Thursday, April 17, 2008
Never Saw This Argument To The Fifth Circuit Before: "I Try Not To Read That Many Cases, Your Honor"
Posted by Alan Childress
Worst moot court tips ever? Yesterday, the U.S. Court of Appeals for the Fifth Circuit rendered this per curiam opinion that left me flabbergasted, thought its merits are uneventful (hence the p.c.). The lawyer was labeled as "unprofessional" and his failures "troubling and disgraceful," in part because "he had not read a key Supreme Court case." He was ordered to serve a copy of the opinion on his client, and to prove service of process with the Court.
The money exchange is in footnote 4:
Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other
than that. You know, my client lives in Chicago. ... She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.
Judge: That’s not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as
whether even Ricks should apply, I don’t think it should.
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh,
Ledbetter, I read Ledbetter, and I read that one that they brought up last night.
I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the
one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t
think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you
representing the Plaintiff to get up here—it’s a Supreme Court case—and say
you haven’t read it. Where did they teach you that?
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.
And in that footnote, the money quotes are "Nope" and "They didn't teach me much, Your Honor." Imagine my relief that the indicted law school was not mine, Tulane, but Loyola. Also imagine, if you will, the reaction of one of the members of the panel, a Judge who graduated from Loyola. Hey, at least the attorney wore a suit?
UPDATE: A commenter below states that the 'Loyola' in question (Mr. Phipps's alma mater) is Loyola-Chicago, not New Orleans, citing the Martindale-Hubbell Directory which indeed says so. But all other internet evidence (and an email to me from a colleague who went to school with him) strongly suggests that Roger Dale Phipps is a graduate, J.D. 1990, of Loyola-New Orleans. Out of an excess of caution -- and because I have friends and former students whom I admire that teach at Loyola-New Orleans -- I will just assume that Mr. Phipps is a proud graduate of Loyola-Los Angeles.
Further Update (4/25): See my update post here.
This item was sent to me by Jackson attorney Jane Hicks (at Phelps Dunbar), who commented simply, "Don't show up unprepared for oral argument! Ouch." She saw its blurb reported in an excellent resource, Fifth Circuit Civil News Daily Update, and I appreciate the pointer.
The case actually involves Tulane Medical Center as a party, but that's not why Jane sent it to me and why I posted it here.