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Jewish World Review August 16, 2001 / 27 Menachem-Av, 5761

Steven Lubet

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Consumer Reports

Who died and made the federal judges gods? -- IN the ongoing struggle against overpaid, no-good lawyers, federal Judge Samuel Kent of Galveston, Texas, has put in his bid to become the next populist hero. In a stinging opinion that has been broadly circulated on the Internet, Judge Kent recently lambasted two -- no doubt well paid -- attorneys for their ineffectual work in his court. Employing a level of humor seldom seen in judicial decisions, Judge Kent delivered what might be the opening salvo in a war against lawyer incompetence.

Here are just a few of the choice lines, taken from the court's opinion in a case called Bradshaw v. Unity Marine Corporation:

"Both attorneys have obviously entered into a secret pact -- complete with hats, handshakes and cryptic words -- to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins."

After explaining why the defendant's brief was particularly bad, Judge Kent then turned his attention to the sorry efforts of plaintiff's counsel. "The Court commends Plaintiff for his vastly improved choice of crayon --- Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.?

There is lots more, but you get the idea.

At last! A federal judge who is ready to shake off complacency and challenge the shortcoming of the bar. A judge who is willing to stand up for the beleaguered public and call lawyers to account. And even better, he does it with wit and irreverence. It is not often that you come across a judge who is bold, funny and right.

There is just one problem. Judge Kent's opinion isn?t bold, it isn't funny, and, although it is certainly self-righteous, it is anything but right.

Federal judges exercise enormous power over litigants, and especially over the lawyers who appear before them. Armed with life tenure and broad discretion, a judge can do great damage to a lawyer's career, while the attorney has virtually no recourse at all. So when Judge Kent decided to torment the hapless counsel in the Bradshaw case -- who are identified by name in the published opinion -- he was taking aim people who could not defend themselves. Under law, they cannot even get their case transferred to a new judge. They just have to grin and bear it, in the hope that "His Honor" doesn't decide to go after them again.

There is a name for that sort of behavior, and it isn't adjudication. It's bullying. It smacks of nothing so much as the biggest kid on the playground picking on the smaller kids who are too browbeaten to fight back. Even the "crayon" taunt inadvertently reveals the judge's own schoolyard perspective, much more than it tells us anything about his unfortunate targets.

And this is no defense of the inept attorneys. I assume that their work product was every bit as deficient as Judge Kent claimed. But a federal judge has many decent, reasonable ways of dealing with inadequate lawyers. He can call them into chambers, he can require them to rewrite their briefs, he can ask to speak with their senior partners. Any one of those steps could have been taken in private, with a far greater remedial effect than can be achieved through public humiliation.

One of the great strengths of our Constitutional system is that federal judges are appointed for life ? a measure intended to assure the independence of the judiciary. Occasionally, however, a judge, for reasons of ego or poor judgment, mistakes independence for license and becomes a terror on the bench. Alas, there is no good response to that sort of misconduct, which often tends to get worse over time. Lawyers may talk behind the judge's back, while trying to avoid his ire, but in the courtroom it pretty much has to be "Yes, Your Honor," and "Thank you, Your Honor," lest the client suffer.

Ultimately, the only remedy is public indignation. Judge Kent, and others like him, need to know that ridicule isn't funny. It's just mean. It isn't judging, it's just showing off. I agree that slipshod lawyering can be a problem. But in the end, an incompetent lawyer is far less dangerous than a judicial bully.

JWR contributor Steven Lubet is Professor of Law at Northwestern University and the author, most recently, of Nothing But the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth . Comment by clicking here.


© 2001, Steven Lubet