Sunday, September 18, 2011

An Introduction to Modern Civil Procedure: Bench-Slapping

The judicial system is hierarchical. Cases start in trial courts and move to appellate courts which then move to superior courts. Up and up we go.

There's also a social hierarchy: 

Law Student < Pre-Bar Lawyer < Post-Bar Lawyer < Associate < Partner < Judge. 

It's a bit patriarchal, of course, being a male-dominated profession. And Daddy doesn't like it when you screw around with his bidness. Hence, we welcome the invention of bench-slapping, where judges let you know who's boss and when you've been a bad, bad peon. 

While bench-slapping is lawyer jargon for being intellectually or professionally outwitted or abused by judges, it can also apply to other members of the court room. For starters, let's look at the bench-slapping of defendants. This is what happens when you refuse to afford the proper respect to the Big Man in the Robe.

But, bench-slapping lawyers is far more fun.

1. Last-Ditch Efforts:
"Throwing 20 affirmative defenses against the wall to see what sticks is a strategy that did not go over well with Manhattan Civil Court Judge Arthur F. Engoron in a landlord-tenant dispute over back rent.  The case is Cityspire Inc. v. Gotham Lasik and here's what the judge said in his order granting summary judgement:

The [affirmative defenses] are a veritable laundry list, something of a 'greatest hits,' of what respondents tend to argue . . . In other words, we have the usual suspects, with, naturally, a few vague counterclaims thrown in for good measure."
2. Improper Lawyering
Lawyers are supposed to be ethical! Righteous! Professional! But sometimes, they can be a bit petty. When lawyers fail to do their jobs properly, the bench inevitably loses patience. So when two lawyers couldn't come to a consensus over the location to depose a witness, the bench gave a subtle declaration that was borderline bench-slap, ordering them to

"... meet on the front steps of the Courthouse .... At that time and location, counsel shall engage in one (1) game of 'rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006."

Yeah, when your job's been reduced to 'rock, paper, scissors,' you know you pissed someone off. At least the judge had a good sense of humor, though. He could have held them in contempt for being such huge pussies.

3. Rudimentary Skill-Fail:
Children need to learn to crawl before they walk. Lawyers need to learn civil procedure before they argue in court. Sometimes their briefs and motions are actually produced by law students or inferior associates because they're hella busy. Nevertheless, it's still their responsibility to double-check the work product with their name on it. When they don't, the judge invites them to kindergarten parties to work on their lawyering skills.

4. The Bench-Slapper Becomes the Bench-Slapped:
What happens when you receive national attention for being a giant asshole, as in the aforementioned instance? Your superior reins you in via an e-mail, which is then conveniently leaked nationally:

It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several 'cute' orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write.

tl;dr There's always going to be someone more important than you. Show proper respect. 

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