Dispatches from the reading room: so how did I do?

By William Domnarski

Pride, vanity, and ego - just a few words that might be used in description and analyses of lawyers. Hero, all conquering warrior, master-of the universe, just a few ways lawyers - litigators especially - describe themselves, at least to themselves. Maybe it is just the nature of the work. Any honest trial lawyer would have to admit to have that thrilling feeling that comes after beating up on a witness or getting the jury to lean forward and listen. It is the equivalent of what stand-up comics describe when they say that they killed out there, referring to slaying an audience with laughter. Appellate lawyers, normally the more sedate ones, to be sure, are not immune to this feeling. Just ask any one of them after an effective argument how they did.

West Publishing understands this and has sells the framed first page of the judicial opinion as it appears in its reporter pages. What lawyer wouldn't want to display his trophy kill for all to see, especially clients. What better way to advertise success and ability, especially if on the framed page the client can read the court's praise of the lawyer. In a recent en banc case the court's first footnote read, "although we do not often comment on the quality of arguments, we would like to thank both counsel for aiding the court through their excellent advocacy in briefing and during oral argument." Heady stuff.

In the reports we do find the occasional encomium to a lawyer's performance, but more often we find performance criticisms that lawyers would never want their clients - to say nothing of their mothers - see. The criticisms can be withering, scathing and, to us at least, because we have a character flaw that prompts us to enjoy the sufferings of other lawyers, amusing.

Lawyers coming to the appellate opinions of their cases hoping for not just the right result, but for references to what they had thought to be standout lawyering can have their ego first deflated and then crushed with language cutting to the quick. Consider the prosecutor who falls victim to Frank Easterbrook's lash and reads that "to call performance of the USAO in this case a disappointment would be a gross understatement." This is what happens to other lawyers, not us, we tell ourselves.

Performance assessments can expose to the world lawyers called out on their audaciousness, their chutzpah. Oral arguments can be tense anxious affairs for lawyers, and some allowance must be made for that. It is good to read in this regard that appellate judges leave some room for this, as when we read in an opinion by Judge Richard Posner in a criminal case that "the government's rather wild arguments were made by its lawyer only at oral argument, so perhaps should be forgiven."

But to say one thing in a brief and then to take the opposite position at argument can stun, and not in a good way, as when Posner in a civil rights case wrote, "we were astonished when [defendant's] lawyer told us at argument that [the restaurant's general manager's] conduct toward [plaintiff restaurant employee] was not sexual harassment, though in his brief he had acknowledged that it was." Similarly, no good can come from a judge, again Posner, noting that the appellate lawyer had made an argument with a straight face.

The warning that should be posted on the doors to the appellate courtroom is not Dante's direful "abandon all hope ye who enter here." It is merely that the lawyer as well as the case will be judged. Judgment can be delivered on how well you know your field. What is a bankruptcy lawyer's clients to think when in the Federal Reporter we find a judge, Posner again, notes that "when we asked the trustee's lawyer at argument who would be entitled to the money obtained by him in excess of what new Crown's creditors are owed, he surprised us (he is a bankruptcy lawyer, after all) by saying that he did not know."

An appellate opinion bears resemblance to a report card on what went on below. Trial judges look at them this way and sometimes do not take well to getting low marks or even failing, even though they have job security. They worry about their reputations, as do lawyers. We like to think that we can also recover from a bruised reputation, but in reading some accounts of lawyer performance we have to wonder.

What can be said, for example, about a deputy federal defender whose briefing on sentencing reads, as the court put it, more like a prosecutor's argument in favor of a harsher sentence. The conviction in this 6th Circuit case was for illegal reentry and the client had been deported twice and had been convicted five times of drunken driving. The court gave a higher than guideline sentence because of the defendant's criminal history. Defense counsel for his part submitted a sentencing memorandum that made no arguments for leniency and, astonishingly, included a letter he had written to his client in which he told the client that he was worthless, a danger to society and not worthy of anything but the most severe punishment. The client had left him, he explained in his letter without expressible sympathy, "almost unable to advocate on your behalf." Judge Eric Clay thought the lawyer had gone too far in using "almost" and sua sponte raised the ineffective assistance of counsel issue and directed counsel to provide a copy of the opinion to his client, with the expectation, we can only assume, that the defendant would raise the claim in a habeas corpus petition.

In a civil rights and RICO case from the 7th Circuit, the plaintiff's lawyer struggled with the "short and plain statement" pleading rule and ultimately had his motion to amend his second complaint denied and his case dismissed because of missed deadlines, ignored instructions and a an error filled and incomprehensible complaint. Judge Diane Sykes, after naming plaintiff's and appellant's counsel pointed to the complaint's incoherence and explained that its "rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility." Sykes then quoted some of the offending passages, including what the court described as a "staggering and incomprehensible 345-word sentence." Then, after affirming the trial judge's decision, Sykes noted, without irony, that trial counsel turned appellate counsel failed to file a reasonably coherent brief on appeal. After again naming the lawyer, Sykes described counsel's approach as alarmingly deficient. At least no mention of grammatical errors and typos.

Bad reports cards in our Internet age can be bad for business. In a 7th Circuit criminal case, the defendant's lawyer astonished the court by simply not showing up for oral argument. He called the day of argument to say that he would not be appearing in court, this even though his office was cater-corner to the courthouse. He then did not answer his phone and declined to return voice messages left by court staff. Simply abandoning his client and his "thoughtless approach to preparing his main brief, also inexcusable, led Judge Llana Rovner to become a consumer advocate and write that other clients, present or potential, ought to be aware." The court's intentions were perhaps revealed when it used the lawyer's name 16 times in the opinion.

Not surprisingly, opinions describing bad lawyering sometimes end with the court stating that it is sending a copy of the opinion to the state bar for inquiry into whether further disciplinary actions should be taken. Heavy deed. The temptation for lawyers looking to hide is to say that critical judges want someone to beat up on, but the opinions suggest otherwise. They represent appellate judges left with no choice but to expose inexcusably bad lawyering. The descriptions and complaints are always delivered in measured tones. It's the work, not the lawyer himself, except perhaps for the guy who, like Bartleby, preferred not to abandoned his client. Object lessons, perhaps. I see them more as reports of sadness at the legal profession's diminishment, of noble purpose undermined by indifference. The moral? Pity the lawyer who does not care about or for his profession.

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