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?
Phipps: Nope.
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?Gavel_15
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
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.

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This post, from Legal Profession Blog, made me cringe. Counsel shows up in court, woefully unprepared, and actually states at one point that he [tries] not to read that many cases. I was reminded of an appearance I made once in Master Mi... [Read More]

Tracked on Apr 24, 2008 4:29:27 PM


You've posted it before, but the 5th Circuit report website deserves a link.

Posted by: Jane Hicks | Apr 17, 2008 6:26:01 PM

Isn't "I try not to read that many cases, your honor." the real money quote? That was the one that my friends loved.

Posted by: Jane Hicks | Apr 17, 2008 6:34:17 PM

Right on both points. Here is the link to the Fifth Circuit Civil News:

I decided I am no longer sticking around for the next airline pilot who announces, "I try not to look at too many instruments."

Posted by: Alan Childress | Apr 17, 2008 6:49:20 PM

That's unbelievable. He should also be disbarred from Fifth Circuit practice, I would think.

Posted by: Bruce Boyden | Apr 18, 2008 11:55:27 AM

Just so that it is clear to the public reading this blog, Phipps DID NOT attend Loyola New Orleans College of Law.

According to Martindale-Hubbell he went to law school at "Loyola University - Chicago, IL (J.D.)" after attending "Indiana State University (B.S.)" for undergrad.

I do not want people to think Loyola New Orleans College of Law teaches this flagrant disregard of the client's interest is even remotely acceptable.

Posted by: Edward Boudreaux III | Apr 19, 2008 3:56:24 PM

Excellent research! I will post an editorial update right now on the original post!

Posted by: Alan Childress | Apr 19, 2008 5:09:14 PM

Ok, further information provided to this blog strongly suggests that the Roger Dale Phipps at issue is indeed a law graduate, class of 1990, of Loyola-New Orleans. He passed the La. bar in fall 1990. My source says he acted this way in law school, too.

Apparently his Martindale-Hubbell entry is incorrect and says Chicago. He should fix that. And not have flagrant disregard for the client's interest.

Posted by: Alan Childress | Apr 19, 2008 9:40:42 PM

I am a Loyola New Orleans law grad of 1990, and I'm chagrined to confirmed that my list of graduating classmates includes one Roger Phipps. (The list was published in Loyola's 1990-91 bulletin.)

Posted by: Ray Ward | Apr 21, 2008 10:48:58 AM

No, no, Ray, he went to Loyola-L.A., and yeah he's married to .... uh, Morgan Fairchild, which is why he got confused about the question about Morgan, yeah that's the ticket.

Posted by: Alan Childress | Apr 21, 2008 1:33:36 PM

Career services just sent an email out disavowing the attorney as a Loyno law grad soooo there's your unsalted refusal with absolutely no grains of salt attached.

Posted by: Loyola NO | Apr 24, 2008 9:57:28 AM

They should have left this alone. Please post the update when they send out an email confirming that he is a graduate but it is listed wrong in Martindale-Hubbell.

As I said, I wish it were not Loyola NO, and I don't blame the school or my friends who teach there. What can they do to prevent this kind of issue 20 years later?

But if the school's CS office is somehow citing this blog as in error and correcting it without having read all the information on it, including the Martindale-Hubbell mistake, then it is poor research. I would love to be wrong, but it is not fair to attack me without having read the post. I certainly have done all I can to confirm the truth of his record, but reliance on Martindale-Hubbell is misplaced.

Posted by: Alan Childress | Apr 24, 2008 10:08:33 AM

Just to follow up on Mr. Childress' comment, here is the email from Pam Occhipinti, Loyola's career services director, addressed to Loyola New Orleans College of Law students:

There is a US 5th Circuit case that is being circulated nationally about an
attorney. In the footnotes - the transcript excerpts between the judicial
panel and the attorney - the attorney mentions a certain law school by name.

Students and local attorneys have been emailing me concerned that this
nationally circulated document will precede their applications for job
search purposes and/or is an embarrassment to our school.

The bad news is that, "yes, this is embarrassing representation on behalf of
the attorney."

The GOOD NEWS is that the attorney mentioned is NOT a Loyola New Orleans

Good Luck on Your Exams!

Career Services

Posted by: Sonia Gupta | Apr 24, 2008 12:28:23 PM

Odd twist on this dilemma: abovethelaw is now reporting that his MarHub entry lists no school affiliation. I swear that it did when I checked it myself 4/19 after the comment above by Boudreaux. It said Loyola-Chicago. Now it does not. Weird. Somehow it got edited or fixed since then.

Posted by: Alan Childress | Apr 24, 2008 12:58:25 PM

Yep, it still does, when accessing it via Lexis (though again I think this is error):

Phipps & Phipps
541 Exposition Boulevard
New Orleans, Louisiana
(Orleans Parish)


PRACTICE-AREAS: Business Law; Business Litigation; Commercial Law.


LAW-SCHOOL: Loyola University - Chicago, IL (J.D.)

COLLEGE: Indiana State University (B.S.)

BORN: 1951

ISLN: 915571817

Posted by: Alan Childress | Apr 24, 2008 1:01:05 PM

Please see my update post, in which I received confirmation from Loyola-Chicago.

Posted by: Alan Childress | Apr 25, 2008 12:18:08 PM

I am reminded of a hearing in District Court when I was an assistant prosecutor many years ago. It was the middle of a long boring docket and court was pretty informal in Eastern Kentucky. I approached the bench holding a SouthWest Reporter with a relevant case tabbed and, after making my argument, offered to hand the book to the presiding judge to review. Defense Counsel objected to my having an unfair advantage by bringing actual law books into the court room.

Posted by: Janet Stumbo | May 2, 2008 5:38:35 AM

I can tell you that the Loyola New Orleans Career Services Department would not likely recognize a Loyola graduate if they saw one. I have the impression they are done with you once you stop paying tuition.

Posted by: DisappintedinLoyolaNO | May 11, 2008 7:29:31 PM

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