Tuesday, November 29, 2011
The 7th Circuit issued an opinion last week that married the bench slap to the photo-opinion. Judge Posner called out an attorney, by name, for failing to cite controlling precedent in both his opening and reply brief (the WSJ Blog has the attorney's response here). Posner showed no mercy to counsel, writing that "The ostrich is a noble animal, but not a proper model for an appellate advocate." The opinion went on to include photo illustrations of the concept:
I posted earlier this year about the use of photographs in motions and asked if their use was effective or gratuitous. I pose the same question about Posner's use of photographs in this opinion.
Another question Posner's opinion raises is whether calling counsel out by name in an opinion reflects poorly on the judiciary as well as the offending lawyer. If the error is egregious enough, perhaps memorializing the misconduct forever in the pages of the Federal Reporter is appropriate. If you read between the lines of Posner's opinion, you can see that he reserves the "naming" treatment for who he deems the worst offender. Another attorney is let off the hook.
The very real possibility of being called out by name by Richard Posner doubtless has a deterrent effect on attorneys practicing in front of the 7th Circuit. Perhaps this is good for the public and the professsion so long as the shaming is meted out with appropriate judicial temperment and caution. It also has the potential to derail careers if used inappropriately. I asked earlier this year whether bench slap orders were a good or a bad thing. My opinion is that it depends on the order and the circumstances giving rise to it. But with the great power that comes from the abiltiy to publish potentially viral orders on the internet, comes great responsiblity in deciding who, and how hard, to bench slap.
hat tip for passing the order along: Joseph Mastrosimone