Can you enforce civility by being… uncivil? That’s the question being raised, over and over again, by federal judges from Texas these days.
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.
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.
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.
Act III: Judge Dennis Gets a Talking To for Talking Too Much
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….
CHIEF JUDGE JONES: Judge Dennis….
JUDGE DENNIS: … just on the basis of the amount of drugs …
CHIEF JUDGE JONES: Judge Dennis!
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).