BeldarBlog

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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!

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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.