Sunday, September 25, 2011

Civility Begins On the Bench

One of the legacies of the Works Progress Administration was the construction of majestic federal courthouses and courtrooms. When you walk into the en banc courtroom of the Fifth Circuit Court of Appeals in New Orleans or Judge Leif Clark's courtroom in San Antonio or any one of dozens of other courtrooms, it is hard not to be filled with reverence for the important work which goes on there. However, several recent incidents of judicial incivility prompted the Above the Law blog to ask the question:
Can you enforce civility by being… uncivil? That’s the question being raised, over and over again, by federal judges from Texas these days.
Above the Law's query was prompted by three incidents: an order dated August 26, 2011 from U.S. District Judge Sam Sparks inviting lawyers to a "kindergarten party," an email reprimand from Chief Judge Edith Jones dated August 30, 2011 and Chief Judge Jones's own comments telling fellow Circuit Judge Dennis to "shut up" in oral argument on September 20, 2011.

Act I: An Invitation to a Kindergarten Party

The series of highly unfortunate events began when non-parties to a civil action sought to quash deposition notices addressed to them. This prompted an order from Judge Sparks which included the following language:
Greetings and Salutations!

You are invited to a kindergarten party on THURSDAY, SEPTEMBER 1,2011, at 10:00 a.m. in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas.

The party will feature many exciting and informative lessons, including:

• How to telephone and communicate with a lawyer
• How to enter into reasonable agreements about deposition dates
• How to limit depositions to reasonable subject matter
• Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when notice is reasonably given; and
• An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.

Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch! The United States Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.
Morris v. Coker, et al, No. A-11-MC-712-SS (W.D. Tex.). The order was disturbing on several levels. First, it pre-judged the dispute as frivolous and implicitly threatened imprisonment without having heard the merits. Second, the order castigated the objecting parties for wasting the court's time when Fed.R.Civ.P. 45 dictates that failure to comply with a subpoena is punishable by contempt, thus requiring a party to act promptly to avoid waiving an objection, even a technical objection. Finally, the order gave little concern to the fact that the subpoenas were addressed to non-parties who were involuntarily drawn into the dispute.

Act II: The Email Heard Round the District

Chief Judge Edith Jones of the Fifth Circuit Court of Appeals responded promptly, critiquing Judge Sparks for his "cute" orders.
Dear Sam,

It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent.

Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel.

No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense.

Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write.

Edith Jones.
When contacted by the Texas Lawyer, Judge Jones stated that she was "saddened that somebody breached the intended limited scope of the intended distribution." However, the fact that she copied all of the District Judges of the Western District of Texas on the email virtually guaranteed that it would be leaked.

Act III: Judge Dennis Gets a Talking To for Talking Too Much

In United States v. Delgado, No. 07-11401 (5th Cir. 1/19/11), a panel of the Fifth Circuit reversed a criminal conviction. Judge James L. Dennis, joined by Judge Wiener, wrote the opinion, while Judge Clement dissented. On September 20, 2011, the en banc court heard oral arguments. At 47:40 in the argument, which you can listen to here, the following exchange took place:

MR. TURNER: I think the amount of drugs in that truck supports the intent to distribute. And the jury….

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….


JUDGE DENNIS: … just on the basis of the amount of drugs …


JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

(I am relying on Above the Law's transcription. Please listen to the argument yourself to ensure the accuracy of the statements quoted).

It is not surprising that the author of the panel opinion would take an active role in the en banc argument. Indeed, when I appeared before the en banc court earlier this year, Judge Jones engaged me in spirited questioning throughout most of my allotted time. I found that the opportunity to engage the strongest opponent of my position to be quite rewarding.

Civility Begins at the Top

The media is full of images of lawyers behaving badly in court, whether it is Arthur Kirkland screaming "You're out of order, this whole trial is out of order" in "And Justice for All," Captain Harmon Rabb discharging an automatic weapon in the courtroom in the TV series JAG and Louis Litt (in my favorite new lawyer show Suits) berating a deponent who later suffers a heart attack. That is how the world of entertainment portrays us.

In the real world, judges have a right to expect a high standard of conduct from the lawyers appearing in front of them. In Matter of First City Bancorporation, 282 F.3d 864 (5th Cir. 2002), the Fifth Circuit not only upheld but increased an award of sanctions against a lawyer who repeatedly abused opposing counsel and parties. The court rejected the defense that his hyper-obnoxious approach brought results.

However, civility begins at the top. Serving as a federal judge (whether under Article I or Article III) is one of the highest honors an attorney can receive. Federal judges should treat the high office they hold with respect, even when attorneys engage in unnecessary discovery disputes or a colleague monopolizes oral argument. To her credit, Chief Judge Jones did apologize at the conclusion of the session's arguments. However, it would have been better if she had held her tongue in the first instance.


I have made intemperate remarks in the past and will, no doubt, do so again. I live in a glass house and sometimes I throw stones when I shouldn't. When that happens, please feel free to throw my own words back at me.

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