-hand and at least partly through a media filter. And of course, they have no ethical duty to the actual patient, no responsibility to counterbalance their political or other biases. So they're free to imagine the worst, and then spread it across the internet and to any newspaper reporter who'll listen.

Pinatas. To steal a phrase from the SCTV "Farm Film Report" skits, they blow up REAL good!

In fact, I'd actually pay good money simply for the opportunity to cross-examine these particular bozos esteemed physicians in front of a jury. There's nothing like the professional satisfaction of watching a supposed "expert" witness leave the courtroom with the jury actually laughing out loud at them.

Look, none of us know how many days we have left. We live in a state of uncertain and indefinite grace. McCain, at least, comes from hearty stock (look at his mother, Roberta McCain, making campaign appearances in her 90s), and he's proven himself to be, quite literally, a survivor already on many occasions. I'm amused by the line I've heard him quoted as giving to reporters who've been interviewing him in flight when they were suddenly disturbed by turbulence: "I'm just not destined to die in an air crash," he says with a laugh (having survived not only the crash of his A-4 attack plane after being shot down over Hanoi, but a couple more equipment-failure crashes and a horrible fire when his plane was hit by an accidentally fired missile on the deck of an aircraft carrier).

And as for McCain's cancer, I figure McCain's sort of like the house that Garp and his pregnant wife are inspecting in both the book and movie, The World According to Garp. As they're talking to the real estate agent, a small plane crashes into it. Immediately the very risk-averse Garp says "We'll take it!" His wife looks at him in disbelief, but he gushes, "The chances of another plane hitting this house are incredibly small!" I know that's not the way medical pronoses work, and it's just my guess. But then again, it's not much more unreasonable a guess than those being made by the doctors who are giving contrary opinions to those of McCain's own treating physicians, because those long-distance docs haven't even seen the first plane hit the house, so to speak.

— Beldar

Congrats to Mark Yudof

In the fall of 1977 and spring of 1978, Mark Yudof was my first-year section's Contracts professor at Texas Law School. I especially remember him for his very dry wit, and he was quite engaging — a raconteur of a professor, teaching with relish that most essential and transformative of first-year law school subjects.

He was famously, at least then (in those days not yet so wracked with political correctness), a cigar smoker — a habit that seemed entirely congruous with the bushy mustache he then sported. On the final day of class in the spring semester, before our final exam, the topic was to be one he'd skipped over earlier — the parol evidence rule. But by pre-agreement among a large majority of our roughly 90-person section, at precisely 10 minutes after the class began (as marked by one of those institutional wall-clocks at the front of the classroom whose minute-hands move in precise one-minute clicks), most of us pulled large cigars from our backpacks and began unwrapping them. (Indeed, most of them had been chosen solely for their size.) This was followed with conspicuous cutting, or biting off and spitting, of cigar ends, and much flaring of matches or lighters, and exaggerated puffing. In moments, a dense cloud of gray-blue smoke had enveloped the entire auditorium classroom.

Yudof, standing at the bottom of the class behind the lectern, had done a fine job of pretending to ignore the cigars for a full two or three minutes, but the volume of students' coughing and sputtering and, I think, the number of students whose complexions were trending seriously waxen-to-green, convinced him to give it up. "Okay, fine!" he declared, slamming shut his casebook. "But I can tell from here that they're very, very cheap cigars!"

That turned into the cue for most students to put their cigars out, and for the sets of double-doors at the top of both aisles to bang open. Down the steps of each aisle bumped a set of hand-dollies, which in turn carried a trashcan with a well-iced keg of Lone Star beer. "Don't think," shouted Yudof over the growing din of an early-morning party, as someone handed him the first beer, "that the parol evidence rule won't be on your exam!"

"Inadmissible!" someone shouted back, and "It'll be on the bar review course!" shouted someone else.

Since then, I've had only occasional contacts with Mr. Yudof. During my second and third years of law school, he was among the faculty resources from whom I often solicited recommendations for book reviewers on behalf of the Texas Law Review, and I spoke with him briefly when he was among the academics hired to consult on the Pennzoil v. Texaco appeals in the mid-1980s. Yudof had risen to the deanship of Texas Law School for ten years, and thence to executive vice president and provost of the UT System, before spending a few years as president of the University of Minnesota in the late 1990s. He returned to become chancellor of the UT System in 2002, but he also has held the Charles Alan Wright Chair in Federal Courts at Texas Law School.

And now I read — with the pride natural, I think, to any of his many former students (because he kept up teaching law for many years in addition to his administrative duties) — that he's slated to become the president of the University of California System: "The UC regents' committee this afternoon recommended Yudof for the job overseeing the 10-campus system, which is widely considered as the nation's best collection of public research institutions." Well, I suppose that's so. But I do hope and trust that he will not take with him to California the UT Law charitable contributions mailing list!

I congratulate him, and wish him luck in his new position. He is a fine educator and scholar, one to whom I owe a long-standing debt of gratitude. I don't indulge in even the occasional cigar any more, but I will buy, and consume with due reverence, a six-pack of Lone Star long-necks to toast his success.

Is Hillary offering Barack the Veep slot via a press leak?

It's always amazed and amused me how many times, in negotiations over settling a lawsuit, my opponents will say something like this: "We'd consider paying something in the $200,000-$250,000 range" or "We'd probably take something in the $250,000-$300,000 range." When given either of these statements, I immediately discard the over or under (depending on who's to pay). In both of these instances, I probably wouldn't even bother repeating the "range" to my client, but would just say, "Their current number is $250,000."

So if I were Barack Obama today, if I were able to confirm that the "Clinton aides" referenced in this news report really were Clinton aids speaking with their candidate's knowledge and authorization, I would immediately conclude that the Veep spot on a Hillary Clinton-led ticket is now firmly on the table (at least for now; perhaps not irrevocably):

Clinton aides have privately admitted that Mr Obama would only consider such a move [i.e., "standing down" voluntarily in her favor] if offered the position of vice presidential running mate, something Mrs Clinton has always been reluctant to consider.

What an odd locution. "We admit that our opponent would only consider quitting if we gave him a guarantee on the second slot." But isn't saying that equivalent, for all practical purposes (except face-saving plausible deniability if the non-offer offer is rejected), to making the offer?

   

Should Obama seriously consider accepting such an offer? I think not, unless he's more substantially more risk-averse than I read him to be. His chances of winning the Democratic nomination outright seem better than ever. His chances of winning the general election must likewise seem very substantial. His downside risk in the former case is that he'd have to wait until 2012 or 2016 to run again — a pretty acceptable risk, it would seem, given his age. If, as the article claims, both the Clinton and Obama camps are "scared" of running against McCain, and if he believes that they could only beat McCain via a combined "dream team" Democratic ticket, then perhaps he would conclude that he's minimizing his risks by taking a second spot behind Hillary Clinton (which she could never do, since Bill could never consent to being only a shadow Vice President). But at a time when the GOP base has still certainly not made its peace with McCain or vice versa, could this "candidate of hope" be so cowed by such early polls? And could he view what would effectively be the #3 slot (behind Bill) in a Clinton administration to be worth even as much as the proverbial warm bucket of spit?

I don't think so. This strikes me as a fairly desperate move by the Clinton campaign. It's as if, after calling the $500 all-in bet of the other last player in a winner-take-all Texas Hold'em tournament, the holder of the $600 stack, knowing that she's got only two pair (10s and 3s, with the 10s both on the board), offers to split the $1000 tournament pot 60/40 before the show-down with the other player. Yeah, she has the current lead, and yeah, 60/40 would be a pretty good compromise if the other player is really risk-averse. But would he have gone all-in without at least another pair? And isn't it likely to beat her two 3s in the hole? If he wins, thereby doubling up and gaining a 10/1 chip advantage, isn't he likely to be able to wipe her out in a few more hands anyway? Now that she's already called, why should he let her off the hook? I'd read it as nothing but a signal that she's feeling weak — and not about beating McCain, but about beating Obama.

Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?

From the right, DRJ at Patterico's Pontifications titles her post "We Close at 5." From the left, Jeralyn Merritt at TalkLeft titles her post TX Judge Closes Courthouse, Prevents Death Appeal.

I like and respect both of these lawyer-bloggers, so I paid close attention when both of them pronounced themselves appalled by linked and quoted* reports of the Texas Court of Criminal Appeals' handling last week of an emergency application for a stay of execution in the case of capital murderer Michael Richard. Jeralyn linked an AP report as reprinted in the Houston Chronicle, and DRJ linked essentially the same AP report as it ran in the Dallas Examiner. The AP report, in turn, appears to rely exclusively on an article from yesterday's Austin American-Statesman, so that's what I'll quote from at length:

The Chi ruling [announcing that the Texas Court of Criminal Appeals was staying Heliberto Chi's execution based on the U.S. Supreme Court's having agreed to hear a Kentucky case, Baze v. Rees, challenging the constitutionality of the three-drug "lethal injection cocktail" used in both states,] came as new details emerged about the Texas court's refusal to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on behalf of death row inmate Michael Richard. The Supreme Court had accepted the lethal injection case earlier that day, and Richard's lawyers argued that the extra time was needed to respond to the new circumstances and to address computer problems that delayed the printing of Richard's motion.

Richard was executed later than night, and news of the court's refusal appeared in newspapers, and critical editorials, around the world.

Last week, court personnel declined to say who made the decision to close at 5 p.m.

It was revealed Tuesday that the decision was made by Presiding Judge Sharon Keller without consulting any of the court's eight other judges or later informing them about the decision — including Judge Cheryl Johnson, who was assigned to handle any late motions in Richard's case.

Johnson, who learned about the request to stay open past 5 p.m. in an Austin American-Statesman story, said her first reaction to the news was "utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

Johnson said she would have accepted the brief for consideration by the court. "Sure," she said. "I mean, this is a death case."

Judge Cathy Cochran said the Richard case raised troubling questions.

"First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?" Cochran said. "Our courts should be open to always redress a true wrong, and as speedily as possible. That's what courts exist for."

At least three judges were working late in the courthouse that evening, and others were available by phone if needed, court personnel said.

None of the judges was informed of Richard's request by Keller or by the court's general counsel, Edward Marty, who had consulted with Keller on the request.

Keller defended her actions, saying she was relating the court's longstanding practice to close on time.

"I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given," Keller said. "And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure.

"And given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," Keller said.

[Executive director of the Texas Defender Service Andrea] Keilen, whose organization also handled Richard's appeal, said court clerks were informed about the computer problems.

The clerk's office, asked whether Keller was told of the malfunction, referred questions to Judge Tom Price, who is in charge of court personnel. Price did not respond, and calls to other judges were not returned Tuesday.

"I’m a stickler for law and order but not this kind," writes DRJ. "Outrageous," comments a self-identified former prosecutor at TalkLeft. "Keller's move is ... perilously close to simple murder," accuses another.

So what was my first reaction when I heard this? It was this: "Did they really ask to keep the courthouse open? Or did they instead ask to arrange for an after-hours emergency filing?" Because in deciding whether there was a significant malfunction here, and if so, who was to blame and in what degree, there may be a big difference between those two questions.

*******

Regular readers will know that it's hard for me to express an opinion on something without telling a Beldar war story, and a couple came to mind when I read of this controversy. You can skip them if you're impatient. I've mentioned one of them already in the comments over on Patterico's:

I am a strong proponent of capital punishment. I have been a frequent defender of the Texas judicial system’s administration of the state’s capital punishment laws.

But I was also once a federal appellate court clerk who, from time to time, was “on call” to handle emergency (read: “last minute”) filings in capital cases. And from time to time in that capacity, I had to take extraordinary steps to track down and get in touch with my own judge or one of her fellow judges after hours or on court holidays. I once read an emergency motion aloud over the phone to a Fifth Circuit judge who was standing in his fishing waders on the porch of his East Texas fishing cabin. We hadn’t expected to have to do that, but we’d made plans so that we could if the need arose, and it did; and the judge made a ruling on the merits, which I relayed to a designated deputy clerk of the Fifth Circuit in New Orleans, and thence to the litigants.

I also made a comment there regarding the scope of the potential blunder, if there was one in this instance:

As far as how big a deal this is, overall and in the big picture: Keep in mind that there is no suggestion that because of this communications problem, an "innocent man" was wrongly executed. And there’s no suggestion that Richard’s execution was any more or less painful than any of hundreds of others than have taken place over many years in Texas and many other states.

*******

But this episode also causes me to flash back to Christmas of 1982, when I was a young associate at Baker Botts. On December 21 of that year, our client Burlington Northern had announced a surprise hostile tender offer for some, but not all, of the stock of El Paso Gas Company. The offer was frankly timed to coincide with the holiday season in hopes that might prevent the target from reacting as swiftly and effectively as it otherwise might. But El Paso Gas found a home-town state-court judge who issued an ex parte temporary restraining order ("TRO" for short) purporting to enjoin Burlington's tender offer altogether and — in a nice piece of legal jujutsu — El Paso Gas got that state-court TRO on the morning of Christmas Eve.

Now, we had anticipated just such a lawsuit, and we were fully prepared to dash into federal court to ask a federal judge to enjoin the state-court judge from enforcing such a TRO. In fact, we already had our counter-suit papers (including our TRO motion) drawn up, with just a few blanks remaining to be filled in. And we'd put El Paso Gas' counsel on notice of our representation, meaning that they ought not to have been able to get their state-court TRO without our our first being notified and given an opportunity to appear at least by telephone to contest it. (Their lawyers kind of ignored those ethical rules; funny how situational ethics may become when your largest client is at risk of being swallowed by another company.) And we had frankly expected that El Paso Gas wouldn't be able to get a hearing on their TRO until after Christmas anyway. But instead, suddenly the holidays were working against us.

Thus it came to pass that on Christmas Eve afternoon, I found myself standing on the tarmac outside a private aviation hangar at Houston's Hobby Airport with one of my mentors, the late and truly great John L. Jeffers, Jr. (of whom I've written before, at greatest length here in a post about his triumphs in Pennzoil v. Texaco). None of the commercial flights could get us to El Paso as quickly as we needed to be there, so John had just used his Amex Gold Card to spot-charter a Lear.

And not very long afterwards, a law clerk for U.S. District Judge Harry L. Hudspeth had unlocked the courthouse doors for us, and then proceeded to usher me and John into Judge Hudspeth's chambers library. Judge Hudspeth sat at the end of the conference table in the center of the room, and standing and sitting all along one side of the table were our opposing counsel — at least a dozen of them, as I recall, both from the local firm and from their New York tender offer defense specialists. John and I sat down opposite, with lots of space to spare. ("Looks like you're one wise man short," cracked one of our opponents in a stage whisper. I think that was one of the New York guys.)

There was no heat on in the building, and the City of El Paso was enduring one of its rare, but occasionally brutal, spells of genuine winter weather, so everyone was wearing their overcoats, and many of us were wearing gloves. I could see the moisture condense from Judge Hudspeth's breath as he said, "So, gentlemen, I've read your emergency papers. Let's talk first about Younger v. Harris abstention." And that was my cue to start talking, because the reason Jeffers had brought me along was to argue all of the procedural issues (including abstention).

A few hours later, John and I were back on the Lear, headed for Houston and home. I think Christmas technically came some time while we were in the air, but we may have flown into it as we changed time zones heading back east. I do recall, vaguely, that there was a surprising amount of cold champagne on such a small jet, but it was all gone by the time we landed: We'd prevailed on our emergency TRO and persuaded Judge Hudspeth to order the state-court judge to back off. El Paso Gas' remaining resistance collapsed during the first week in January 1983, some golden parachutes got ratified, and the hostile tender offer turned into a friendly one (that nevertheless generated a SCOTUS opinion a few years later, Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985), with which I had no involvement whatsoever.)

So why — besides the fact that this was one of the quickest, most brutal, and generally coolest and most successful courthouse victories I've ever been associated with in a ginormous case — did this particular war story come to mind?

Because as John was hiring the Lear back in Houston, I'd been on the phone to personnel in the office of the U.S. District Clerk for the Western District of Texas, El Paso Division — which was scheduled to close at noon for the holiday. And I wasn't asking them to "keep the courthouse open." I was asking to arrange an emergency after-hours filing and hearing. It took some persuasion, but I explained how the state-court order was restraining something over $600 million in interstate securities transactions that we believed were protected under federal law, and how the injection of even a few days delay into a tender offer could become outcome-determinative in the marketplace. Eventually, with my arguments being relayed to Judge Hudspeth (probably initially through one of his law clerks at an emergency contact number), in other words, I persuaded them that there was a really good reason why they had to hear us late on Christmas Eve afternoon. Not "life or death," but really important. So they did.

But they didn't keep the whole courthouse open. They didn't need to. Once Judge Hudspeth agreed to hear us, we could have held the hearing anywhere — the El Paso Airport Hilton, the judge's basement recreation room, or on the 50-yard-line of the Sun Bowl. He picked his chambers library, presumably because it was convenient for him, and possibly because it was slightly warmer than the marble-floored courtroom.

*******

So, back to the subject of Michael Richard's emergency application for a stay of execution. I intend to blog further about the merits of the Baze v. Rees case now pending before the SCOTUS. For now, however, let's assume that the grant of certiorari in that case (i.e., the Supreme Court's agreement to hear it) is, by itself, a strong enough reason to justify a temporary freeze on executions here in Texas. That's probably true, although it's not a slam-dunk: The Supreme Court hasn't ordered other states, or even Kentucky, to hold off on lethal executions while Baze is pending, and it's refused to consider many other challenges to lethal injection in the past. But death cases are, indeed, special; stays are sometimes appropriate in them even if there's a low probability of a change in the law, precisely because executions are irreversible.

As Texas Court of Criminal Appeals Judge Cheryl Johnson is quoted as saying, at the very minimum, she "would have accepted the brief for consideration by the court" — on its merits, even if it had been presented after hours and outside normal channels. I'm reasonably sure, in fact, that precisely because the volume of capital convictions and executions has been so much larger in Texas than in any other state, her court probably has more experience in handling emergency applications for stays in capital cases than any other court in the country save, perhaps, for the SCOTUS. And some portion of those will have come outside regular business hours. Indeed, emergency stay applications are so common — not common-place, but common and important — that the judges of the Texas Court of Criminal Appeals have apparently pre-assigned those cases to their individual members so that such applications can be reviewed in the first instance by someone already familiar with the background of the case.

So what did happen here?

I don't think we can tell, yet, nor even draw any confident inferences based on the public reporting so far. But if I were forced to make a wager right now, my wager would be that there was a communications mix-up. That someone downstream — either on the defense team, or else in a subordinate role at the Court of Criminal Appeals — didn't get word to Presiding Judge Keller that this inquiry involved an emergency application for a stay of execution in a capital case in which the execution was to take place that very night.

Presiding Judge Keller's quoted explanation only makes sense if she didn't understand herself to be making a judicial ruling, but to have been asked what was basically an administrative question. Someone — and right now, we don't know who — told her "that the defendant had asked us to stay open." The term "the defendant" can refer to a side generically; it's unclear whether Judge Keller was told, or otherwise knew, who this defendant was, or that he was a capital murder defendant.

And more significantly, "asked [the court] to stay open" is not a phrase I would have expected to be used in connection with an emergency application for a stay of execution. Rather, it's the kind of thing I'd expect someone to use if the speaker were not familiar with the procedural lingo here — perhaps the kind of thing that might be asked, innocently and in good faith, but with tragic consequences, by a paralegal or clerk or secretary or volunteer who'd been tasked by a harried lawyer to "contact the Court of Criminal Appeals and see if we can file after 5:00 o'clock, dammit, we're not going to have the computer glitch fixed before then." It's easy for me to imagine someone on the defense team, acting under incredible time pressures, making that kind of verbal fumble out of inexperience.

But if that phrase were heard by a judge who didn't know that it was from a capital case with an execution set for that night, that judge might well think: "Oh well, sounds like someone's going to be missing a filing deadline, looks like we'll have to be considering a motion to excuse that after the fact in a few days; for their sake, I hope they have a good excuse, but if they're not giving us one now, there's no good reason for me to keep the whole courthouse open and the whole staff here." Because this court, like all trial and appellate courts, deals with blown deadlines all the time; some have big consequences, but most don't.

In short, if it's a life or death situation, most judges would expect that when they ask "Why keep the courthouse open?", someone would say, "Because this is an application to stay an execution that's going to happen tonight, and it's quite literally a life or death situation!"

*******

One of the commenters at TalkLeft (who already had a low opinion of Presiding Judge Keller) thinks that a communications snafu somewhere downstream of Presiding Judge Keller wouldn't explain the quotes from the other judges. About that, I replied:

The other judges' comments certainly indicate dismay and anger.  You're inferring, though, that it's directed at Presiding Judge Keller.  Maybe it is.  Or maybe they're expressing their frustration over a communications breakdown that's attributable to someone else.  I don't think you can tell that from what's been reported so far.

....

Judge Johnson is quoted as saying: "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings." Well, yeah, but ... asked by whom? Asked by Presiding Judge Keller? Asked by someone downstream in the clerk's staff? Or asked by Richard's lawyers?

What I actually find more troubling than the quotes from the other judges is the obscure involvement of "the court's general counsel, Edward Marty, who had consulted with Keller on the request." How did he get in this loop, unless he happened to be who answered the phone to begin with?

*******

Maybe in refusing to jump to the conclusion obviously intended by the American-Statesman writer, I'm putting too much weight on how odd "keep the courthouse open" sounds to my jaded ear. If it indeed turns out that Presiding Judge Keller's refusal of the request to "keep the courthouse open" was made by her with full appreciation of the fact that it would effectively block an after-hours emergency stay application for an execution scheduled for that night, then I, too, will join DRJ and Jeralyn in being appalled, shocked, and dismayed.

But Presiding Judge Keller has been on the Texas Court of Criminal Appeals since 1994. I've got to think she's considered many, many dozens of emergency stay applications outside of regular court hours in the past. Death penalty opponents who paint that court as being populated by ghouls and demons are, quite simply, full of crap; you may not agree with its results, but they are in business to render justice as they understand that term based on their own precedents and those from the SCOTUS. Why, after all of these years, would she pick the day of a potentially monumental SCOTUS cert grant to gratuitously slam the door in a stay applicant's face?

I want to know more. But for now, I'm unwilling to jump to the single one of several possible explanations for this which presumes either bad faith or incompetence on the part of this or, frankly, any other judge.

-------------------

UPDATE (Fri Oct 5 @ 5:00pm): Today's Houston Chronicle has a very interesting follow-up story that nevertheless leaves unanswered many of the basic factual questions that I think must be addressed before one can be confident that one has an understanding of what actually happened with the Richard stay application — much less why those things happened, who was responsible, and in what degree. The citizen-journalist bug having bitten me again, I've emailed University of Houston Law Professor David Dow with a request for a telephone or email interview, and I'll certainly post again if he gives me a favorable reply.

ACLU files silly brief in support of Craig's plea withdrawal

After I'd just graduated from Texas Law School, but before taking the bar exam and starting my judicial clerkship, I spent most of the summer of 1980 working in New York City for Sullivan & Cromwell. The firm helped its "summer associates" (a/k/a law clerks) locate housing, and for half of my stay I was very fortunate indeed to be permitted to apartment-sit, rent-free, for one of the firm's litigation associates whose husband's position at Columbia entitled him to a fabulous pre-war apartment on Riverside Drive at about 118th or so, with a wonderful view over the park and the river. I only briefly met the associate as she was leaving for her own summer vacation. But anyone doing any apartment-sitting can't help but feel as if he's gotten to know the regular occupants a little bit, if only from seeing what take-out food menus were on the fridge door and what magazines came in the mail.

As it turned out, the young S&C associate, Nadine Strossen, left the firm not too long afterwards, and since 1991 she's been the president of the American Civil Liberties Union. And my lingering gratitude to Ms. Strossen, along with the vague feeling of unshared intimacy that I had as a long-term guest in her home (but without her present), has probably made me less skeptical than I otherwise would have been of much of the ACLU's activities. Some of them, from time to time, I've even agreed with, and doubtless would have done so whether I'd known Ms. Strossen or not. But far more often, I've thought that the ACLU's causes were ill-advised and naïve, albeit at least mostly well intentioned.

And such is this amicus brief that the ACLU has now filed in support of Sen. Larry Craig's pending motion to withdraw his guilty plea. (H/t Jeralyn Merritt at TalkLeft.) Even if I were to accept all of its legal arguments as being correct and fairly stated (and I don't; many of them are badly overblown and over-simplified to the point of being misleading), I'd still conclude that it's a profoundly silly brief that is very unlikely to have any effect on those proceedings, for at least two reasons.

*******

First, all of its arguments go to the "as applied" constitutionality of the Minnesota disorderly conduct criminal statute to which Craig pleaded guilty. There is no doubt, and the brief properly concedes, that the statute may be constitutionally applied in at least some cases. But arguments of this sort have to be made by the defendant before he pleads guilty. They're waived, along with all of his other potential factual and legal defenses, when he pleads guilty. And they do nothing to show that his guilty plea should be permitted to be withdrawn now, because they have nothing to do with the voluntary, informed, or knowing quality of his waiver of rights when he entered the guilty plea. The brief makes a truly pathetic attempt to sidestep this in its next-to-last paragraph:

The record shows there is a very significant possibility this defendant pled guilty on the basis of conduct that could not constitutionally have been the basis for a conviction. Given that very real possibility, the interests of justice would best be served by allowing him to withdraw his plea so that the Court can determine if a constitutional prosecution was possible at all here, and if so, whether the defendant could constitutionally be convicted.

Beware the brief whose best and most specific argument for its own relevance is that it will serve "the interests of justice." Often, as here, that's code for: "To reach these arguments, you have to ignore all the ordinary rules." There's no reason to think that the judge who hears Sen. Craig's motion will do that.

The brief could have argued, but didn't, that the plea should be set aside unless there is an affirmative showing in the record of a basis in fact for his plea — and that's true, as far as it goes. But in accepting a plea agreement, a court need not — indeed, ought not — go out of its way to figure out and raise on the pleading defendant's part every potential factual or legal defense that he might have asserted. In particular, courts accepting guilty pleas aren't required to independently re-validate the statute that created the crime to which the defendant is pleading guilty. The allegations from the sworn complaint that Craig stared into the officer's stall, then intruded his hand and foot into the officer's stall, by themselves are sufficient to meet the "basis in fact" requirement. (Indeed, even if that conduct was intended as speech, it would be enough to qualify for the "fighting words" exception to the First Amendment protections argued by the ACLU's brief: Staring and then physically intruding one's hands or feet into someone's bathroom stall is indeed a good way to start a brawl, regardless of whether it was specifically interpreted as part of a homosexual "cruising" code or was instead simply interpreted as intrusive upon reasonable privacy expectations.)

*******

Second, all of the ACLU's arguments presume that Craig was arrested and prosecuted for speech, or for conduct that amounts to speech. Its entire premise is that Craig was soliciting sex, and its resulting argument from that premise is that soliciting sex can't be prosecuted as disorderly conduct without violating First Amendment protections for free speech. But Sen. Craig emphatically denies that he was soliciting sex, or engaged in any other kind of expressive conduct that amounts to "speech."

To the contrary, he insists that he was peering into Sgt. Karsnia's stall only to see whether it was vacant yet, and that his foot tapping was meaningless fidgeting (rather than a code), and that his intrusion of his foot into the officer's stall was accidental (due to his "wide stance"), and that his reaching beneath the barrier between the stalls was intended to pick up a piece of paper (rather than send hand signals). A defendant simply can't simultaneously claim to have been engaged in protected speech under the First Amendment while denying that he intended to do any communicating. And as much as it may want to be one of the trial court's chums via this amicus brief, the ACLU can't claim that on Craig's behalf when it's contrary to Craig's own position.

Bottom line: There's no need for anyone to get outraged over the ACLU's position in this case. It's just silly and irrelevant, and therefore harmless. And I think I can say that without feeling at all ungrateful for the use of Ms. Strossen's marvelous apartment twenty-seven years ago.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

Fund-raising birds' nests on the ground for Fred Thompson in Texas (and an unrelated Beldar trial lawyer war story about Iowans)

Reading the press accounts of the Iowa straw polls, anyone with any sense of proportion can't fail to be struck with how incredibly silly they are.

Now, I spent a lovely winter in Des Moines back in 1983-1984. (Okay, it was just a couple of weeks in November and December, but it seemed like a whole winter.) It's a fine state full of very fine people.* And I don't say this as a knock on Mitt Romney: He and his campaign staff are to be congratulated on their win if only because it's something they set out to do, spent a ton of time and money on, and accomplished. Maybe a year from now, in hindsight, his win in the Iowa straw poll will be viewed as having been the true beginning of his roll to the nomination, and in fifteen months, maybe it will be seen as his campaign's first big step toward general election victory in November 2008.

But on its own, as a national political event, the Iowa straw poll is a distraction and a diversion, important only to the extent it's dangerous, dangerous only to the extent that anyone anywhere else thinks it really mattered after it's over. I rank it right up there in cosmic significance with the cell-phone text-messaging polls on the GOP "debate winners" that Rep. Ron Paul's team have so effectively ballot-stuffed.

If you want a genuinely interesting political story this Sunday morning, friends and neighbors, it's in this article in today's Houston Chronicle: "Bush's loyal Texas fundraisers on sidelines: Supporters who raised millions for 2000, 2004 races take their time to choose candidates." The money quote — and I mean that very literally — is right there in the two-paragraph lede:

Two-thirds of President Bush's most loyal Texas campaign supporters, whose record-breaking fundraising vaulted him into early dominance in the 2000 presidential race, remain on the sidelines in the wide-open race to replace the state's favorite son.

A Houston Chronicle analysis of Federal Election Commission disclosure reports found that only 97 of the 296 Texans who pledged to raise at least $100,000 for Bush's presidential campaigns in 2000 or 2004 have donated to any candidate in the 2008 White House race.

I'm no fund-raiser. I'm a partisan pundit, but I'm not much of a political donor myself. But I am very confident that I am well enough acquainted with my fellow Texans who are major political donors to say with a very, very high degree of confidence that they haven't suddenly become uninterested in presidential politics. Nor have they likely become permanently tight-fisted. Nor are they likely to sit out the 2008 presidential election. Nor are they likely to give less money in 2008 than they did in 2004 or 2000.

The Chronicle's story says that Giuliani and Romney can each so far claim the backing of only around 10 percent of "Bush's Pioneers, who each raised at least $100,000 in campaign cash for Bush, or Rangers, who gathered upward of $200,000." That's notwithstanding the fact that they've both been formal candidates for months. That's notwithstanding the fact that Rudy Giuliani, in particular, is (and has been since 2005), a name partner in a Houston-based law firm, Bracewell & Giuliani.

The Chronicle describes these big Texas donors as being "on the fence." That's the wrong metaphor, because it's entirely possible that an upside-down turtle balanced on a fence post might just stay there, and these folks won't. No, these donors are birds' nests on the ground waiting for someone to scoop them up — and I'm sure that the Giuliani, McCain, and Romney campaigns have been trying already, obviously without conspicuous success.

Romney winning the Iowa straw poll isn't going to knock any of these donors off the fence, nor make them into suddenly graspable birds' nests.

Nor will making his formal campaign announcement, by itself, be enough for Fred Thompson to suddenly acquire gluey fingers for these birds' nests either. But if Fred's the candidate I frankly hope he'll be, then someone right now in his (proto-)campaign had better be far advanced in planning for the dramatic events — well earlier than year-end or January primaries that will suddenly turn some of those birds' nests into graspable items. Texas campaign money could catch him up to his GOP competitors in, well, a New York minute.

------------------------------

*A trial lawyer's war story, by way of a footnote about my own limited Iowa connection but affection for Iowans:

The reason I was in Des Moines in late 1983 was to represent a large health insurance company headquartered there in a nasty federal court lawsuit that was pending here in Houston. I was there producing hundreds of thousands of documents and many, many deposition witnesses (including the company CEO) as part of an extraordinary expedited discovery plan. It was in a high-profile case in which the trial judge had already announced his intention to grant summary judgment against my client, and to proceed to a jury trial in January 1984, during which he was going to instruct the jury from the outset that my client had deliberately breached its contractual and fiduciary obligations, and that the jurors' sole job was to decide how severely my client ought to be punished for that. Thus, to say that the trial was going to be an uphill battle was a considerable understatement. That made my time in Des Moines more grim than it otherwise probably would have been.

As things happened, when our trial began, Houston was experiencing one of its rare genuine winter cold snaps — three or four days in a row with below-freezing temperatures, sleet, and high winds. We don't handle such things very well; there were busted pipes and fender-benders galore, all over town.

On the third or fourth day of the trial, I was riding the elevator down for lunch with Craig and Sandy — he, the senior claims manager from my client who was serving as the corporate representative, and she, an in-house lawyer who was also there to observe and assist. They were both tall, clean-cut, wholesome folks in their early 30s who looked like they could have stepped right out of a Norman Rockwell painting. And they were genuinely decent and competent people with whom I'd enjoyed working even under these very challenging circumstances.

With us on the elevator was one of the jurors — an elderly woman, probably in her late 70s, who was accompanied by a (non-juror) friend who'd come to meet her for lunch. The two Iowans and I, of course, clammed up to avoid any hint of improper contact with the juror, but other folks in the elevator were making predictable small-talk about just how cold it was outside. At that point, the little-old-lady juror — without ever speaking directly to us — suddenly seized the sleeve of Craig's overcoat between her thumb and forefinger, and with her other hand gestured to him and to Sandy. "These young people," she told her friend, "are from way up north in Des Moines, Iowa! Ooooh! I'll bet they know what freezing-cold winter weather is really like up there!"

We all shivered involuntarily, but for differing reasons. I was afraid the juror was about to pinch one of Sandy's naturally freckled and apple-colored cheeks, and both Sandy and Craig were blushing wildly while all three of us bit our lips. My team literally fled the elevator as soon as we reached the ground floor, lest we do anything that could be deemed improper, or lest the juror stray beyond what was probably permissible (but very borderline) small-talk into outright juror misconduct.

But were we heartened by the elevator incident? Oh, yeah. It was consistent, mind you, with the looks and body language we had been getting from both this juror and the rest of the jury all week — just much more vivid. And I supposed (and warned my client) that it was still entirely conceivable that this juror could still vote to punish my client with a seven-figure award, and in any event, she was only one juror out of six. But I had a hard time reconciling the hypothetical notion that this juror was eager to punish my client with her spontaneous, affectionate tug on Craig's overcoat sleeve.

The case ended up settling while my motion for directed verdict was pending. Even two decades later, as much as I'd love to — because there are many other war stories, ranging from funny to sad and disturbing, from that case's pretrial proceedings and trial — I still wouldn't feel comfortable blogging about many of the other details of that case, or even generally describing how the settlement came about. I can say, I suppose, that we enormously improved our settlement position during the course of the trial.

Yet while the elevator incident does provide anecdotal evidence that reflects well on Iowa and at least these two of its business-people, I never had the chance to find out just how appealing my corn-fed Iowans were to either that juror or her fellows when it came to answering the specific questions the judge would have asked them. It was the client's fully-informed decision to settle the case on the terms it did, and I'm confident that I did my very best in representing that client (and, indirectly, the many cheerful, earnest Iowans who worked there). Nevertheless, on a personal basis, for a variety of reasons, I've always wished the case had gone to a verdict — even though that would have meant a certain appeal, even if we'd won with the jury.

Second Circuit Chief Judge Jacobs' dissent in Husain v. Springer: An opinion worth occupying the minds of people with consequential things to do, albeit arising from an appeal that otherwise shouldn't

First, a long war story. You can skip it (jump down to the first line of centered asterisks) without much consequence to your understanding of the rest of my post, if you'd rather.

In August 1980, during the first week of my year-long judicial clerkship, the United States Circuit Judge who'd hired me was hearing oral arguments at the Fifth Circuit's headquarters in New Orleans. I'd been told to report to her chambers in Houston, though, where a pair of her departing clerks would show me the ropes and get me started. Before the end of the first day, I was up to my elbows in a "screener" — a thin file pulled from the top of a stack of similarly thin files, all of which represented cases in which the staff lawyers from New Orleans had made an initial determination that the appeal could probably be disposed of as part of the Fifth Circuit's "summary calendar," without oral argument. Any judge could bounce a "screener" to the oral argument calendar, and that sometimes happened. But the staff lawyers, who in general had less responsibility than us law clerks but who didn't rotate out every year, had a good feel for the pulse of the then-massive circuit's caseload (appeals from six states, being handled by twenty-five circuit judges). My outgoing co-clerk, whom I'd worked with a year earlier when he was an editor and I was a member of the Texas Law Review, was indulging in a reasonable assumption that whatever he took off that stack to give to me would be a fairly simple case by Fifth Circuit standards, and thus a good way to get my feet wet in a new job.

Seven days and eighty hours later, I'd finished my forty-something page opus that comprehensively reviewed, and then reconciled into a definitive decision matrix, the existing Supreme Court and Fifth Circuit precedent on how to treat qualified immunity defenses to section 1983 and Bivens civil rights claims for purposes of summary judgment consideration. My co-clerk skimmed it, and then rolled his eyes. "She's going to think you're a total dork," he warned me. And he was right: she did, and I was.

The problem was that, in fact, the Fifth Circuit's caselaw (like most circuits') on those subjects was riddled with seeming contradictions back then. The boom in these sorts of cases was still pretty new, but there were already a lot of sloppy opinions out there. Indeed, the staff law clerk who'd marked this case as a "screener" had followed one trail of cases, but he or she had completely ignored a couple of competing trails that were arguably just as applicable and just as valid. The poor district judge and his law clerks had more or less shot up a flare-gun pleading for guidance. And with the absolute confidence that every newly graduated law review editor has — which is to say, the absolute confidence that he or she can discern every interesting cross-current in the law, and then write some dozens of pages of dense, heavily footnoted prose to re-channel them properly — I'd set about to "fix things."

My judge not only rolled her eyes, but audibly groaned when I handed her my work. "Opinions from screeners aren't supposed to look like this," she said. She hefted the manuscript, waggling it in the air between her thumb and index finger. "They ought not weigh this much, literally. Are you sure this couldn't be handled in about a fifth the space?"

I insisted that it could not, and so she read it. Then she started pulling books off the shelf to track through some of the precedential trails I'd laid out in opposition to one another. She moved from eye-rolls to more groans, with occasional sotto voce mutterings; but now it was the other cases she was frustrated with, not my draft opinion. Then we argued about my draft some more, and flagged some weak language, and started testing various hypotheticals against my (mostly procedural) decision matrix. This all took the better part of a day.

"Well," she finally concluded, "I think you're actually right. This is just tough sledding, and the district courts, who are seeing more of these cases every year, probably do need a road-map from us. This might even be the case to do it in. But you just can't make this much law with a screener. It's just not done. I've only been on the bench for a year, but even I know that." She sighed again. "I'm going to make a few revisions based on what we've looked at together, and then run this past the other two judges on our screening panel," she said, "just to ask them if I ought to send your draft opinion along with the file when the case gets bounced to a new panel on the oral argument calendar. I'd hate to see this much work go completely to waste."

I felt duly chastised and downcast.

The other two judges on the panel, however, had a different reaction. They also thought that the draft opinion — which was now genuinely a joint product of our chambers — had done about as good a job as could be done in reconciling the prior cases (short of the freedom to simply overrule prior precedent that only the SCOTUS or the full Fifth Circuit sitting en banc would have). But the gist of their further reaction was that while the precedents in this area were in an ugly mess, this screening panel was nevertheless as well-equipped to sort it all out as any oral argument panel would be. Moreover, not only our chambers, but now also the other two screening panel judges and their staffs had invested a lot of time in the case. All that would mostly be wasted if any of the three judges booted it to a random oral argument calendar panel. And they also pointed out that one of the parties was proceeding pro se; if the case went to the oral argument calendar, only one side would show up to argue through counsel, and we were already highly confident what that side's counsel would say.

There was some more very civil discussion back-and-forth between chambers over the substance and language of the opinion. But thus it was that the very first Fifth Circuit opinion I ever helped write clocked in at 27 pages as published in the Federal Reporter, Second Series, with 34 headnotes (but a mere 27 footnotes) — and with a partial dissent written by one of the circuit's most senior and respected judges. The first footnote read:

No party in this case requested oral argument, and no judge on the summary calendar panel determined that oral argument was necessary. In these circumstances, Fifth Circuit Local Rules 13.6.4 and 18.2 allow us to decide this case without oral argument, despite the fact that one member of the panel concurs in part and dissents in part.

I was, at least in part, redeemed. "But next time," my judge told me, "come get my specific okay before you invest 80 hours in a screener. Any screener. Okay, buster?"

(All the dialog in this war story is based on a loose paraphrase of my dim recollections — except that one word, "buster," which I'm pretty sure is an exact quote. Just another reason that clerkship was the best job I ever had, bar none.)

*******

Fast-forward twenty-six years — during which period there have been lots and lots of circuit court published opinions on how one goes about evaluating qualified immunity defenses to section 1983 and Bivens claims in a summary judgment context. That's not to say that all of those reported cases are entirely consistent, or that applying all this vast body of case-law is a no-brainer for the lawyers and the judges at the trial court level. But no one can plausibly say, "We need a basic road map for how to handle these cases" anymore. Every circuit has long since been there and done that, many times.

Moreover, while some of the cases brought to the federal courts under the rubric of "Defending Our First Amendment Rights!" or "Vindicating the Rule of Law Under Our Constitution!" are genuinely important, a great many of them aren't worth the powder it would take to blow them to hell. We saw the Supreme Court tie itself in knots trying to decide during the Term just past, for example, whether the First Amendment was or wasn't violated when a school principal disciplined a high school student for displaying his "Bong Hits 4 Jesus" banner. The case was almost forced upon them by the Ninth Circuit, who'd concluded that the First Amendment might die tomorrow unless such banners are given constitutional protection by the federal courts. But it was still an eminently silly case.

This summer, however, Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit — a Bush-41 appointee who'd been in private practice for a couple of decades before he was appointed in 1992 — found himself confronted with yet another footnote filled, forty-something paged manuscript, with yet another carefully nuanced treatise on the application of fine principles of constitutional law. Given his tenure, I'm sure he's participated in thousands of appellate decisions before, probably including dozens of appeals that turned on qualified immunity defenses. Some of them were probably important, and the next one that wanders up the appellate chain might be too.

But this latest one, Husain v. Springer, announced on Friday the 13th, just isn't. Instead, it's an over-lawyered pissing match — I'm sorry, I know that's a crude term, but there's no term so apt — over whether there were genuine issues of fact with respect to a qualified immunity defense asserted by a college president who'd ordered a re-run, one week later, of an arguably flawed (i.e., college rule-breaking) 1997 campus election at a Staten Island community college. The alleged harm? In the following year, a "chilled" student editorial board "decided to give their endorsement of the PSA [one slate of student candidates] less prominence than the newspaper’s endorsement of the Student Union slate [another slate of student candidates] had received in Spring 1997." (The editors indulged in this paranoid fantasy despite the fact that this same college president had overruled members of her own staff to ensure that their publication was not impounded, but instead released on the timetable they wanted, and even though the same 37 candidates whom the editors had endorsed for the original election also won in the rescheduled election a week later.) The college never restricted what the editors wrote, nor punished them afterwards for writing it. None of the candidates sued (or had reason to).

"She skeered us," was the student editors' basic claim, "even though she didn't actually do nuthin' to us." (Someone from the northeast will have to translate that into an appropriate Staten Island slacker dialect for me.)

The district court, after extended proceedings and with a thorough written opinion, had granted summary judgment denying any relief. The students, represented (probably pro bono, but possibly with an opportunity to recover legal fees) by a prominent national mega-firm (Akin Gump), appealed. But two judges on the Second Circuit panel — via a 44-page written opinion of U.S. Circuit Judge (and surprise! Clinton nominee! and double surprise! famous Yale Law School Professor Emeritus) Guido Calabresi — reversed in part and remanded for a full jury trial on the merits.

*******

Friends and neighbors, I now give you the vivid prose of Chief Judge Jacobs — a man who is clearly tired of suffering fools gladly, and who is keenly aware that, as the chief judge of one of our nation's most important courts, he certainly has better things to do than to referee every grab and every fall from a college newspaper's 10-year-old self-important opinions about imaginary consequences from a wrestling match student government election from a Staten Island community college (citation omitted):

This is a case about nothing. Injunctive relief from the school’s election rules is now moot (if it was ever viable); and plaintiffs’ counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs’ fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit.

*******

So who finds this dissent shocking?

Other present or former law professors like Judge Calabresi, I guess — including Profs. Eugene Volokh and Orin Kerr over at the Volokh Conspiracy. But they're not shocked because of Chief Judge Jacobs' characterization of the lack of merits to the student-plaintiffs' case. (Indeed, in a separate post, Prof. Volokh writes that the majority's opinion was "quite odd" and that he's "unaware of any First Amendment case that remotely reaches this sort of 'chill[ing of] speech'; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment." In other words, he suspects that Judge Calabresi is wrong on the merits.) Rather, these fine law professors are shocked by this (deliberately understated) admission from Chief Judge Jacobs at the beginning of his partial dissent:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.

I must digress a moment. If you read my blog regularly, you may fall prey to what I think might be called a "sampling error" bias. I hardly ever write about blog posts by law professors with whom I agree. And you might therefore stop taking me seriously when I insist that I like and admire and respect the law professors about whose posts I do write from time to time. I'm not being coy or disingenuous. I probably read 50 posts by Eugene Volokh or Orin Kerr that I wholeheartedly and unreservedly agree with for every one with which I disagree.

But this is one of those times when I fear they're both suffering that sort of academic-induced narcosis that leaves them just flat out of touch with the real world. That real world includes full-time practicing lawyers, and full-time trial and appellate judges (but not necessarily their clerks), most of whom would treat this case as a tempest in a teapot, which is exactly what Chief Judge Jacobs has done here.

*******

Actually, however, I do agree that Chief Judge Jacobs' absolute refusal to even read Judge Calabresi's majority opinion is shocking. In fact, I'm quite sure that Chief Judge Jacobs intended for it to be provocative. He's pretty much saying, "I refuse to even read what my fellow judge has written about this appeal" — and well, that's indeed extraordinary. It's likely to generate controversy, with the effects of that controversy creating their own time demands, all of which is likely to become entirely disproportionate to the fifteen or twenty minutes Chief Judge Jacobs has saved for his schedule by ash-canning Judge Calabresi's majority opinion..

Prof. Volokh and Prof. Kerr and various of their commenters were definitely provoked, but nevertheless seem to have missed Chief Judge Jacobs' point entirely. They seem to think this is equivalent to a judicial abdication by Chief Judge Jacobs, or to the doing by him of a deliberate injustice. "It's too bad that the dissenting judge didn't take the case more seriously," writes Prof. Volokh, because "I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny."

Meh. I agree that Judge Calabresi's opinion is wrong, but it looks to me like the majority opinion pretty much turns on the interpretation of City University of New York Bylaw § 15.2(d), on the subjective wobblies claimed by a bunch of student editors over a weird, probably unique set of actions by the college administration, and on the theoretical clarity (or lack thereof) of federal precedents on First Amendment free expression in a university setting as of a specific date in the late 1990s (since that's what the university president's "good faith," and therefore her potential liability, must be measured against, incredibly enough). That's not quite a blockbuster in terms of its precedential effect on other cases, regardless of whether Judge Calabresi's opinion got it exactly right or not quite right or mostly wrong.

More to the point, I disagree with Prof. Volokh's assertion that Chief Judge Jacobs' opinion doesn't take the case seriously. The professoriat may want Chief Judge Jacobs to say, "This appeal isn't worth my time, or any federal appellate judge's time, but nevertheless, here's exactly what I would say if it were worth my time" — and then to either fly-speck every debatable point in Judge Calabresi's opinion or else to concur in it. But he can't do the latter without contradicting the former, and it's the former point which he clearly thinks is more important here.

Chief Judge Jacobs certainly makes it very clear that the district judge got it more than adequately right, such that neither he nor his colleagues needed to write any more about this case. But his far more important point is that the whole damned case isn't worth the paper it will take to print Judge Calabresi's opinion on — much less the tens of thousands of dollars of additional legal fees that will almost certainly be sought, and possibly awarded (at the expense of the taxpayers of New York state) if the students win after a full trial on remand.

Chief Judge Jacobs carefully avoided directly faulting his brethren. But his deliberately provocative conduct was an indictment of more than just their majority opinion in this case — and of more than just the appellants in this case. Indeed, he might have quoted Churchill by writing: "This is the sort of bloody nonsense up with which I will not put!" Or he might have used the phrase "De minimis non curat lex," which I believe translates from Latin into "Get the hell out of my courtroom with that noise, you idiot!" (I'm not sure of the declinations on that translation, but it's a good enough rough approximation.)

This was, in effect, a judicial rallying cry — to district judges, to other circuit judges, even perhaps to SCOTUS justices. And it's a warning — not quite "Who dares disturb the great and powerful Oz?" but definitely something that ought to be heeded by litigants whose claims are, shall we say, lacking in anything but contrived and feigned real-world importance.

Note, however, that Chief Judge Jacobs didn't refuse to do his duty as a federal appellate judge. He presumably read the briefs and the trial court record. He attended oral argument. He participated in the post-argument conference(s). We don't know what, if any, unpublished communications were exchanged between him, Judge Calabresi, and the remaining judge on the panel, (former Second Circuit Chief) Judge John M. Walker, Jr. But these opinions aren't published until every judge on the panel is ready for them to be published based on having finished what he wanted to say to his brethren, whether face to face, on the phone, or in writing. It would have been improper for any of the judges to reverse the district judge based on arguments that hadn't been made in the district court and in the appellate briefs, so Chief Judge Jacobs necessarily had a pretty good idea of what Judge Calabresi's opinion could have said, had he taken the time to parse it. He cast his own vote. And his "admission" aside, it would indeed not surprise me if he skimmed it, and/or had a clerk read it closely — which is to say, he may purposefully have avoided quote-unquote "reading" it precisely so that he could make his rhetorical point as forcefully as possible.

I'm sure Profs. Volokh and Kerr would agree that appellate judges very commonly write dissents along the lines of, "For the reasons stated in the district court's opinion, I would not have reached the merits of the substantive First Amendment issues, and would instead have affirmed on the basis of that opinion's treatment of the qualified immunity issues." Chief Judge Jacobs actually did way more than that, and went through a brief discussion of why he believes the muddled state of First Amendment precedent as of 1997, when the university professor did her supposedly dastardly chilling, should have made it impossible for her to be found liable for a bad-faith violation of the students' rights.

Nevertheless, as Chief Judge Jacobs viewed it, in the circumstances of this case, his duty obliged him to resist the institutional inertia and the demands of silly plaintiff-appellants like these that he give their appeal more time than it possibly deserved. You don't win a pissing match by whirling about, adding your own piss stream to the mix, and then insisting that you're not getting as wet as the others, nor by admitting that you're wet while writing at length about how nice it would be if you were dry and how much you wish the other fellows would stop pissing. The only way to "win" a pissing match is just to jump the hell out of the spray. Only then does it make sense to comment on what you've just gotten out of. And that's what Chief Judge Jacobs did.

And the place he chose to draw the line was in reading yet another 40+ page manuscript, of the sort turned out year after year by, yes, law clerks just like the one I was in 1980-1981. Such a long opinion was barely defensible, and mostly regrettable, even back then. It's simply indefensible now, and from down here in the real world, I applaud Chief Judge Jacobs for saying so — even at the cost of what may have been some "collegiality" with his brethren.

-------------------

UPDATE (Sat Jul 14 @ wee small hours): Prof. Bainbridge and I are in substantial accord, and both join in Chief Judge Jacobs' dissent, with due respect to Prof. Bainbridge's colleague Prof. Volokh. Ted Frank on Overlawyered cites Prof. B and Chief Judge Jacobs with approval, but he's pretty low-keyed in his mockery. Ted quotes another paragraph from the dissent that contains a phrase with a deliciously studied ambiguity (emphasis mine):

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

And see also Above the Law, whose headline notes that Chief Judge Jacobs is obviously "not running for student body president," and whose text aptly urges you to read Chief Judge Jacobs' entire opinion so that you may "absorb the entire spectacle of a full-blown student government p*ssing match in which the stakes could hardly be lower." The comments there are pretty funny too.

-------------------

UPDATE (Sun Jul 15 @ 8:00pm): Prof. Althouse has a short post up about the dissent, but doesn't seem to me to either directly approve or disapprove of it. I've also put up a new post in response to a comment below from my friend Patterico.

Update from the trenches: A mid-trial mediation succeeded in settling what seemed an unsettleable case

On April 15, I blogged briefly about a commercial fraud bench trial that I was due to begin on the following morning, apologizing to my readers for the likelihood that my blogging schedule would be severely reduced while I was in trial.

My post was something of a rant, undoubtedly because I had my "game face" on and was winding up for my opening statement on behalf of my clients, the defendants in the case, on the next morning. And my opening statement was indeed pretty fierce and passionate. Even before it, I had a stout and very controversial pretrial motion to present, and I got most of the relief I sought from that. The first two witnesses called by my opponent during his case-in-chief went well for our side that afternoon. It's generally a good sign when, during the first day of a bench trial, your objections are mostly being sustained, and the trial judge has at least twice interrupted your opponent to say, "Now Mr. ____, I don't want to tell you how to try your case, but it seems to me ...."

The next morning, I received a phone call at 6:00 o'clock a.m. from my opposing counsel, who advised that he felt too unwell to attend court and that he was going to be seeing a physician that morning instead. He'd so advised the court staff as well, prompting an early morning teleconference at which the judge declared a recess long enough for him to see his physician. The physician's report later that day was that she had found my opposing counsel medically unfit to continue the trial due to "effects of chronic sleep deprivation and anxiety relating to the stress he is under at this time." Based on that, the trial judge extended the recess for the balance of that business week.

Let's take at face value my opponent's statements and his physician's diagnosis, for I lack either the medical expertise or a factual basis to dispute them. I suspect every trial lawyer who's ever tried a case — including even old dogs like me, who've tried a whole bunch of them — suffer from some degree of sleep deprivation and anxiety with just about every trial. From a tactical standpoint, I hated to see the trial interrupted; we thought we were winning, and that any delays were more likely to benefit our opponents than us. But as I told my client, opposing counsel, and the trial judge at the time, as important as this trial was to the litigants and their lawyers, not anything having to do with it was worth anyone's health being seriously jeopardized. I therefore did not object to the extension of the recess, and the trial judge's decision to grant it was absolutely the right thing to do on both a legal and a humanitarian basis.

Part of the art of being an effective trial advocate, however, is looking for ways to make lemonade out of whatever lemons pop up during a trial. Perhaps, it occurred to me, my opponent's physician would clear him to return to some duty less stressful than the trial itself even before he had fully recovered. And perhaps the events of the trial's first day would create possibilities that hadn't existed before.

I sent a lengthy email to my opponent, proposing that while he was recovering, we conduct a nonbinding day-long mediation before an experienced mediator chosen by the trial judge.  It's typical in Harris County, and I think throughout most of Texas, that trial judges much prefer it when the parties can choose a mediator by agreement without court designation of one; there's more paperwork involved if the judge has named the mediator, which is basically reporting done to ensure that judges aren't abusing their positions by funneling lucrative mediation business to special friends and cronies. Our case, however, had an almost 10-year history of profound mistrust between the litigants, and my opposing counsel and I agreed that this was one of the rare occasions when everyone would be better off knowing that neither of us had chosen the mediator. The trial judge agreed, and gave us three names to choose among; we compared schedules and availabilities, and quickly confirmed a full-day mediation session for the following week.

And at about 10:00 o'clock p.m. on the day of the mediation, we finally reached a negotiated compromise to settle the entire case. My opponent's health has continued to improve. And although we had some back and forth as we prepared the final documents to effectuate the settlement and end the lawsuit, we eventually were able to work out those problems too (again with some help from the mediator, who was superb throughout). Yesterday, the judge signed the agreed final judgment submitted by both sides.

The settlement terms aren't confidential, but they aren't really anyone else's business either. Nevertheless, I can say with confidence that those terms appropriately reflected both sides' risks (including litigation expense) had the case not settled, and the elimination of those risks justify the compromises each side had to make as compared to their "best-case scenario" had the case been tried to a conclusion. And I genuinely believe that even with the same mediator, and even with the same extraordinary efforts by the principals and their counsel, we would not have been able to reach a successful mediated settlement before that first day of trial had been concluded.

The moral of the story, then, is this: When something unexpected happens to you mid-trial, don't let your focus on the details of the close combat blind you to new possibilities that may have opened up in the bigger picture. Be creative; re-examine your premises; and don't just gnash your teeth and wail about your bad luck. Proposing this unusual mid-trial mediation probably wouldn't have ever occurred to me but for my opposing counsel's illness, but as things turned out, it became the proverbial blessing in disguise.

Self-immolation on the witness chair via the power of the internet

Prof. Jonathan Adler and Hugh Hewitt both link to this story about a Boston pediatrician, Robert P. Lindeman, who, while a defendant in a malpractice case, blogged about his case — even during the trial. As he was undergoing cross-examination on the witness stand, the plaintiff's lawyer asked what probably sounded to the jury and everyone else in the courtroom like a pair of throw-away questions: Did he have a medical blog? Yes, he said. Did he blog under the pseudonym "Flea"? Um, well, yes. And then the plaintiff's lawyer moved on to other topics until they broke for the day.

But the very next morning, before Dr. Lindeman returned to the witness stand for further cross-examination, "he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement — case closed."

"drfleablog" has since had its content zapped, but according to the news report, at the time of the trial, it included such things as the inside advice that Dr. Lindeman had been given by a jury consultant, along with a whole host of other potentially embarrassing observations that doubtless would have been explored in vivid detail on the following day of his cross-examination:

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing....

Elizabeth N. Mulvey, the lawyer who represented Vinroy and Deborah Binns and unmasked Lindeman as Flea, said she laughed when she read a posting at the start of the trial in which Lindeman nicknamed her Carissa Lunt, noticed that she bit her fingernails and mused, "Wonder if she's a pillow biter, too?"

"Not too bright," sez Hewitt with considerable understatement. But Lindeman is described in the article as being "a graduate of Yale University and Columbia University's College of Physicians and Surgeons [who] is board-certified in general pediatrics and pediatric pulmonary medicine." And he's supposedly very media- and specifically internet media-savy, having "shared his medical views on local television news programs, on the 'Manic Mommies' podcast produced by two Ashland mothers, and in magazines." So amateur courthouse psychologist Beldar's differential diagnosis is: "Willful but subconscious self-destruction, possibly coupled and overlaid with a God-complex."

Next on the horizon: Med-mal insurers revise their policies to exclude coverage for liability established in whole or part from internet self-immolation!

(From the comments on Prof. Adler's post, I've learned that New York lawyer Eric Turkewitz has been blogging about this for some time and in considerable detail before the Boston newspaper's story; he, in turn, has a long list of other links. And someone else has posted a 105-page .pdf version of what was on the drfleablog site before its content was zapped.)

*******

I've been sensitive since Day 1 of my blogging career, back in August 2003, about the possibility that something I write here could come back to bite me or my clients in court in one way or another. So far, it hasn't.

But this past February, as I was on the stand as a witness myself to prove up the attorneys' fee portion of my client's claims during a jury trial, I was asked a question on cross-examination drawn directly from my own professional website: "Is it really true that you sometimes charge your clients for time you spend just sitting around and thinking about their cases?"

"Well, yes!" I replied. And then I explained, using a slightly less polished version of what I'd written on the website itself:

Not all my time spent on behalf of clients is "doing." Some of it is "just thinking" — while sitting at a computer keyboard, pacing the hallways, or simply staring off into space. I don't charge for travel time, but a lot of my travel time is also "thinking time." (If I'm asleep on a plane or in a hotel room, my meter is not running.) Daydreaming about brilliant arguments that I ought to have made doesn't count. But composing and rehearsing for brilliant arguments that I'm planning to make does count. When I believe you've gotten good value for time I've spent "just thinking," I will indeed bill for it. You ought not want a lawyer who's incapable of — or even just resistant to, or under-acquainted with — reflective thought and planning.

The genesis of that paragraph goes back many, many years, to when I was learning the fine art of how to honestly describe the services I'd rendered in a way that would nevertheless help my clients understand their genuine value. It is both a blessing and a curse of my profession that services rendered in its practice can often be performed outside the office and outside the courtroom. I don't think I've ever written down on a fee statement, "Talked out loud in a forceful voice while pacing my back porch, frequently scaring the dog and occasionally annoying a neighbor or two — 1.25 hours." But I have written entries like, "Prepared, revised, and practiced closing argument — 1.25 hours." Or: "Dictated outline for evidentiary strategy for proving up affirmative defenses of laches and estoppel — 0.50 hours." And that may have been done into a Dictaphone clutched in my drivers-wheel hand on the long open road between Houston and Corpus Christi.

So having thought all that through in detail over many years, and having discussed it with colleagues and clients on many occasions, I was pretty well prepared to be cross-examined on any aspect of my billing philosophies — including on that one sentence taken out of context. Talking to several of the jurors afterwards, I was relieved, but not surprised, to confirm that they'd understood all that. That case turned out to have other problems, but my testimony on attorneys' fees wasn't one of them. And as it happens, that's pretty much all I can say here about that case, lest I potentially create problems elsewhere!

The moral, nevertheless, is this: While cross-examination under oath may famously be the most powerful engine ever devised for the ferreting out of reluctant truths, the internet is making it a potentially more powerful engine just about every day — especially when used against the blissfully unaware (or the self-deceiving). Caveat blogger!

-------------------------

UPDATE (Thu May 31 @ 2:10pm): Scrolling through the .pdf of Dr. Lindeman's blog, I'm alternately sympathetic, stunned, amused, impressed, and appalled. I see posts mentioning, for example, lawyer Turkewitz. This suggests something that ought to be obvious, but bears repeating: There's a whole, whole lot more to this story, from just about every angle, than I or any other fairly casual inquisitor is going to be able to find out from bopping around the internet over the course of an hour or two.

Therefore, a long string of caveats, which you may interpret as ass-covering on my part (he's now probably a public figure for NYT v. Sullivan purposes, but unlike him, I've never tried to hide my actual identity behind my blogging pseudonym); it might be that, but it is also an attempt on my part to be more fair: I have no basis for any opinion about Dr. Lindeman's competency as a physician; my "diagnosis" of his mental state is obviously unqualified and made for purposes of satire. My comments about the ill-advised nature of his blogging about his malpractice case are statements of opinion on my part, admittedly based on less than all of the facts and from an outsider's perspective, but they demonstrate the very strong negative initial reaction that I and, I think, most other experienced courtroom lawyers would have on the superficial question of whether it's a good idea for anyone to blog about pending litigation in which they're involved. When a litigant blogs about his case, he runs great risks of inadvertently waiving attorney-client and other important privileges (e.g., those regarding the work product of consulting, non-testifying experts like his jury consultant). When a litigant who's insured blogs about his case, he runs some risk of jeopardizing his own insurance coverage; the insurer may take the position that the insured is failing to cooperate in his defense. I have no clue, however, to what extent, if any, those issues are raised by the facts of Dr. Lindeman's lawsuit.

I'm quite sure that, for example, opposing counsel would have dearly loved for the jury to learn that Dr. Lindeman had referred to her in his blog as "Carissa Lunt" because that would tend to prejudice many people against him. But how much of what was written in his blog might have become admissible evidence for the jurors in his trial to hear as part of his cross-examination would depend on a whole lot of very specific fact-specific inquiries, including some that involve complicated balancing of interests, and neither you, I, nor anyone who wasn't there for pretty much the whole trial can make confident predictions as to how all that would have played out. And his blog, and the questioning about it, may or may not have had anything to do with the timing or the amount of the settlement, and settlements can be and frequently are made for reasons having little or nothing to do with the settling parties' legal liability or moral culpability.

Bottom line: To whatever extent Dr. Lindeman's story does or doesn't prove it, I'll stand by my general "moral of the story" stated above.

A Beldar war-story about a witness who lied under oath when he had no apparent motive to do so

This is a long, long war-story about a witness who told me a lie despite his lack of any good motive to do so. I don't know if it has any relevance to the Libby trial. If you're willing to wade through the war story, I'll let you draw your own conclusions about that, but I will suggest some that have occurred to me en route.

*******

In the early 1980s, I was defending a regular client, Montgomery Ward & Co., in a personal injury case. The plaintiff, who I'll call Mrs. T___, was an older woman — a very sympathetic grandmother, in fact — who claimed to have suffered a ruptured disc in her neck when she was struck by an elevator door while exiting an elevator at one of Wards' stores. She'd had surgery on her neck, a laminectomy, that had been performed by a Houston neurosurgeon whom I'll call Dr. M___.

As a normal part of preparing for trial, Mrs. T___'s lawyer had arranged to secure Dr. M___'s testimony about his diagnosis, the need for the surgery, its outcome, Mrs. T___'s future prognosis, the reasonableness of her medical expenses, and so forth. As an experienced trial lawyer, my opponent knew that it's hard to arrange for doctors to appear as live witnesses at trial, so he'd had also arranged to record Dr. M___'s deposition through both a normal court reporter's written transcript and on a videotape that could be displayed to the jury.

This was by far the most serious case of the 150 or so on my docket then. I was new to the practice of law, and I had yet to try a first-chair district court case for big bucks, and in fact, I'd never even participated in either a doctor's deposition or a videotape deposition. What's more, my client's nominal co-defendant in the case, the elevator maintenance company, had cut a so-called "Mary Carter" deal with Mrs. T___'s lawyer whereby the elevator maintenance company would get back the modest amount it had already paid Mrs. T___ out of any verdict Mrs. T___'s lawyer could get against Wards! That aligned the elevator maintenance company and its very experienced lawyer squarely with Mrs. T___. It also meant that in this deposition, as at the trial itself, this case was shaping up to be (to use the extremely crude language that trial lawyers often use) a gang-bang, with me and my client as the bang-ees. Mrs. T___'s lawyer was asking for $500,000 to settle the case, and he intended to ask the jury for an even $1 million.

I was appropriately nervous, but I knew one of the things I needed to do before the deposition was to check out the surgeon.

Dr. M___ checked out pretty well. There was no way that I could attack him on the basis of his credentials. Dr. M___ was not only board certified, he was one of the examiners for the neurosurgery national board exams. He had over two decades of experience treating just this kind of case and doing just this kind of surgery. He had staff privileges at all of the best hospitals in the Texas Medical Center. In fact, Dr. M___ was an adjunct professor in neurosurgery at one of Houston's two medical schools. My then-girlfriend, who was a medical student, had even assisted him (i.e., held a retractor for a while) in the operating room in an unrelated case, and she told me that his reputation among the other surgeons and surgical residents was superb.

I also determined that although Dr. M___ had testified a few times before, it had only been in cases in which he had been a treating physician, meaning he couldn't have avoided being a witness. He wasn't a hired gun or a professional testifier by any means. I went through my law firm's library of prior expert witness depositions, but I only found one from Dr. M___, and that was in a case involving epilepsy — nothing remotely related to my case — and in fact his testimony had been generally helpful to my firm's client in that case. (I tucked that earlier deposition into my briefcase anyway, but I saw no way that it was likely to become useful.)

Nor was there any reason for anyone to suspect him of being biased. Mrs. T___'s medical bills, including her bills from Dr. M___, had already been paid in full by her insurance company. Mrs. T___'s lawyer was paying Dr. M___ by the hour for the time he was spending in giving his deposition testimony, but it was at a very reasonable rate, no different from what any local doctor would charge for taking time away from his practice. Other than the natural sympathy that most physicians feel for their patients, this witness had no conceivable motivation to shade his testimony in the plaintiff's favor, much less to tell an outright lie on her behalf.

The medical records also weren't particularly helpful to me. From both the pre-surgical tests and the findings during surgery, there was no doubt that the plaintiff did indeed have a ruptured cervical disc. That didn't necessarily establish that the disc had been ruptured in the elevator door incident, and there are lots of other ways that people can rupture cervical discs — sneezing, stepping hard off a curb, turning over in bed. There were indications of pre-existing arthritic changes in her spine typical for a woman of her age, but there were no suggestions that they had ever been symptomatic. I had no proof of any other traumatic event that could have accounted for the ruptured disc, so the surgeon's testimony was also likely to provide adequate proof of causation between the alleged accident and the ruptured disc.

All of this made me pretty glum as the deposition approached. I sought advice from older lawyers at my firm, but they pretty much came up dry too. The best they could offer were some suggested questions that can be asked in just about any soft tissue/ruptured disc case and that are usually somewhat helpful to the defense. For example: "Now, doctor, can you explain to the jury the difference between objective findings and subjective complaints? We know you have some diagnostic devices like X-rays that give you objective findings, but you don't have a device that exactly measures a subjective complaint like pain, do you? So when your patient tells you her pain is very severe, you generally must take her word for that, correct? And there aren't any objective tests that can tell whether her pain is really moderate or mild instead, are there? And you weren't there when the elevator door supposedly hit her, were you? So you can't absolutely, positively rule out that she might have actually ruptured the disc in her neck in one of those other ways that you've described as possible ways to get this kind of injury, can you?" That sort of stuff.

Thin gruel for an important cross-examination.

*******

I had a heavy, bulging briefcase when I showed up at one of the hospital conference rooms for Dr. M___'s deposition at about 4:30 p.m. on a Tuesday, but that was only because Mrs. T___ had a whole lot of medical records. My handwritten list of questions for Dr. M___ filled about a page and a half, with wide margins and big writing.

And as I'd expected, Mrs. T___'s lawyer did a first-rate job of getting Dr. M___ to explain Mrs. T___'s condition, her surgery, her post-surgical care, the pain attending all of that, the likely causation, the possibility that she might need further surgery, the reasonableness of her expenses — the whole nine yards. And then the elevator maintenance company's lawyer put in his two cents, basically functioning as an additional lawyer for Mrs. T___.

Mind you, Dr. M___ wasn't going out of his way to hurt me and my client. He did have the educator's gift of explaining complicated medical information in easily understood terms, though. And by just giving honest and thorough answers to the particular questions skillfully selected by my opposing counsel, Dr. M___ had just about buried my client on medical causation and damages in this personal injury case. A million dollar verdict was seeming more and more likely to me, based on this testimony. I was very discouraged.

It was about 6:00 p.m. when it was finally my turn, and everyone was pretty tired. Dr. M___ in particular was beginning to look kind of ragged. When I started my questions, he interrupted to ask, "Can you finish up in 15 minutes or less? I've got a headache, my allergies are acting up, and I've been up since 5:00 a.m. today making rounds and doing three different surgeries, and my wife and I are supposed to go to a charity function tonight."

This was not an unreasonable request. Indeed, if I had not already been wallowing in self-pity over my hopeless plight in this deposition, I probably would have felt sorry for Dr. M___. His face was red, and his eyes were bloodshot; he was perspiring freely under the videographer's bright lights; and his voice had gotten hoarse.

I assured him that I'd be as brief as I could, but that it would be more than 15 minutes, and I started going through my list of "standard questions." Being inexperienced, however, I wasn't very crisp, and some of my questions were probably a bit repetitive. Dr. M___ was getting a little bit testy, and his own answers were getting shorter and more curt, less expansive, more technical, and with fewer explanations to make it easy for a lay audience to understand him. I wasn't making much headway.

"Dr. M___," I said, "I'm almost done. Thank you for bearing with me. I'm just doing my job, and all of these questions are important, or at least they seem that way to me. I'm on my last topic, sir, and to start us off on that: Dr. M___, can you tell the jury, please, what the term 'secondary gain' means?"

*******

I must detour here to explain that "secondary gain" is another one of those things that pretty much all personal injury defense lawyers ask doctors about. Wikipedia's definition isn't too bad:

Patients' symptoms often have a significant psychological component, and physicians sometimes categorize psychological motivators into primary and secondary gain. Primary gain is an internal, unconscious motivator. For example, if a patient is particularly guilty about being unable to perform some task, their medical symptoms may be amplified as a psychological defense against the guilt. Primary gain can be a component of any disease, but is most dramatically demonstrated in Conversion Disorder (a psychiatric disorder in which stressors manifest themselves as physical symptoms without organic causes — such as a person who becomes blind after seeing a murder). The "gain" may not be particularly evident to an outside observer.

Secondary gain can also be a component of any disease, but is an external motivator. If a patient's disease allows her to miss work, gains her sympathy, or avoids a jail sentence, these would be examples of secondary gain. These may but need not be recognized by the patient. If she is deliberately exaggerating symptoms for personal gain, then she is malingering. However, secondary gain may simply be an unconscious psychologic component of symptoms.

So what the defense lawyer typically wants from the testifying physician — what I wanted from Dr. M___ — is mostly just an explanation of what "secondary gain" is. We want an acknowledgment that the prospect of getting money through a personal injury lawsuit can sometimes interfere with their patients' recovery or cause them to unintentionally exaggerate or prolong their subjective symptoms and complaints. We want the doctor to agree that he's seen patients who suddenly seemed to get dramatically better — for no objective reason that medical science can explain — as soon as their lawsuits were over. We want to end this topic, probably, with something like, "No doctor can absolutely rule out the possibility that 'secondary gain' might be a factor in a case like Mrs. T___'s, can they?" An honest, non-argumentative doctor will usually go along with you on all this stuff.

Unless I had a particular reason to think I was going to get an affirmative response, I would not have asked Dr. M___ to take the next step — that is, to render an opinion that secondary gain probably was responsible for some or all of Mrs. T___'s continued reports of pain and her slow recovery from surgery. Instead, I'd much rather get him committed, if I can, to the notion that no one can really say for sure.  If I leave room for him or anyone else to take a guess, then the plaintiff's lawyer is likely to get the doctor to say on re-direct that no, his opinion is that Mrs. T___'s medical situation hasn't been affected by "secondary gain" considerations relating to this lawsuit, and in fact, he wouldn't have prescribed all those post-surgical procedures and pain meds for Mrs. T___ if he really thought she was a malingerer, and now get the hell out of my hospital, you snot-nosed young lawyer!

Anyway, back to the war story:

*******

"Dr. M___," I ask, "can you tell the jury, please, what the term 'secondary gain' means?"

Dr. M___ lets out a long breath and leans forward, his elbow on the table and his forehead cradled in his palm. He scrapes his hand down over a substantial seven-o'clock beard stubble, staring up over his fingers at me. He sniffs and furrows his brow; his eyes dart from me to Mrs. T____'s lawyer for a moment, and perhaps then he also glances over my shoulder at the wall clock. I can see that he is engaged in some internal debate, albeit a very quick one. For those few seconds, the only sound in the room is the soft whirrrrr of the video camera, but maybe I think that I hear something else too.

He lets his hand fall to the table and he shakes his head. "Never heard of it," says Dr. M___.

I am pole-axed. I ask in disbelief and confusion, "You've never heard of the term 'secondary gain,' Doctor?"

"I just said I'd never heard of that term before, counselor. So move on please." He stares at me. Defiant. It might be fair to call this stare a glare.

"But surely," I sputter, "you've at least heard that term used in medical-legal situations, in testimony about your patients? Maybe you've heard a lawyer use the term in a question, even if it wasn't a term you'd normally use yourself?"

"I said I've never heard of the term before, and I certainly have never used a term I've never heard before. Now, are we all done here, counselor?" Dr. M___ stands up and starts to unclip the microphone from the breast pocket of his scrubs, but he pauses to look at me, probably because I have begun to dig furiously through my oversized briefcase.

"No, sir, we're not!" I shoot back at him (with a voice far more confident than I actually feel). I locate what I've been looking for, and I pull a thin booklet from my briefcase. Dr. M___ sits down, still glaring at me with no less annoyance, but perhaps with a certain uncertainty now. I flip through the pages.

"Dr. M___," I begin again, "do you remember having a patient a few years ago named Lorraine C___? To refresh your recollection, I'll suggest to you that while Ms. C___ was under your care, she also had a personal injury lawsuit pending against Ford Motor Company."

Two more beats of silence; Dr. M___ rubs his chin. "Well, yes. But Lorraine C___ was an epilepsy patient, and epilepsy has nothing to do with Mrs. T___'s ruptured cervical —"

"I didn't say it did, Dr. M___," I interrupt, "and you've now answered that question, thank you, but I still have a few more, so if you'll please just continue to keep your seat? Thank you, sir. And do you recall, sir, that on September 12, 1979, in Ms. Lorraine C___'s lawsuit against Ford Motor Company, Cause No. 78-19325 in the 129th District Court of Harris County, Texas, you gave your oral deposition in another conference room here at this very hospital where we're sitting today?"

"Now, wait just a minute, counselor, that was —"

"Yes or no, Dr. M___," I insist, "did you give your deposition in that case, or not?"

"Well, yeah, I did, but —"

"Thank you, sir," I interrupt again, "and do you remember taking the same oath for that deposition that you took here today?"

"Of course!" he answers, "But I don't see what —"

"I only have the one copy, Doctor," I interrupt again, getting to my feet and stepping around the videographer's lights to his side of the table. "So I'll have to stand over your shoulder as we read it together. The question, at page 43, line 8, was 'What kinds of things can account for continuing complaints of pain by Ms. C___ that can't be verified through your objective tests?' Did I read that correctly, Doctor?"

Dr. M___ looks up over his shoulder at me. No doubt at all: this is now officially a glare. "But this ...." He jabs the transcript I am holding in front of him. "You have to understand that ...." He coughs, wipes his face with a tissue, and then starts again. "You see, counselor, epilepsy is not ...."

He trails off, but I am done interrupting for the moment. Dr. M___ may look to everyone else in the room like he's just lost in thought. But by now, even though there's sweat on my own brow too, I am reasonably confident that I have already taken the rope which Dr. M___ handed to me, and that I've placed it in a noose firmly around his neck. He has been silently reading ahead in the transcript, and now his silence tells me that he knows what I know, which is that the trapdoor lever has already been pulled. Dr. M___ is on his way down, and as far as I am concerned, he can kick and twitch all he wants to along the way.

Eventually, grudgingly: "Yes, you read that correctly, Mr. Dyer." (Hey! He does remember my name after all!)

Me again: "And now will you please read aloud, Dr. M___, starting at page 43, line 10, through page 45, line 4, from your sworn testimony from that case? Read to this jury, please, the very thorough definition that you volunteered, Dr. M___, unprompted by any lawyer or anyone else. Right there, Dr. M___, read aloud your entire answer, please."

He's not answering yet, but that's okay, because now I want to fill the silence as he's accelerating downward: "It's the long answer," I continue, "the one that begins with the sentence, quote, 'Well, one explanation could be "secondary gain," and let me fully explain just what we physicians mean when we speak of "secondary gain,"' unquote. Read that aloud, please, and then the rest."

The good doctor, however, gives me a last spasm of drama — something better than reading aloud, something even better than I could have hoped for — before he quite hits the end of the rope.

"Well, counselor," Dr. M___ snarls at me, with his spray of spittle sparkling under the videographer's bright lights as he points to my still-open briefcase on the far side of the table, "I didn't know that you were going to bring the god-damned archives of the world!"

*******

I made him read aloud the whole segment from his prior deposition, but only once. Dr. M___ had given almost a textbook definition then — very eloquent, actually very close to the Wikipedia definition above, but probably more clear.

I had the court reporter mark the cover pages and relevant testimonial pages from Dr. M___'s deposition in the C___ vs. Ford case as an exhibit to Dr. ___'s deposition in the T___ vs. Wards case. And then I had the good sense to say: "Okay. I have no further questions for this doctor." And to shut up, and to close my briefcase.

Mrs. T___'s lawyer tried to smooth things over on redirect with a few innocuous questions about other topics, but it just wasn't working. He could barely get Dr. M___ to stop glaring at me long enough to pay attention to any more questions. The elevator maintenance company's lawyer — who, despite the Mary Carter agreement, was more often than not on the defense side of the personal injury bar, with a defense's lawyer's normal sympathies and sense of humor — just grinned and asked nothing at all when it was his chance to re-direct.

As it happened, I tried that case twice, to two different juries. I mostly won it the first time; Mrs. T___'s lawyer appealed successfully; and so we tried it all over again. Both juries saw the videotape of Dr. M___'s deposition. But in neither case did I ever make any argument to the jury about Dr. M___ or his credibility. I had no basis in fact to suggest that he was a phony or a fraud or a whore or a habitual liar or a bad doctor. He was none of those things, and under the broad reading that I personally choose to give to the canons of legal ethics, it would have been improper for me to suggest any of those things to either jury.

But I didn't need to. Both juries, after viewing that videotape, were shocked to their toes by that exchange. That a man of science, a professor, a pillar of the medical community, would deliberately lie — and then not only curse but, as several jurors pointed out to me later, take the Lord's name in vain immediately after lying under oath (indeed, an oath followed by a prayer, "so help me God!") — absolutely and completely destroyed the credibility of Mrs. T___'s entire damages case. That Dr. M___ was willing to lie about "secondary gain" must mean, they inferred, that "secondary gain" was the explanation for all of Mrs. T___'s complaints! Indeed, both juries spontaneously concluded that Mrs. T___ and Dr. M___ had conspired to exaggerate her symptoms; many jurors doubted that she had ever needed the surgery at all. Based almost entirely on their rejection of Dr. M___'s testimony, both juries quantified her total damages in a shockingly small amount (for that day and time and venue) that was barely in excess of her concededly reasonable medical bills — and amazingly, the two different juries' findings were within $500 of each other!

(As it turned out, however, both jury's damages findings were mooted because we also established that Wards hadn't committed any negligence in connection with the elevator door incident. Mrs. T___ and her lawyer got nothing anyway, except for the comparatively small sum that the elevator maintenance company had paid them as part of the "Mary Carter" deal.)

*******

Dr. M___ deliberately lied. He didn't forget. He didn't misspeak. He just outright lied under oath. And it just so happened that, through a freakish coincidence, I had there in my briefcase (a/k/a the "archives of the world") the evidence to prove beyond any doubt that he had just lied.

He lied about something that really was only marginally related to the case — his own familiarity with a completely subjective and general conceptual term that might or might not arguably apply to just about any patient. He wasn't even lying about the application of that concept to this specific case; indeed, no professional can ever give more than an educated guess whether "secondary gain" is involved with a specific patient's treatment and recovery. That's why I never considered bringing Dr. M___'s lie to a prosecutor's attention: His lie was on a subject of fact, not opinion ("had he heard or used the term"), and there was certainly adequate proof beyond a reasonable doubt that he had indeed intentionally lied under oath, but his lie just wasn't on a sufficiently material point. If he'd said, "I operated twice" when he really operated only once, that would have been a material lie. That would have been perjury.

And Dr. M___ had absolutely no good motive to lie. He wasn't trying to help Mrs. T___, or to hurt Montgomery Ward & Co. If that had been his intention, he could have said, "Yes, counselor, I know that term, and here's what it means, but let me give you my professional opinions as to why it doesn't apply." And he could have accomplished his purpose without telling any demonstrable lies. As far as the goals of either side in the lawsuit, Dr. M___'s lie was an absolutely senseless one.

But I'll tell you, friends and neighbors, what I'm absolutely convinced of, based partly on the circumstances, but mostly on his bleary-eyed stare and the gears in Dr. M___'s mind which I imagined that I heard turning over the whirrrr of the video camera, just before he started the lie.

Dr. M___ just wanted to go home. He wanted to shave five minutes off the deposition. He was annoyed at this eager-beaver young lawyer, and he didn't much care one way or another about this lawsuit, and his nose was stuffy, and his feet were throbbing, and there were more surgeries scheduled for dawn tomorrow. His wife was probably going to nag at him for forgetting to bring home that carton of milk, and the chicken at the charity dinner was probably going to be cold and rubbery. He lied because he thought it would save him some time because it would shut me up, and because he thought he deserved to get the deposition over with, and because he knew he was a terrific doctor and nobody was suing him and he certainly hadn't done anything wrong anyway, and because he had already told the truth about everything really important, and because he thought this little lie would just make things simpler, and because he thought he wouldn't get caught, and because he thought the lie just would not matter.

Well, yeah, but the lie did matter. Testimony under oath matters; lies matter. This particular lie wasn't perjury, but it still turned out to have a dramatic effect on both juries' damages verdict. You just never know when the clueless-looking young lawyer might actually have a clue, or when he might, by coincidence, have the archives of the world, or at least the pages from those archives that turn out to matter most, right there in his overstuffed briefcase.

*******

I don't know if there may be any parallels in the Libby case. As I've written before, I still have a hard time imagining what Libby's motive could have been for the deliberate lies that the jury found him to have made. They just don't seem to be very smart lies, nor were they lies that could have accomplished very much even had they gone uncaught. And Libby himself is such a smart guy.

But then, Dr. M___ is a smart guy, and his lie wasn't very smart, nor very profound either. He lied for bad reasons that seemed reasonable to him at the moment he told the lie, but I certainly made him regret the lie, and I probably made him question his own reasons for telling it, pretty soon thereafter.

I have to allow for the possibility that Scooter Libby originally told his lies for not-very-good, not-very-smart reasons too, even if they were reasons that seemed valid to him at the moment he told them. But then he got caught in the lies, and then he just didn't have any very good answers for why he'd told them.

That would certainly explain why he didn't take the stand.

Maybe Scooter Libby didn't take the stand in his own defense because he's a good man who, by the time of the trial, recognized that he'd made some very bad decisions for not-very-good reasons. Maybe Scooter Libby is a man who was willing to let his lawyers do their best, and who was willing to put the prosecution to the test of meeting its burden of proof, and who was hoping the jury might find a "reasonable doubt" even without hearing any testimony from him — but because he is indeed a good man, and a man who has spent now hundreds of hours searching his conscience, he just couldn't bring himself to tell any more lies under oath, even if they might have improved his chances of acquittal.

That's frankly the best explanation for his not taking the stand that I can think of under these circumstances, and it's not entirely unflattering to him. That's about the only way I can make sense of all this, and I guess I hope it's true.

Ex-judges as "friends of the court"

I've only worked on a few amicus curiae appellate briefs. That Latin phrase literally translates to "friend of the court." It generally "refers to someone [who, although] not a party to a case, [nevertheless] volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it."

But long ago, when I was a young associate at Baker Botts, I was instructed to show up at a rather odd hearing before then-state district judge (now federal district judge) Lynn N. Hughes that involved a piece of property in which our client, Rice University, had a potential interest.

"Be careful that you don't enter a formal appearance in the case on behalf of Rice as a party-litigant," I was firmly instructed by the partner who gave me the assignment: Rice didn't want to be perceived as, and in fact was not being, particularly eager or greedy, and neither did it want to align itself with or against any of the actual litigants.

"But how should I identify myself to Judge Hughes?" I asked.

"Think of something," was the answer, "Just don't enter a formal appearance that turns Rice into a named party or otherwise gets it stuck forever in this lawsuit."

This set me to gnawing my bottom lip as I trudged over to the courthouse. I spent a good ten minutes debating whether to sit inside or outside the rail (i.e., with the other lawyers or with the audience). I spent another five minutes wondering whether I should leave a business card with the court reporter (which is normally an essential courtesy), and if so, what I should write on it to indicate who I represented, and in what capacity.

I finally decided to sit inside the rail, and to hand over, but write nothing on, my card. I introduced myself to the other lawyers before the judge entered the courtroom, and I told them who I represented, but I didn't say anything about exactly why I was there.

The hearing began soon thereafter, and once the lawyers for the litigants had identified themselves on the record, I stood up and nodded to Judge Hughes — signaling (still without speaking on the record) that I wished to be recognized. (He knew my name from an unrelated case on which I'd recently appeared in his court.) "Mr. Dyer," he intoned, "do you represent a party to this matter?"

I'd decided that the best I could do in answering that question was to repeat pretty much what I'd been told: "No, your honor, but I'm here on behalf of Rice University, with instructions not to enter any appearance on its behalf as a party-litigant — neither as a plaintiff, a defendant, nor an intervenor. Rice's interest in these proceedings is indirect and contingent. But if it's possible, I'd like to have the opportunity to address the Court to a limited extent on matters that may particularly relate to Rice.

"I suppose," I finished up lamely, "I'm here in something somewhat akin to the status of an amicus curiae."

"Amicus curiae, hmmm?" said Judge Hughes, and he paused to ponder a moment. "Do any of the litigants have any objection to Mr. Dyer's request on behalf of Rice University?" he asked. None did.

"Well, Mr. Dyer," drawled Judge Hughes, "I never attended Rice, but I've always held it in high regard, and it's certainly one of our city's and our state's finest institutions of higher learning. I'll grant your request, and we'll leave your exact status here somewhat indefinite. You might manage to say something useful. But mostly, I find myself to be unexpectedly tickled pink just to learn that Rice University is indeed my particular friend, at least for the purposes of this case!"

"Oh, it is, Your Honor, it truly is!" I gushed relievedly — to loud guffaws from everyone else in the courtroom.

"Chums it is, then," said Judge Hughes with a grin. And I sat down, and made sure to keep my mouth firmly shut for at least the next hour of the proceedings.

*******

That anecdote is only mildly apropos given my main reason for posting here, which is essentially to reprint a comment I've left in response to a typically thoughtful series of posts over on the Volokh Conspiracy, including these two from Prof. Eugene Volokh. "Maybe I'm missing something," he writes, "but I just don't get the thinking behind the D.C. Circuit decision rejecting the retired federal judges' friend-of-the-court brief in one of the Guantanamo cases." (His co-blogger, Prof. Jonathan Adler, has also written about the ruling here and here, and their co-blogger Prof. Orin Kerr has written about it here.) Prof. Volokh further writes:

Of course, the reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that — the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.

I don't disagree with that, nor with his analysis of the ethical advisory opinion briefly cited in the DC Circuit's order. But here (slightly edited) is the comment I left on his post (amidst many other very perceptive and well-written comments):

---------------------------------

What's bogus is the notion that "retired judges" have an indirect interest comparable to, say, AARP, the ACLU or the National Association of Manufacturers. There's no such entity comprising, nor community of interest associated with, retired judges.

If some entity had hired all these former judges to sign off as co-counsel of record on an amicus brief, in which they were clearly appearing as ordinary advocates rather than pseudo-principals, that would have been another thing altogether. Whatever additional dignity their past histories might lend to their arguments would be implicit at most.

Instead, their brief's statement of interest claims that

[a]s former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation’s founding erodes the vital role of the judiciary in safeguarding the Rule of Law.

Which is to say, "Listen to us, 'cause we used to be judges and we oughta know." This was a stunt designed as much for media play as to impress any current judges on the DC Circuit — and indeed, in that latter respect it appears to have backfired rather badly, eh?

I think the DC Circuit was absolutely right. Nip this in the bud. Let judges join some special interest group if they wanna; or let them sign on to such an organization's proposed amicus brief with a simple "Esq." title if they want to return to legal practice as counsel of record. But per Chief Justice Roberts' observations about judges as "honest umpires," we don't want to invite all ex-Major League Baseball umps onto the playing field to critique and second-guess the officials whose current job it is to call the balls and strikes. They can doff their chest protectors and their uniforms and shout from the stands along with the rest of us.

Inside the robes

Every lawyer who has ever stood before a judge, in any capacity, has thought to him- or herself: "I could do that." Every single one.

To which the appropriate response is: "Yeah, but ...."

Three long war-stories follow, with associated musings.

*******

I've had quite a few nice desks and desk chairs in my career. But I've never had one with flags in back. I once had a corner office in a downtown Houston skyscraper, but I've never had a 20-foot-tall, 60-foot-wide expanse of white marble behind me while I sat on a dais in a cathedral built to the rule of law. I once had the extraordinary, thrilling privilege of being a trusted law clerk for someone whose signature could speak for a federal court of appeals, only a step below the U.S. Supreme Court, and whose writ ran from the far tip of Florida to El Paso, Texas — but my own signature has never been more than that of an advocate for a litigant. In my younger days, when I cut a much trimmer figure, I had a couple or three well-cut, well-made suit-and-tie ensembles. But no power tie I've ever worn implied a fraction of the power of a simple black robe woven from a cotton-polyester mix.

Let's suppose you're a new judge. You've raised your hand, you've sworn a simple oath. Before that, the voters of your county, or perhaps the senators of your state or of the United States, have thrust a thumb up or down while your name was the subject of deliberation. But in only a very few instances has that deliberation been truly deliberate, for to tell the simple truth, most judicial candidates or nominees are rubber-stamped once they've jumped the hurdles to get to the point of electoral or legislative confirmation.

"I could do that," think the lawyers appearing before them, "I could be rubber-stamped. Then I could just swear that oath — easy-peasy! And then when I crooked my finger, a sheriff's deputy with a pistol on his hip would put the cuffs on that lawyer or this litigant, and then (clank-clank!) take them right to jail.  Show me no contempt, baby! I'll teach you! ...."

Except it almost never, ever works that way. Oh, the deputy would indeed obey that instruction. But the brutal, cold fact of the matter is that except in the most exceptional of circumstances, you won't give that instruction. Because suddenly those flags behind your chair, that dais, the expanse of white marble or plain burled Texas oak, the gavel, the cotton-polyester robe — holy cow, how those things all can choke!

The pomp, the circumstance, the "Your Honors" and "May it please the Courts" — my gosh, even the fact that people capitalize the title of the office you hold! — all that settles around you, with decades and centuries of accrued, accreted, embedded responsibility.

What a serious, lonely business it is — being a judge.

*******

First war story:

I mentioned in a recent post how infrequently — meaning never — I've actually seen or heard a trial judge bang his or her gavel. The gavel, like the robes and the dais and the bailiff and the flags, all remain powerful and important and essential symbols of authority. The power they symbolize is indeed real, but the obvious displays of it are mostly left latent.

But some months ago, in chambers, during some slow moments in the fine grind of justice, I caught a local judge in a reflective mood. He started musing over how it had felt to him on one of those very, very rare occasions when he'd had to use a fraction of that latent, vast power — when he'd found his patience exhausted, his stamina stretched near to breaking, and the dignity of his office (not him, but his office) insulted beyond the bearable.

This judge has had his seat for a dozen years. Because of the nature of the court over which he presides, he sees the great unwashed masses, the busiest and often least-capable lawyers, and the constant press of high-volume, form-pleaded, and mass-produced justice every day of the week, fifty or so weeks out of every year. He's a patient man, and he normally runs his courtroom with the wit and flair of a confident circus ring-master. But this day, in chambers, with his guard down, he was musing — one professional to another, albeit only one of us had a black robe hanging from the hook leading to the courtroom — about an occasion a few weeks earlier that had marked the very first time in his judicial career he'd held someone in contempt of court. It gradually dawned on me that this judge was thinking aloud, second-guessing himself in my presence, as he tried to figure out how he might have handled things differently. I know that judges talk to each other about such things, but to be taken into his confidence, to be asked for my own opinion on that topic, was as high a complement as I've ever been paid. And as it turned out, after hearing the whole story, I had nothing constructive to tell him — except that I'd probably have laid some serious smack down a lot sooner than he had.

The universally true — yet still stunning — fact is that as a general rule, judges have more respect and respectful awe for their authority than anyone else has! For everyone else almost all of the time, it's theoretical authority. For them, though, they wear it with the robes, and it's as ever-present as the flags behind their chairs.

*******

"Ah," you say, "but power corrupts, and absolute power corrupts absolutely!" It wouldn't take you long, I'm sure, to find instances described in the pages of BeldarBlog in which judges and justices have been drunk on their own power, out of touch with reality, and profoundly unwise. And you'll readily find, among my pages and posts of judicial critiques, many more instances in which I think particular judges or panels of judges have simply gotten things badly wrong, despite the best of intentions.

Which is to say: They're human, inside the robes. They're imperfect, and most of them are acutely, intensely aware of that fact. Most of them spend a lot more time worrying about it, and trying to correct their imperfections, than most folks would ever imagine. And even the most high and mighty of them is still capable of being human.

*******

Second war story:

Twenty-five odd years ago, during my first year of practice when I was about 23 years old, I was waiting in the ante-room outside the office of the local federal judge who was reputed to be most habitually drunk on his own power and pomp, who looked like a central-casting example of the imperious judiciary, and who was known far and wide for flaying ill-prepared lawyers in open court. This was a routine pre-trial conference on routine scheduling matters in a routine case. But His Honor's secretary stood up from behind her own imposing desk, and came around to whisper in my ear, "Judge ___ wants to speak with you before he sees everyone else."

Say what?

She led me into the sanctum sanctorum, the judge's private office, where he sat in all his leonine glory. Consistent with his reputation, this judge wore his robes even in chambers, and I was pretty sure he had his suit-coat on underneath.

"Mr. Dyer," said this judge, "the clerk of my court has brought to my attention the fact that you've apparently neglected to return to him the signed and notarized oath form confirming your willingness to submit to the rules and requirements of the Bar of the Southern District of Texas. That being true, even though you've submitted the application and paid the fee and been approved by the Court and taken the verbal oath and gone through the installation ceremony, you're not, technically, authorized to appear before me here today on behalf of your client."

Oh ... my ... sweet ... Lord, I'm thinking during the space of the next three heartbeats, having left my poor client without counsel, I'm about to be thrown out of the courthouse into the street, whence word will rapidly spread to my law firm, whose partners will have someone new to sit in my office by noon tomorrow, undoubtedly someone who's not such a complete fool as I've been —

"You'll tend to that before today is done, won't you?" asked the judge. I gulped and nodded, too stricken to speak aloud.

And I suddenly I had this epiphany, this rush of realization: This sixty-something-year-old man, cloaked in the robes of a United States District Judge, almost glowing in all of the authority and power inherent in and implied by that title, a man who probably wore a necktie to dinner, a man whose grandchildren probably believed he sat at the right hand of God with lightning bolts clutched casually in his own right hand — this judge could still remember what it was like to have been a twenty-three year old lawyer who'd made a stupid personal blunder of no substantive consequence, but one that could be very, very embarrassing if not pardoned by an act of undeserved judicial grace.

He pressed the buzzer on his desk: "Send in the others," he commanded. In trooped a half-dozen other lawyers, each of whom was wondering what the hell the judge had wanted to talk to me about privately before he brought them all in. I could see the question in their eyes, their arched eyebrows, their puzzled glances as they arrayed themselves in the chairs around the judge's massive desk.

Oh, nothing important, I answered them in my head, He was just being a really decent, kind human being, cutting me a little slack that couldn't conceivably hurt you and your clients. Just about every stroke of his pen quite literally determined the fates of people and companies, the rich and the poor, the humble and the mighty — but he'd taken a moment out of his day to enforce the rules to which he was devoted in a kindly, compassionate, and private fashion for the benefit of a young lawyer entirely unknown to him except as an anonymous, fledgling brother at the bar.

I could have kissed him. But that would indeed have resulted in me being thrown in jail.

*******

Third war story:

One of the worst judges I've ever appeared before was one of the nicest people I've ever met.

It's part of the nature of a judge's job that he or she has to rule against someone in the course of ruling for someone else. More precisely, they're ruling against someone's position, someone's argument, someone's claim or defense. I've never seen a judge point a finger at a litigant or his/her lawyer and say, "Hey, buddy, you're a loser, get outta my court!" (I certainly have seen litigants and lawyers who deserved that, however.) But in any event, like the "honest umpire" of which Chief Justice John Roberts spoke during his confirmation hearings, judges are obliged by their job descriptions to call balls and strikes and, sometimes, call someone out and someone else safe at the plate.

But it's entirely possible to be a smart, hard-working, dedicated professional, and a compassionate, wise human being — and yet to lack, or find it hard to summon, the ability to tell people: "Tough luck, I've decided that you lose."

So it was that in the late fall of 1987, I was a Baker Botts senior associate sitting second-chair in a state-court securities fraud jury trial that had already run for six full weeks. The first-chair partner — a superb trial lawyer named Joe Cheavens — and I were very well prepared for the trial, and we had been  eager to see it move briskly. Our opposing counsel, by contrast, was very smart and exceedingly clever, but he and his team were not very well prepared when the trial started. With each passing week of trial, however, as our opponent fumbled around putting on his case, our amiable and indecisive judge gave him the time to figure out what his case ought to be, so that his lack of preparation was becoming less and less of a liability. And although she was certainly trying to be fair, the judge had already reversed herself on several key rulings, and then had reversed herself at least once and sometimes twice again on some of them. Our team was beginning to show serious bruises around the head and shoulders, and the trend was decidedly unfavorable.

Our corporate client's intentions and motivations in complicated past transactions were under scrutiny, so among the key witnesses at trial were the deal lawyers who had advised our client in those transactions. One such witness, fearing (with good reason) the possibility that his and his firm's actions might become the subject of later malpractice claims, brought along one of his partners — a "Litigator," a young woman probably five or so years senior to me — to sit in the audience to keep watch. And Joe Cheavens was indeed doing his considerable and very best to show that Mr. Deal-Lawyer had been conflicted, incompetent, or worse in his work for his former (and our current) client.

During a break in Mr. Deal-Lawyer's testimony, I looked out one of the tiny rectangular windows in the doors leading from the courtroom to the outer hallway, where I spied the "Litigator" sitting on a hallway bench. I noticed that she was engaged in earnest conversation — with two of our jurors.

Quick! Find the bailiff! Quick! Have the bailiff find the judge! Quick! Ask the judge to direct the bailiff to snag the "Litigator" away from those jurors and into the judge's chambers. Grab the court reporter, then grab opposing counsel, for a frantic huddle. "What on earth were you talking about with those jurors just now?" demanded the judge.

"Well," said the "Litigator," "the jurors all knew from the introductions Your Honor made that I was a litigation partner at Mr. [Deal-Lawyer]'s firm. And so one juror was just listening, but this other juror approached me with a legal problem he had. See, he's an officer in his Knights of Columbus chapter, and they'd contracted for a dance band to play at one of their functions, but then the band didn't show up. So he was asking me about the various elements of breach of contract, and fraud in the inducement, and measures of damages —"

"You're aware that those are all legal principles," interrupted the judge, "on which I'll be charging this jury in this case?"

"I ... I suppose so, but —"

"And in the midst of Mr. Cheavens' cross-examination intended to destroy the credibility of your partner Mr. Deal-Lawyer, you've seen fit to offer legal advice to two of our jurors on those very issues?" asked the judge.

"Well, then, I ... I guess I really shouldn't have done that." She sniffed. "And I guess that I really shouldn't have told that juror that because I'm a good Catholic like him, my firm and I would take on his Knights of Columbus chapter's case against the dance band as a pro bono matter, should I?" finished the "Litigator" (lamely).

Duh.

The mistrial motion, and the ruling granting it, were foregone conclusions. Of all the trial judges I've seen in my career, this judge had the worst judicial temperament — which is to say, the greatest reluctance to rule, and to declare one side or the other a winner and the other a loser — of any judge that I'd seen before or that I've seen since. But pushed by these extraordinary circumstances into making a definitive ruling, this good-hearted, intelligent, well-meaning, and unfortunately un-judicial woman nevertheless gathered her resolve and did that which her duty required.

She didn't grant the mistrial because she was afraid of being reversed by the appellate courts if she didn't. (Although she would have been.) She granted the motion because it was the right thing to do, even if it was an extremely difficult ruling to make. The weight of her robes — the weight of authority implied by those robes, the accumulated force of the system revering the rule of law of which she was an intrinsic part — compelled her to reach that result. "You've got to start over," she told the plaintiff's counsel — much against her personal preference, which was to avoid controversy and to avoid resolving controversies.

"But — but — but —" sputtered our opponent, who certainly knew how the trial had been trending, "it wasn't my fault!"

"That's true," said Her Honor.

"And that will mean six weeks of work, all that time, all those legal fees and expenses on both sides — all wasted!"

"That's true too," said Her Honor, "And I hate to say it, but: That's tough."

*******

What an incredible tightrope we ask our trial judges to walk! "Be firm," we insist, "but be unfailingly polite. And," we add, "give everyone a full, fair chance to be heard. But don't waste time." Uh-huh. "Show super-human dispassion," we insist, "but don't lose your humanity. Got all that?"

Thousands of men and women — folks who regularly step into their boxers or their knickers one leg at a time, who had to throw away a burnt piece of toast this morning because the toaster malfunctioned, whose kids broke their next-door-neighbors' window yesterday, and whose necks are developing skin rashes from those damned cotton-polyester robes — answered that call today. They will again tomorrow. And they will again the day after.

Oh, sure: Any ol' lawyer could do that.

But most of us — don't.

Is that a Glock under your robe, Judge, or are you just glad to see me?

On May 29, 1979, as I was concluding my second year of law school, I had the good fortune to be an invitee in the chambers of one of the "Unlikely Heroes" and most legendary judges of the U.S. Court of Appeals for the Fifth Circuit, Irving L. Goldberg. I'd submitted an application to be among his law clerks for 1980-1981, and he'd graciously invited me to come in for an interview. As we were getting acquainted, he received a phone call — something urgent, I knew, because he'd told his receptionist to hold his calls while we were meeting — and I quickly gathered from hearing one side of his phone conversation that something exceptional, and exceptionally bad, had just happened. In short succession he got a half-dozen more calls, each very brief, and by the time he'd finished I had figured out what had happened.

I'd just observed the Fifth Circuit grapevine in action, and what had set it abuzz was that for the first time during the Twentieth Century, a federal judge had been assassinated outside his home — specifically U.S. District Judge John H. Wood, Jr. Judge Wood sat in San Antonio, part of the Western District of Texas, and appeals from his court went to the Fifth Circuit. The obvious concern sweeping the chambers of the judges of the Fifth Circuit was that the likely assassin had been provoked by one of Judge Wood's rulings or sentencings, most likely from a criminal case — and the odds seemed pretty high that a three-judge panel of the Fifth Circuit had also passed upon that litigant's appeal as well, perhaps making them targets too.

This was in an era when there were not so much as metal detectors at the entrance of most federal courthouses, including the one in Dallas — maybe not even a security guard visible (beyond the U.S. Marshals who came and went escorting prisoners). As I exited, though, I saw that the security status of the building had suddenly changed — Marshals with side-arms and in some cases shotguns were roaming the lobby, the stairwells, and such. They were, if anything, trying to be very conspicuous with their presence, and they were succeeding.

As things happened, my application with Judge Goldberg was still pending when I got an invitation to clerk for Fifth Circuit Judge Carolyn King in Houston, which I accepted immediately. (One doesn't apply to clerk for a judge whose offer one is unwilling to accept immediately.) Once during the year of my clerkship in 1980-1981, one of my co-clerks accidentally stepped on a floor switch tucked away beneath a table in our chambers library, and within about 90 seconds two Marshals with drawn weapons were there with us in the room. We were embarrassed, impressed, and comforted. But even then, security in the building was remarkably light — still no metal detector, and the small parking lot behind the building where the judges had reserved spots was unfenced, without a security camera. The judges had a private keyed elevator at the back entrance from that lot that their law clerks were also allowed to use, but that was as much for privacy as security, I think. Chambers doors were generally unlocked — no door-unlocking buzzers and intercoms — and clearly marked to show their occupants.

*******

Obviously things have changed since then — in society generally, but certainly in courthouses, both state and federal. And every judge I've ever met, at any level, has been quick to praise and express appreciation for their bailiffs and other courthouse security personnel.

But the bailiff may not be the only person in the courtroom who's packing heat. The National Law Journal has an article discussing judges who themselves carry guns (hat tip: InstaPundit):

Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.

In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.

"Judges in our courthouse have been carrying guns almost all the time," said Cynthia Stevens Kent, a Texas judge in the 114th District Court, where a man in a family law case killed his ex-wife and son last year on the steps of a Tyler courthouse.

"We feel strongly about providing adequate security, but it comes down to personal responsibility. And you've got to take responsibility for your own safety," [Judge] Kent said.

I was unsurprised to read that Texas may be out front of many of its sister-states on the issue of judges bearing arms:

In Texas, which permits state judges to carry concealed handguns into courtrooms, a new law became effective that expands that right to include federal judges and district attorneys. The law followed the Tyler shooting.

"We believe each judge should be able to make sure he has a system of self-defense," said [Judge] Kent, who wears a shoulder harness and carries a gun at all times. "One of our biggest areas of target is when we're in the court making decisions."

Judge Kent also testified before Congress in 2005 on the subject of security in the judicial system, during which she pointed out that the threats aren't always just to the individual participants in that system:

As any person in America, it is my personal responsibility to use common sense in protecting myself against acts of violence. As a Texan, I take full advantage of my Constitutionally protected right to self defense. However, these threats are not just a personal threat against me and my family, these are acts of domestic terrorism and are meant to disrupt our judicial system and our civilization.

And in a comment that probably related to the controversy then on-going about U.S. Senator (and former trial and appellate judge and state attorney-general) John Cornyn supposedly "stirring up hatred against judges," Judge Kent stressed that this isn't, or shouldn't be, a partisan issue:

When judges are subject to threats, intimidation, and assault, our entire system of justice is under attack. Although free dialogue and public debate regarding judges is certainly important and constitutionally protected, responsible legislators and politicians should understand that when someone paints with a broad brush the simple country judges of America can be smeared with the partisan paint of the day. Inciting the public to distrust, disrespect, or threaten the members of the judicial system only invites anarchy. There are good and bad judges just as there are good and bad plumbers. However, keeping our judges secure and independent helps prevent justice from failing the designs of our founding fathers and the needs of 2005 America.

And on March 9, 2005, before her Congressional testimony, Judge Kent had a brief moment of scary fame on CNN:

COOPER: We take you back to Tyler, Texas now, where, on the 24th of February, the town square was turned into a war zone. A heavily armed man heads to the courthouse, where armed guards engage him in a fierce gun battle.

Sean Callebs takes us behind the headlines again, shows us what happened inside the courthouse as the battle began.

(BEGIN VIDEOTAPE)

CALLEBS (voice-over): This is Smith County Courthouse surveillance tape, deputies rushing to confront a gunman who has already killed. While the shootout played out in the town square, chaos on the second floor. A capital murder trial interrupted by the unmistakable pop of weapons firing.

UNIDENTIFIED MALE: Get down. Stay down.

CALLEBS: Deputies, guns drawn, prepare for the worst. In the back of the courtroom, Judge Cynthia Stevens Kent is ushered to safety. For the first time in recent years, the judge realizes she has left something important in her car.

JUDGE CYNTHIA STEVENS KENT: I carry a Smith and Wesson .38 revolver. A lot of the judges do carry personal protection. Of course, this is Texas, OK? And in Texas, I'm a Second Amendment gal. I like the revolver.

*******

I've been fortunate in my law practice in that with rare exceptions, the civil litigants with whom I've dealt have mostly been, well, civil, or at least non-violent. (Among the exceptions was the CEO of a publicly traded company who tried to take a swing at me in a videotaped oral deposition. His lawyer, a very petite woman who now is on the federal bench, literally grabbed him by the ankles and hauled him back across the conference table, plopped him back into his executive armchair, and rolled him out into the hallway.) Like many Texans, especially those raised in a rural or semi-rural setting, I've got some deer and quail hunting in my background, and some time at the firing ranges. I'm comfortable with guns, but I've never felt the professional need to carry one, notwithstanding this amusing conclusion to the NLJ article (emphasis mine):

On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.

"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."

I have been compared to a "hired gun" before, but I think that was meant metaphorically.

While it's far from unknown, however, for disappointed litigants in both civil and criminal cases to blame the prosecutors and/or their own lawyers, us "hired guns" aren't typically the final decision-makers, and just by the nature of their job responsibilities, judges in general are at a higher risk. I don't very often have occasion to think about it, but when I do, my working assumption is that any judge I appear before might be packing. I certainly could picture the late Judge Goldberg, liberal but often libertarian and nobody's wimp, with an ankle holster. I probably couldn't have imagined my own judge carrying twenty-five years ago, but now? Maybe.

And I've appeared from time to time before state-court judges who not only were armed, but were not at all shy about ensuring that the lawyers who practiced before them knew about it. What good, after all, is a secret deterrent? The casual display of the weapon was typically done in chambers rather than in open court, and contrary to Blue-State assumptions about Texans, only very rarely included any fast-draw practice or shooting of tin cans off a fence.

But I'm always vaguely aware of — and every time I think of it, more than vaguely grateful for — the security personnel I deal with at the courthouse. I sometimes get funny looks, but always returned appreciation, when I say to the security guards as I'm going through the metal detectors, "Thank you for helping keep us safe." (Joke about them privately if you must, but the fact is that they do help.) And while I've appeared before some judges whose reversal rates in the appellate courts may suggest they're more prone than others to err, I've never been worried about one of them going postal.

New judges in both the state and federal courts typically get training now on "how to be a judge" — focusing on the administrative tasks, mostly, since they're presumed (rightly or wrongly) to already know quite a bit about courtroom practice and substantive law. But it wouldn't surprise me too much to see some ambitious Texas legislator introduce a bill to include target-range experience among that training, along with some tips on how, for instance, to keep the new bailiff on duty from mistaking the pistol-packing judge, perhaps not yet robed because she's merely en route to her chambers, from an ordinary litigant, witness, or lawyer. Risks are inherent in firearms, there's just no denying that. But risks are also inherent in courtrooms, and risks associated with firearms can be substantially minimized through training and forethought.

And if we can't presume that the person in the black robes is one of the "good guys" in addition to being one of the likely targets, then why are we letting them decide our fates in court?

A long war story about a Beldar cross-examination, and a technical bleg about "meta-data"

This is a technical "bleg" (meaning a beg for help from blog readers) about "meta-data," a/k/a "embedded data," in digital files. I'm hoping that a few of my readers might be able to answer my technical questions, but others might still find the technical question interesting — especially the lawyers among you — in which case you may well want to skip to the very end of this very, very long post.

But as a roundabout way to explain why the subject of this bleg could be important, I've included a trial lawyer war story, which in turn includes long quotes from one of my cross-examinations in a recent tradename injunction case. It mostly falls into the category of Beldar self-congratulations (ow! my arm's broken from patting myself on the back!). Arguably it also falls into the category of "educational examples of how to impeach a witness effectively from a prior affidavit on cross-examination" — affidavits and their uses and abuses seeming to be a subject of obsession for my legal blogging, I guess.

******

Back in October 2004, when the conservative blogosphere was very busy shredding the claims by CBS News, its "60 Minutes" program, and its then-Grand Poobah Dan Ra^ther about the authenticity of the "Killian Memos," a/k/a the "Texas Air National Guard" documents forgeries, I was much impressed with how some of my readers and commenters began to delve into the "meta-data" (also sometimes called "embedded data," and yes there's a slight distinction but I'm not sure I can explain it) associated with the various .pdf files containing scans of the documents forgeries.

In addition to the .pdf scans of the so-called Killian Memos that were available for download on the CBS News website, there were other .pdf files containing scans that were purportedly made from the same original documents on various other news organizations' websites (e.g., USA Today's site), some of which those news organizations claimed to have obtained independently of CBS News' (so-called) investigatory efforts. At one point, based on a date that was embedded in one such .pdf file, it looked like Fox News' version of the scan had been created many months before CBS News claimed to have been approached — which seemed like a big, big deal at first. But then my commenters seemed to reach a consensus that the most likely explanation was that the scan had been done on a non-networked computer or scanner whose system clock was several months out of date, possibly due to a bad battery — a terrific example of the blogosphere's distributed information processing coming up with a non-conspiratorial explanation (even though it didn't fit what most of us expected, and probably wanted, to find by that point). And it marked the first time that I became aware of the possibilities that embedded data might have in an adversarial search for the truth (a/k/a "what I do for a living").

******

Fast-forward to the much more recent past — this October. What I'm about to describe are all matters of public record in a tradename lawsuit that has just ended through an agreed settlement. There's no confidentiality agreement as part of the settlement, but simply for taste reasons, I'm going to conceal the actual identities of the parties, witnesses, lawyers, and products behind pseudonyms.

The defendant in the lawsuit — that is, the alleged trademark infringer — I'll call "Doe Corp." The plaintiff, whom I'll call "Doe Inc.," asserted that it had a superior right to use the tradename "Doe." Both companies were based in Europe, where they'd done business side by side for centuries. Both of them manufacture what I'll call "widgets." And both were in fact founded and are still owned by families named "Doe." But Doe Inc. claimed that it had started using the "Doe" name in connection with its widgets in the U.S. and the Western Hemisphere several years ago, and that it had spent lots of time and money promoting the "Doe" name here — whereas Doe Corp. was, according to Doe Inc., a new-comer to the widget market in the US and the Western Hemisphere. Doe Inc. also claimed that Houston is the widget capital of the Western world, and that Doe Corp. was causing customers here to become confused between Doe Inc. widgets and Doe Corp. widgets, in turn causing Doe Inc. to lose sales.

So Doe Inc. had gotten an emergency "temporary restraining order" in state district court in Houston that prohibited Doe Corp. from using the name "Doe" in this half of the world. Doe Inc.'s lawyers did so "ex parte" — meaning without anyone from Doe Corp. being present — based on Doe Inc.'s assertion that this was such a big emergency that there just wasn't time to give Doe Corp., all the way over in Europe, any notice of the hearing on Doe Inc.'s TRO application.

That very directly affected the business of my client, whom I'll call Acme. Acme is a Houston-based company that buys and then re-sells widgets from many companies, among them both Doe Inc. and Doe Corp. Because of the TRO, Doe Corp. suddenly couldn't sell Acme any more widgets — and the world-wide widget market is smoking hot right now, and Acme needs lots and lots of widgets as fast as it can get them! Indeed, Doe Inc. was even making noises about trying to use the TRO it had gotten against Doe Corp. to stop Acme from "acting in concert with Doe Corp." In other words, Doe Inc. was suggesting that Acme was deliberately helping Doe Corp. infringe on Doe Inc.'s tradename, even if just by re-selling the Doe Corp. widgets that Acme already had in its inventory. So even though Doe Inc. hadn't yet directly sued Acme, Acme instructed me to jump into the middle of this lawsuit (i.e., to "intervene") to protect Acme's own interests.

Thus it came to pass that in mid-October, we had a two-day evidentiary hearing on Doe Inc.'s application to convert its TRO into a longer-lasting pretrial injunction — called a "temporary injunction" in Texas state-court practice, but very analogous to a "preliminary injunction" in federal-court practice. This temporary injunction hearing was going to be a very big deal — potentially freezing millions of dollars of widget commerce for many months, perhaps even more than a year, until there could be a full jury trial on the merits after everyone had conducted pretrial discovery. And it was going to be conducted blind — in other words, without either side having obtained the others' documents or taken the other side's witnesses' depositions. This was going to all be "shoot from the hip" trial lawyering — by far the most dangerous, and by far the most fun (if terrifying) for the lawyers!

The final thing you need to know to understand this war story has to do with the rules governing injunctions — TROs, temporary injunctions, or permanent injunctions. A defendant can defeat an injunction by showing that the plaintiff was not diligent in trying to protect his rights — in other words, that the plaintiff knowingly let his rights be trampled for a long time without saying a peep. That's especially important in a trademark/tradename contest. So precisely when Doe Inc. first learned of the alleged tradename infringement by Doe Corp. in the U.S. was potentially very important — and could possibly even decide the outcome. "Why should I freeze everything for the next few months," judges are prone to ask, "when your client has known about this controversy, but sat on its butt without filing suit for several months, counsel?" There rarely is a good answer to this question.

******

At the evidentiary hearing, we heard from a witness whom I'll call "Mr. Smith." Mr. Smith works for Doe Inc., and his company's lead lawyer, whom I'll call "Mr. Black," called Mr. Smith to testify about supposed confusion in the marketplace between the two companies. But in the course of Mr. Black's direct examination of Mr. Smith, Mr. Smith volunteered that he'd gotten his first strong hint of Doe Corp.'s allegedly infringing use of the Doe tradename in the U.S. way back in February, and that he'd gotten firm confirmation of it in April. These were surprising admissions — harmful to Doe Inc., and very helpful for Doe Corp. and Acme. And when Mr. Black was done with his direct examination, Doe Corp.'s lawyer, whom I'll call Mr. White, very crisply and effectively re-confirmed and highlighted these admissions as part of his cross-examination of Mr. Smith.

But then came my turn. And because I recalled something that it seemed that the other lawyers in the courtroom either didn't know or had forgotten, I found myself with a textbook opportunity to conduct a very, very fun cross-examination. Here's the transcript, unedited (except for the substitution of pseudonyms and a few bracketed explanations):

THE COURT: Mr. Dyer?

CROSS‑EXAMINATION BY MR. DYER:

Q. Mr. Smith, besides testifying here today in Court, you've previously given a written affidavit in this case; is that correct?

A. Yes, sir.

Q. You signed it before a notary public on September 22nd, 2006?

A. Yes, sir.

Q. Do you know that it was attached to the papers that your company's lawyers filed with the Court to ask for a temporary restraining order?

A. I don't know that personally. I know I signed the affidavit.

Q. Did you read it before you signed it?

A. Yes, sir.

Q. Did you read it carefully?

A. I did read it.

Q. I'm sorry?

A. I did read it carefully.

Q. Carefully? Did you understand it was testimony that you were giving in written form, just as if you were sitting here in court, as you are today?

A. Yes, sir, I did.

Q. You certainly wanted that testimony to be accurate?

A. Yes, sir.

Q. You certainly wanted that testimony to be complete?

A. Yes, sir.

Q. You certainly didn't want to mislead this Court?

A. No, sir.

Q. Mr. Smith —

MR. DYER: May I approach?

THE COURT: You may approach.

Q. (BY MR. DYER) Let me show you what I marked as Acme TI 2, for Acme Temporary Injunction Exhibit No. 2. Do you recognize that to be a copy of your affidavit?

A. Yes, sir.

Q. Do you recognize your signature on the second page?

A. Yes, sir.

MR. DYER: May I look over the witness' shoulder with him? We only have this one copy, I know, because it was attached to the court papers. The other counsel have it. It's not necessarily right here in hand.

MR. BROWN [the second-chair lawyer for Doe Inc.]: Here's an extra copy, if you want one.

(Tendered)

MR. DYER: Thank you.

MR. DYER: May I hand this up for the Court?

(Tendered)

THE COURT: Thank you.

Q. (BY MR. DYER) If we read together in your affidavit, it says, paragraph two, that you're employed as a quality coordinator at Doe Inc. Correct?

A. Yes, sir.

Q. Then the rest of paragraph two describes the September 20th encounter with Mr. Jones from Acme?

A. Yes.

Q. Speak up so the court reporter can hear you.

A. Yes, sir.

Q. Then the last sentence of that paragraph reads, quote, "Prior to August of this year I was unaware that there was another company named 'Doe' that sold widgets."

Do you see that, sir?

A. Yes.

Q. That's false, isn't it?

A. I believe it would be April, is when I —

Q. The statement is false as written, isn't it?

The transcript doesn't show it, but everyone who was there in the courtroom will remember that at this point, there was a long, painful silence. I'd estimate the silence to have been at least 30 seconds, but it probably seemed much longer to Mr. Smith. And I could practically hear the gears turning in Mr. Black's head as he tried to think of some objection that might get his witness off the hook I'd carefully baited, set, and then yanked.

A. Yes, sir.

Q. Misleading as written, isn't it?

MR. BLACK: Objection. It's an insignificant, technical error. Not misleading.

MR. DYER: That's a fine argument.

THE COURT: Excuse me. Do you have a legal objection?

MR. BLACK: Badgering the witness. I gave a copy so he wouldn't hover over his shoulder.

THE COURT: All right. Let's — I'll sustain the objection. Well, I'm sorry, the first question was false?

MR. DYER: Yes.

THE COURT: Reverse myself. Overruled.

Q. (BY MR. DYER) That statement that the first time you knew there was another company named 'Doe' that sold widgets was in August of this year, 2006, that was also misleading, wasn't it?

MR. BLACK: Objection. At the time —

A. No —

Q. (BY MR. DYER) Do you think it was misleading?

A. Sir, I was only told by another employee there that it was Doe [something else], not Doe Corp.

Q. Well, any other company named 'Doe.' You denied in the affidavit that you knew there was any other widget company that used the name 'Doe,' you denied having known that before August of this year, and that was just wrong when you put that in the affidavit. Do you agree, sir?

A. Yeah, that was a mistake.

Q. As you testified here today, you knew at least as far back as April of this year?

A. Yes.

Q. You could have known, as Mr. White's questions established, as far back as February of this year, had you taken the trouble to look?

MR. BLACK: Objection. Mischaracterizes the prior questioning and prior answers.

THE COURT: Overruled.

Q. (BY MR. DYER) Could have known in February, if you looked?

A. I guess my only question is how come the Acme employees didn't look?

Q. I understand that that's an argument your lawyer may make later on. But my question to you is, could you have looked in February and found out as early as that, if you had taken the trouble?

A. Yes, sir.

This whole series was about as close to a real-life "Perry Mason moment" as any trial lawyer is likely to get. But there was more, near the end of that same cross-examination.

Q. [BY MR. DYER] While we're talking about reasons you didn't do things, is there a reason you didn't tell the Court in your affidavit when you said — the same affidavit now, which said you first learned about another 'Doe' company in August — is there a reason you didn't tell the Court in that affidavit about the April and February contacts with Bernard? [Bernard was the Acme employee whom Mr. Smith identified as having told him about Doe Corp. selling widgets in the U.S. in February and April.]

A. Can you repeat that one more time?

Q. Sure. Is there a reason you left out of your affidavit the February and April contacts with Bernard?

A. Is there a reason I left it out?  No, sir, there's no reason.

Q. In fact, somebody else wrote that affidavit for you to sign, didn't they?

A. No, sir.

Q. Did you type it up?

A. I did not type it up.

Q. Who typed it up?

A. I believe our attorney typed it up.

Q. And I don't want to get into conversations between you and your attorney.  But, is it fair to say that you weren't the one who made the decision to leave out the discussion of the February and April contacts?

MR. BLACK: Objection. There's no way to answer that question without getting into attorney/client communications.

MR. DYER: If that's the case, then we may need to talk about the crime fraud exception, have some testing [of] privilege.  I'm trying to avoid that.

MR. BLACK: Hold on a second.

THE COURT: Come on up, counsel.

(Discussion at the Bench)

MR. BLACK: May I?

THE COURT: Well, no. Why don't you examine what this witness knows about the transaction, short of what he was told by his lawyer.

If you want to cover the circumstances under which this affidavit was prepared, I think that would be appropriate.  But at some point we're getting into attorney/client privilege issues.  I don't want to pre-judge the crime fraud issue, but —

MR. DYER: Somebody made a decision not to tell this Court —

THE COURT: That you haven't asked. Your question assumed that. Did not ask that.

MR. BLACK: But I'm giving you this hypothetical. Hypothetical that —

THE COURT: I'd rather not do that in front of the witness.

MR. WHITE: Can we take testimony? Did you make the decision?

(End Bench conference)

Q. (BY MR. DYER) Did you make the decision to leave that out of the affidavit, Mr. Smith?

A. No, sir.

Q. Did you make the decision what to put in the affidavit?

A. I just told things as I knew them.

Q. I don't want to get into the substance of what you told the lawyers or didn't tell the lawyers. Is it fair to say you had a communication with them verbally, and then they handed you an affidavit and you signed it after reading it?

A. Yes, sir.

Q. After missing the [sarcastic tone and "air quotes" with fingers] mistake?

A. Yes, sir.

******

Based on Mr. Smith's live testimony about the dates in response to Mr. Black's questions, Mr. White's cross-examination had already highlighted the fact that Doe Inc. couldn't prove one essential part of its case — in other words, couldn't prove it had acted promptly to protect its supposed rights to the "Doe" name. But Mr. White's cross-examination hadn't quite shown that anyone was a scoundrel — only that they'd been rather slow to react.

My cross-examination took it a step further, however, impeaching Mr. Smith's personal credibility by pointing out the vast inconsistency between his live sworn testimony from the witness stand and his written sworn testimony from the affidavit. But even more important, my cross-examination showed that Mr. Smith's employer, Doe Inc., almost certainly had misled the court about this subject when Doe Inc. got the ex parte TRO. Judges don't like being misled on important things. Perhaps that misleading wasn't deliberate — Mr. Black continues to insist that this was all just an innocent misstatement, a memory lapse. But it was nevertheless on a subject so important that a "mistake" of this magnitude was not likely to be excused by the court even if innocent.

The evidentiary hearing ended a few hours later. My cross-exam of this witness was far from the only reason — Mr. White and his colleague did a terrific job on other important topics too — but suffice it to say that Doe Corp. and Acme won the hearing: The court denied Doe Inc.'s request to convert the TRO into a temporary injunction that would have remained in effect for several months until a full trial. Doe Corp. was free to go on selling its widgets throughout the Americas, and Acme was free to continue to buy and re-sell them.

And within a matter of a few weeks after the hearing, the whole case settled with a whimper, not a bang.

******

That's a very long war story to lead up to my technical bleg, but it gives some context for how the subject of my bleg can become important to lawyers.

Since I had established that this witness and his employer had submitted an at-least-badly-mistaken and possibly deceptive sworn affidavit to get the TRO, Mr. White and I were very keen to dig further into the subject of that affidavit as part of our preparations for a full trial on the merits, and the judge had indicated that we'd get a chance to test just how innocent the "mistake" about the dates actually was. We wanted to know who had prepared the affidavit, who had revised it, how many drafts it went through, what changes were made during the drafting stages — and as to each of these issues, when. As the first step, Mr. White had sent a document production request that sought "the production (in electronic form) of the affidavit of John Smith .... Pursuant to Tex. R. Civ. P. 196.4, Doe Corp. requests that the document be produced in electronic form, in native format with all associated metadata." But the case settled before we got Doe Inc.'s response (which would inevitably have been the next step in a complicated battle over attorney-client privilege).

I recently took a very good online continuing legal education course about meta-data and embedded data, prepared by Mercer University School of Law Professor David Hricik. (The pseudonymous Mr. White has also taught CLE courses on this subject, and already knows much more about it than I do.) As with the meta-data embedded within .pdf files that was discussed at the beginning of this post, Prof. Hricik's course taught me how to find some of the cool info that can be embedded within, and hence extracted from, Microsoft Word .doc files. The type and extent of the available data changes depending on what settings one's Word program has as its defaults, and/or how the settings have been re-configured for any given document. But in my own experimentation, I've found that a great deal of that embedded data seems to be altered by any re-saving of the .doc file once it's been opened to look for that data. Plus, other types of embedded data, including when the file was created, appear to be re-set any time the file is even copied (for example, even onto a CD).

Hence, finally, my technical bleg: I can send rude instructions — a detailed warning that opening and then re-saving the Microsoft Word .doc file, for example — will be argued by me to be an intentional spoliation of evidence by my opponent, potentially subject to severe punishment by the court. But short of going over to Mr. Black's office and demanding to be allowed to log onto one of his networked workstations, given a password, and shown how to access the .doc file myself from where it's stored on his firm's servers — presumably with a videographer looking over my shoulder to document what I'm finding! — is there any good and fairly easy way to ensure that a digital file that's supposedly in "native format with all associated metadata" (but that almost necessarily will have been copied from an "original" file) won't have suffered some of these alterations?

Miers' practice experience as measured by volume of trials

The Washington Post, and probably a great many other news outlets as well, in reporting on Harriet Miers' answers to a Senate Judiciary Committee questionaire, had this to say about her litigation practice experience:

With a corporate practice that rarely involved trial work, Miers, 60, said that she had identified eight cases that went through complete trials, of which she was the lead counsel for four.

Of this, my new blogospheric best friend (for reasons shortly to become obvious) John Podheretz writes today on NRO's The Corner something I'm sure he believes sincerely, but about which he's woefully misinformed (emphasis mine):

I've now received about a billion e-mails from lawyers explaining that there's nothing wrong with the fact that Harriet Miers only participated in 16 courtroom cases in a career spanning more than 25 years — that 90 percent of all legal matters are settled, that's what lawyers are supposed to do, and so on. That's all nice, but it's beside the point. Miers's defenders, the brilliant Beldar among them, have praised her choice because her career as a working lawyer will supposedly provide her with unique and valuable experience when it comes to the Court. The clear implication of this line of argument is that she knows the law from the other side of the judge's desk. Sorry, but that won't wash. It's one thing to argue that courtroom experience as a lawyer prepares you for the back-and-forthing on the Court. It's quite another to argue that a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts. If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever.

Note well: I have certainly taken more different contributors to NR/NRO, including ones with editorial positions, to task over the Miers nomination in my blogging than I ever have over any previous issue, and certainly more of them than at any other institution or publication. My arguments have sometimes been straightforward, but they've also sometimes been laced with snark; and snark always carries a greater chance of giving offense, either intended or un-. Throughout my blogging on the Miers nomination, however, I've maintained a running side-channel of email correspondence with most of those same NROniks, who have — invariably and without exception — been exceedingly gracious, thoughtful, mature, and civil, and often quite funny as well. I've had occasion to apologize privately to one of them for a fairly offensive suggestion that I'd made via email and that he/she persuaded me was unfounded; fortunately that exchange took place before my unfounded suggestion hit the 'net. I've said throughout — and I repeat here to all my readers, including those commenters who've voiced frustration or annoyance at prominent critics of the Miers nomination — that we all have far more in common than separates us, for we wouldn't be having this spat but for the fact that we all deeply, sincerely understand the stakes of each SCOTUS nomination. There are indeed better angels of all of our natures, and especially now, while arguing and disagreeing among one another on matters of great weight and principle, we ought to be solicitous of each others' better angels. JPod's going out of his way in the blurb quoted above to bestow an effusive and not-quite-deserved compliment on me is not him sucking up to me (for he knows I'll continue to state my disagreements with him when and as we have them), but rather a gesture of acknowledgment intended for my better angel, and I appreciate it as such.

I continue to believe, in fact, that very few of the Miers critics are motivated by spite or any other type of ill will. Rather, they've either (a) formed their views based on faulty information, or (b) been insufficiently imaginative to escape their mental ruts as to what sort of nominee may be fit. JPod's comment about Ms. Miers' trial experience is an example of the former, and it's a particularly pithy and well-articulated mistake that I've been predicting in my emails for several days now. Here (slightly edited) is a quote from an email I'd sent to John Fund — whose reporting on October 12th in his WSJ OpinionJournal "Political Diary" column (subscription only, but heavily (within "fair use") excerpted here, for instance) correctly foreshadowed Ms. Miers' questionnaire response (and who deserves due scoop credit for that):

Re number of trials: It would not surprise me if, in fact, she hasn't tried very many jury trials to a verdict, given the nature and stakes of her practice. But Merrill Hartman, who's one of the very best state district judges in Dallas, has been quoted saying that he's had her in his court and she has an effective manner with a jury. I've also been before Merrill Hartman, and he doesn't strike me as an easy grader. A few other things you probably know, but would be remiss not to point out to the public who doesn't: The overwhelming majority of all civil cases settle, rather than going to trial. The system would collapse otherwise. I don't know what the latest stats are state-wide, but I'm sure it's well over 90%, and probably more like 97% would be my guesstimate. Moreover, everything else being equal, commercial disputes of the sort she's mostly handled (as opposed to, say, personal injury cases) tend to settle even more often, precisely because parties who can afford good counsel are typically themselves fairly sophisticated and can make reasonably precise judgments about what the reasonable settlement value of a case is. And in general, the higher the stakes, the greater pressure the parties feel to settle rather than put everything on the line — which means that the percentage of cases being tried to a verdict is usually lowest of all for the lawyers with the most sophisticated practices.

And to present a fair picture, you have to look at more than just cases tried to a jury verdict. You have to also look at non-jury (a/k/a bench) trials. You have to look at cases won or lost on dispositive motions (a motion for summary judgment or, in the federal system, a motion to dismiss that ends the case without ANY trial being held). You have to look at trial-like proceedings, which would include arbitrations, mediations, mini-trials, and the like. You have to look at cases that settled on the courthouse steps because one side was fully prepared and the other, seeing that, chickened out at the last minute.

Win/loss ratios are also misleading. Experienced courtroom lawyers will tell you that the measure of excellence isn't how many you've won and how many you've lost, but how many you've won that you ought to have lost, and how many you've lost that you ought to have won.

Precisely because it's so hard to get actual trial experience, firms all over the country (not just in Texas, but big firms everywhere) have long been looking for "training dockets" or other means, e.g., through pro bono, to get that trial experience for their lawyers. Some big firms in Texas kept doing the traditional high trial volume work — personal injury cases representing insurance companies — after that work became much less economically attractive (insurance companies stopped being willing to pay elite lawyers' rates). But Ms. Miers' original firm, Locke Purnell, [had the] reputation from at least the mid-1970s (when I was in law school) [of] being pretty committed full-time to big cases, mostly commercial cases. For firms like that, I suspect Ms. Miers' total number of trials and trial-like experiences will be pretty typical, but it's very unlikely to be in the "many dozens" range.

I'm highly confident that Ms. Miers' practice included hundreds of cases for which she was primarily responsible, plus others in which she shared responsibility, in addition to the few that were tried to a conclusion. I'm highly confident that she's taken many depositions, that she's argued many a procedural or substantive motion. I'm sure she's engaged in mediations, and perhaps also arbitrations or other forms of alternative dispute resolution. I strongly suspect she's handled evidentiary hearings short of full-blown trials — for example, for purposes of securing rulings on preliminary injunctions or making fact-findings essential to preliminary procedural matters (e.g., whether a privilege has accidentally been waived or whether a defendant is subject to personal jurisdiction in a particular forum).

In all probability, Ms. Miers has been keeping track of her professional time in increments of one-tenth hour from 1972, when she finished her judicial clerkship, though 2001, when she joined the Administration. I hope and trust that even as I write this and you read it, capable minions are combing through her time diaries and/or her firm's bills to compile a list of such things — numbers and types of cases, hearings, depositions, and so forth. I guarantee you that she could not have secured clients like Microsoft and Disney for her reported cases had she not had those experiences, nor gained the professional respect of her peers, opponents, and judges. And I'm quite certain that if one focuses solely on "eight cases that went through complete trials," one will be badly misled — and perhaps, as a pundit, become badly misleading to others — about the extent and nature of her professional career.

*********

But now it's time for another of Beldar's Extended Anecdotes About the Good-Ol'-Days When He Was But a Pup™:

Although I had many excellent sources of learning and inspiration as a young lawyer at Houston's Baker Botts in the early 1980s, two in particular stand out in my memory, and I consciously adopted them as my role models even then. One was the head of Baker Botts' trial department when I began working there, Richard B. Miller. The other was a younger partner in the firm's antitrust department, the late John L. Jeffers, Jr. At a superficial level, the two men could not have been more different.

Dick Miller's posture and manner practically screamed his background as a Marine, and his Harvard law degree was a bit of a surprise given his hardscrabble Oklahoma youth and lack of an undergraduate degree from anywhere. Dick had tried dozens and dozens of cases to a jury verdict early in his career, but the number of trials naturally tapered off considerably as his cases got bigger. Yet he was always a "trial lawyer's trial lawyer": No one ever, for a millisecond, thought that Dick was ever anything but incredibly eager to take a case to a jury verdict.

Dick taught me almost everything I know about handling expert witnesses. He taught me that in every jury trial, the jurors are desperately searching from the initial moments for the one personality in the courtroom who will dominate the trial — the person who becomes the frame of reference through which the jurors will process all the evidence — and that a successful trial lawyer needs to be that personality. He needs to find a way to make it so that even when he's sitting silent and motionless and the jurors are listening to the judge or another lawyer speak, the jurors are wondering, "I wonder what Mr. Miller's going to have to say about that?" or "That sure doesn't fit with what Mr. Miller proved through that last witness, I'm just not gonna swallow that." (The problem is, even if you understand this theory, the only way you can make it work is if you find and develop your own best gifts as a lawyer, and I could no more have imitated Dick Miller's particular gifts than I could have won an Olympic gold medal in the pole vault.)

I had the privilege of carrying Dick's briefcase as the third chair lawyer in a products liability automotive crashworthiness case in March 1982; lawyers from all over town, even judges, found an excuse to come sit in the courtroom to watch Dick win it. And yes he was tough and fierce and aggressive, but it was anything but raw aggression; Dick Miller was whip-smart, a master of both personalities and the law, a polished diamond of a lawyer. He was, without question in my mind, the single best courtroom tactician that I've ever seen, and by a healthy margin — and I've seen some very, very good ones.

John Jeffers, by contrast, had a physique more like my own, and was the product of a privileged background as the son of a successful litigation partner at Houston's Vinson & Elkins — elite boarding school, Yale College, then back home for UT-Law. In contrast to Dick Miller's career path, John had always mostly worked on big, extended cases. He'd tried, and won, and held onto through appeals, a huge antitrust case against Volkswagen — who'd been represented by his father. He'd spent something like 18 consecutive months in trial in an FTC proceeding successfully defending Tenneco's acquisition of Monroe Shock. Throughout his entire career, I doubt if he had as many as ten trials, and fewer to a jury; and completely aside from trials, I'm sure he'd handled only a small fraction of the total number of separate matters that Dick Miller had.

I had the privilege of working with John on two huge corporate take-over cases in 1981 and 1982, one of them very drawn out (American General's acquisition of NLT Corp.), and the other lightning-fast (Burlington Northern's acquisition of The El Paso Company). In each of them, John gave me responsibility vastly beyond what I'd earned, and with it the opportunity to observe, and participate at the margins of, the formulation of strategy. John was as low-key as Dick was dominating, and he had the mannerisms of an absent-minded professor. He tended to mumble. In a one-day trial, he'd probably have annoyed the heck out of both judge and jury, but over time in a longer trial — not through personality, but through sustained brilliance and preparation — he'd eventually win them over. John Jeffers taught me more than anyone else about seeing the big picture, grasping what was actually driving the players (even if they didn't know it themselves), finding ways to use my clients' intrinsic advantages to their best potential and minimize their exposure from their weaknesses.

As it happened, Dick Miller and John Jeffers squared off in what's still one of the most famous disputes in American history, Pennzoil Co. v. Texaco Inc. Dick, who'd left Baker Botts to open a litigation boutique, was Texaco's lead counsel in the eventual Houston jury trial. John was Pennzoil's master strategist behind the scenes throughout. Along with his own partner Irv Terrell and the talented and flamboyant (and decidedly un-Bottsian) Joe Jamail, John was among the three lawyers to take significant roles in front of the jury for Pennzoil during trial.

But as much as I wanted to, I didn't work directly with John on the case. I still vividly recall the Sunday morning in January 1984, when Jeffers, calling from New York, had gotten me out of the shower. "Dyer," he said, "I'm up here with [a Baker Botts corporate partner] riding herd on this Pennzoil-Getty deal, and the whole thing's beginning to blow up. Looks like Texaco's trying to steal the deal. Can you get on a plane?"

"Oh, man! Wow! I'm really sorry, John," I said, "and this just kills me to have to say. But I'm picking a jury in federal court here in Houston tomorrow morning on one of my first-chair cases, and there's no way I could get out of it or hand it off." You see, while I'd been pleased to get the chance to work on some huge, mega-cases (mostly mergers and acquisitions litigation), I'd also cultivated my own docket of still significant but much smaller cases that I could use to earn the first-chair jury trial experience I also wanted. And from January 1984 through the end of 1986, I tried nine of those smaller cases first-chair, most of them to juries, plus another couple of second-chair trials, and I also worked on four other M&A matters. But the price I paid for getting that early first-chair experience was that I never could free up a big enough chunk of time to join the Pennzoil team. I was reduced to watching it from a privileged position on the margins, with insider access to one side. I knew all the lawyers involved in the trial, and I spent every hour that I could steal from my own practice watching it.

Pennzoil, of course, won the jury trial, and the subsequent appeals. The American business and legal communities were stunned, and most of them thought it was a huge aberration. But it wasn't. In the big picture, Pennzoil won because of John Jeffers' superior strategy throughout — not only in the jury trial portion of the dispute and the direct appeals from it, but also including proceedings in the Delaware chancery and state supreme courts, the federal trial and appellate courts of New York, an injunction case in Oklahoma, two trips to the U.S. Supreme Court, and ultimately the bankruptcy courts. Miller was the superior tactician — asked immediately after the jury trial who they'd hire themselves if they were in trouble and needed the most effective lawyer they could find, almost all the jurors named Miller. But strategy ultimately beat tactics to the tune of $3 billion of Texaco's cash that became Pennzoil's — and while of course the underlying facts of the case were responsible for its magnitude, the lawyering played a significant part too.

Regular readers will know that I use the vulgar term "candy-assed litigator" to show disdain and the term "trial lawyer" to show respect.  (The latter does not mean "plaintiffs' personal injury lawyers," who may or may not be "real trial lawyers.") Superficially, John Jeffers might have looked to some like a candy-assed litigator — but every lawyer who made that mistake ended up getting his rear end chewed up and handed back to him. I am here to tell you, friends and neighbors, that both John Jeffers and Dick Miller were genuine, high-test, undiluted, and very potent trial lawyers. More than any two other lawyers I've ever met, Dick Miller taught me tactics, and John Jeffers taught me strategy. You've got to know both to be a genuinely successful and well-rounded trial lawyer, and neither Miller nor Jeffers was a slacker at the other's specialty. Having had the chance to learn from them both was a unique opportunity — I was in exactly the right place at the right time — for which I'll always be grateful to both men.

*********

That's a long anecdote, and you may be wondering why the heck I chose this post to tell it in.

You may have noticed, gentle readers, that with general consistency, I've referred to Ms. Miers in my posts and comments as a "courtroom lawyer," rather than as a "trial lawyer." That's been for two reasons. First, I didn't want people to assume (wrongly) that any significant portion of Ms. Miers' practice has involved representing plaintiffs in personal injury cases, and that's what the press and politicians typically mean when they talk about "the trial lawyers" or "the trial lawyers' bar." But the second reason is that I don't have enough data to say with confidence whether Ms. Miers is, or isn't, a real "trial lawyer" in the sense that I use that term. And you can't tell one way or the other from the questionnaire to which JPod referred. That was the point of my telling the story of John Jeffers. For me to use that term to describe her, I'd have to either have worked with her first-hand under pressure for a while, or else have learned a whole lot more about the cases she's handled, plus spoken with others whose judgments I trust and who'd been involved on a first-hand basis in at least some of those cases.

Everything else being equal, I'd slightly rather have a real trial lawyer on the Court than a mere litigator. I hope she is one, and there are some promising signs; I may or may not be able to draw a confident conclusion about that with more information. But while I think the difference between real trial lawyers and mere litigators is (or ought to be) very important to clients, those differences are probably not very important for purposes of being a Supreme Court Justice. Supreme Court Justices don't try cases, so whether one of them has the secret guts to go to trial, plus the ability to project that to one's opponents, just isn't very relevant on the Supreme Court.

Thus, I can tell you this with great confidence, even without knowing whether Ms. Miers would or would not meet my highly subjective standards for being a "real trial lawyer": JPod's assumption — "If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever" — is badly wrong. His insistence that settled cases are "beside the point" means that he's never understood how litigation actually works, and that's why all those "billions" of lawyers are emailing him! It's the sort of thing that only someone very inexperienced in the American civil justice system could say. I'm delighted for JPod's sake that he apparently is still a virgin, apparently unacquainted with even the basics of civil litigation; may he never be sued or need to sue, may he ever remain such. But there's just no such thing as pure "judicial legal skills" that only are used during trials on the merits. Let's leave aside for now deal lawyers, because they help clients avoid courtrooms by anticipating disputes and resolving them or allocating their risks in advance. The only way that lawyers who handle litigation can "help people and corporations avoid courtrooms" is by being fully prepared to go into courtrooms, and projecting to the other side their readiness and capability to do so.

That includes drafting pleadings and motions and briefs. That includes eliciting testimony through oral depositions and working with expert witnesses. That includes presentation of one's case to opposing counsel and typically now also to a mediator as part of settlement discussions. If the lawyer's any damned good at all, everything that is done in all of the pre-suit and pre-trial phases of a litigation matter is done with an eye toward how it would affect the ultimate trial. JPod denies that "a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts." I'm sorry, but that's completely wrong; cases don't settle because one side suddenly persuades the other who's right and who's wrong, but because one side causes the other to reevaluate its risk-benefit equation for going to trial. It's the anticipation of results of the sort that play out in that tiny percentage of cases that do go to trial which causes and permits all the rest of the cases (the huge majority) to settle.

In the end, I'm no more troubled that Harriet Miers hasn't tried dozens of cases than I was that John Roberts hadn't tried any, nor even taken a deposition. I've tried dozens, and taken hundreds of depositions, but my record reflects trade-offs, as do each of theirs. Overall they're both well qualified for, and will bring something useful to, the Supreme Court. I'm not and wouldn't. And oddly enough, I doubt that either of my two heroes that I've written about in this post would have been particularly well-suited to the Court either; some people are such good trial lawyers, and so unrelentingly competitive, that they actually would not make very good judges at all.

Judge Roberts as Atticus Finch, and the Killer Question that was never pressed: "Would you have taken the Topeka Board of Education as your client?"

During the very last bit of questioning of Chief Justice-nominee John G. Roberts, Jr. on Thursday, it appeared to me that Sen. Richard Durbin (D-IL) had been fed by his staff what was intended to be a "killer question" that would finally trip Judge Roberts up — that would produce a sound bite and a headline under the cover of which Democratic senators could rally to purportedly justify votes against Judge Roberts' confirmation. I tend to think that what he did with that killer question was due to ineptitude — after all, this immediately followed Sen. Durbin's plea that the special counsel looking into prosecution of the purported theft of Senate Dems' computer files last year take a close "look at the precedent of the Paris Hilton case and see if he can perhaps protect our records as much as we want to protect that poor young lady's telephone records." But I can't rule out entirely an attack of at least subconscious conscience and ethics on Sen. Durbin's part. Anyway, for whatever reason, he muffed and muddied the delivery of the would-be killer question, and thereby missed a chance for effective demagoguery. From the transcript, here's how he started, promisingly enough:

DURBIN: If I could, I'd like to return to a discussion that we had yesterday about a very fundamental question. I asked you yesterday about a case that you handled as an attorney involving a large HMO, in which you advanced a very narrow reading of an Illinois state law.

Had your position prevailed, millions of American families stood the risk of losing coverage for their health insurance. You did not prevail, and as you mentioned, a closely divided court — which again underlines the importance of each new justice as we consider them — but your position did not prevail.

Let me read what you said to me in response. You said you'd told me you had no reservations about taking the case. And here's what you said, quote, My practice has been to take the cases that come to me and if the other side in that case had come to me first, I would have taken their side, end of quote.

I want to follow up on this.

Whether he himself or some clever aide had written it, up until at least this point, Sen. Durbin was sticking closely to his prepared script. And this was indeed an effective set-up, because it established nicely that at least in some circumstances, Judge Roberts had already acknowledged that he could and should answer hypothetical questions about what clients and cases he'd have taken as a practicing lawyer.

It may be that what Sen. Durbin actually said next was still in the script, but just less cleverly planned — and I'll get to what he actually did say in a moment. But first I'll tell you word for word, friends and neighbors, exactly the killer question that Sen. Durbin should have asked immediately after laying that predicate:

DURBIN: If the members of the Topeka Board of Education had come to you in the early 1950s and asked you to represent them in the Supreme Court against young Linda Brown and her family, would you have taken or refused that case?

The politically correct answer, of course, would be a simple "I would have refused it." But as I'll explain in a moment, I'm almost certain that's not the answer that Judge Roberts would have given. Instead, he would have told the truth. And that's why this might have become the "killer question" that none of the Democratic senators ever found.

If the question had been asked exactly this bluntly, after exactly the same set-up that Sen. Durbin had in fact already made, and if Judge Roberts had given any answer other than an unequivocal "I would have refused it," then the Dems would have either had a far, far better example of him being noncooperative and evasive than anything they actually got all week long, or else something better.

And indeed if Judge Roberts had answered (as I believe he would have) with something like "Yes, I would have taken the Board of Education's case, and let me tell you why ..." — well, then, there's your sound bite and your headline. And some very substantial part of the population of the United States — maybe not a majority, but numbering in the tens of millions — would have tuned out any follow-up explanation he might have tried to give. "He admitted he would have gladly fought for racial segregation," the Dems could have said — "Roll that clip again!" That wouldn't have prevented Judge Roberts from being confirmed, but it would have given the Dems cover for most of them to vote against him.

*******

This illustrates something good trial lawyers understand, but that apparently none of the Democratic senators do: The cross-examining questioner has an inherent advantage simply by virtue of always being able to frame the question (and the next question after that). The essence of brilliant cross-examination is using that advantage to maximize the probability of extracting from the witness' own mouth the specific statements you want — organized, sequenced, and phrased in just the way you carefully choose to present those statements, and without any context or adornment or distractions that you don't want emphasized.

When you are dealing with an honest adverse witness, even a very articulate and intelligent one, this advantage actually becomes all the more powerful. If you know the witness is honest, then you can predict with a high degree of certainty what he'll say. If you're confident that he will tell the truth, then you can afford to ask him very specific but non-leading questions that don't appear to suggest their own answers. You don't have to put words into the witness' mouth, and if you don't have to, you don't want to: When the devastating words come out of the witness' own mouth for the first time — as opposed to being something obtained by extracting the witness' grudging acknowledgment with something the cross-examiner has said — those words are at least twice as powerful and memorable. The best "Perry Mason moments" weren't when Perry just got the witness to answer "Yes, I did it!" to the question "You killed Col. Plum in the library with the candlestick, didn't you?!?" Rather, the best "Perry Mason moments" were when Perry had first done a careful set-up: "So the library lights went out? The dog was outside? The candlestick was in your hand? And Col. Plum, who'd stolen your dowery, had turned his back to you?" And then Perry asked the ultimate killer question: "And what if anything did you then do with that candlestick?" The witness always blurted out: "I can't take it anymore, I admit it, I killed Col. Plum in the library with the candlestick!" The difference is between your audience merely nodding at the former, and gasping at the latter. And once words which originated in the witness' own mouth have escaped into the open, they're impossible to put back, and almost impossible to avoid.

If your would-be killer question is long, or muddy, or has multiple parts, or has undefined, fuzzy terms — then you squander all of that natural advantage, and instead you give the witness the very tools he needs to survive your question. It's hard to push and hold the witness under the surface of the water with one hand when you're handing him a life preserver with the other.

Recall, for example, Sen. Schumer's futile attempt to grill Judge Roberts on whether he disagreed with Justice Thomas' statement in Lawrence v. Texas to the effect that "there is no general right to privacy." This was one of the relatively more artful attempts at cross-examination during the hearing; Sen. Schumer had set it up by first extracting and then reemphasizing Judge Roberts' testimony that he believes there is indeed a substantive "right to privacy" (of some sort) as a component to the "liberty interest" protected by the due process clause of the Fourteenth Amendment. And he would have been equally happy to get Judge Roberts either to say he agreed with Justice Thomas, or that he disagreed and that Justice Thomas was wrong. But when Sen. Schumer tried to bait the hook on his next question with a phrase that included an additional qualifier, Judge Roberts promptly spat out that hook; he objected and quibbled, entirely appropriately, over the qualifier "general." They then argued for four or five minutes about whether there's a distinction between a "right to privacy" and a "general right to privacy," with Judge Roberts insisting, perhaps plausibly, that even Justice Thomas would agree with the former but not the latter. Sen. Schumer lost all his momentum; nothing transpired that could make it into a sound bite or a headline; nothing made the audience gasp and sit up suddenly. He thought he'd found a "no-lose" question, but he couldn't quite pull it off. And the reason for that, at bottom, is because it wasn't a fair, straightforward question; that modifier, "general," was indeed important.

Thus, the killer question can't be an obvious rhetorical trick, a "when did you stop beating your wife?"-type question. Those insult your audience's intelligence. "Aha, then you admit that God could make a rock too heavy for even him to lift!" may be the sort of thing philosophers can argue about for centuries, but that kind of rhetorical trick makes little impact on the average observer. Worse, a good witness can often use those tricks to ju-jitsu you onto your back.

But when you've laid your proper predicate, and when your killer question is transcendentally, self-evidently, righteously clear, clean, and fair, then you'll either get the straightforward killer answer that you seek and expect, or else the witness will obviously look like a quibbler and a prevaricator. Sometimes you're just as happy with the latter, especially when you can highlight it. And quite often you can even get both, which is the best of all worlds! Provided that you have already built up some credibility with your audience as being a polite and fair questioner, then when the witness begins to quibble with your killer question, you can take the extraordinary step of interrupting — very politely but forcefully: "No, sir! Would you have taken the Board as your client or not? Yes or no?" Depending on how sympathetic and credible the witness is, you might even get away with one additional interruption: "— Excuse me, Judge Roberts, but my question calls for a 'yes' or 'no' answer. Please answer 'yes or 'no,' and then I'll give you all the time you want to try to explain that answer: Would you have taken the Topeka Board of Education as your client?"

Not to take anything away from Judge Roberts' brilliance as a judge, lawyer, and witness — fighting this guy even to a draw would have been a huge and improbable victory for the Democratic members of the Senate Judiciary Committee — but the Dems have this week proven themselves the Opportunity-Squandering Masters of the Universe. I don't believe a single one of them could make a decent living in a courtroom, unless it were as a janitor.

*******

I am almost 100 percent certain that Judge Roberts' truthful answer to that question, if it had been cleanly asked, in fact would have been, "Yes, I'd have taken the Topeka Board of Education as my client." That's based on what was actually said. But as you read the transcript, note how Sen. Durbin blows all of his natural advantages. He's long. He's fuzzy. He uses lots of qualifiers, and becomes progressively less, instead of more, specific. And worst of all, he starts with something substantially weaker than his killer question, which was indeed Brown v. Board of Education. Instead, he picked Romer v. Evans, a gay-rights case from Colorado on which roughly half the country disagrees with the Democratic Party line. Rather than alarming his own base, and perhaps alarming others outside it, by going straight to Brown, Sen. Durbin instead comforted Dubya's base by asking about whether Judge Roberts would just as gladly have helped out the anti-gay-rights forces in Romer! And thus, not only did Judge Roberts have no trouble deflecting Sen. Durbin's fumbling efforts with Romer, but he had a good head of steam to continue bulldozing Sen. Durbin when he finally, weakly and confusedly, sorta kinda got to Brown v. Board of Education:

You have taken some pride in the pro bono cases that you have taken, and I'm glad you have. I think that is part of being a professional, accepting pro bono cases.

You were asked the other day about your participation in the 1996 case of Romer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation.

So I'll ask you, if the other side had come to you first and said, Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians, would you have taken the case?

ROBERTS: It's a hypothetical question.

Of course, I think I probably would have, Senator. I actually have done pro bono assistance for states on a regular basis through the National Association of Attorneys General. And, if I'm remembering right, the state would have been the other party in that case — I think that's right.

And, through the state and local legal center, I've participated in moot courts with the states on a regular basis.

And a big part of my practice was representing states. So, if a state — in that case, Colorado — had come to me and said, We have a case in the Supreme Court; would you defend it? I might — again, I can't answer without knowing the full details and all that, and I'd have to look at the legal issues. And I would not, and never have, presented legal arguments that I thought were not reasonable arguments. It doesn't necessarily mean they're going to prevail, and I've certainly lost my share of cases.

But it is not been my general view that I sit in judgment on clients when they come to me. I viewed that as the job of the court when I was a lawyer. And just as someone once said, you know, it's the guilty people who really need a good lawyer.

I also view that I don't evaluate whether I as a judge would agree with the particular position when somebody comes to me for what I did, which was provide legal advice and assistance, particularly before the Supreme Court.

DURBIN: I have a long series of hypotheticals I won't get into, such as, all right: Would you have represented the D.C. government against the welfare families? You took pride -- you spoke to me of your pride in representing the poor people in the District of Columbia on their welfare rights.

I could ask you whether you would have taken the side of the board of education in the Brown case. Would you have taken the side of the state of Virginia in Loving? I could have gone through all those hypotheticals.

The reference to the "long series of hypotheticals" is what makes me think that someone else wrote this for Durbin, and he muffed it. He came to the on-the-spot conclusion that this wasn't working. So what's he do? He stumbles around some more, and ultimately asks an off-the-cuff touchy-feely question — that is, he abandons his fastball and instead throws a floater belt-buckle high right down the center of the plate, which of course Judge Roberts crushes out of the ballpark:

And the purpose of my original question was this: All of us are trying to get down to, what are your core values. Where would you draw a line, saying, I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values?

If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.

And I think that is why I've asked this question and I want to give you an opportunity now to tell us....

... As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line?

ROBERTS: Well, let me try to answer it this way, Senator.

People become lawyers for different reasons, all perfectly good and noble and legitimate.

People who are interested, for example, in protecting the environment often will go into the law and practice environmental law because they think that's an effective way to advance a cause in which they passionately believe.

People who are committed to the cause of civil rights may become lawyers and become civil rights lawyers and present and press those causes because they're causes in which they passionately believe.

I became a lawyer — or at least developed as a lawyer — because I believe in the rule of law.

The point I was trying to emphasize in my opening statement that all of these other areas —  you believe in civil rights, you believe in environmental protection — whatever the area might be — believe in rights for the disabled — you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law. It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, My rights have been violated.

So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.

I viewed that as — I appreciate that the some may say, Well, that sounds like you're a hired gun, to be disparaging. You're going to take the side of whomever comes in the door first.

I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.

That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.

That has significance for what types of arguments they can present and how they can present them.

By the time they were done, Judge Roberts basically was Atticus Finch, and Sen. Durbin was just another doofus — someone more likely to be part of a lynch mob of one sort or another than a meaningful contributor to the justice system.

Of course, I happen to think Judge Roberts is a lot like Atticus Finch, and that Sen. Durbin is a doofus. My initial, cynical point in this post was to show how the Dems could have been more effective — not right, and in fact, I mean "effective" at demagoguery.

In fact, if I were asked, "Would you have undertaken the representation of the Topeka Board of Education, my answer — gasp! — would be "Yes, I would have, but let me tell you why." Yes, the Dems would definitely have gotten their headlines and sound-bite out of me if I'd been the nominee and they'd been clever with their questioning. Here's what I would have said after the "Yes, but" — in other words, what would have been relegated to 3:00 a.m. on C-SPAN2, and ultimately a trivia answer to the question "What ever became of that disastrous Beldar nomination to the Supreme Court?"

*******

I have to qualify my entire explanation by noting that there aren't many clients whose positions are so thoroughly repugnant and, yes, evil as were the segregationists. And even most of them were victims of thorough self-delusion; some of them were wrongly but sincerely convinced that their position was for the "good" of both races. I'm not trying to justify their position in the slightest, but rather to point out that in the real world, absolutely pure- and black-hearted clients aren't all that common. But let's stipulate, for purposes of this discussion and without any further back-and-forth, not only that the Board's position was wrong in hindsight, but that they should have known it was wrong then. And I also should note that some types of culpability spark such intense negative passion in some lawyers that regardless of their belief in "the system," they just can't bring themselves to undertake a particular representation. Somewhere, for example, there is a lawyer idealistic enough that he could undertake the representation of Osama bin Laden, but I'm not that guy. And there may be people who genuinely feel there's no meaningful distinction between Osama or Hitler on the one hand, and the Topeka Board of Education or George W. Bush on the other. Let's likewise stipulate that they're entitled to that viewpoint as well, and to self-select themselves out of the system. So we're talking now about the category of potential clients whom, roughly, one thoroughly disapproves of, condemns, and deplores on moral grounds, but with whom one can bring himself to converse and sit in the same room without an overwhelming and irresistible compulsion to initiate physical violence. Where those lines get drawn is very subjective and varies according to the individual lawyer, client, and issue.

Those qualifications made, I'd start my explanation proper by saying that in 1954, things were very different indeed. Society was different and the existing law was different. If someone asked me to take a case trying to justify racial segregation today, I'd absolutely refuse to do so, and indeed I'd kick them the hell out of my office. That's because under today's law, that would be a frivolous, even sanctionable position to take — entirely apart from it being morally repugnant.

But it was a morally repugnant position even while Plessy was still the law of the land. So why would I ever take a case defending a client whose position I found morally repugnant?

To begin answering that, I'd launch into my standard spiel about the huge and essential difference between the two crucial functions of a trial or appellate lawyer — first as a counselor, and only second as an advocate. I'd explain that if the Topeka Board of Education had hired me in 1954, I'd have taken the case in part so that I could do my very best — as a counselor behind closed doors and in the sanctity of attorney-client communications — to persuade them that they were wrong, badly wrong and ultimately shortsighted, regardless of the law, and that they ought to voluntarily desegregate.

Indeed, before accepting the engagement at all as either a counselor or an advocate, I'd have considered myself ethically bound to disclose to the Board that I found their position absolutely morally repugnant. I'd have pointed out to them the very significant likelihood that because of my strong personal convictions and emotions, my objectivity and judgment, and very likely my effectiveness, might be compromised in ways invisible to me and perhaps to them. I'd insist on a written waiver confirming that they'd received and understood that disclosure, and that they'd agreed to hire me anyway (in lieu, presumably, of a bigoted and therefore unconflicted but perhaps less effective lawyer).

But what if I'd gotten that waiver and then I'd nonetheless failed in my effort as a counselor to persuade the Board to give up the fight? Then yes: I'd have done my best — as that famous (among history-minded lawyers anyway) "Lawyer's Lawyer" and 1924 Democratic Party Presidential candidate John W. Davis in fact did — to justify the Board's position in court as an advocate. I'd have done my best for exactly the same reasons that Judge Roberts explained. I believe that public confidence is justifiably highest in the legal system, and that the system is most likely to most consistently produce actual justice, when the adversary process has been fully engaged in and the courts have been presented with the strongest possible arguments to be mustered for each side. I would have expected, and privately hoped, to lose, and I would have been unsurprised, and privately relieved, when that in fact happened. And by 1954, I would indeed have lost, and so would John Roberts, if either of us had been representing the Board. The Board deserved to lose, and by then that was going to happen regardless of how good the Board's lawyer was. I suspect, in fact, that John W. Davis — the ultra-"John Roberts" of his day in terms of being a frequent and successful Supreme Court appellate advocate — privately felt that way too.

*******

This notion of a moral, ethical lawyer willingly representing a repugnant, evil position is very difficult for many people to accept — including some very bright people who fully understand the arguments that such representation is necessary in the overall interests of justice. Perhaps the best way I've found to get the doubters to take a fresh look, though, is to slightly change the focus — and to do so in a way that might have also been illustrated by questioning of Chief Justice-nominee Roberts. What if the question had instead been this one:

DURBIN: Judge Roberts, if you had been the Chief Justice of the United States in 1954 instead of Earl Warren, would you have barred the Topeka Board of Education from participating in the proceedings in the Supreme Court, refused to read the briefs filed by its lawyers, and summarily ruled against the Board without ever giving its lawyers any opportunity to be heard?

When posed that way, I think the instinctive, intuitive answer of almost anyone who understands and respects the concepts of justice and the rule of law is to say: "Well, they deserved to lose alright, and maybe also to eventually rot in hell for at least a few centuries; but they also deserved to at least get to be heard by the Supreme Court before it fixed the law by overruling Plessy." And they're right — without guarantees of that access, that procedural fairness, there can be no substantive justice for anyone.

It's just, perhaps, that lawyers — jaded and cynical as we often are — understand from working inside the system that both in theory and in practice, having dedicated advocates representing both sides is just as essential as the judge letting both sides through the courthouse door in the first place. We understand that Thurgood Marshall's magnificent victory in Brown would have lacked much of its glory and legitimacy had it been over an adversary less skilled than John W. Davis; both men played an essential part, as, of course, did the Court. And sometimes — when, as counselors, we can't achieve a settlement or a plea bargain or some other non-adversarial resolution — then as advocates, we've just gotta "take one for the team" ("the team" meaning "the whole justice system") and do our best in what nevertheless turns out to be, and in the interests of justice should turn out to be, a losing effort.

Sometimes a lawyer genuinely does his best, but loses —  and doesn't, and shouldn't, lose any sleep over it.

Yet more about the first Vioxx verdict, and the law professors who hate it

I feel pretty much about this attack on the jury system by a law professor as I did about this one and this one, even though they're all from law professors I like and respect. As I wrote in the comments on one of the latter two  posts (and wrote about more generally here and here), I sure wish some of these law professors would come try some jury cases with me before they start making these blanket indictments of the jury system. But failing that, it's nice when they open up their blog posts' comments and are willing to swap and consider contrasting views (as Profs. Bainbridge and Ribstein have done, to their great credit).

I sorta think it'd be useful if, when law professors are forming their opinions, they'd at least take into account what real trial judges and real trial lawyers (from both sides of the docket) have observed in their personal experience with jury abilities. With due respect, I don't think you can learn a whole lot in general about juries just from law review articles, other law professors, or the popular press.

Prof. Bernstein, for example, writes of "how obvious it is that complicated scientific evidence presented orally in an adversarial system will inevitably be beyond the comprehension of many lay jurors." Well,  I'm sorry, but it's not obvious to me. It's not obvious to most of the trial judges and trial lawyers I've worked with for the last 25 years either.

And I'm not sure about Prof. Bernstein's personal experience, but I've actually tried jury cases with complicated evidence, scientific and otherwise. For example, representing several different insurance companies on the defense side, I tried a series of jury trials in the early 1980s in which jurors were required to assess the development of both legitimate and quack cancer drugs. The medical and scientific evidence was at least as complicated as in the Vioxx litigation; some of the best cancer researchers in the world testified. I won (or settled on very favorable terms) way more than my share of those cases, and after the one big one that I lost, I certainly didn't whine about that jury, much less jurors in general, being stupid. That jury wasn't stupid; in fact, they could (and did) chat knowledgeably with me after the case about placebo effects, the differences between Phase II and III clinical trials, tumors growing so fast they'd outstripped their blood supply, FDA "new drug application" stages, and all sorts of other things that they'd learned about from the evidence. Rather, they responded to a superior strategy for framing the issues effectively that my opponent had come up with for a retrial after I'd won that same case with the first jury. I actually convinced both juries on the science, but the second one concluded that the case was really more about insurance company business practices, and they were quite arguably correct about that. Still stings, but I learned from it, as did my client.

In all those cases, and in every other case I've tried that involved complicated medical, scientific, engineering, or technical information — which actually has been a large majority of the total number of cases I've tried — I've known better than to try to present my complicated evidence just "orally." I don't know where Prof. Bernstein got that idea; perhaps he just misspoke. But we always have documentary evidence, and when that's too voluminous, we also have summaries of the documentary evidence. In high-stakes cases, lawyers on both sides have budgets for audio-visuals, graphics, models, computer simulations, and the like that university and medical school professors can only dream of having.

Indeed, both sides in these complicated cases often use the very same professors to explain things to the jury as the universities and medical schools use to explain these things to med students and junior scientists. Now, I'll grant you that the med students and junior scientists may have higher average pre-existing levels of education in their specific fields. But there are some compensating factors. All 12 jurors get to collaborate when they take their "tests," and they're always "open book" and typically without time limits. By the end of a complicated case, they may well have spent as many hours being "educated" about the key topics as an academic would; their knowledge may not be as broad, but it's often quite deep. And almost every jury I've ever seen has had at least a handful of college graduates in some field, and they not only help in the education and explanation process, they also tend to be opinion leaders who sway other jurors' votes.

And certainly when a juror makes a statement after a trial like "We didn't know what the heck they [i.e., the drug company's experts, when one goes back and looks at the original quote] were talking about," I know better than to jump to the conclusion that that was because the jury was stupid or lazy. I'd rule out the possibility first that the defense team and/or its witnesses didn't do as good a job of teaching and communicating and explaining as the plaintiff's team did.

Prof. Bernstein, with due and genuine respect: Turn on your comments function, but better yet, open your mind. It's funny how the juries I've dealt with seem to be more open-minded and receptive to actual evidence than some law professors seem to be.

(I'll repeat here, for those who don't follow any of these links, that I don't know whether the recent Vioxx verdict from Angleton was or wasn't just and correct. But nothing I've read or heard yet about that verdict persuades me that it's even a persuasive data point in any attack on the jury system, much less some sort of conclusive anecdotal proof.)

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.

Women, judges, and women judges

Prof. Ann Althouse justifiably corrects NPR's Nina Totenburg for saying of the year 1981, when President Reagan appointed Sandra Day O'Connor to the Supreme Court, that "[t]here were very few women in law school." Prof. Althouse, herself a 1981 law school graduate, writes (emphasis hers):

It wasn't like: Wow, there's a woman on the Supreme Court — now, I see that women can go into the field of law!

I remember in 1981 saying to one of my many women lawprofs that I was interested in going into law teaching. One of the things she told me was that it used to help to be a woman, because law schools needed to increase the number of women on their faculties, but unfortunately I'd already missed that boat. That was too cynical, of course, but my point is that it was something you could say with a straight face in 1981, so let's not pretend O'Connor was a lone pioneer.

Still, it's sort of a question of what part of the snake's belly you focus on. Certainly, as Prof. Althouse points out, by 1981 women comprised a large percentage of law students and new lawyers, and a significant percentage of lawyers generally. But relative to those numbers, there were still comparatively few female partners at major law firms, female tenured law professors, and female trial and appellate judges — partly as a result of historical sexual discrimination, but also partly because those were (and are) not entry-level jobs.

During 1981, I was a law clerk for the second woman on the (old) Fifth Circuit, current Fifth Circuit Chief Judge Carolyn D. King, during her second year on the bench. Her single female predecessor, Phyllis A. Kravitch of Atlanta, had only a few months' seniority on her. The federal courts of appeals — usually considered to be the "farm teams" for the Supreme Court's bench — were definitely still "good ole boys' clubs" as of that time. Judge King, for example, was unusual because her previous practice experience was not in litigation, but in business and securities law, and that played a definite part in how the male judges of the Fifth Circuit perceived and related to her. But her two X-chromosomes were, frankly, a much bigger deal to many of those judges at the time, and some of them simply weren't quite sure how to deal with having these "lady judges" among them.

When rumors began to circulate that President Reagan was planning to appoint the Supreme Court's first female Associate Justice, both Judge Kravitch and Judge King were mentioned as potential nominees for the slot eventually filled with Sandra Day O'Connor; but like her, neither of them had been on any appellate bench for very long. And quite frankly, none of these three's then-existing judicial records — viewed objectively and without referrence to their sex — would have yet put them among the ranks of likely Supreme Court nominees.  Justice O'Connor was indeed an "affirmative action" nominee to the Court — the beneficiary of a sexual preference that was genuinely remedial in nature, redressing the then-still-lingering effects of past sexual discrimination. President Reagan squeezed the lump that was then just beginning to pass through the belly of the snake, and Justice O'Connor squirted ahead of some of her peers.

The times, though, were indeed a-changin'. I also began my first year of practice in late 1981 at Houston mega-firm Baker Botts, which (if I recall correctly) had three women among its 100+ partners at that time. During my first jury trial that year, I was allowed to tag along, literally carrying the briefcases of two of the firm's male Trial Department partners, for a way-off-the-record in-chambers conference with Judge W. Erwin "Red" James of the 127th District Court of Harris County. Judge James was then nearing the end of a long and distinguished legal career that he'd begun as a Roosevelt New Dealer, and he was the very personification of a "good ole boy." But he made a point of also inviting back to his chambers Baker Botts' sole female Trial Department partner, who'd been passing by his courtroom on other business.

Now, Judge James was famous among the local trial bar for starting every day's public docket call with some sort of joke — typically corny, but always G-rated. But he was also famous for telling some much more ribald and otherwise politically incorrect jokes and stories in chambers, and on this day he did not disappoint. And in the midst of the jokin', cussin', and tobacco-chewin', I remember being distinctly struck with the significance of this young woman trial lawyer being included — and not merely tolerated, but genuinely welcomed — as "one of the good ole boys" back in his chambers. I had a sudden realization that over the last 8-10 years, she'd earned her way onto Judge James' mental list of "hale fellows well met," with whom he was entirely comfortable swapping off-color jokes. But she was definitely still a pioneer — and not an affirmative-action appointee in her role, either.

I'm tickled pink that there's no longer any need for broad remedial sex-based affirmative action at any level of the legal profession. But that is a change that has occurred over the course of my own twenty-five year career, and it's indeed true that Justice O'Connor's appointment was a powerful symbolic step in that progress. It's fascinating — as history.

Historic symbols can indeed have lasting power for their inspirational value, and were Dubya to appoint the Court's first hispanic member to replace Justice O'Connor, I would not belittle those who would celebrate its symbolic significance. But I genuinely believe that America is well past the point when we need to speak of a "southern seat," or a "black or hispanic seat," or a "Jewish or Catholic seat" — or "women's seats" — on the Supreme Court. The "soft bigotry of low expectations" can be pernicious here too; and tokenism of any variety just sucks. Who Dubya picks is hugely important, but it's for the content of his or her (judicial) character, and not really for any other reason. I'm completely indifferent as to whether his nominee has a Y-chromosome or not, and I think most of America is too. We should actively strive to become studiously and equally indifferent as well with respect to the nominee's home-state affiliation, religion, race, and favorite breakfast cereal.

A critique of Justice Souter's Miller-El v. Dretke death penalty opinion (and a Beldar war story about picking juries)

I'll tell you what's wrong with the United State Supreme Court's 6/3 decision today in Miller-El v. Dretke. And if you understand how our state and federal trial and appellate courts are supposed to work, you'll see that it's wrong — regardless of whether you support or oppose the death penalty.

And, because I'm a crusty old trial-lawyer writing for a blog instead of a law review, I'll tell you a war story to help make my point.

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Thomas Joe Miller-El is black. He was convicted of capital murder by a Dallas County jury and sentenced to death. Today's majority opinion, written by Justice David Souter, held that he's entitled to federal habeas corpus relief — essentially a federal order commanding the State of Texas to either retry or release Mr. Miller-El — on grounds that the prosecutors impermissibly used racial discrimination in exercising their peremptory jury strikes, with the result that some black potential jurors weren't selected. The resulting jury that convicted and sentenced Mr. Miller-El comprised seven white females, two white males, and three other males who were, respectively, black, hispanic, and Filipino (although you must turn to Justice Thomas' dissent, in which Justice Scalia and Chief Justice Rehnquist joined, to find that out.)

Let me say up front that I do not know, one way or the other, whether these prosecutors in this particular case were or were not acting out of racial bias when they made their peremptory jury strikes. Plausible arguments can be made that they were — and such arguments fill almost all of Justice Souter's 33-page opinion. Plausible arguments can be made that they were not — and such arguments fill almost all of Justice Thomas' 36-page dissent. My criticism does not at all depend on which of those arguments is true, or more true, or more likely correct than the other, in this particular case.

Mr. Miller-El's arguments and Justice Souter's opinion were based on a 1986 Supreme Court decision about race and the jury selection process, Batson v. Kentucky. To say that Batson itself has spawned confusion and chaos — in both criminal and civil cases, state and federal, trial and appellate — would be a considerable understatement.

How bad is the mess? Well, I've read Batson, and I've read some (but only a fraction) of the appellate precedents that have tried to interpret and apply it. Yet I picked a jury in a civil case in Harris County District Court back in March — and I have absolutely no idea whether anything I did or didn't do in that jury selection, or that my opponent did or didn't do, violated Batson.

**********

That's because like every other trial lawyer, in deciding how to exercise peremptory strikes on my client's behalf, I relied in that case upon my observation and intuition and experience. But all of that was filtered through and undoubtedly affected to some extent by a whole bunch of stereotypes. Sex-based stereotypes; age-based stereotypes; class and occupational stereotypes; geographic stereotypes; religious stereotypes; grooming stereotypes. And yes, racial stereotypes.

I'm pretty sure my opposing counsel did too. But I don't even understand fully what stereotypes I used and how much weight I gave each of them, so I certainly can't claim to know that about my opposing counsel's exercise of discretion.

Now, in this particular trial, I was representing the plaintiff in a car-crash personal injury case. This was a very simple case. Neither side was using "jury consultants" or "shadow jurors"; we hadn't done any demographic studies or taken any polls or conducted any "focus groups." I've done those things in big cases, though, and I know that what they would have produced — while perhaps very impressive and polished — would ultimately have been a series of guesses and hunches, partly also based on stereotypes.

The way civil juries are selected in Houston, each side submits its list of peremptory strikes simultaneously, and the clerk seats the first twelve potential jurors who haven't been either excused for cause (by the judge) or stricken peremptorily (by either side). So it's quite common for there to be "double-strikes" — jurors whom neither side could persuade the judge to excuse (and may not even have attempted to do so), but whom both sides "spend a strike" on.

I used one of my side's strikes on a well-dressed white female bank manager because — according to the "conventional wisdom" and trial-lawyer lore and stereotypes — she was a "model defense juror" for a PI case. But I only had six strikes to use, and there were several other "model defense jurors" whom I didn't strike. So why her?

I just didn't like the way she looked at me. Sorry, that's the honest, best, and most complete answer I can give. Would she have turned out to be a "defense juror"? I have no idea, and neither does anyone else, including her.

It turned out, though, that my opposing counsel had also stricken her. "Why'd you strike Number 14?" I asked him. "She's a model defense juror!" I said.

"Yeah," he said, "but I just didn't like the way she looked at me."

One prospective juror in the front row was a tall young man, white, late twenties, with a long straggly beard and long hair down to the middle of his back. He was wearing a t-shirt, jeans, and sandals. Single, no religion listed. "Occupation: music sound engineer." Fidgety; wouldn't look at either lawyer or any of the parties, just stared at his lap. Very close-mouthed in response to questions. The instant short-hand reference my team used for him — sorry, this is crude and likely to offend some — was "Jesus." When going through the list with my team to pick our strikes, I said to them, "We don't need to spend any time talking about 'Jesus,' he's a certain defense strike, and based on his demographics and conventional wisdom, he's probably a pretty good plaintiff's juror anyway." So we skipped him.

My opponent didn't strike "Jesus," though, and he made it onto the jury. I asked my opponent, "Why didn't you strike 'Jesus'?" (My opponent instantly knew who I meant.)  "Dunno," he answered, "just a feeling."

"Jesus" became the jury's eventual foreman. Interviews with other jurors after the verdict suggest he was a big tort reformer, intensely skeptical of all personal injury plaintiffs, and very articulate in persuading the other jurors to return a damages verdict that I thought was shockingly tight-fisted by historical Harris County standards.

I didn't have any reason to think that the racial composition of the jury was going to be particularly important, given the parties and issues. But yeah, I factored that in, to some extent, in deciding how to exercise my strikes. How? I dunno, and I couldn't tell you if I tried. I'm certain that my opponent did too, but I can't tell you how, and doubt he could either.

So did race have any impact on this absolutely garden-variety civil trial? I dunno. I tend to think not, but I can't absolutely exclude that possibility. But nothing happened to tickle my radar; neither I nor my opposing counsel mentioned anything about the race of anyone to each other or the judge, much less trying to mount a "Batson-challenge" to each other's use of our peremptory strikes.

I can tell you that this jury was unique in my experience in one way, however: twelve eleven men ended up being seated.\^*/ I was happy with that at the time, based on the "conventional wisdom" that women can tend to be harder on, and less sympathetic to, other women — and my client was female. With this particular jury, though, the "conventional wisdom" didn't pan out — and maybe that particular piece of wisdom is just a load of crap.

Was I disappointed in this particular jury's verdict. Oh, yes, I was indeed — we won, expected to win, and deserved to win on liability, but I thought these jurors were really miserly (based on my wholly subjective comparison to jury verdicts in other cases I've either tried or seen tried). But were they "unfair"? I don't have any reason to think so. Was the trial fair? Oh, yes — it was a remarkably clean trial, with experienced lawyers on both sides who weren't trying to break any of the rules, and an experienced judge who appreciated that and therefore was able to let us try our cases pretty much the way we wanted to. The whole thing took a day and a half, start to finish. Neither side had any legal grounds for an appeal — not based on jury selection, or evidentiary rulings during the trial (there were only a couple of those that were even disputed, and we worked out compromises on both), or on the court's charge to the jury. I was disappointed with this result, but I certainly can't say that "justice was not done."

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I'm not saying that this trial I've just described was "typical" or in any way "uniform." I'm emphatically not denying that historically, trial lawyers everywhere, in both criminal and civil cases, have used and continue to use race and racial stereotypes. I'm not saying that Batson is "bad law," at least in principle. And I repeat, I don't know whether the prosecutors who handled Mr. Miller-El's case stepped over the appropriate line.

But I'm pretty sure they don't know for sure either — didn't at the time, don't know now. I'm quite sure that anyone who operates exclusively on the basis of racial stereotypes or any other "conventional wisdom" is going to do a lousy job of jury selection because whatever "art" is involved in exercising peremptory strikes requires more sensitivity and open-mindedness than that.  And my strong (albeit entirely subjective) sense and my personal experience over the last 25 years has been that those stereotypes have become less and less valuable as predictors of jury outcomes.

But back, at last, to Judge Souter and the proper role of the United States Supreme Court. That Court does not exist to right individual wrongs — not even in death penalty cases. Anyone who thinks that the Supreme Court could do that, or even approximate doing that, is a fool. The Supreme Court's job is to announce the rules for other judges, and for the lawyers who practice before them, to follow. And friends and neighbors, the Hon. David Souter's opinion for the Court in Miller-El v. Dretke completely fails in that regard.

The Supreme Court's decision today means a lot to Mr. Miller-El and his lawyers, I'm sure, and I don't mean to mock or belittle him or them. But no lawyer or judge reading that opinion is going to have a clue what it means for any other case. Any time an appellate decision contains long, long quotes from the trial transcript and not many case citations, that's a pretty good hint that the decision will be of little precedential value. And that's almost all Justice Souter's opinion is.

That's not the only problem, though. Mr. Miller-El's case has gone up and down through the Texas trial and appellate court system, and then through the federal district court and the Fifth Circuit. But now the Hon. David Souter — joined by five other Justices — has looked at the record (some of which the Texas state courts never saw), and he's come to the conclusion that these particular prosecutors stepped over the line, wherever it is. And to do so, he's engaged in juror-by-juror, question-by-question, line-by-line second-guessing of the prospective jurors, the prosecutors, and the trial judge! So we read, for instance, this:

[Potential juror] Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecution's explanations for the strike cannot be reasonably accepted.

Are you kidding me? Here's a Justice of the U.S. Supreme Court deciding — years after the fact and on a cold written record — that a prosecutor must have been lying about his intentions because he deviated from the "conventional wisdom." You're damned if you stereotype; and now, you're damned if you don't.

Leave aside the fact that Congress passed a law specifically designed to prohibit the federal courts (including the Supreme Court) from doing that sort of second-guessing. (This point, regarding the Antiterrorism and Effective Death Penalty Act of 1996, is in my view the strongest and most appropriate argument in Justice Thomas' dissent. I think Justice Thomas also couldn't resist the temptation to get into the "I saids" and "He saids" with Justice Souter, but that's just not what the Supreme Court is supposed to do.) Completely apart from that statute, if any federal court should be doing this second-guessing at all, it should be the federal district court, with the circuit courts available to correct those occasions when a federal district judge has gotten something conspicuously and obviously wrong. For the Hon. David Souter to reach into the maelstrom, pluck out one case, and say, "I've come to a different conclusion from reading this record" is a misuse of the Supreme Court's resources. It certainly encourages every litigant to seek Supreme Court review. It diminishes, or at least randomizes, the roles of the federal district courts and courts of appeals. It's bad policy — whether you're for or against the death penalty. It's the kind of confusion about the proper role of the Supreme Court that you might excuse in a former appellate court justice whose job has been to do that sort of fact-specific review of the record; but it's been a long time since Justice Souter was in that job, and with due respect, he needs to rise above that role.

**********

And so I find myself in the unusual position of saying something nice about Justice Stephen G. Breyer. Justice Breyer concurred in Justice Souter's opinion, but also wrote separately and fairly briefly. And I think he, at least, "gets it" — he understands that regardless of the Court's good intentions, Batson has been and continues to be a disaster:

... Miller-El's challenge has resulted in 17 years of largely unsuccessful and protracted litigation — including 8 different judicial proceedings and eight different judicial opinions, involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary.

(The six being, of course, Souter, Stevens, O'Connor, Kennedy, Ginsburg, and Breyer himself — all on the Supreme Court, so their six votes count more than the other 16 votes combined.) He continues:

The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. ...

... [Among other problems,] Batson asks judges to engage in the awkward, sometime[s] hopeless, task of second-guessing a prosecutor's instinctive judgment — the underlying basis for which may be invisible even to the prosecutor exercising the challenge. ... In such circumstances, it may be impossible for trial courts to discern if a "seat of the pants" peremptory challenge reflects a "seat of the pants" racial stereotype.

Now, Justice Breyer has to be cute here, because he's just signed on to Justice Souter's opinion which purports to have done the "impossible" — and to have done it better, in some mysterious way, than all of the lower state and federal courts did. I'd rewrite that last sentence just to state the obvious — it is impossible to do with any precision or predictability whatsoever.

Justice Breyer's proposed solution is to eliminate peremptory challenges altogether — which would mark a very, very radical change in centuries-old jury trial practices, civil and criminal. I think that would be a serious mistake. It would amount to a statement that "this part of the art of practicing trial law has been abused by some practitioners (although we can't come up with any rules that would let everyone agree as to when) — so we're going to abolish this part of the art." I'd hate to see that happen, because I believe that as whimsical and subjective as jury selection is, it still contributes in a mostly-positive way to that fuzzy goal we call "justice."\^**/

No, I'd propose something quite different. I'd propose that we keep peremptory challenges, but that we leave the prevention of their abuse virtually entirely to trial judges. They have broad, enormous discretion in all sorts of other fuzzy, subjective areas, subject only to restricted review by appellate judges. It's a sad historic truth that some trial judges used to be racists too, and that they failed to follow their instincts or uphold our common national principles; and to the extent that Batson has moderated those excesses, that's some justification for its past transaction costs (in terms of uncertainty and confusion). But the Supreme Court can't — can't, not even if it wanted to, not even if you think it should — be relied upon to fix these problems individually, not even in death penalty cases. If anyone should be allowed to second-guess how trial lawyers use their peremptory challenges, it should be the trial judges who've seen the faces, heard the tones of voice, and assessed everything that's happened using all of the soft, squishy, and invaluable subjective experience that accrues from presiding over many, many trials.

You can't take "seat of the pants" decisions out of the practice of law, folks. But having the Hon. David Souter serve as "tailor-in-chief," picking at decades-old threads in the crotch of someone else's pants, hurts rather than helps the system.

----------------

\^*/Rereading this, I realized that I misremembered this detail. It was actually eleven men and one woman — still unique in my own experience.

Personal knowledge in affidavits

This story in today's New York Times doesn't surprise me — and indeed, I wrote a long post last fall with my own musings on affidavit drafting and use — but it ought to make a lot of trial lawyers stop and think (boldface mine):

At the behest of the rail industry, [Texas Department of Transportation railroad section director Darin] Kosmak on about 100 occasions over the last 11 years signed sworn statements about warning signs at railroad crossings, according to court testimony. The affidavits were mostly drafted by the rail industry, which then used them in case after case as a critical defense against claims that unsafe crossings had caused deaths and serious injury, court records show.

But now, the truth of those affidavits is being called into question. According to his court testimony, Mr. Kosmak recently admitted that his sworn statements misrepresented — unintentionally, he says — what he knew about those crossings....

The railroads sought Mr. Kosmak's affidavits to help prove that federal money was spent by the state on railroad warning signs, called crossbucks. Courts have held that if federal money was used, accident victims are pre-empted from making claims under state law that inadequate warning signs made the crossing unsafe....

[In the affidavits, Mr. Kosmak had] said he based his assertion [that federal funds had been used] on either "personal knowledge" or records of a federal program that operated for [1977-1981].

But last October, Mr. Kosmak admitted that he had no proof that those federal funds were used at any Texas rail crossing.

"We don't have specific records that exist any longer of any specific location," Mr. Kosmak said in an interview.

When the program began in 1977, Mr. Kosmak said, he was a teenager in high school.

"Obviously," he added, "I was not working at Txdot when some of the stuff included in my affidavit was actually performed." He said he had not understood the legal definition of personal knowledge. "It could be characterized as an honest mistake or a layman's mistake," Mr. Kosmak said. "It wasn't anything deliberate on my part."

Mr. Kosmak acknowledged that the affidavits implied that every one of Union Pacific's crossings had received federal money....

Thus, Mr. Kosmak neither had genuine personal knowledge — based on events that he'd seen with his own eyes, heard with his own ears, and participated in — about the funding. Neither did he have indirect knowledge that he was repeating and summarizing from documents (TxDOT records) that would themselves have been self-authenticating and admissible under the "official records" exception to the hearsay rule. He was swearing to something — but he literally couldn't have known what he was talking about, meaning that he was merely guessing (or worse).

There are, of course, long-standing requirements of evidentiary law, common throughout the United States in both state and federal courts, which require that affidavits affirmatively demonstrate the basis for the affiant's testimony. But in actual practice, many — perhaps even most — of the affidavits I read fail to lay the proper predicates for the affidavit testimony to be admissible. And this is particularly true of affidavits frequently given by lawyers rather than the actual witnesses in the case — a dangerous and disgusting practice whenever the substance of the facts being related relate to anything other than counsel's own handling of or participation in the litigation. Not two days ago I received an affidavit in which my opposing counsel swore to a long list of facts about her foreign client's lack of contacts with Texas, for example — and as someone who'd represented that company for less than a week, I'm quite confident that she had absolutely no personal knowledge about those contacts or the lack thereof. My impression is that such affidavits and/or unsworn "declarations" by lawyers are even more common in some states than they are in Texas practice.

Sometimes it's a disguised blessing when one of my opponents tenders such an affidavit. When it comes time for the witness to give oral testimony, either in a pretrial deposition or on the witness stand at trial, such affidavits furnish very fertile ground for cross-examination. And indeed, the lawyers who developed the information about Mr. Kosmak's and his sponsoring railroads' affidavit practices are now using that information to paint him, TxDOT, and the railroad defendants as incompetent, untrustworthy, or worse. But quite a few plaintiffs' lawyers who took those affidavits at face value in the past, without challenging or probing into the basis for them, either are or ought to be kicking themselves vigorously for doing so.

Laymen frequently don't, and can't be expected, to understand legal authentication requirements. And thus a routine self-serving declaration like "I have personal knowledge that the facts stated in this affidavit are true" can very often be demonstrated to be false, whether it was or wasn't intentional. What's shocking to me, however, is how many lawyers — whether trial lawyers or otherwise — either don't understand, or simply get incredibly sloppy with, satisfying (or testing their opponents' satisfaction of) these requirements.

The resulting impeachment technique — basically "You claimed under oath in yer affidavit to have personal knowledge, and now you've admitted thatcha didn't, so yer a gol-darned liar, ain'tcha?" — is fun and often justly effective. (In all probability, I'll have several occasions to use it in my next two trials.)  But it can be misused, by lawyers or unscrupulous reporters, to imply a perjurious statement when that's not at all accurate, as was the situation last fall when Michael Kranish of the Boston Globe shamelessly tricked Captain George Elliott into apparently "recanting" his original affidavit about John Kerry's medals based on sloppily draftsmanship by whatever lawyer wrote that original affidavit.

In many foreign jurisdictions, they still put wax or metallic paper seals and dangling ribbons to dress up affidavit testimony. It looks official, therefore it must be true, right? In most American practice now, those frills have been replaced with a simple inkstamp from a notary public, who almost never will have actually sworn the affiant to tell the truth. The support staff in my own office always laugh at me on those occasions when I'm obliged to submit an affidavit or verification (e.g., that photocopies of deposition testimony excerpts and/or exhibits attached to a summary judgment motion are true copies of what is in the official version created by the court reporter) because I routinely — prompted or (almost always) not — raise my right hand and solemnly say, "I do so swear" just before I sign my name for them to notarize.

Friends and neighbors, it's worth the three seconds that takes. And fellow lawyers, don't blow off, or trivialize, or get sloppy with, the language in the affidavits you draft or review when it comes to the evidentiary predicates for the affiant's personal knowledge. Not just crusty old trial lawyers take sworn oaths seriously — juries do too, and should!

"Small world" department

I was surprised this week by this report from the Houston Chronicle on February 15th:

Rafik Hariri, the Lebanese billionaire and former prime minister who was killed in a bomb explosion on Monday, owned Houston's tallest office tower and held a stake in another.

Hariri owned the JPMorgan Chase Tower at 600 Travis downtown through his U.S. business subsidiary Prime Asset Management.

I'm realized when I read this that an offshore (Netherlands Antilles) trust that was of the two named plaintiffs in a six-week case I tried in late 1992 was almost certainly controlled by and set up for the benefit of Mr. Hariri and his family.  And coincidentally, this was also the same securities fraud trial in which I cross-examined John O'Neill as an expert witnesses who was supporting the plaintiffs' claim for attorneys' fees.

The plaintiffs' purchase of my client's securities had been handled by their investment adviser here in Houston, Prime Asset Management, and I took the deposition of Prime Asset Management's CEO (who also appeared for the trusts during the trial) in his offices in what is now the Chase Tower. One trust's ultimate beneficiaries were never disclosed as anything other than "a prominent and wealthy Lebanese family" during the litigation, nor were they directly involved in pretrial discovery or the trial of this lawsuit. I thus never became directly aware of Mr. Hariri or his indirect involvement at that time. And I seriously doubt that Mr. O'Neill did either, since his role was just to opine on the reasonableness and necessity of the seven-figure legal fees being sought by the trusts' lawyers.

Reading the reports of Mr. Hariri's family fortune and business acumen, however, I'm now less surprised than I was at the time that the trusts had refused their very prominent law firm's repeated requests to take the case on a contingent-fee basis and instead continued to employ them on an hourly-rate basis. As it turned out, that was a bad decision in hindsight, since the plaintiffs lost the case and, despite Mr. O'Neill's testimony (and in part due to his candor during my cross-examination), the jury set the reasonable and necessary value of their lawyers' efforts at zero.

Later during the 1990s, I officed my then-solo law practice on the sixty-third floor of the Texas Commerce Tower (now the Chase Tower), so I suppose that Mr. Hariri was also, indirectly, my landlord during that period. And I also helped represent the building's developer and Prime Asset Management's investment partner, Gerald D. Hines Interests, back when I was at Baker Botts in the 1980s.

It's indeed a small world. But I'm not sure where this would go on the NYT's famous SwiftVets linkage chart.

Beldar confesses another VRWC link

I doubt there's room for it on the NYT's famous chart on the SwiftVets and those who've contributed financially to their campaign, but I hereby confess to another link to the Vast Right-Wing Conspiracy whose tentacles connect all the forces that seek Sen. Kerry's defeat in the upcoming election.

While I was an associate in the Trial Department of Houston's Baker Botts in the early and mid-1980s, I was among the many lawyers involved in representing Boone Pickens' Mesa Petroleum (and its various affiliates and deal partners) in a series of contested tender offers, including those for Gulf Oil, Phillips Petroleum, Unocal, and Newmont Mining.  I've got dozens of trial lawyer war stories to tell from those days, but one quick one pops to mind in this political season.

During the Phillips tender offer, Phillips' New York counsel thought that they'd dig around in hopes of finding that Mr. Pickens had tipped off his longtime friends and poker-playing buddies in Amarillo with inside information about various of his deals, and so they initiated a round of nonparty depositions to grill those poker buddies about their conversations with Mr. Pickens and their own market activities.  Mr. Pickens, of course, was and remains a controversial, almost mythical figure, but nobody has ever accused him of being pathologically stupid — which he'd have to have been to discuss his tender offer plans at a poker game.  Indeed, Mr. Pickens' friends unanimously and adamantly insisted that he had not only a good poker face, but well knew how to keep his secrets, and Phillips' counsel turned up not a shred of evidence to support their theories.  But they did manage to substantially annoy Mr. Pickens' friends and, of course, thereby to annoy Mr. Pickens through this harassment.  Accordingly, although I didn't directly represent Mr. Pickens' friends, my assigned job on that particular deal was to attend, monitor, and report nightly on these depositions by telephone directly to Mr. Pickens.  (I don't believe that I've ever met him in person.)

The Phillips deal took place during the 1984 Christmas season, and during a brief break in the depositions, I managed to get down from Amarillo to my dad's house in my hometown of Lamesa, a few hours' drive south.  Now, my dad's always been proud of my accomplishments, but he doesn't play the market and had only the vaguest understanding of what these tender offers were all about.  Millions, billions, arbs, investment bankers, Pac Man offers, white knights, poison pills — all Greek to my pa.  But I'm pretty sure that the most impressed he's ever been with my career doings was on that frostly Christmas Eve, when he picked up his home phone to find that Mr. Pickens was on the other end, returning my call to report on the prior morning's deposition.  "Was that really Boone Pickens calling you?" he wanted to know.  I assured my dad that it had been.  "And you gave him my phone number?"  Ayup.  "Well ... damn!  T. Boone Pickens calling my house on Christmas Eve! How about that!" was all my dad could say for about the next half hour. 

I rather doubt that my New York-based counterparts for Phillips had quite as merry Christmas Eve dinners in their Amarillo motel rooms.  The local folks there, although unfailingly polite, had pegged them as Yankee Grinches.  And while I don't know whether Santa left coal and switches in their stockings, they were a cheerless bunch as we resumed the depositions on Boxing Day.

Beginning litigation with all the knobs cranked up to eleven

One lawsuit war story that I can't tell in any more detail than this involved my representing a defendant in a defamation case in which the plaintiff's complaint claimed — in exquisite detail — that my client had said some very unfortunate things.  Confronted bluntly and forcefully in my first private conversation with him, my client absolutely, emphatically, and repeatedly denied that he'd said any of those things, and that's what he continued to insist when he gave his oral deposition on videotape.  He seemed to me to be a pretty credible fellow, and the plaintiff seemed to me to be (and in fact was) something of a kook. 

But there was much wailing and gnashing of teeth among the defense team when, immediately after my client's deposition, the plaintiff's counsel produced an audiotape with exactly the quotes contained in the complaint that my client had just, under oath, denied having made. Through extraordinary, expensive, and desperate efforts — basically involving the civil-law equivalent to a temporary insanity plea — we managed to scratch and claw our way back to a posture from which the case was settled on pretty reasonable terms, all things considered. But it was hard, embarrassing, ugly work, and taught me some lessons I shan't forget.

Accordingly, if, hypothetically, I were defense counsel in this case, I'd muzzle my clients, refuse any but the most bland and generic comments to the press, and generally keep a very low profile until I got the plaintiff's response to my first request for production, which would ask for any and all audio- and/or videorecordings of my clients, and my first interrogatory, which would ask for the identities of any corroborating witnesses other than the plaintiff herself.

Indeed, if (as seems to have been the situation here) I'd seen the plaintiff's draft complaint before it was filed, then even if the plaintiff had made what my clients believed to be an outrageous and unwarranted presuit settlement demand, I still think that if my clients absolutely insisted that I file an preemptive lawsuit claiming extortion before I had seen the plaintiff's response to my first request for production and first interrogatory, I'd suggest that my clients find other counsel.

Of course, some of these exact same defendants have ignored my well-meaning, unsolicited legal advice in the past, and I got to say toldja so as a result.

The Volokh Conspiracy's Jim Lindgren, who knows whereof he speaks about criminal extortion matters, has a fine post up about that aspect of the case.  Of course, it may turn out that the preemptive extortion claim is factually justified, and that the young woman's sexual harassment claim isn't.  In any event, however, this looks like litigation in which both sides have started with all the volume knobs cranked up to eleven — and it's awfully hard to back off from those positions as the case develops.

Beldar's first trial: Music Capital Inc. v. Knievel

This is a completely self-indulgent post, apropos of nothing in particular.  It's just the story of the first jury trial in which I was ever involved — the trial that convinced me that I wanted to make my career as a trial lawyer.

I had no lawyers in my family.  Growing up, I'd thought I'd probably go to medical school until my older sister made a casual comment to me while I was in high school:  "I just don't see you as a doctor," she said, and when I asked her what she could "see" me as, she said, "I dunno — maybe a lawyer or something."  Based on this deep, profound, and thoughtful observation (she didn't know anything much about lawyers or doctors, I think, but her boyfriend at the time was a Marine who planned to go to law school later), I switched career goals on the spot.  And so it was that even as I neared the end of my first year at Texas Law School in the spring of 1978, I still had only the vaguest notion of what being a practicing lawyer might entail.  Until I started interviewing with Austin firms for a summer job, I'd probably spent a lifetime aggregate total of less than an hour in anyone's law office, and my notions of what happened at the courthouse still came mostly from "Perry Mason" re-runs.

In those days, the big Texas mega-firms from Houston and Dallas generally didn't hire students who'd only completed one year of law school as summer clerks, and they had only small satellite offices in Austin that mostly did lobbying and regulatory work.  Many other indigenous Austin-based firms were mainly known for their political connections and acumen, which didn't particularly interest me:  I knew that I needed to learn about lawyering first, before I explored what else could be done with a law degree.

On the basis of good first-semester grades, however, I managed to get myself hired for the summer at my first choice among the Austin firms I'd applied to — Graves, Dougherty, Hearon, Moody & Garwood (as it was known then, before name partner Will Garwood was appointed to the Fifth Circuit). Based on the breadth of their practice, the credentials and reputations of their lawyers, and the firm's history and blue-chip client list, Graves Dougherty was (and still is) at or near the very top of anyone's short list of premiere Austin-based law firms.  Of the four law clerks Graves Dougherty hired from my law school class for that summer, three of us ended up making the Texas Law Review and working as federal circuit court clerks after graduation (and one went on to clerk for Rehnquist).

Probably through dumb luck rather than merit, I managed to get the plum assignment of the summer — helping partner H. Lee Godfrey (now a name partner at Houston-based Susman Godfrey) and then-associate David H. Donaldson, Jr. prepare for and try a jury case in which the firm's client was Evel Knievel.

Yes, that Evel Knievel.

*******

A couple or three years earlier, Willie Nelson had held the first great outdoor Fourth of July concert in a pasture near tiny Liberty Hill, Texas, outside Austin, for which 100,000+ folks had bought tickets, drunk lots and lots of beer, and developed fierce sunburns.  Other promoters were looking for ways to emulate Willie's success.  A group of them had decided that a Labor Day 1976 event featuring Evel Knievel — who was then probably at the peak of his international fame and celebrity — making a spectacular motorcycle jump over seven buses would go over like gangbusters and make them all rich.  The promoters had tracked down Mr. Knievel in the bar of the Las Vegas MGM Grand Hotel.  Literally on the back of a cocktail napkin, they'd together sketched out a contract to secure his appearance and performance.  Then they'd gotten the hotel personnel to type up the result, which was duly signed by all concerned back in the bar.

A key provision of the contract was the promoters' guarantee that they'd pay Mr. Knievel $100,000 upon his arrival in Austin for the performance.  But as things turned out, when Mr. Knievel and his entourage and trailer-loads of gear hit town, the promoters didn't have the cash.  So off into the sunset rode Mr. Knievel and his crew, and the event fell through.  The promoters thereupon sued Mr. Knievel for $550,000 in state district court in Travis County for breach of contract, arguing that he'd orally promised to help them promote the event during the summer, and that his breach of that promise had caused them to be unable to raise the $100,000 advance payment.  Mr. Knievel denied having made any such oral promises, and insisted that the promoters were the ones who'd breached their contract.

Before the trial, my job was to do research and briefing on some of the evidentiary issues that we expected to come up during the trial.  Chief among them was figuring out a way to try to keep the jury from learning that after the contract had been signed in the bar and the promoters had left with their copy, Mr. Knievel had jokingly added a few additional terms on the back of his own copy.  My recollection is that the additional terms would have required the promoters, at the moment of Mr. Knievel's jump, to "release 10,000 white doves and deflower 20 virgins," or something pretty close to that.  Since Mr. Knievel's eventual refusal to go through with the jump hadn't had anything to do with the absence of caged doves and willing virgins, we argued — successfully — that these addenda were irrelevant and would be unduly and unfairly prejudicial, and that all references to them should therefore be prohibited in front of the jury.

When the case was called for trial, I was thrilled that the judge allowed me, a mere law student, to sit with Godfrey and Donaldson at the defense counsel's table (although of course I never spoke aloud in front of the jury), and I eagerly lugged briefcases and exhibit boxes for our trial team.  We picked a jury without knowing for sure whether we'd sufficiently impressed on our own client the importance of showing up for the trial.  But he did show up, whereupon Godfrey took me aside and said:

Dyer, this is the most important assignment you'll have all summer!  I want you to stick to our client tonight like glue.  Let him talk to the reporters and the fans, but don't let him say anything stupid.  It's your job to make sure he has a good enough time that he doesn't decide to leave town before he testifies, but not such a good time that it gets into the local papers or on the local TV news.  If you call me at home, it better not be from jail!

And thus did aspiring young lawyer-wannabe Beldar find himself bar-hopping around Austin as Evel Knievel's unacknowledged chaperone.

Mr. Knievel was actually a fascinating man — I came to like him quite a lot.  His lifestyle and worldview were certainly unconventional, perhaps even skewed.  But he was true to his own moral code, and refreshingly blunt and straightforward.  He was a helluva drinking buddy, actually, on both nights I spent with him.

He was also a babe magnet.  We'd walk into a bar and within 90 seconds, he'd be surrounded by beautiful women who were eager to talk to him.  I kept us moving from beer joint to dance hall to nightclub fast enough that we didn't pick up stragglers — he let me drive, amazingly, and I was very, very sober — and on both nights, a bit in advance of closing time (2:00 o'clock a.m.), I managed to get us back to the Cabaret Bar of the recently remodeled, historic Driskill Hotel in downtown Austin, where he was staying.  Both nights ended with Mr. Knievel ordering "champagne for the house!" to wild applause from the gathered crowds.  And then he'd disappear — having found more agreeable (feminine) company for the remainder of the evening — leaving me to settle up the check. 

"Mr. Dyer?" asked the Amex representative over the phone, "Is this really you?"  Yes.  "Can you give us your SSN, date of birth, and mother's maiden name, please?"  Done.  "Well, we just wanted to check with you before approving these charges to your American Express card, since they're several orders of magnitude higher than your cumulative spending history over the past year."  Yes, that's right.  Special occasion.  Thank you, ma'am.  (The firm, of course, reimbursed me, and Mr. Knievel reimbursed it, in due course.)

*******

On the morning Mr. Knievel was to testify, we all rode together to the courthouse.  Mr. Knievel was dressed in his usual fashion, of course.  The public garage outside the Travis County Courthouse had free, self-serve parking — but Mr. Knievel tipped the parking garage attendant with a $100 bill as we walked to the courthouse.  ("Great!" hissed Godfrey in my ear, "News of that will be all over the courthouse within three minutes."  And of course, it was.)

But Godfrey instinctively knew that the absolute worst thing he could have done would have been to try to repackage his client into something more "conventional" or "presentable."  And in fact, Mr. Knievel made a terrific witness on his own behalf.  We won the case with the jury, and Godfrey and I got our pictures in the Austin American-Statesman, along with three nice write-ups during the trial:

Celebrity and hoo-hah aside, I learned a huge amount about picking juries, cross-examining witnesses, and trial practice in general from Lee Godfrey and David Donaldson during the trial.  They're both damn fine trial lawyers, and I still use the things they taught me on a regular basis.  And certainly by the end of that summer, I'd figured out that yes, indeed, I wanted to be a lawyer — and specifically, a trial lawyer. 

In the years since then, I've carried many another briefcase, learned a lot more, and eventually been the first-chair lawyer on many smaller cases, and then quite a few bigger-dollar cases with objectively higher stakes.  But I've never had more pure fun than I did in the summer of 1978 as the third-chair lawyer-wannabe helping represent Evel Knievel.

(My thanks to Mr. John Chapman of the Austin History Center for his generous help in retrieving the news clippings and photo I've used in this post.)

The blogging mindset and the compulsion to "show your work"

I honestly don't remember whether it was in grade school, junior high, or high school that I first had math teachers who insisted that my written homework assignments, in addition to reporting the problems' answers, also "show my work" — the calculations I'd done in support of the solution I was offering up.  Most students chafe at such requirements, and I suppose that I did as well.  I certainly took no perverse joy in the English composition assignments that were intended to familiarize me with writing footnotes and bibliographies either.

Law school and, in particular, law review, and then a subsequent judicial clerkship, however, added heavy paving stones to the neural pathways that now affect all my writing.  For better or worse (or actually, for better sometimes and other times for worse), "showing my work" — in the form of footnotes and legal citations — became the rule for my professional writing, rather than the exception.  The best send-up of this widespread compulsion is a fabulous student-written note from the Penn Law Review in 1975 entitled "The Common Law Origins of the Infield Fly Rule," which famously begins with its first word — "The" — footnoted and defined.

The compulsion carries over quite naturally to my blogging.  Writing the paragraph just above, for example, I agonized briefly over whether to use standard "Bluebook" citation form to reference that article, and I lamented the fact that (as best I can determine) there's no online version of it available.  The latter fact particularly frustrates my law-blogging instincts — "Argh! I can't hyperlink this!"

The instinct to "show your work" — to provide footnotes, references, hyperlinks, bibliographies, exhibit volumes, etc. — is bound up closely with the craving for both accuracy and credibility.  An illustrative anecdote:

The Fifth Circuit judge for whom I had the privilege of working was then in only her second year on the bench, and she had come from a nontraditional practice specialty (corporate securities regulation).  She hadn't dealt at all, since her own law school days, with many of the subjects (for example, criminal law) on which she and our chambers were now required to write appellate opinions on a daily basis.  She was therefore quite insistent that in drafting proposed opinions for her review and revision, her clerks "show their work" with promiscuous citations to relevant statutes, judicial opinions, and the record from the district court.  And woe be it to the clerk in our chambers who ever assumed that he could rely upon the parties' briefs to have identified all of the relevant legal precedents!  We used the parties' briefs as a starting point for our own research, and our judge expected us to be highly skeptical not only of the parties' contentions, but also of their research and briefing.  Her insistence that we do independent research, and always show our work, was an important quality-control method, and it also probably reassured her more experienced colleagues on the bench that the written opinions in which they were being asked to concur were sound. 

By contrast, one of my law school classmates who worked for a long-time Fifth Circuit judge described to me his boss' frequent and amazing practice of dictating even very important written opinions from off the top of his head — citing as precedent mostly his own prior decisions from years past.  My classmate's job often consisted of simply locating the volume and page citations from those past opinions to polish up his chambers' output for publication.

Recently, a friend suggested that I write an op-ed for the newspaper where he works.  I was flattered by the suggestion, and ended up begging off because of other commitments.  But I said to him, only half jokingly, that I didn't know whether I'd be able to write an op-ed without hyperlinks.  I suppose that what I really meant was, "I'm not sure anyone would take me seriously unless I've shown my work."  I almost certainly let my compulsion get out of control in lots of my blogging.  For instance, in writing a brief review of a brief book review last night, when I asserted that I knew something about book reviews, I included a good half dozen hyperlinks to back up that assertion, including one to the law review masthead from 24 years ago to prove that I've been a book review editor.  How incredibly anal that was!  But the odd fact is, I'm uncomfortable writing a blog post — like this one — without hyperlinks.

Beldar's most memorable elevator ride

My first trip to New York City was in late October 1979, when I was a third-year student at Texas Law School on a "fly-back" to interview there for a summer clerkship job for the following summer, between graduation and the beginning of my judicial clerkship.  After a day of interviews, I'd been to see A Chorus Line on Broadway, and then I'd had a drink and a snack in the Palm Court of the historic Plaza Hotel, where I was staying.  I was in a fabulous mood — New York was exciting, and the firms I'd seen had been enthusiastic in courting me.  Surely an exciting future lay before me, and as I stepped into one of the Plaza's elegant elevators to head for my room, anything seemed possible.

As the door was closing in front of me, I noticed someone rushing to catch the elevator, and automatically stuck out an elbow to hold the door for her.

It was Cheryl Tiegs.  Sports Illustrated covergirl Cheryl Tiegs, the hottest supermodel in the country — dressed to kill in a bejeweled evening gown and diamonds, perfectly made up, radiant, stunning.  "Thank you," she said breathlessly as she entered the elevator car with me and punched the button for the penthouse.

The elevator began its ascent — just her and me.  My thoughts raced — I had to say something, but what?  We reached my floor, the elevator door opened, and I stepped out, but held the door for a moment while looking back into the elevator car at her. 

Panic-stricken, I opted for honesty, and blurted out, "Gee, Ms. Tiegs, I've always wondered what I'd say if I ever saw you on an elevator — something witty, something that'd make you laugh — and now I have no idea what to say, but I had to say something!"

She gave me a dazzling smile — the same smile you see in the adjoining picture — and with  a small, husky laugh, she said, "You could try saying ... 'Good night.'"

"Good night!" I stammered as the door closed a quarter inch in front of my nose.

*******

If I had the chance now to debate Cheryl Tiegs before a national television audience, and if she claimed during the debate never to have met me in person before we went onto the stage, I'd have no pictures — except the one that's seared, seared in my own memory — to prove her wrong.  And she wouldn't be "lying" if she claimed that we'd never met or spoken.  She just would have forgotten her brief encounter with an awestruck young almost-lawyer whom she'd spoken to graciously but had no particular reason to remember.

I'm inclined to cut Vice President Dick Cheney some slack on not having remembered being in the general vicinity of, or perhaps even being briefly introduced to, Sen. John Edwards.  It's not so much that Dick Cheney and Cheryl Tiegs have that much in common; it's that John Edwards and I do.

Supreme Court practice

Houston-based Baker Botts LLP has been aggressively building a US Supreme Court practice group in its Washington office by hiring former clerks for Supreme Court Justices.  Bully for them.

I'm admitted to the bar of the US Supreme Court, having once sought a writ of certiorari (that was, predictably, denied).  Although I've done quite a few state and federal court appeals, the odds of actually arguing before the US Supreme Court, for me or anyone who's not in a practice group devoted to appellate litigation in a big firm, is vanishingly small.  I did, however, pass up an opportunity to argue a case in the Supreme Court, many years ago, back when I was at Baker Botts.

Having come to that firm out of a Fifth Circuit clerkship, for a couple or three years there I coordinated the firm's participation in pro bono appointed appeals in the Fifth Circuit.  The firm was extremely supportive — devoting many thousands of dollars in out-of-pocket expenses, and hundreds of thousands of dollars in opportunity costs from lost billable hours.  The unwritten but highly symbiotic  understanding was that the judges of the Fifth Circuit would appoint lawyers from firms like Baker Botts on more challenging cases in which their briefing and argument skills would be genuinely useful to the court; and in return, in addition to performing worthwhile pro bono work, our young lawyers got first-chair responsibility in writing the appellate briefs and, on occasion, arguing those appeals, and perhaps also handling evidentiary hearings on remand to the district court.

On one particular Fifth Circuit appeal for which we were asked to provide a court-appointed lawyer, I assigned the case to a brand new lawyer who'd eagerly volunteered, but whose bar scores hadn't yet come in.  He did all the work and wrote a first-rate brief, but since he wasn't yet licensed when it was due to be filed, I of course had to sign off on it.  By the time the case was scheduled for oral argument in the Fifth Circuit, however, he'd been duly sworn in, so he did the oral argument, and won.  To our surprise, the Texas AG's office petitioned for a writ of certiorari (seeking discretionary review) from the US Supreme Court — and to our even greater surprise, cert was granted and oral argument scheduled!  And my name was still on the case as lead counsel of record.

Oh, the temptation!  How easy it would have been to pull rank and grab the case, just to get a chance to argue in the Supreme Court.  But it would have been wrong — a selfish decision, unfair to the junior lawyer who'd written the brief and done the Fifth Circuit oral argument, and unfair to the client (who was entitled to representation by the most knowledgeable lawyer).   

So it was that my young colleague, within his first year and a half as a lawyer, argued before the US Supreme Court.  (He had to seek, and was granted, a waiver of the usual years-in-practice requirement for membership in the Supreme Court bar.)

Several months after the argument, we got the results — which were anticlimactic.  In a fairly rare type of result, the Supreme Court decided after it heard the oral argument that the case really wasn't that big a deal — not worth its time — and dismissed the previously granted writ of certiorari as having been "improvidently granted."  I consoled my colleague by telling him that this was actually the most convincing possible victory — he'd obviously completely convinced the four or more Justices who must have voted to grant the writ originally that the Fifth Circuit opinion was correct and ought not be disturbed, much less reversed.  He, however, was nevertheless personally disappointed — he wanted his name in the books on a full Supreme Court opinion, for obvious reasons.  Arguing in the Supreme Court is like pitching in the World Series, and he felt like his game had been rained out.

John Kerry as negotiator

I've never owned a pair of striped pants; I've never been to, much less worked at, Foggy Bottom.  But for the last 24 years, people have paid me to be their champion and their advocate in lawsuits.  And although I've tried dozens and dozens of cases to a verdict — including "bet the company" cases in which my corporate clients' continued existence, and the personal careers of their decisionmakers, were on the line — nonetheless, the vast majority of the cases I've handled have ended not with a trial, but with a diplomatic solution, a negotiated compromise.  Negotiating with a wily adversary is a huge part of my daily professional life; and that perspective cannot help but affect the way I view politics and, in particular, foreign policy and diplomatic relations on the national and international scene.

So it was that watching last night's presidential debate between Sen. John F. Kerry and President George W. Bush, this line, from Sen. Kerry, jumped out at me (boldface added):

If the president had shown the patience to go through another round of [United Nations] resolution [sic], to sit down with those leaders, say, "What do you need, what do you need now, how much more will it take to get you to join us?" we'd be in a stronger place today.

Oh, how I love to hear those exact words coming from my adversary across the bargaining table!

When I hear "How much more will it take?" and "What do you need?" coming from the mouth of my opponent, I know the case will settle on terms favorable to my client.  My opponent might as well have placed a large, blinking neon sign behind him that reads:  "I'm afraid to go to trial, and I'll do whatever it takes to avoid that risk."  He's just handed me his client's purse, invited me and my client to take what we want from it, and return it to him containing however little my client and I see fit.

Once my adversary has said those words — once he's revealed that he dares not fight, that he will, ultimately, compromise no matter how high the price — then they can't be unsaid.  No amount of previous or subsequent bluster will persuade me that my opponent and/or his client have the heart and the guts to risk seeing the case through to a verdict.

It matters little whether the person across the table is an implacable adversary (as, say, the North Koreans or the Iranians) or a sometimes-ally who nonetheless has potentially adverse interests and in any event will follow what it perceives to be its own self-interest (say, the French).  The answer to the question "How much more will it take?" is always — "Everything you've got to give, and more.  And more."

"Consulting experts" versus "testifying experts," and the differences between the ways lawyers and journalists use experts generally

On his radio show Thursday afternoon, Hugh Hewitt first asked whether I have much experience as a trial lawyer in dealing with expert witnesses, and I confirmed that I do indeed deal with them in my practice on an everyday basis.  Then Hugh asked me a hypothetical question:  If I were defending CBS News in a multimillion dollar trial, would I let the case go to the jury based on the collection of experts CBS News has relied upon in its so-called authentication of the forged Killian memos.  My answer wasn't a particularly good one — perhaps surprisingly, I hadn't thought of the question before in precisely those terms because of the differences in the ways trial lawyers and journalists regularly rely upon experts.

But as so often happens in my blogging, this question is one I've been mulling over for a while, and that has now led me to one of my multipart rambling dissertations as a crusty old trial lawyer.

I. Expert witnesses versus lay witnesses

The Federal Rules of Evidence (and most states' parallel rules for use in the state-court system) distinguish sharply between expert witnesses and so-called "lay witnesses."  Rule 701 of the Federal Rules of Evidence sharply restricts the ability of lay witnesses to offer testimony that consists of the witness' opinions or inferences:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702 in turn provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

To give some concrete examples of how this pair of rules actually works in a trial:  Suppose my client Mr. Jones, a ditch-digger by trade, claims to have been permanently disabled by a violent reaction to a prescription drug.  When I put Mr. Jones on the witness stand, he can testify based on first-hand knowledge about a wide range of important factual matters — for instance, his own educational, vocational, and economic history; what prompted him to consult his doctor; when he started taking the drug; and what impairments or symptoms he began to notice thereafter and continues to observe.  He can testify that for the five years immediately before he first took the drug, he'd had a gross yearly job income of, say, $35,000, and that he has had no income at all since he took the drug.  He can testify, too, on some matters that strictly speaking are not objective issues of fact — for example, how his quality of life seems to him to have changed; how his family life has been disrupted; how he feels about no longer being his family's breadwinner; what tasks he no longer finds himself capable of doing; how severe the physical pain is from the multiple daily seizures he has continued to suffer; and so forth.

But there will be important parts of Mr. Jones' overall case that I cannot prove up through his testimony as a layman.  I cannot, for example, ask him to render a medical diagnosis regarding his condition when he sought treatment (although I might, through a hearsay rule exception, be permitted to adduce his testimony as to what he was told by his examining and treating physicians when he did so).  I cannot ask him to render an opinion as to whether in fact the prescription drug (rather than, say, some other event or malady) caused his current disability, or how it did so, or how long his disability is likely to last, or whether it's likely to become curable in the future.  I cannot ask him to render opinions on the likely rate of future inflation or interest-rate returns on a conservatively invested lump sum of money, or what discount rate should fairly be used to discount to present value the stream of earnings he might have expected to receive over his projected working lifetime but for his disability.  (Oddly enough, though, with respect to damages calculations, I can take the basic data he's given me and, during final argument, do some blackboard calculations to suggest to a jury of laymen how they themselves might go about making appropriate "common-sense calculations" to determine the present value, if paid now in cash, of the stream of future earnings that my client has lost the prospect of receiving.)  No, on all these issues, detailed analysis and proof will depend on opinion testimony that in turn is based upon "scientific, technical, or other specialized knowledge," and I can only adduce that testimony from the mouths of "experts" whose qualifications and expertise I've first demonstrated to the court's satisfaction. 

And even once I've met the threshold standard of proving a given expert's qualifications — that a physician, for example, has a medical degree and license — my opponent will be free to attack not only my expert witnesses' opinions, but the depth of their qualifications to render them; and typically my opposing counsel will call his own competing expert witnesses, prove up their qualifications to give opinion testimony, and offer their own competing theories, opinions, and conclusions.  It is left to the "factfinder" — the jury if there is one, or the judge in a nonjury bench trial — to sort through the conflicting opinions; assess the respective experts' credentials, expertise, and credibility;  and determine whose opinions to accept and whose to reject, in whole or in part. 

Thus does the dance of experts play out in any civil trial.

II. Pretrial discovery of experts

The anticipation of how that dance will likely play out in a trial, however, in turn guides the pretrial preparation and discovery phase for both sides in a lawsuit.  By rule and/or pretrial order, some months before the trial, I will have had to have "designated" the experts whom I've proposed to call at trial to my opposing counsel, and to have provided him with not only their names, but their credentials, their written reports of their opinions and conclusions, and all of the data they've reviewed and considered in reaching them. 

My opponent, after reviewing that information, will almost certainly have taken a pretrial oral deposition of all of my significant expert witnesses to probe those subjects.  Every communication I've had with my "testifying experts" will have been subject to his examination — and you may be sure that he'll have asked, for example, how much my expert is being paid; how much of his time is devoted to serving as an expert witness in legal matters versus plying his profession directly; whether I've improperly suggested conclusions or withheld key information from my expert; whether my expert has rendered contrary or inconsistent opinions in other settings; how strong my expert's credentials really are; how carefully he's actually reviewed the data in forming his opinions; and so forth.  And when my opponent has selected and designated his own competing "testifying experts" to refute mine, he'll have had to have made the same disclosures and have given me the same opportunities to probe their opinions.

III. Testifying experts versus consulting experts

But even before the pretrial dance of competing "testifying experts," civil litigation often involves another type of expert altogether — the "consulting expert."  By definition, a consulting expert is one retained in secret — even his identity, and the very fact that he's been retained, is something I dare not and need not disclose.  I may have hired him, in fact, to help me evaluate a prospective case before I've even made a final decision whether to undertake it.  And so long as I keep his identity secret, and his work and opinions carefully segregated from my "testifying experts," my opponent will never learn of his existence.

Some of the expert witnesses upon whom I may be obliged to rely may be ineligible for "consulting expert" status to begin with.  The physicians who've diagnosed and treated my client, for example, are bound to become known to my opposing counsel, and I'm bound to rely upon them as witnesses to testify as to the facts they observed and the actions they performed — which inevitably will draw into question the opinions and conclusions they reached during that process.  And it's also quite common for an "outside expert" — one with no prior factual connection to the case — to be retained initially by counsel as a "consulting expert," and only after counsel has concluded (using his judgment as an advocate) that it would be beneficial to his presentation of the case, disclosed to the other side and thereby converted into a "testifying expert."

Superficially, it may seem as though the practice of allowing the shielding of the identities and opinions of pure "consulting experts" would be antithetical to the process of justice.  But as it has developed, the law has recognized the overall benefits of allowing private and nondiscoverable consultations.  If, for example, I knew that every expert I ever consulted would become known to my opposing counsel — and that I might thereafter be "stuck" with an expert's unfavorable opinion — the natural result would be that I'd only consult with pliable and reliable experts whose opinions I could confidently predict in advance to be favorable to my client. 

Just as I must be able to consult with my client under the shield of attorney-client privilege to learn about unfavorable facts that I need to assess in order to perform my role as his counselor — a role that is and should be distinct from my performance before the outside world as his advocate — so too in that counselor's role I must be able to gather opinions that aren't sycophantic in order to assess the strengths of the likely expert testimony the jury will ultimately hear from both sides. 

Moreover, it promotes efficiency if I'm free to "sound out" various potential experts as pure "consulting experts" without thereby becoming stuck with them as testifying witnesses.  It's not uncommon to approach and even retain an expert with the highest hopes and expectations that he'll make the switch from "consulting" to "testifying expert," but then to find out that he's actually less qualified to render opinions than I'd first expected.  Perhaps I've first consulted a neurosurgeon to review my client Mr. Jones' medical records, and then learned from him that Mr. Jones' maladies really weren't by their nature subject to surgical treatment, and that instead I ought to seek opinions from neurologists and epidemiologists.  Or perhaps I've discovered that someone I retained as a consulting expert — with the expectation of eventually designating and disclosing him as a testifying expert — is well qualified, even brilliant, but he's got a troublesome lapse in his licensure from that license revocation proceeding he didn't think to list on his curriculum vitae, or he's simply an uncharismatic and inarticulate witness.  Why should my client's case be burdened with the embarrassment of calling these inappropriate experts?  That would promote confusion and needless expense, not truth-seeking.

The premise is that through the adversary system — in which my opposing counsel has these same opportunities to rely upon attorney-client privilege and the privilege against disclosing the identities and opinions of pure "consulting experts" — more cases will be likely to settle on a reasonable basis without a trial, and the cases that do go to trial will permit the factfinder to reach the fairest possible resolution of the disputed issues based upon two competing advocates' strongest possible presentations of their respective cases and attacks on each other's presentations.

IV. Journalists' use of experts

My job as a trial lawyer is to promote my client's interests, zealously but within the bounds of the law and legal ethics.  While I need to have a good appreciation of opposing views and the weaknesses of my own client's positions to perform my role as confidential counselor, I have no obligation to score points for my client's opponent — he has his own advocate to do that for him.

At least in theory, however, journalists, in contrast to trial lawyers, are not creatures of an adversary system.  While they have business competitors and perform in a marketplace of competing ideas and opinions, journalists have as their "client" the "public interest" and "the truth."  And that has profound implications for the differences in how journalists and lawyers rely upon and use experts.

Like me, a journalist may have need of an expert witness to analyze technical or scientific issues, render opinions on them, and digest their opinions down into bite-sized chunks that can be followed and assessed by the audience — jurors for me, the public for journalists.  Just as I might hire a forensic document examiner to assist me in determining the authenticity of a document for, say, a will contest case, Dan Rather may have need of a forensic document examiner to assist him in determining the authenticity of a memo produced by a source who claims that the memo bears upon President Bush's military service.

To a limited extent, I have no problem with journalists relying on their own sort of "consulting expert."  Dan Rather should be free to consult with, say, a typewriter repairman to find out what his experience and expertise may offer.  And I have no problem with Dan Rather deciding, after thorough examination, that the typewriter repairman wasn't really the right kind of expert he needed after all, and therefore leaving on the editing room floor all the footage of his interview with the typewriter repairman when he finally airs his broadcast. 

But as I understand journalistic ethics, what a journalist is not entitled to do is to simply "deep six" — to not only ignore, but actively hide or misrepresent — the opinions of experts with whom he's consulted who do have the relevant credentials and expertise, but whose opinions and conclusions don't fit with the premise of the journalist's story.

If Dan Rather and CBS News concluded, for example (as seems to be the case), that Marcel Matley, Linda James, Emily Will, and James J. Pierce were all competent handwriting experts, journalistic ethics do not permit them to simply ignore the objections raised by Ms. Will and Ms. James to the signatures on the Killian documents while only broadcasting, without reservation, the opinions of Mr. Matley and Mr. Pierce that the signatures were genuine.  If Ms. Will told CBS News that she had concerns about the documents' typefaces and format, and that they ought to consult someone with deeper credentials and expertise on those subjects rather than just the handwriting, then journalistic ethics would not permit CBS News to simply ignore that advice and proceed along as if it had actually consulted with experts who have the proper expertise.

Precisely because journalists must make their editorial judgments in a hurry — without the elaborate procedures of civil litigation and the checks and balances built into the adversary system — journalistic ethics placed a burden on Mr. Rather and CBS News that I, as an advocate, don't share:  The burden of being balanced and fair in their presentation.

But it's now quite obvious that CBS News and Mr. Rather violated their ethical obligations as journalists, and instead behaved as if they were advocates for a particular viewpoint, in this case a viewpoint critical of President Bush's service record.  They took it upon themselves to ignore controverting opinions and warnings from the very experts whom they had chosen to consult.  They treated those experts as if they were "consulting experts" whose existence and opinions they were entitled to hide from the public, and indeed at least for a time actively tried to conceal those experts' very existence.  They instructed Mr. Matley not to give interviews; they've in effect called Ms. Will and Ms. James liars; they've even concealed the fact that Mr. Matley and Mr. Pierce have given carefully limited opinions, opining only as to some documents and then only as to their signatures, not their typefaces and other characteristics.  Indeed, my friend and fellow lawyer-blogger AllahPundit has persuasively argued that CBS News appears to have engaged in authentication shopping, selectively revealing different document to different experts in hopes of finding a combination that would fit the theme they were trying to promote.

And in so doing, CBS News and Mr. Rather not only violated their ethical obligations — they also became willing accomplices to a forger.  Whether motivated by a desire to cover up their own unethical and incompetent journalism, or by a more repugnant desire to serve a partisan political goal, their conduct has been shameful and indefensible.   In either event, they clearly long ago ceased being objective journalists and became instead advocates — advocates unbound and unchecked by procedural rules, legal processes, ethical considerations or, apparently, even conscience.

Such behavior should have career-ending consequences.

Kranish and Elliott on the phone: a fictional recreation

Reading Will Collier's post on VodkaPundit about the Boston Globe's Mike Kranish and SwiftVet Captain George Elliott{note1}, and some of the comments on that thread, have put me into a speculative mode late at night. 

As a lawyer, I deal with facts and evidence.  When I practice my profession, I'm bound by canons of ethics, the violation of which can get my license jerked.  But hey, here on BeldarBlog, I can also be a pretend-journalist, or a pretend-novelist, or both at the same time!  Last I checked, neither of those two occupations required a license.

So what follows, unlike my two prior posts about Captain Elliott and the affidavits, is pure fiction and some parody thrown in to boot.  It's purely a creation of my imagination.  At best, call it informed speculation — based on having closely re-read both of George Elliott's affidavits and the Globe's "retraction" story.  It's also based on 24 years of drafting affidavits; cross-examining many a witness myself; and watching many witnesses cross-examined about such affidavits, and then trying to "rehabilitate" such witnesses.  So I'm not saying at all that it did, but just that it could have gone something like this:

-----------------------------

Kranish:  Hello, Captain Elliott, Mike Kranish here, Boston Globe.  Thanks for taking my call.  Now, I want to ask you about this line in your affidavit from July 21st.  Have it in front of you, sir?  Okay, you said in paragraph 3 on the second page, and I quote, "For example, in connection with his Silver Star, I was never informed that he," meaning John Kerry, "had shot a wounded, fleeing Viet Cong in the back."  You with me, sir?

Elliott:  Yes, that's correct.

Kranish:  Okay, now flip back a page with me sir.  You also said, in paragraph 1 on page 1, and I quote, "I am able to swear, as I do hereby swear, that all facts and statements contained in this affidavit are true and correct and within my personal knowledge."  See that, sir?

Elliott:  Yes, I'm with you.

Kranish:  So I need to ask you some questions about that firefight that was the basis for Kerry's Silver Star.  I want to know what you personally saw happen, sir.

Elliott:  What I personally saw?  Well, I wasn't there.

Kranish:  Oh.  You weren't there.  I see.  So Captain, my next simple question to you, sir, is how did you see John Kerry shoot that VC in the back, since you weren't there during the fight?

Elliott:  Well, I didn't actually see it—

Kranish:  But sir, you said that "all facts and statements contained in this affidavit" were "within [your] personal knowledge," didn't you?  I just read that to you!  That is your signature on the second page, isn't it?  Under oath and subject to the penalties of perjury?!?

Elliott:  Oh, my.  Yes, it's my signature.  Oh, my.  Let me look at this again, I need to—

Kranish:  You know what perjury is, Captain?  You know how many years people can go to prison for when they commit perjury?  You know what kind of trouble perjury is, Captain?

Elliott:  Perjury? What? ...  But ...  Okay, I see where you might have read this, this broad statement on the first page about "personal knowledge," and thought that I was—

Kranish:  So did someone pressure you into telling a lie in that affidavit, Captain?  Was it Rove? Cheney?  Huh?  They told you how important it was for political reasons that you say that, or threatened you maybe that someone in your family would get in trouble ....

Elliott:  Okay.  I see what happened.  I see where I went wrong.  It was a terrible mistake probably for me to sign the affidavit with those words. I'm the one in trouble here.

Kranish:  I'll bet they pressured you to lie, didn't they?  C'mon, you can tell me, I'm a reporter, and what you tell me is protected by the First Amendment.

Elliott:  No, nobody pressured me to lie, Mr. Kranish.

Kranish:  Well, then, why did you lie under oath in that affidavit, Captain?  I mean, it's right there in black and white!  You said you were there!

Elliott:  Oh, my.  I — I guess I just didn't read it carefully enough.  I'm really sorry, I regret signing it if it gives the impression that I was there during the combat.  I read it too fast, maybe.  Just too fast .... Now, I know:  That's no excuse.  But the publishing house lawyer said they were trying to meet a deadline and there were time pressures to get my affidavit finished, and I tried to help him out, but now I wish I'd taken more time to look at it more carefully.  Gosh.  I should have taken more time to be more careful.  I knew it was wrong ... the rush, I mean. In a hurry I signed it and faxed it back.  That was a mistake.

Kranish:  Well, you said under oath that Kerry shot that poor boy in the back, didn't you!

Elliott:  Well, I don't know, I wasn't there.  It really doesn't matter whether it was in the front or the back, what matters is—

Kranish:  Aha!  So do you now think that Kerry shot him in the back, whereas before you didn't think Kerry shot him in the back, based on what you actually saw with your own two eyes and can swear to, Captain?

Elliott:  Do I ... ?  What, now?  Do I still not ... ?  Uh, well no, I mean .... I still don't think he shot the guy in the back.  Not based on something I saw myself.  I never really knew one way or the other, based on what I actually saw with my own eyes, you see.  Of course, now, John Kerry admits in that new book that just came out this year — hey, did you say your name is "Kranish"?

Kranish:  Captain, are you trying to say you gave him that Silver Star by accident or while you were sleepwalking?  Or don't you still think Kerry deserved that Silver Star?  Which you did mean to give him on purpose at the time, didn't you?  Or did you?

Elliott:  Now, wait a minute here.  What was your question?  Do I — no, of course I wasn't sleepwalking.  Do I — I — still think Kerry deserved that Silver Star?

Kranish:  Okay, thank you for clearing that up, Captain!  We've got what we need.

Elliott:  Clearing up ... ? But ... Hey!  "Kranish"?  Hey, wait a second, didn't you write that new book where Kerry admitted —

CLICK ... buzzzzzzzzzz ....

-----------------------------

Fiction.  Purely a creation of my imagination — as plausible as any other set of guesses, unless and until the Globe releases a tape recording.

But thus could the Globe quote the man to make him look like he's a liar who's changing his story.  Thus could the Globe insist on Saturday, notwithstanding the second affidavit, that it "stands by its story."  (The lines in green are purported quotes lifted directly from the Globe.)  Thus could the Globe, in a lawsuit, prove that its quotes were "accurate," each and every word of them — at least within the bounds of a Clintonean concept of accuracy.

Far-fetched? 

Naw, I've seen these exact same cross-examination techniques used with live witnesses on the stand and in depositions.  First you get the witness to panic, to overreact, to some arguable inconsistency.  You harp on it; the panic increases.  You mention the p-word.  Then, if you can get away with it, your questions get less precise and faster.  You ask several at once.  You interrupt the witness to break his train of speech and thought.  You add confusion to the panic.  Throw in some double-negatives.  You seize a partial answer, out of context, and dart on to the next question (or accusation).  The funny-sad thing is, the more honest the witness is, the better these techniques work!  And imagine how much easier it is to get away with it, if you're a reporter doing a phone interview, rather than if you have an opposing lawyer objecting and a judge to decide what's fair!  C'mon, folks — you've seen televised news conferences where reporters do exactly this same kind of stuff — haven't you?

Look closely at the second affidavit.  Look how much more carefully it handles the subject of Elliott's personal knowledge.  Friends and neighbors, I submit to you that the "personal knowledge" language in the first affidavit must have been what Kranish was harping on, because that's what they went to so much trouble to clear up in the second affidavit.  To my eye, it was obviously drafted by a seasoned trial lawyer who knows these kinds of tricks.

It's a pity that the first one probably wasn't.

So, gentle readers, my question to you is this:  Should I keep my day job?  Or try to become the next John Grisham?  Or should I try to get a job at the Boston Globe?

--------------------------

{note1}Elliott is sometimes referred to (for instance in the affidavits) as "Captain," but elsewhere (for instance in the SwiftVets' video from which I grabbed the screencap reproduced in my post below) as "Lieutenant Commander."  No Caliban explains:

The short answer appears that he was a Lieutenant Commander at the time of his Swift Boat tour and was later promoted to, and retired as, a Captain.

The confusion is understandable, as the ad itself identifies the Swift Boat Vets with their ranks at the time of their Vietnam tours, including George Elliott as a Lieutenant Commander.

(Hat-tip to Amy Ridenour of National Center Blog.)

Musings regarding affidavit drafting

Commenter martin asks another very good question about affidavit practice and ethics:

I wonder who actually drafted these affidavits. Elliott himself or is someone summarizing his testimony and sending him the afffidavit to be signed? And if so-what is being prompted/discouraged?

My response is sufficiently longwinded that I decided to make it here as a new post, rather than in the comments to my recent post about Captain Elliott's affidavits.

I'd guess that both affidavits were initially drafted by lawyers, with Captain Elliott's participation and cooperation, for him to then review and sign.  My further guess (for reasons I'll explain in a moment) is that the second one, but not the first one, might have been drafted by Mr. O'Neill or another experienced trial lawyer.  But those are just wild guesses.  The first one's a safer bet:  Unless they were JAG officers, I wouldn't expect many retired career Navy captains to know the "magic lingo" required to put the affidavit into admissible format, but both of Captain Elliott's have that language.

Most witnesses who are willing to give an affidavit in the first place are genuinely grateful for the drafting help.  Normal, ethical practice is for the lawyer who drafts the affidavit to do so only after he's first questioned the witness.  The lawyer then writes the affidavit in much the same way that the lawyer would elicit the same substance from the witness in live testimony on the witness stand.  Either way, the lawyer of course wants to exercise his professional skill to give clarity, structure, and coherence to the testimony.  There's nothing unusual or remotely unethical about doing this.

A major difference between affidavit testimony and live testimony, of course, is that affidavits don't contain surprises to the lawyer who's drafted them.  But either can be artfully constructed to dodge around certain issues. 

Artful dodging is usually a tactical mistake, however, if you expect that the witness is going to be interrogated about the affidavit or cross-examined after his direct examination testimony. It's standard cross-examination practice, when asking a witness about an affidavit or other written statement he's signed, to suggest that the lawyer who drafted it put words into the witness' mouth and that the affidavit was therefore unreliable — like a series of "leading questions" of a friendly witness, writ large and literally. 

On the witness stand, a lawyer's not allowed to lead a "friendly" witness (usually meaning a witness whom his own side has called) during "direct examination," at least on substantive matters.  "Leading" questions are those which suggest a particular answer; it's also sometimes called "coaching" the witness.  (Leading questions are not only okay to use when cross-examing the other side's witnesses, however, but in fact are highly recommended.)  When lawyers are restricted to asking open-ended, non-leading questions, they sometimes get answers they weren't expecting.  Avoiding just such surprises is a big part of proper "witness preparation" — which might more accurately be called "witness-lawyer preparation," but which trial lawyers colloquially call "woodshedding the witness" — before he gives oral testimony as a "live witness" at a trial, a hearing, or a deposition. 

Whether you're collecting the witness' version of events to put into affidavit form, or helping prepare him to give live testimony, it's unethical to suggest testimony for the witness to give.  In practice, this is a very tough tightrope to walk, however.  A perfectly legitimate part of witness preparation is to help the witness anticipate ways that the other side may try to distort or twist his testimony on cross examination:  "If you use the word 'zoom,' the other lawyer is going to try to make that into you saying that the car was traveling over the speed limit.  Do you mean to say that?  No?  Okay then, what other words could you use instead of 'zoom' that are accurate but not so likely to be twisted?"  That's okay.  "Dammit, don't say 'zoom,' I want you to stick with 'proceeded cautiously, driving within the speed limit,' when you're on the stand!"  That's not okay.

Experienced trial lawyers have seen and done so many cross-examinations themselves that they know the traps to avoid when drafting affidavits.  They recognize that by creating a written version of the witness' testimony, they're giving their opponents a static target to shoot at — one that can be studied ahead of time, one that a skillful cross-examiner can use to lay and then spring his traps.

Thus, to guard against predictable lines of impeachment, my own practice — and that of most experienced trial lawyers I know — is to spend some extra time with one's potential affiant, before he signs the affidavit, going over it with him in detail.  The witness should clearly understand that when he signs it, the testimony in it becomes his.  I warn affidavit witnesses that having to fall back on "I didn't mean to say that, the lawyer put that in there without my noticing it" will only make me and the witness look bad. 

One of the most common mistakes that inexperienced lawyers make when drafting affidavits is to use language that the witness himself wouldn't have used.  When I write affidavits from my notes of a witness interview, I try to use the same words he's used himself to the extent I can recall them or included them in my notes.  When I can't recall the exact language, or when I'm interpolating — writing transitional language, filling in the gaps, on nonsubstantive matters — I imagine that I'm writing a monologue in the witness' own voice.  Sometimes I'll have the witness read the affidavit I've drafted back to me, aloud, before he signs it — which really helps ensure that the witness has read it all carefully, and that the affidavit uses wording he understands and will be comfortable with if he's challenged on it.

Most experienced trial lawyers also pay particular attention to the "personal knowledge" allegations when drafting affidavits.  They're careful to avoid nudging their witnesses out onto limbs that can easily be sawn off.  It's far better to include a qualification like, "My understanding from reading the accident report is that the light was red for northbound traffic when Mr. Jones' car entered the intersection from the south" than it is to subject your affidavit-witness to brutal cross-examination along the lines of, "You swore here the light was red!  You swore that everything you were saying in the affidavit was within your 'personal knowledge'?  But you weren't there that night, were you?  So since your sworn written testimony in this affidavit was contradictory and untrue, why should the jury believe your sworn live testimony from the stand?"  (Actually, a good trial lawyer wouldn't ask that last question, because it's argumentative and it gives a smart witness a chance to explain away the problem; he'd save it instead for closing argument, when the witness can no longer smooth things over.)

The second affidavit signed by Captain Elliott does a better job of avoiding such pitfalls.  Of course, that could just be because Captain Elliott had already been sensitized to the problems with the first affidavit — for example, if he was "cross-examined" informally by the Boston Globe reporter about the state of his personal, eyewitness knowledge as to whether Kerry shot the fleeing Viet Cong soldier in the back or not.  That could certainly account for the Globe's "terrible mistake!" quote — that is, they got Captain Elliott feeling panicky in the interview because he thought they'd exposed a falsehood in the first affidavit.  Been there, seen that done many, many times, friends and neighbors, even with smart and honest witnesses — in fact, the more honest they are, the greater their degree of panic!

And if I'm going to continue speculating, my wild guess is that the original affidavit that Captain Elliott signed might have been drafted by a lawyer for the publishing company — which may, quite prudently, have been laying a foundation against possible defamation litigation — rather than by a seasoned trial lawyer.

That's probably more than you or anyone else ever wanted to hear from me on this topic, martin.  But that's why I have that big warning at the top of the blog — "longwinded" probably ought to come before "crusty," in fact.

What the other Swifties say about Kerry; and another type of "war story" about Beldar's courtroom cross-examination of one of those Swifties

[ed: Newer, related posts re the so-called "Elliott retraction" are here, here, and here.]

Those favorably influenced by the glowing tributes to former Navy Lt. John F. Kerry at last week's Democratic National Convention may also wish to hear from some of the other veterans who served with him on the Swift Boats in Vietnam.  This video, which is drawing lots of notice in the blogosphere{note1}, is harsh stuff — but very, very simple, and very, very powerful.   So's the text of the Swift Boat Veterans for Truth  website.

On the subject of Sen. Kerry's military record, I've written on my own blog and elsewhere that I don't doubt Kerry's patriotism, and that I genuinely honor his service to his country.  I continue to do so.  I also think it would be a tactical mistake, politically, for President Bush's campaign to attack Sen. Kerry's military record directly. 

However, as I wrote recently in a comment on another blog, there is no logical inconsistency between the proposition that Kerry performed bravely in combat, and the proposition that at least some of his motivations for doing so were selfish, cynical, calculating, and craven.  Personally, everything I've read on the subject — which has been everything I could find on the internet, on both sides of both propositions, including both statements of objective fact and powerful but subjective statements of opinion — has left me inclined to accept both of these propositions.

So, yes, Sen. Kerry served in combat, and yes, he was brave.  But just how brave?  And how does the entire context of his military record, and his leadership as a war protester thereafter, reflect on his qualifications to be our country's Commander-in-Chief?

There's obviously a large chasm between the portrayals of Sen. Kerry at last week's Democratic National Convention and those on the Swift Boat Veterans for Truth website and in its video.  I don't have a military background myself.  I lack the bona fides to offer any unique evaluation, and I certainly don't have the first-hand experience that either the men who were onstage with Sen. Kerry or who are in the above-linked video clip are drawing on. 

So like most Americans, I'm left having to decide — Which among these knowledgeable sets of witnesses do I believe?

*******

As it happens, I am more than passingly familiar with one of the principal spokesmen for Swift Boat Veterans for Truth, Houston lawyer John E. O'Neill. 

Mr. O'Neill, a Naval Academy graduate, served in Coastal Division 11 in Vietnam and took command of PCF 94 — John Kerry's own Swift Boat — after Kerry's departure.  Mr. O'Neill famously debated Kerry on The Dick Cavett Show in 1971 — the era when Kerry was calling his brother veterans "war criminals" in sworn Congressional testimony.  (Mr. O'Neill, whose swift boat service began after Kerry had already left, is not one of the vets in the video — I presume because the SwiftVets wanted to highlight instead the statements from their members who did have first-hand exposure to Kerry.  He was one of the broad class of soldiers and sailors indicted by Kerry's accusations, however, and while he has long taken issue with Kerry's claims and been a spokesman for veterans who were profoundly offended by them, Mr. O'Neill has never pretended to have personal knowledge of Kerry's actions in combat.)

After his combat service in Vietnam, Mr. O'Neill went on to graduate with highest honors from my own alma mater, Texas Law School, where he'd served on the Texas Law Review and earned the highest grades in his class.  ("Grand Chancellor," that's called at UT; I was also on the TLR and was a "mere" Chancellor, but it was seven years later, so our law school tenures didn't overlap).  Mr. O'Neill was a law clerk to Justice William H. Rehnquist on the United States Supreme Court.  His legal career has been every bit as sterling as his military and academic records would have predicted, and he's now a name partner in one of Houston's best law firms.  By hard-earned and universal reputation in our local legal circles, John O'Neill is not only a damned fine trial lawyer{note2} but also as straight an arrow as you'll ever find.

In fact, I had the unenviable task of cross-examining John O'Neill in December 1992 when he was a witness — not in a political campaign, but from the witness stand of the 152nd District Court of Harris County, Texas, whence he gave expert testimony to support my opposing counsel's claim for "reasonable and necessary attorneys' fees" in a huge securities fraud jury trial.{note3}  I'd never met him before, and I don't think I've met him since, but I was certainly familiar with his background and reputation from many, many sources in the Houston legal community.

Although I could have taken Mr. O'Neill's deposition before the trial, I purposely declined to do so, for I was pretty confident I already knew what he'd say on the witness stand.  Indeed, at the trial, I was entirely unsurprised.  As I'd fully expected, Mr. O'Neill was an extremely credible and formidable witness before the jury.  His testimony — both on direct examination by my opponents and in response to my cross-examination — was absolutely truthful, candid, and fair.  Moreover, he unquestionably was well qualified to give expert opinion testimony regarding attorneys' fees in complex civil litigation.  (These were, of course, precisely the reasons my opposing counsel had asked Mr. O'Neill to be their expert witness on attorneys' fees.)

So it would have been foolish of me to attack his credibility, either directly or indirectly — and I didn't.  Indeed, at the end of my cross-examination, he readily agreed that I hadn't mistreated him.  I believe we shook hands as he stepped down from the witness stand. 

But this kind of witness also presents unique cross-examination opportunities.  Since this was a witness who would tell the truth as he saw it, regardless of where the chips flew, I had the opportunity to point out the chips that, so to speak, flew into my opponents' faces. 

Mr. O'Neill ungrudgingly conceded, for example, that the number of different timekeepers from my opposing counsel's very eminent law firm who'd billed time to this file — I don't recall the exact number, but it was over a dozen different lawyers, and with paralegals included the total was somewhere between twenty-five and thirty — certainly represented adequate, and perhaps even abundant, staffing.  He likewise conceded that although he'd been shown the many banks of file cabinets containing their collective pretrial work product, he'd made no effort to examine those files in detail, and that he wasn't attempting to vouch for the reasonableness or necessity of every task that had been done, every memo that had been written, or every rock that had been turned over and looked under.  After Mr. O'Neill had opined, again truthfully, that for a case of this nature it was not unusual to have — as my opponents did — three senior partners at one counsel table, backed up by a troop of associates, paralegals, and consultants, I asked him whether such a case could also be effectively tried by just one partner, one associate, and a paralegal.  He allowed that yes, he supposed it could — and smiled politely at me, my one young associate, and my one paralegal at our counsel table. 

And finally and most importantly, Mr. O'Neill readily agreed with me that from what he knew of the case, there were plenty of excellent firms in town, including his own, that were well capable of handling this sort of case, and who'd gladly have taken it for the plaintiffs on a pure contingent-fee basis — meaning their actual fee, if the case were ultimately lost, would turn out to be zero.  Because I was well satisfied with Mr. O'Neill's testimony, I chose not to call a controverting expert (i.e., another lawyer) to rebut it. 

And thus, as things turned out, when the jury came back with a defense verdict for my client, it was John O'Neill's own testimony that had formed the factual basis for the jury's answer to the attorneys' fee question submitted as part of that verdict — which was indeed zero, rather than the seven-figure fee award the plaintiffs' counsel had requested.{note4} 

*******

O'Neill and his fellow Swift Boat veterans insist that they're not shilling for Dubya, Rove & Co. — but rather that they're speaking out as veterans, some of them Democrats and some of them Republicans and some of them independents, who are offended by what they perceive as untruths and distortions from Candidate Kerry.  The Kerry campaign and its supporters are already desperately trying to spin the  SwiftVets' video as being partisan, unreliable, or otherwise incredible.{note5}    

But from my own first-hand experience cross-examining John O'Neill under oath, I can say that I fully believe that John O'Neill fully believes what he's saying — and that he's a damned credible witness in my opinion.

I've already ordered Mr. O'Neill's new book (co-written with Harvard PhD Jerome R. Corsi), "Unfit for Command:  Swift Boat Veterans Speak Out Against John Kerry" — which has zoomed to the No. 1 sales ranking on Amazon.com even though it's not yet been released! — and I look forward to reading it when it ships on or about August 15th.  (A free preview chapter is available by email here, although my spam blocker delayed my receiving it.)

---------------------------

Update (Thurs Aug 5 @ 10:40am):  A blogger whose work I read on a daily basis, Dr. James Joyner of Outside the Beltway, writes (to my considerable surprise) that he thinks the SwiftVets "sound increasingly like lunatics."  I only have personal experience with John O'Neill to go on, having never met any other of the SwiftVets, but "lunatic" is about the least apt description I can imagine for him.  Dr. Joyner, and perhaps others, may be influenced by the fact that Matt Drudge "is continuing to flak" for the Swifties.  Well, whatever you think of Drudge, even a blind pig can sometimes find an acorn — and there was that matter a few years ago when Drudge was first with the story of the blue dress.

Other new links:  Rusty at mypetjawa; Backcountry Conservative; Wizbang; A Time for Choosing; and The Key Monk.  See also the Trackbacks to this post; I thank the bloggers who were kind enough to link to this one.

Update (Thurs Aug 5 @ 2:00pm):  In response to a comment I'd left on Dr. Joyner's blog, another commenter (quoting me only in part) had this to say:

I practice law in Houston, and graduated from the same law school as John ONeill albeit seven years later and without quite the same record he had.

Wow, sounds as if you’re about as qualified to comment on O’Neill as O’Neill is qualified to comment on Kerry.

I think the selective quote was intended to be snarky; at least it was taken that way by another commenter.  But as I tried to make very clear in my original post here, I'm not one of John O'Neill's close friends or partners; he doesn't refer business to me; I owe him no favors.  If we ever do meet again, it will almost certainly be as professional adversaries.  My post described O'Neill's reputation because it was very relevant to my one rather extended and unusual first-hand experience with him.  I would agree that report of my first-hand experience with him is more reliable and meaningful than my report on O'Neill's general reputation in the local trial bar; but both are entirely consistent. 

But it occurs to me that I may have failed to make something else clear in my original post.  Sometimes when people ask me what I do for a living, I only half-jokingly tell them, "I'm a corporate assassin."  On a daily basis, my trade requires me to discredit witnesses, to impeach their credibility, to make them into laughingstocks in front of a jury, if I can.  Unlike, say, Mr. Conason, I can only do so using sworn evidence; and I have to follow the canons of ethics, the rules of evidence, and the rules of procedure.

In the specific trial in which I cross-examined Mr. O'Neill, the parties who had designated him as an expert witness and called him to the witness stand were trying to win an eight-figure judgment against my client.  Mr. O'Neill's testimony in particular was what they hoped would be the basis for a seven-figure award of attorneys' fees.  Had they won the lawsuit, my client would have been bankrupted; it was a "bet the company" case.  Accordingly, on that day, John O'Neill was my professional enemy.  It was my professional responsibility to my client to do everything I could, as a zealous advocate acting within the bounds of the law and the canons of ethics, to discredit John O'Neill's testimony.  Failing that, my duty was to make the best of his testimony that I could.

One means of doing so would have been to attack his general credibility.  If he had been an ambulance chaser, a professional testifier, a scoundrel, then I would have brought evidence of that to the jury.  But he wasn't.  If he were a tax lawyer or a politico who'd never tried a complex civil lawsuit and couldn't speak knowledgeably about attorneys' fees involved in such lawsuits, I'd have brought evidence of that to the jury.  But he wasn't.  If he had gone to a third-rate law school and had flunked the bar twice, I'd have brought evidence of that to the jury.  But he didn't. 

I had first learned of O'Neill's reputation and background when I was at Texas Law School precisely because he had been a star there and had landed a Supreme Court clerkship.  I too had aspirations of clerking for a Supreme Court Justice, and made a point to find out who from my school had done so during the past several years.  (I have a nice collection of nine signatures on polite letters telling me "thanks but no thanks."  One of my fellow TLR editors from the class of 1980 did, however, also clerk for Rehnquist; funny how he's now a partner in a prominent Texas-based firm that's a major fundraiser for Kerry and other Democrats.  I'll have to get Joe Conason to explain that to me, I guess.)  I learned more of O'Neill when I began practicing civil trial work in Houston.  I saw his name on reports of verdicts; I tried cases against lawyers who are now his partners; I tried to find out who the movers and shakers in my town and my profession were so I could become one of them myself.  Again, although I've moved in the same professional circles, I can't claim to have had nearly the success that O'Neill has had; but I could not have helped but have heard about him and his, from people whose judgments I trust implicitly.

Another means of impeaching his testimony would have been to expose any exaggerations or lies that he might have told about the specifics of that particular case.  Here I had a considerable advantage over him, because I'd been working on the case for over four years before it went to trial, and I knew in considerable detail what work my opposing counsel had done.  I was prepared to pounce if O'Neill strayed from the paths of honesty and fairness; but he didn't.

The main point I was trying to make, however, was that I was able to use John O'Neill's credentials and his expertise and most of all, his honesty to score points for my client.  A morally squishy lawyer could easily have evaded my questions or quibbled with me.  A greedy or overambitious one would have seen a clear incentive to do just that — for the law firm who'd named him as their expert witness is among the largest and most powerful in Texas, and it hands out hundreds of thousands, perhaps millions, of dollars in referrals every year. 

But O'Neill played it straight, even though the end result allowed me, in effect, to turn him into an expert witness for my client. 

I had every incentive to discredit O'Neill, but I couldn't.  He had every incentive to fudge his testimony in order to sink my client, but he didn't. 

Does that clear it up?

---------------------------

Update (Fri Aug 6 @ 4pm):  Kevin Drum posts "A Tale of Two Officers," in which he describes Mr. O'Neill as "the professional Kerry hater who has 'reluctantly' formed a generously-funded 527 accusing John Kerry of being a liar, a coward under fire, and a medal chaser."  In comments on that thread and an earlier one, I've invited Mr. Drum to deal with the facts of Mr. O'Neill's career before assessing his credibility.  I look forward to an answer.

---------------------------

{note1}Among the bloggers I've noticed commenting on the SwiftVets' video so far, in no particular order, are Mark Levin on NRO's The Corner; Citizen Smash; Blackfive; SondraK; Ace of Spades; Say Anything; AllahPundit; Roger L. Simon; Spoons; PoliPundit; Power Line; Florida Cracker; Ryne McClaren; Little Green Footballs; InstaPundit; Sam Barnes at Redstate; Feddie at Southern Appeal; and Drudge Report.

{note2}As I explained at length in my very first blog post, I do not use the term "trial lawyer" to mean "plaintiffs' personal injury lawyer," but rather a lawyer who actually and regularly takes cases (of whatever sort, from either side) to trial, and then knows what to do there when he gets there.  (The apt if impolite contrasting term used by real trial lawyers is "candy-assed litigator," meaning someone who files or defends lawsuits (personal injury or otherwise), does pretrial discovery, files pretrial motions, postures appropriately — but then inevitably settles before picking a jury.)  Mr. O'Neill is a genuine trial lawyer, and his firm represents both plaintiffs and defendants in civil business litigation.

{note3}I've previously written about other aspects of that same trial here.  If you're insatiably curious for more details about the particular litigants and the issues, email me and I'll send you a link to more information; it's all part of the public record, but just as a matter of taste, I'd rather not put the spotlight on folks who haven't invited it.

{note4}There's some precedent, I acknowledge, to the effect that such an answer from the jury would have been unsustainable on appeal if the plaintiffs had won their underlying case based on the rest of the jury's verdict.  They hadn't, though.  The case was not appealed, and that particular answer ended up being nothing more than, perhaps, a mild rebuke to the esteemed law firm representing the plaintiffs (and a pat on the back for my team) from the jury.  The rebuke doubtless stung considerably less than it otherwise might have because, as I was given to understand, the plaintiffs' law firm had been unsuccessful before the trial in their efforts to convince their very wealthy clients to agree to a contingent fee arrangement — so the firm was paid in full at their regular hourly rates, even though they lost.

{note5}Per my screencap from Google News, the good grey New York Times initially described the video as the SwiftVets' "latest gambit" — but has already toned that down a bit on its website version of the story to read instead "latest tactic."  Heh.  What liberal media?  [ed: the print version, at least as distributed here in Houston, still read "gambit."]

Meantime, I note that someone who enters "swiftboatvets.com" or "swiftboatvets.net" or "swiftboatsvets.org" into his browser — instead of "swiftvets.com" (which is the correct URL) — will find himself redirected to this bit of heavy spin (subscription or annoying commercial req'd to view in full text) by Salon.com's Joe Conason from May 4, 2004.  Gee, now that's a coincidence.  I wonder who paid for those domain-name purchases and redirects.  Obviously someone of high moral integrity.  [ed: corrected URLs per Deb's useful comment below, thanks!]

Mr. Conason's fact-checking skills break down by his third paragraph in the teaser page, where he references "eternal Kerry antagonist and Dallas attorney John E. O'Neill."  Umm, yeah, except he lives in Houston, Joe.  And I think I'd probably be an eternal antagonist of someone who'd called me and the men who served with me in combat "war criminals," pretty much regardless of party affiliation.  If you wade through the advertisements and inuendos, you'll discover another link back to an April 23 article by Conason which manages to distinguish correctly between the state's two largest cities, and then discloses that — oh my God! — Nixon admired O'Neill's willingness to take Kerry on in debate and invited him to the White House!  And even worse, O'Neill has had law partners who are — gasp! — Republicans, and the firm has clients that are big corporations!  Rock solid proof of conspiracy — or could it be ... competency?  Nahhh.

"No doubt it was mere coincidence that O'Neill clerked with William Rehnquist, the controversial conservative who was Nixon's favorite justice and who went on to be appointed chief justice by President Reagan," writes Conason.  Umm, yeah again, Joe, that and maybe the fact that O'Neill was first in his class at Texas Law School (which a few years earlier had refused admittance to young George W. Bush; guess they didn't get the VRWC memo that week).  And you know, I hadn't realized until now that O'Neill's debate on the Cavett show got Rehnquist the CJ spot.   How'd I miss that?  Hey Joe, I think they've got a job waiting for you at the Times!  That should be your next gambit.

McCoffee burns

I can't quite manage to stay out of a debate among a set of blawgers (legal bloggers), all of whom — as my blogroll implies — I regularly read, and considerably admire.

The debate involves products liability law and specifically Liebeck v. McDonald's Restaurants, P.T.S., Inc. (a.k.a The McDonald's Coffee Case), and the debaters are at Professor Bainbridge, Ted Frank at Overlawyered, and The Curmudgeonly Clerk.   Each makes excellent arguments; as I read each of their posts, I find myself nodding my head and saying, "Uh-huh, uh-huh ...."  To attempt to summarize each of their arguments here would blow my TypePad bandwidth for the month, I fear.  Suffice it to say, the Clerk defends the idea that McDonald's could appropriately be held liable by a court and jury on the facts of the McDonald's coffee case, while Mr. Frank and the good Professor think this verdict is an example of "trial lawyers" (by which they mean the plaintiffs' personal injury bar), and the juries and the trial and appellate courts who sometimes side with them, run amok.

It's been some years since I've tried a products liability case, and I can't claim that my knowledge of the state of the law — even in Texas, where I practice — is comprehensive and up-to-date.  I've certainly made no effort to read all of the cases and other sources cited by these debaters, much less to do any independent research.  As all of their posts make clear, however, the state of consumer knowledge and expectations becomes terribly important in this type of tort litigation, whether brought under old-fashioned negligence theories or comparatively new-fangled products liability theories. 

So reading their debate brought back to my recollection something I saw repeatedly some two decades ago when I had the privilege of helping represent the local electric utility (then known as Houston Lighting & Power Co.) in lawsuits brought by persons who'd been injured after coming into contact — either themselves, or through some conductive material like a stepladder or sailboat mast — with an energized overhead power line.  (I've written before at some length about a case I tried involving an injured HL&P employee that raised related but somewhat different issues.)

Typically in those cases, counsel for the injured plaintiffs would make use of a "shocking" (pun acknowledged but unavoidable and unintended) fact to grab the prospective jurors' attention and sympathies during jury selection.  It would go something like this: 

How many of you good folks have a set of power poles running down the back of your home's property line, with a power cable looping down to bring power into your house?  Ahhh, I see by your nods and your raised hands that almost all of you do!  Yep, they're everywhere, and we certainly take them for granted. 

But didja know, ladies and gentlemen, friends and neighbors, that the Power Company runs those cables to your houses, through your backyards — where your little boys and girls play and you barbecue and where you have to stand on a stepladder to clean the leaves out of your gutter — without putting any insulation on those cables? 

Didja know that those are deadly-powerful bare steel cables carrying enough electrical current to fry you and your entire family to a crisp, in an instant?  Enough power to leave a man like my poor client, Mr. Chapple over there in his wheelchair, with nothing but two stumps below his knees where his feet and lower legs used to be, with nothing but one mangled arm covered with horrible scar tissue, after only barely coming into contact with that naked, uninsulated steel power line cable for less than half a second?!? 

No?  You didn't know that?  The Power Company didn't tell you that in all those monthly bills they've been sending you?  They didn't put that in their TV commercials, to warn you that you have an uninsulated killer running through your backyard?

Of course, this line of argument can be fairly compelling — and one of the advantages that all plaintiffs' counsel have is getting to go first — which is to say, getting the first chance to frame the issues in the case in an emotional way that will resonate with the jury.  A plaintiffs' lawyer worth his salt can usually put his defense counterpart into a considerable hole with the prospective jurors before the defense lawyer ever gets to say a word.

So how did we respond, when it was our time to speak during jury selection?  Well, with something generally like this:

My opposing counsel, Ms. Purcell, asked you some questions about the electric lines that run from the backyard poles to your houses, and I saw on your faces that some of you were very surprised indeed to hear Ms. Purcell say that those lines are uninsulated, bare steel cables.  When Ms. Purcell said that, I'll bet you were thinking of the cord that runs from your wall socket to your desk lamp or your toaster or your washing machine, and how that cord is covered with a layer of rubber or plastic insulation, and you were wondering to yourselves, "Well, for pete's sake, why doesn't the Light Company use an insulated cable to bring the power into my house?"  Were you thinking that?  You were? 

Ladies and gentlemen of the panel, if you're selected to this jury, you'll hear testimony from people who will answer that question for you — to your complete satisfaction. 

They'll explain to you why it is impractical from a technical, engineering standpoint, to insulate those overhead lines with rubber or plastic in the same way the electric cords inside your house are insulated.  They'll explain to you that bare metal lines are not uninsulated — if they were truly uninsulated, the electric current would "go to ground" or "short out" instead of making it into your home to light your lamps and run your alarm clock.  Those lines are indeed insulated, by an excellent and inexpensive substance that's plenty nonconductive for real-world situations — the air that you and I are breathing right now, and the clearance space around those lines!  They'll explain to you why the flock of cowbirds that you cuss out when you have to wash their droppings off your back porch don't get electrocuted when they sit for hours on those overhead lines, squawking and courting and doing what cowbirds do, including — well, you know.  [Wait for chuckles to subside.] 

Those witnesses will also explain to you that bare metal overhead lines are absolutely standard and commonplace throughout the electrical utility industry — not just in Houston, or Texas, or the United States, but the whole world.  And they'll tell you about the National Electric Safety Code and the other regulations that careful, safety-conscious professionals have drawn up and revised over the years, to try to make sure that in ordinary everyday situations, those overhead lines are insulated by enough space and enough air to make sure that you and your kids — and they and their own kids! — can indeed play in the backyard and barbecue and yes, clean the leaves out of your rain gutters, and do so with a high degree of safety. 

And they'll explain to you what other alternatives there are — for instance, using buried, insulated cables underground — and they'll tell you how much it costs to do that, and how only businesses and exclusive new subdivisions of fancy houses typically choose to go that route, and why even those alternatives have their own risks and downsides, in terms not only of safety, but of inaccessibility, unreliability, and expense to maintain.

By this point I've been lecturing for a long time, and I can see Ms. Purcell getting set to stand up and object that I'm arguing rather than asking questions to qualify or disqualify prospective jurors.  Plus, to keep the panel's attention, I need to let them hear another voice or two speak, and I want to make them ask themselves the questions they're about to hear, which they'll do when they hear me ask something directly of one of their fellow panel members:

So my question to you now, ladies and gentlemen, is whether the surprise I saw on your faces when Ms. Purcell told you that the electric lines running overhead in your back yard are bare metal cables is something you can deal with and still be a fair juror to both sides in this case. 

Mr. Smith, there in the first row, let me ask you, sir, just at random — if you're chosen to this jury, if you take the juror's oath to render a fair decision based on the evidence from the witness chair, can you make yourself get over your surprise at learning something you didn't know before, and keep learning all the important facts, and only then come to the conclusions you'll need to make in order to answer the questions His Honor will ask you at the end of the case?  You can?  [Pause to look into Mr. Smith's eyes, then nod.]  Yessir, I believe you can follow that oath if you're chosen.

Now, so far, I've done some teaching and some explaining.  I've gotten Mr. Smith (and implicitly his fellow prospective jurors) committed to keep an open mind and to wait for the evidence. 

But I need more.  I need something that resonates with the jury on a deeper level, that will give them an assurance that my case is not going to be all fast talk and experts and excuses, but that I'm also going to be pointing out to them some things that they already knew — even if they forgot them for a moment while they were listening to my opponent.  So, continuing with my voir dire examination for the defense:

Ms. Jones, there on the right in the second row — let me ask you, ma'am, and I need you to tell me the whole truth to this question, because I saw your jaw drop when Ms. Purcell was talking about those so-called uninsulated cables.  Were you surprised to learn that those overhead lines aren't coated in plastic or rubber or something?  You were?  Then let me ask you this, ma'am.  Before you came in here today, did you think it was safe to get up on a ladder, a really tall one, and to reach up and touch one of those cables, on purpose, with your bare hand?  No?  Heh, you're laughing at me now, but I'm serious here.  How'd you know it's not safe to do that?  Did your mama teach you about that?  Did you hear it in one of those safety presentations we all had to go to in junior high, when someone from the local power company came and told us about where not to fly our kites?  You can't remember — but you did know that, didn't you, even before you came here today.

I'll bet you don't know the precise metallurgical formula for the metal those cables are made of, do you?  (Wanna know a secret?  I don't either!)  I'll bet you don't know how many milimeters thick they are, or how many strands of metal are braided together to make them, or where the factory was where the cables in your backyard were manufactured, do you?  The Light Company never ran a TV commercial to tell you that?  No?  Well, Ms. Jones, it says on your juror form that you have four children, and as young as you are, I'll bet they can't be very old.  If the Light Company had sent you one, would you have time in the evenings to sit the family down to listen to you read aloud from an insert in your electric bill to explain everything in the world about the engineering and materials of the overhead power lines in your backyard?

Okay, but then lemme ask you this, ma'am:  If they're old enough to understand it, have you made the time to teach your children not to stick a metal fork into the wall sockets in your house?  Do your children ever play with kites, ma'am?  Have you made sure to tell them where it's safe to fly kites, and where it's not?  Yes ma'am, I'll bet you surely have indeed.  You strike me as someone who has some common sense, ma'am, so let me ask you this — if you're selected to this jury, when you're weighing the evidence to decide whether my client or anyone else was at fault in any way in connection with Mr. Chapple's accident, will you use that common sense, ma'am?  Thank you, Ms. Jones!  I appreciate your honesty, and if you're on this jury I'll trust you to follow your oath.

I can certainly see how good lawyers could nevertheless have lost the McDonald's coffee case.  And I don't know as much about coffee as I do about power lines because I've never had a case about coffee.  But I'll bet I could rewrite this sort of voir dire examination to fit hot coffee or a thousand other products that, in some circumstances, have ended up in a chain of events in which someone's gotten badly injured.  With the tools the system provides me — the opportunities to educate jurors, to give context, to appeal to common sense — I've had pretty good fortune over the years.  When I was regularly on the defense side of the docket, in almost every case I tried and won, there was a sympathetic plaintiff who'd been badly hurt, and there were attractive arguments to be made that my client was at fault.  If you can't deal with that as a defense lawyer, you're in the wrong business.

So, frankly, I don't have the same reaction that Mr. Frank or Professor Bainbridge have to the McDonald's coffee verdict.  I tend to view it as an aberration, rather than as something indicative of a basic flaw in the law or the civil justice system.

Deal lawyers and trial lawyers, revisited

I'm a serial bandwidth abuser of a few other blogs that permit comments, but I'm trying to cut back on that and write more here.

It occurred to me recently, however, that some of the stuff I write in comments on other blogs, I ought to post here as well, if for no other reason that someone else might cancel his or her blog and — alas! — my work product (so to speak, such as it is) would be lost forever as a result. 

What follows is something I originally posted about here only briefly last March, with links to a couple of comments I'd left on two posts from Scheherazade's blog.  Sherry's original posts and many of the other comments were also very good — I continue to recommend them to anyone genuinely interested in the subjects of what trial lawyers and deal lawyers do, and do differently.  But for archival purposes, here again are my own long-winded takes on trial lawyers and deal lawyers:

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I'm not one, but nevertheless have worked with and around transactional attorneys — sometimes also known as "deal lawyers" — enough to have to enormous respect for what they do.

Sherry's post captures an important aspect of transactional practice and effectively illustrates that although not carried out in a courtroom, it is indeed an "adversary practice" that calls for zeal and loyalty on behalf of one's client to ensure that he isn't bested by the other side outright in the negotiation and documentation of a transaction, nor caught unprepared by an adverse and unexpected contingency.

Additionally, however, much transactional work is carried out in coordination with, or anticipation of the involvement of, folks whose interests to your client may be partly or largely aligned, and only potentially or hypothetically adverse. The transactional lawyer may, for example, be helping an employer draw up employment or benefit agreements for its employees; or drafting for an operator of an oilwell drilling project the agreement with its investors that creates the operator's privileges, responsibilities, and duties with respect to those investors; or drafting documents to be filed with the SEC or other regulatory agencies to ensure compliance with various laws and regulations. Negotiating with your mostly-allies (but potential adversaries) is a demanding art that calls for not only aggressiveness and imagination, but subtlety, good judgment, and compromise.

Imagination and creativity aren't only used to identify and ward off bad consequences, however. Good deal lawyers can have a remarkable ability to find synergies and opportunities that benefit not only their own clients, but everyone else involved. They're charged with knowing, choosing among, and refining the numberless structures within which deals are possible, and then negotiating and communicating and drafting precisely and clearly to confirm the particulars of their transactions as they evolve. But many times — especially as they gain, with experience, a deeper understanding of their clients' and the other parties' means and needs and goals — deal lawyers' imagination and ingenuity can keep a proposed deal from falling apart, or find a way to put it back together again, in ways that might well not have occurred to the principals had they not been so capably represented. Thus, it's far more common to see transactional lawyers than trial lawyers migrate to serve as "in-house counsel" for their clients, or to go the next further step to becoming business principals on their own behalves.

It's a serious mistake to assume that being a transactional lawyer necessarily means being a pencil-pushing, form-filling-out drone, or even just a well-trained scribe. Transactional work can be every bit as thrilling as arguing to a jury, and sometimes moreso. And as for the stakes involved: The verdicts and settlements that seem enormously significant to me in my regular trial practice are most often dwarfed — frequently by orders of magnitude — by the sums of money at issue in, and the probable economic impacts from, that which the deal lawyers regularly help create and shape.

During the go-go mergers & acquisitions days of the early 1980s, I frequently was part of a team of trial lawyers who worked as auxillaries to the deal lawyers who were running the show. They were the ones who were elbow to elbow with the clients and investment bankers; we were often camped off to the side waiting for something that might or might not ever happen. We "litigators" (ugh, I hate that term) were rarely more than a sideshow to the main events of those extremely exciting engagements: we sometimes could bring a deal to a halt, but we could almost never make one go. And while our part was itself exciting and challenging, those days certainly cured me of the excessive hubris that some trial lawyers hold.

That hubris is a misconception which, unfortunately, is sometimes promoted and aggravated by the fact that by the nature of our practices, we trial lawyers all too often are dealing with deals gone south, scenarios unplanned for, terms ambiguously drafted, or disputes unanticipated. But the happy fact for our common clients is that good transactional lawyering can make much of what I do for a living unnecessary. And while there are rivalries and occasional ignorant prejudices displayed by legal practitioners of both sorts, cooperation and respect among them can be as useful and beneficial to a client as his internist's and surgeon's cooperation and respect in maintaining his health.

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Some litigation is aptly characterized as "spilt milk" — just a cost of doing business, a distraction, a nuisance.

Some clients, though, are drowning in the spill.

I'll never forget an anguished two-hour phone call I had at dawn on Christmas morning one year from the CEO of a public company I was in the midst of representing in a six-week long "bet the company" lawsuit. Or a hospital bedside meeting I conducted with a personal injury client (and his family) whose career had just been catastrophically ended and whose economic future was being thrust into my hands. Or a lawsuit I tried in bankruptcy court that determined whether a company would emerge from bankruptcy reorganization largely intact, or instead be dismembered and partially liquidated — with literally thousands of working-class jobs at stake.

And sometimes my skillset as a trial lawyer becomes very useful to clients in planning for and structuring their ongoing businesses. For several years I represented a large homebuilder in its lawsuits with customers; over the course of that representation, I not only helped revise their standard deal documents, but gave "preventive medicine" seminars to their customer service staff to help train them how to resolve the vast majority of their complaints and disputes without my direct involvement. In every house they sold, some discrete portion of their real economic cost was attributable to litigation and litigation risk; by minimizing those costs, I felt like I was helping them sell more houses and helping more families qualify to own their own homes.

Negotiating and settling lawsuits can also call upon the skillsets more regularly honed by deal lawyers. Sometimes there are "win-win" resolutions to lawsuits, but if a trial lawyer's imagination is limited to "what assets can we seize to collect on our judgment?" he's not likely to imagine, much less realize upon, those results.

With due respect to Balasubramani, I think he's badly wrong. Half-assed is half-assed on either side of the professional fence. A busted deal closing can be just as definitive as an adverse jury verdict. The overwhelming majority of lawsuits end up being settled, not tried to a definitive conclusion; oftentimes what constitutes a "good settlement" is far more subjective and indistinct than what constitutes a "good deal"; and it's certainly as easy for sloppy trial law practice to be buried over and hidden in them as it is for sloppy transactional practice to be buried over and hidden in the deal world. And as I mentioned in my comment to Sherry's earlier post about transactional lawyers, the financial and economic stakes of their work often — but not always! — dwarfs the stakes we trial lawyers deal with.

"Yuh-huh"/"Uh-huh" versus "Nuh-uh"/"Uh-uh"

Linguist and guest blogger Neal Whitman, writing on The Volokh Conspiracy this week, wonders whether there's a generational correlation to explain those who say "yuh-huh" — instead of "uh-huh" — to mean "yes."  He may be right.  Although I'm a Buffy fan, I'm old (and perhaps tragically unhip) enough myself to be a consistent "uh-huh"-er — as (if I recall correctly) was my ex-wife (on those unfortunately-all-too-rare occasions when she was agreeing with me about something).  I'll have to listen to my own kids to see which they tend to use.

Actually, this is something to which I've given considerable thought and study — professionally, although as a lawyer rather than as a linguist!

There are at least two variations on the negative version, too:  "nuh-uh" and "uh-uh."  In my experience, some people use both variations — with "nuh-uh" (often with the second syllable stressed) the more emphatic, and "uh-uh" (usually with both syllables equally stressed) the more casual.

With either set of variations, court reporters sometimes have difficulty distinguishing between the affirmative version and the negative version.  Even if the court reporter hears and understands it correctly, there's sometimes ambiguity created in the way the court reporter transcribes what he or she has heard into the written transcript.  "Mmm-hmmm" and its almost untranscribeable negative counterpart ("mph-mmm"?) are even harder to handle — although I suspect they have a whole section devoted to these sorts of "in- or semi-audible responses" in the court reporter school curriculum.  (It is the rare but splendidly self-confident court reporter who will include in the transcript something like, "[Witness grunts affirmatively.]")

And even if the court reporter gets it absolutely right and transcribes accurately the noise the witness made, it's fairly plausible, and hence not uncommon, for a witness who wants to avoid being caught in a contradiction later to claim that the court reporter just got it wrong:

Naw, I actually said 'uh-huh,' but that court reporter girl, she just wrote down 'nuh-uh,' but I always meant 'yes,' no matter what it says there in that booklet you're reading from."

For these reasons, whether it's during pretrial examinations (depositions) or trial examinations, experienced trial lawyers often include among their "initial understandings" with the witness an explanation that the witness needs to try to avoid saying "uh-huh" or "huh-uh" or variations on those phrases.  Even the most hostile witness has to agree with this request.  But of course, it's asking a lot of any witness that he or she self-police his or her language to completely avoid these expressions.

Thus, especially during cross-examination of a hostile witness, when one is allowed (and usually ought) to ask "leading" questions (which try to elicit the witness' agreement with a pre-suggested answer), REALLY experienced trial lawyers have trained and conditioned themselves to ask — instantly, reflexively, automatically — "You're agreeing with me, is that correct?" — whenever they hear a witness answer a yes/no question with "uh-huh" (or "yuh-huh").

Especially when it's asked instantly, without even a beat's pause, even sloppy and inarticulate witnesses, and often very hostile ones as well, will almost always immediately answer this followup question with a single word — "Correct."  And then not only has the lawyer ensured that the transcript will be unambiguous if any question should later arise about the witness' answer, but he or she has driven home again the concession or agreement just extracted — and subtly reinforced the subliminal message that "I, the righteous master advocate in this courtroom, have forced my adversary to acknowledge that I am correct yet again, because I already know what all the evidence is going to be, and I'm rarely if ever going to be surprised by it."  Nor will one likely be met with an objection — "Asked and answered already!" or "Cumulative!" — since the questioner is not, technically, belaboring the point, but simply complying with all advocates' duty to try to promote a clear, clean record of the proceedings.  To put it bluntly, "uh-huh" or "yuh-huh" — when properly exploited — can be the trial lawyer's friend!

If, by contrast, one gets a "nuh-uh" or an "uh-uh" from a hostile witness when one was expecting and hoping for a "yes" (or an "uh-huh" or a "yuh-huh"), it may sometimes be to the lawyer's (and his/her client's) advantage to leave that answer somewhat vague and unclear in the transcript.

There are other ways to make the clarification, and one sometimes has to use them when one is not allowed to lead (as when one is examining a friendly witness with a judge or opposing counsel who's being a stickler for evidentiary rules) — for example, the simple "Was that a 'yes' answer or a 'no' answer?"  This lacks the element of witness control and the subliminal message to the jury, but does suffice to make sure the transcript is clear (when and if that's one's goal). 

Sadly, however, I see lawyers every day who attempt to clear up these points in the record but who, through their own inarticulateness, end up only making things worse — usually by re-asking a variation of the question, oftentimes inserting a double-negative to boot:

Is it not the case that just now, when you answered "nuh-uh," you were saying that the traffic light had not turned green for the traffic headed north before you drove into the intersection?

Yes, this lawyer just sounded like the erudite and learned Rumpole of the Bailey.  But whether the witness answers this question "yes," "no," "huh-uh," or "yuh-huh," no one can possibly be sure that the witness has correctly understood the question or that the listening audiance has correctly understood the witness' intended meaning.  (Did that "yes" mean, "Yes, that is not the case"? or "Yes, the light had not turned green"?  It could have been either!)  Double-negatives are hard to avoid — but the phrase "is it not the case?" should simply be taken out and shot, repeatedly.

Perpetuities

Okay, this one is truly "inside baseball," an anecdote that will not likely be appreciated by any of my nonlawyer readers, and maybe by only a few of those.

The inspiration for my tale today is a short post entitled "The Role of Fear in Long-Term Memory," in which blawgger Evan Schaeffer of Notes from the (Legal) Underground writes with feeling:

No interest is good unless it must vest, if at all, within 21 years of a life in being at the creation of the interest.

What else but the fear of failing Property, combined with the fear of failing the Missouri and Illinois bar exams, can explain why I instantly recall this gibberish after sixteen years? Someone please send me instructions for removing the Rule Against Perpetuities from my brain. The space is urgently needed for remembering my children's birthdays.

Upon reading this, I immediately flashed back to a beautiful day in the late spring of 1990 when my practice took me to 600 Camp Street in New Orleans — the stately home of the United States Court of Appeals for the Fifth Circuit — where I had the privilege and duty of appearing before a three-judge panel of that court to present oral argument.

My client in the case was a manufacturer of consumer electronic equipment who'd extended a substantial credit line to enable purchases from it by a dealership that sold such goods at retail. The dealership had a shakey financial picture, and sure enough, it eventually went under, owing my client a large sum of money. At the beginning of their business relationship, however — as a condition for extending credit to his company — my client had prudently insisted that the dealership's owner, in his personal capacity, sign a "continuing, unconditional personal guaranty." So on the basis of that guaranty, my firm had sued the dealership's owner. He still had money enough to pay for fine lawyers, and they responded to the lawsuit with a flurry of desperate and creative arguments to try to save their client from personal liability under the guaranty for his defunct company's debt. To our astonished dismay, the federal district court had bought into a couple of those arguments and had thrown our client's case out on summary judgment, so I was wearing my "appellant" hat at the oral argument.

We'd done a good job briefing the appeal, and I've never had an oral argument go more smoothly. I was swinging for the fences — I was asking the panel not only to reverse the district court, but to render judgment for my client rather than simply remanding for a full trial. The panel of three experienced judges had been uncharacteristically silent, asking me almost no questions throughout almost my entire allotment of time, but I was getting good vibes — they seemed to be listening approvingly, to the extent one can tell such things from the advocates' podium. So I methodically rebutted not only the guarantor's arguments that had persuaded the district judge, but all the others he'd raised that the district court hadn't bothered to reach. And amazingly, when I got to the end of what I'd planned to say, I still had time left over!

"How cool is this?" I was thinking to myself, "I'm going to get to sit down with unused time!" So I squared up my notecards and closed my ring-binder of record excerpts. "Unless the members of this Honorable Court have further questions," I said confidently, "I will reserve the remainder of my allotted time for rebuttal after the presentation by my distinguished opponent, counsel for the appellee."

At which point one judge looked me in the eye and said — from somewhere out by the left field bleachers, I think — "Mr. Dyer, you say that by its terms, this guaranty agreement was continuing in nature. Unless and until revoked, it was drawn up so as to cover every additional extention of credit your client made to Mr. Z___'s company, is that correct? Continuous ... on and on ... isn't that what you're claiming, Mr. Dyer?"

"Why, yes, Your Honor, absolutely."

"So then, Mr. Dyer, why isn't your guaranty agreement void as a violation of the Rule Against Pepetuities?"

Of course, there is no pipe organ in the en banc courtroom of the Fifth Circuit headquarters, but I could have sworn that I heard three soap-opera chords descending at fortisimo volume — "bahm-bahm-BAAAAAHM!" My palms began to sweat. "Well, Your Honor ...," I vamped for a moment as I tried to remember back to the last time I'd heard or thought of the Rule Against Perpetuities.

I flashed back to a moment some ten years earlier during my bar review course, when the instructor confidently clued us in on a little-known secret: "All you need to know is that any time on a multiple choice question, whenever one of the choices is the Rule Against Perpetuities, that is not the correct answer!" (Yes, this is a flashback within a flashback.)

"Great," I thought to myself in the cool, quiet stillness of the courtroom, "if only the Fifth Circuit judges asked multiple choice questions!"

"... If I recall my property law, Your Honor, the Rule Against Perpetuities only has to do with conveyances of real property. This case, of course, involves only personal property — specifically, money. Moreover," I gamely struggled along, "although I don't remember the exact terms of the Rule Against Perpetuities, the test for whether a conditional conveyance was invalid depended on whether or not the condition could go undetermined for longer than a certain number of years past the lifetime of someone already living. Since this guaranty was personal to Mr. Z___, his own lifetime would effectively mark the end boundary after which the extension of further new credit wouldn't be covered, meaning the Rule couldn't be triggered here." I wiped my palms against my pants legs, hoping no one noticed. "And finally, Your Honor, regardless of whether I'm remembering the Rule and its terms correctly or not, I'm absolutely certain of one thing — the record on this appeal will conclusively show that Mr. Z___'s counsel never raised any arguments in the district court based on the Rule Against Perpetuities, nor in his briefs before this Court, so if Mr. Z___ had a defense on that basis, it's been conclusively waived!"

I stopped looking at the judge who'd asked the question and glanced at the other two panel members. Both were obviously struggling to control their laughter. Off to one side, the law clerk for the judge who'd asked the question looked like she'd been pole-axed; I'm very certain that particular question hadn't been in the bench memo she'd written to prepare her judge for oral argument, but was instead an instance of a judge "winging it" — or maybe even just yanking my chain for giggles and grins with a deliberately screwball question.

"Thank you Mr. Dyer, we'll hear from your opponent now," intoned the senior judge on the panel, having quickly regained his formidable composure. "I'm quite sure we've all had our daily, or perhaps our yearly, dose of the Rule Against Perpetuities by now."

I was very gratified when only a few weeks later, the Fifth Circuit issued a unanimous opinion granting exactly the relief I'd requested — reversed and rendered with instructions to calculate the damages and then enter judgment for my client in the full amount. The opinion exactly tracked our briefs and the oral arguments I'd made. Home run, game over!

And there isn't a word in the opinion about the Rule Against Perpetuities.

But the moral, of course, is this:   Evan, be careful what you wish for. You never quite know when some judge is going to probe some deep, dusty, musty corner of your memory and you'll need to summon up your recollections about that damned dumb rule!

Student law review editors

A post by blawger Scheherazade entitled "Why Law Review Is A Waste Of Time" prompted a number of responses on her own blawg and elsewhere, many of which she's thoughtfully linked. UCLA Law Professor Stephen Bainbridge in turn quotes from one of those responses, from blawger Evan Schaeffer:

So to answer Sherry's question, what was valuable about the experience? Once you got over the initial cite-checking hurdle, all of the third year editorial staff, from the editor-in-chief on down, learned skills like these: how to manage large projects to completion, how to take a small budget and use it to accomplish large things, how to manage a distracted staff, each working on a little piece of a giant puzzle. These lessons were in addition to all the good that came from learning about editing and fact-checking (skills often learned the hard way, since even some of the best stuff we accepted for publication had to be substantially rewritten. The authors of the articles, by the way, gladly accepted this "student editing").

In the dissenting voice of someone who has dealt with one too many young whippersnappers, however, Prof. Bainbridge allows:

I was nodding in agreement until I hit the parenthetical. Early in my career, I had law review editors try rewriting my articles. They never improved the article; to the contrary, they often introduced serious errors of substance or grammar. The higher the law review was ranked, the more serious the problem seemed to be. Once I got tenure, and getting published in a hurry was no longer at issue, I began putting a clause in the publication agreement giving me the right to pull the article from the journal if I disagreed with the editors. I've never had to use it, but I have had to threaten doing it a couple of times.

My own history as a member and editor of the Texas Law Review more than two decades ago puts me firmly into Schaeffer's camp regarding the pros and cons of law review service. The year I spent as an editor did more to improve my own writing, legal and nonlegal, than anything before or since (although my immediate post-graduate experience as a law clerk for a Fifth Circuit judge would run a close second). In particular, going through the editing process on my own law review note, and then spending a year as an editor myself, taught me how much anyone's writing can be improved by a fresh set of critical eyes — something that, unfortunately, my blogging gets only after it's published, if then.

But I certainly can appreciate and sympathize with Prof. Bainbridge's aggravation. And our unwritten, unacknowledged editorial policies back then on the TLR dove-tailed with the personal experience he reports from an author's perspective: How aggressively we student editors wielded our colored pencils (in those pre-PC, typewriter-dependent days) had quite a bit to do with whether we were editing manuscript from a student writer, a junior law faculty member, or an acknowledged superstar of the celestial legal-academic firmament. We were keenly aware with whom we had leverage — and the leverage was (a) inversely proportional to how badly we wanted that author's work in our journal and (b) directly proportional to how badly that author needed to be published by us.

I was our journal's book review editor. Our strategy at Texas was to make copious use of contacts and recommendations from our own faculty members — combined with heavy flattery and a light editorial pencil (both my job) — in soliciting book review projects from famous law professors who could get their articles published in the half-dozen or so most prestigious law reviews, and who therefore wouldn't usually submit those articles to us. Our journal's national reputation was sufficient that publishing with us was not beneath the dignity of those heavy hitters; and even the meaty, substantive book reviews we sought were easier to write than a stand-alone article.

"Dear Prof. A___," I'd write. "I was just discussing with Professor B___ of our faculty (who sends his regards to you)" — shameless namedropping, always with the permission of Prof. B___ — "the new book just published by Prof. C___," who would always be another big-name heavy-hitter. "Prof. B___ speculated that you, Professor A__ — in particular out of all the law faculty in America — would likely have an interesting, even compelling, reaction to Prof. C__'s work! Using Prof. C___'s book as a springboard for your own thoughts, would you consider writing a book review for the Texas Law Review?" We'd explicitly promise light editing and quick publication as additional bonuses. The strategy worked pretty well for us.

Prof. Bainbridge's lament, though, particularly brought to mind a book review written by our campus' resident superstar, the late and truly great Prof. Charles Alan Wright, that I had the privilege of editing. All of my lawyer readers will recognize Prof. Wright as the senior co-author of the definitive multi-volume treatise on federal practice and procedure, along with leading handbooks on the federal courts and on constitutional law, and one of the last century's most distinguished professors, scholars, and appellate lawyers — a true statesman and genius of the law.

The subject book was about the history of the Supreme Court. Fortunately and unsurprisingly, the raw manuscript that Prof. Wright submitted needed only the lightest of editing anyway. But I remember being a bit surprised that in one place, Prof. Wright had referred to a particular nineteenth century Chief Justice as "Chief Justice of the Supreme Court."

"Aha!" I thought to myself very proudly, "I happen to know that unlike the Associate Justices, who may properly be called 'Associate Justices of the Supreme Court,' the Chief Justice has a unique title recognizing his position as not only the head of that Court, but of the entire federal judiciary — 'Chief Justice of the United States.'" So I duly penciled in that change on the manuscript before sending it back to Prof. Wright for his review.

We went over all of my proposed changes in his office one afternoon, and he was very gracious about accepting all my suggestions — except this one. I explained my rationale, trying very hard not to look smug — at which point Prof. Wright peered at me over the top of his reading glasses, paused, and then said: "Mr. Dyer, I ask you simply to trust me on this one, for the afternoon grows late and I have other places I need to be soon." I gulped and relented immediately, changing the reference back to "Chief Justice of the Supreme Court." (Even a third-year law student should know when to stop tugging on Superman's cape.) And when my co-editors raised the same point, I shrugged and told them that I'd gone over it with him, that he'd rejected my suggestion, and — well, that he was Charles Alan Wright, and if he wanted it that way, we'd best not press the issue further.

A few weeks after Prof. Wright's book review was published, he sent me a copy of a letter he'd received from a young law professor at another school. The letter was extremely polite and complimented Prof. Wright on the book review he'd written, but said, "I believe I've caught Homer nodding," and then went through an explanation of the same distinction that I had tried to raise.

But Prof. Wright had also sent me a copy of his reply to this professor, which he'd begun by thanking the young man for his interest. "A student editor," he wrote, "had made the same observation before the book review's publication." Then — no doubt drawing solely from his prodigious and legendary memory — Prof. Wright's letter proceeded to track all of the various versions of the United States Judiciary Act enacted from 1789 to the present, complete with detailed citations, as he explained that the statutory language authorizing the position of "Chief Justice" had been changed for a brief period in the nineteenth century during which the official title was, indeed, "Chief Justice of the Supreme Court," rather than "Chief Justice of the United States." The individual referenced in Prof. Wright's book review had, of course, been Chief Justice during that period. Prof. Wright politely closed with, "Please be so kind as to let me know immediately if you ever again believe that you have caught me in an error regarding the Supreme Court and its Justices."

So to Prof. Bainbridge's implied charge that student law review editors can be impertinent young whippersnappers who sometimes screw up what they're trying to fix, I must confess my own guilt. To this good day, I am profoundly grateful that Prof. Wright spared me the withering embarrassment that must have been felt by the young law professor who'd written to point out Prof. Wright's "error."

Juries in complex civil cases

The Curmudgeonly Clerk argues persuasively in favor of the jury system even in complex civil cases, with this conclusion:

The jury system has shortcomings that are fairly obvious. These shortcomings are, no doubt, pronounced in complex civil cases. Nonetheless, I think that the contempt sometimes expressed for jurors is overstated (e.g., the derisive observation that cases are decided by twelve persons too dim to avoid jury duty).

I agree entirely, and reprint here a lengthy comment I left on his blog with a personal anecdote:

A few years ago I spent six weeks in a Harris County District Court trying a "bet-the-company" securities/accounting fraud case to a jury of twelve citizens good and true. The plaintiffs were two Middle Eastern investment trusts incorporated in the Netherlands Antilles; the defendant was an American Stock Exchange-listed New York-based company that was an early investor in international cellular telephone licenses.

In addition to about a dozen lay witnesses, over a dozen different lawyers or accountants — from Houston, Washington, New York, and London — gave expert testimony on topics including GAAP (generally accepted accounting principles), corporate finance, international intellectual property rights, and the proper discount to apply to restricted shares of stock in a company whose unrestricted shares traded on the London Stock Exchange. All of those subjects were important to understand in order to evaluate what was, necessarily, a largely circumstantial case regarding the defendant's subjective intent to commit fraud. There were over 600 written exhibits, many of them hundreds of pages long and extremely technical (including SEC filings, corporate charters and minutes, and patent applications).

In short, the case was a textbook example of a complex commercial case of the sort that many "experts" insist cannot be effectively evaluated by lay jurors.

The plaintiffs were represented by a first-string team from one of Texas' largest, oldest, and most prestigious law firms. Their lawyers were very experienced, very ethical, and very, very good, and they employed professional jury selection consultants, a "shadow" jury, and a professional graphics/demonstrative exhibits firm. The defendant was represented by a much leaner, but still very competent team that I had the privilege of leading. Each side's pretrial legal fees and expenses ran into seven figures, but the amount in controversy ran well into the eight-figure range and the underlying business transaction was in nine figures — so each side had ample incentive to do its best. The plaintiffs were sufficiently wealthy that they could well afford to pay their counsel's regular hourly rates, and they were under no pressure to settle; and indeed, the parties were still tens of millions of dollars apart when pretrial settlement negotiations (including a court-ordered mediation) were exhausted. The case had to be tried.

The trial judge was a very experienced veteran who specifically chose this trial to be the last he presided over before his retirement. Like many state-court judges, his natural inclination was to give the lawyers wide latitude — to "let it all hang out" — although we had several days of pretrial conferences before the jury was picked to sort through a great many legal and procedural issues.

It took about six hours for the jury to reach its unanimous verdict (although 10/2 would have sufficed) for the defendant.

Talking to the jurors afterwards, I concluded that probably four or five of them had understood essentially every word of testimony they had heard. Another third of the panel followed all the main points, but probably zoned out on some of the technicalities. The last third of the panel understood the main issues at least well enough to have recognized the main themes and the "gotchas" of cross-examination; their intuitive evaluation of both the expert and lay witnesses' credibility was spot on.

An appeal was of course possible, and one might have thought it inevitable simply given the stakes. To their credit, however, the plaintiffs' counsel, after themselves polling the jury, quickly concluded that although they had taken their best shot, they'd lost fair and square and were unlikely to do any better in a retrial. Within forty-eight hours, they abandoned their appellate rights in exchange for a waiver of the defendant's right to recover a comparatively trivial amount of money (a few tens of thousands of dollars) in "court costs" (mostly deposition transcript fees). And thus ended the case.

The system worked exactly as it was designed to work.

That's just one anecdotal example, of course, and I am certainly aware of other complex cases in which juries have gone far astray. Almost always, skilled and impartial observers can trace the seeds of the problem to faults in lawyering, or more rarely, judging.

As someone who's tried jury cases over the last twenty-three years with amounts in controversy ranging between $200 and $200 million, I am still a believer in the system.