Appeals Court Quashes Criticism
Oak 1900
------
Michael A. Wilkins, a lawyer in Indianapolis, will not be welcome in the
Indiana courts for 30 days starting in early December. The Indiana Supreme
Court, in a 3-to-2 decision, disciplined Mr. Wilkins on Tuesday, ruling that a
footnote, in a brief, that criticized a lower court undermined "the public's
confidence in the administration of justice."
...
The footnote criticized a ruling of the Indiana Court of Appeals in an
insurance dispute as intellectually dishonest.
"The opinion," the footnote said, "is so factually and legally inaccurate that
one is left to wonder whether the Court of Appeals was determined to find for"
the defendant "and then said whatever was necessary to reach that conclusion."
------
I would have thought a legal brief is a forum covered by the First Amendment.
Was the Indiana Supreme Court in violation of the First Amendment in your
opinion?
Are we increasingly seeing the logic of the legal profession being used against
itself? Is this a predictable result of an adversary system gone awry?
Stan Brown
[lawyer wrote the following in a brief and was suspended from
practice before the Court of Appeals for 30 days]
>"The opinion," the footnote said, "is so factually and legally inaccurate that
>one is left to wonder whether the Court of Appeals was determined to find for"
>the defendant "and then said whatever was necessary to reach that conclusion."
>
Two problems with that view:
(1) The First Amendment says that the government cannot put prior
restraint on publication or speech. It does not say that people are
free from consequences after the fact.
(2) Courts have broad power to enforce decorum and respect,
presumably on the theory that the orderly administration of justice
is of benefit to society as a whole. A breach is called "contempt of
court", and judges have fairly wide latitude in imposing penalties.
I suspect that that's what happened in the news report you cited.
That said, to this layman the lawyer's words, while perhaps heated,
seem no worse than what some courts have written of each other. I
suspect there is probably something else to it, perhaps some
additional conduct not mentioned in the news story.
--
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com
Michael Jacobs
news:qqhdsu84frhgdlkf1...@4ax.com...
> >From the Sunday, Nov. 3rd New York Times:
> ------
> insurance dispute as intellectually dishonest.
Calling a Court "dishonest" is pretty over-the-line disrespectful, whatever
else it may be. There are more acceptable ways of expressing the same
substantive opinion without name-calling. We had a big thread on what kind
of outburst is sufficient to be classified as "contempt of court" on MLM a
few weeks back, so I won't rehash that subject.
> "The opinion," the footnote said, "is so factually and legally inaccurate
that
> one is left to wonder whether the Court of Appeals was determined to find
for"
> the defendant "and then said whatever was necessary to reach that
conclusion."
> ------
>
> I would have thought a legal brief is a forum covered by the First
Amendment.
If a lawyer orally called the judge an idiot or a liar in open court, the
same result would ensue. That's contempt of court. Although a person may
be free to say almost anything he wants outside of the courtroom, the judge
has the right to enforce decorum and control his own courtroom. Without
that, none of those laws they are enforcing, including the First Amendment,
would have any weight either.
> Was the Indiana Supreme Court in violation of the First Amendment in your
> opinion?
No. The first amendment does not protect a speaker from being punished for
contempt of court, IF that's what it was. I haven't read the offending
brief, or the court's opinion imposing the suspension, so YMMV.
> Are we increasingly seeing the logic of the legal profession being used
against
> itself? Is this a predictable result of an adversary system gone awry?
No. A court which was dissed is taking steps to require that it be
respected.
Mneumisi
>
> I would have thought a legal brief is a forum covered by the First
Amendment.
>
> Was the Indiana Supreme Court in violation of the First Amendment in your
> opinion?
>
> Are we increasingly seeing the logic of the legal profession being used
against
> itself? Is this a predictable result of an adversary system gone awry?
>
>
I don't think there is any protection for a lawyer before a legal tribunal;
the protection would be against someone from the public. Plus, he could and
probably is appealing it anyway. I have to doubt these sanctions are based
solely on one footnote though. Generally people work their way into the bad
graces of a court slowly.
If it is truely because of one comment, however, one is left to wonder
whether legal realism is now so offensive that suggesting it is cause for
sanctions. Perhaps someone should suggest this to Justice Stevens.
(I don't think the adversary system has gone awry.)
m.
Oak 1900
>Oak 1900 <oak...@aol.com> wrote in misc.legal.moderated:
>[lawyer wrote the following in a brief and was suspended from
>practice before the Court of Appeals for 30 days]
>>"The opinion," the footnote said, "is so factually and legally inaccurate
>that
>>one is left to wonder whether the Court of Appeals was determined to find
>for"
>>the defendant "and then said whatever was necessary to reach that
>conclusion."
>>
>>I would have thought a legal brief is a forum covered by the First
>Amendment.
>
>Two problems with that view:
>
>(1) The First Amendment says that the government cannot put prior
>restraint on publication or speech.
Yup.
>It does not say that people are
>free from consequences after the fact.
But the courts have ruled against, say, arresting someone for inflammatory
expression (e.g. flag burning). Violation of a person's constitutional rights
and so forth.
So sometimes one has protection from consequences of one's expression, and
sometimes one does not. Depends on the situation.
>(2) Courts have broad power to enforce decorum and respect,
>presumably on the theory that the orderly administration of justice
>is of benefit to society as a whole. A breach is called "contempt of
>court", and judges have fairly wide latitude in imposing penalties.
>I suspect that that's what happened in the news report you cited.
Yup. My point is that it's inconsistent with, for example, the disrespect that
some lawyers show for their clients.
The status quo is as you say. But I challenge whether this status quo is a good
thing or whether it's hypocrisy, with pernicious effects on society.
A letter to the New York Times today noted that, the more widely known it is
that college students cheat, the more college students will cheat. Human nature
is such that one excuses one's self when one knows everyone, even judges, are
hypocrits.
>That said, to this layman the lawyer's words, while perhaps heated,
>seem no worse than what some courts have written of each other. I
>suspect there is probably something else to it, perhaps some
>additional conduct not mentioned in the news story.
The law is supposed to be about separating the wheat from the chaff. If the
court was indeed trying to punish this attorney for something else, then this
adds another facet to the court's hypocrisy.
Just my opinion.
Oak
Election 2002: "TXH...@aol.com picked the {Texas, Missouri, South Dakota, New
Jersey} Senate winners and the {New York, Maryland, Texas, Michigan} Governor
winners."
Rob Clark
>>From the Sunday, Nov. 3rd New York Times:
[. . .]
>"The opinion," the footnote said, "is so factually and legally inaccurate that
>one is left to wonder whether the Court of Appeals was determined to find for"
>the defendant "and then said whatever was necessary to reach that conclusion."
>------
It might be worth reading the actual decision at
http://www.state.in.us/judiciary/opinions/archive/10290201.per.html
The issue is not as simple as it appears at first glance from a news story.
>I would have thought a legal brief is a forum covered by the First Amendment.
When I first read this, it looked superficially as if it were merely retaliation
for the view expressed, but while the statement is phrased in neutral language,
it is fairly clearly an accusation of dishonesty by the court. It amounts to
calling the judge a liar. The question is whether such conduct is
conscionable. This must be taken in the context of the fairly strict standards
to which lawyers are held in Indiana. Even there it is questionable, which
accounts for the close decision.
>Was the Indiana Supreme Court in violation of the First Amendment in your
>opinion?
The dissenting view says this:
SULLIVAN, J., dissenting.
I respectfully dissent. When the respondent here said that "one is left to
wonder whether the Court of Appeals was determined to find for Appellee ... and
then said whatever was necessary to reach that conclusion (regardless of whether
the facts or the law supported that conclusion)," the respondent made a
statement of "rhetorical hyperbole," incapable of being proved true or false.
The First Amendment provides lawyers who use such hyperbole concerning the
qualifications or integrity of the judge protection from sanction. See Standing
Comm. on Discipline of the United States Dist. Court vs. Yagman, 55 F. 3rd 1430,
1438, 1441 (9th Cir. 1995). While there is much debate as to how far this
protection extends, I agree with Justice Boehm that it extends at least as far
as the statement made by respondent here.
>Are we increasingly seeing the logic of the legal profession being used against
>itself? Is this a predictable result of an adversary system gone awry?
I think the question is whether Indiana's standards of conduct are too strict
and therefore unacceptable, but that issue could only be addressed by the
Supreme Court itself.
I do not think this is a First Amendment violation, though, but perhaps an issue
of what a lawyer is permitted to do in pursuing the interests of a client.
In litigation one has numerous rights, however the right to completely free
speech is not such a right, nor is a legal filing a public forum in such
a sense (although a courtroom itself may be to some extent a public
forum).
In the case that the facts of the matter indicate that a court has indeed
ruled in an intellectually dishonest fashion, I think it should be permitted
to say no. Nor is the example for which Wilkins was punished rather
harshly a particularly egregious example of legal bombast, although
in the context of Indiana practice it may have been.
Rob Clark
Oak 1900
>"Oak 1900" <oak...@aol.com> wrote in message
>news:qqhdsu84frhgdlkf1...@4ax.com...
>> >From the Sunday, Nov. 3rd New York Times:
>> ------
>> The footnote criticized a ruling of the Indiana Court of Appeals in an
>> insurance dispute as intellectually dishonest.
>
>Calling a Court "dishonest" is pretty over-the-line disrespectful, whatever
>else it may be.
Calling a Court dishonest may also be a part of a substantive argument on
behalf of one's client. The adversarial system may justify -- even demand --
it.
Now I know the reality is that judges can do pretty much what they damn well
please. I'm just saying the court's action is hypocritical and undermines the
faith of people in the legal system. Lawyers are allowed to disrespect clients
and witnesses routinely in the name of the adversarial system. Why judges
shouldn't be subject to the same treatment, all in the name of winning a case,
is not at all clear.
>There are more acceptable ways of expressing the same
>substantive opinion without name-calling. We had a big thread on what kind
>of outburst is sufficient to be classified as "contempt of court" on MLM a
>few weeks back, so I won't rehash that subject.
What's name-calling is subjective.
>> "The opinion," the footnote said, "is so factually and legally inaccurate
>that
>> one is left to wonder whether the Court of Appeals was determined to find
>for"
>> the defendant "and then said whatever was necessary to reach that
>conclusion."
>> ------
>>
>> I would have thought a legal brief is a forum covered by the First
>Amendment.
>
>If a lawyer orally called the judge an idiot or a liar in open court, the
>same result would ensue. That's contempt of court. Although a person may
>be free to say almost anything he wants outside of the courtroom, the judge
>has the right to enforce decorum and control his own courtroom.
Yup. This is the status quo. I challenge whether it's good for society.
I'm not preaching permitting mayhem in courtrooms.
My feeling is the judgees should not have addressed this comment of the
attorney's at all. They should have used the "We're not even going to dignify
that comment with a response, but we (or the appropriate court will adress the
substantive issues of the brief."
>Without
>that, none of those laws they are enforcing, including the First Amendment,
>would have any weight either.
It's a tradeoff. Yes, we need decorum in the courts. But no, we don't need
childish behavior like *both* the judges and the attorney are exhibiting.
>> Was the Indiana Supreme Court in violation of the First Amendment in your
>> opinion?
>
>No. The first amendment does not protect a speaker from being punished for
>contempt of court, IF that's what it was. I haven't read the offending
>brief, or the court's opinion imposing the suspension, so YMMV.
Yup, that's the reality.
>> Are we increasingly seeing the logic of the legal profession being used
>against
>> itself? Is this a predictable result of an adversary system gone awry?
>
>No. A court which was dissed is taking steps to require that it be
>respected.
It is also taking steps for it to receive more (deserved, IMO) criticism from
the public.
Oak 1900
snip
>If it is truely because of one comment, however, one is left to wonder
>whether legal realism is now so offensive that suggesting it is cause for
>sanctions.
It's an attorney's job to "take offense" at any "legal realism" that does not
favor his client.
If a reviewing court is persuaded by the attorney's claim that a lower court
has been dishonest, then the attorney will be fully in the right for making the
claim. If the reviewing court is not so persuaded, then who is to say that the
attorney should not have tried this tack, as long as he sincerely thought it
supported his client?
>Perhaps someone should suggest this to Justice Stevens.
>
>(I don't think the adversary system has gone awry.)
You don't think that, if the sanctions stick in this case, something has gone
awry?
Garry Wiegand
>>one is left to wonder whether the Court of Appeals was determined to find for"
>>the defendant "and then said whatever was necessary to reach that conclusion."
>
>seem no worse than what some courts have written of each other. I
>suspect there is probably something else to it, perhaps some
>additional conduct not mentioned in the news story.
The news story as posted here was trimmed down hard. One of the interesting
pieces that got trimmed is that one of the Court of Appeals judges that was
criticized by the footnote had been, in the interim, elevated to the Indiana
Supreme Court. He went ahead and sat in judgement of the footnote, and he
voted in favor of the discipline.
If I had to guess, I would guess that the other two judges that voted in
favor did so because they were shy of doing otherwise, with the new colleague
standing there and all.
And, yes, it's become no big deal to say in writing the personal attacks that
one is thinking anyhow. Dear old Justice Scalia, for example, has frequently
been extremely ill-mannered in print with respect to his fellow Justices. He
gives the appearance that he just doesn't care whether his attacks are
personal. Perhaps he's become a style-setter for the whole system.
Garry
Barry Gold
Michael Jacobs <mjaco...@comcast.net> wrote:
[snip]
>If a lawyer orally called the judge an idiot or a liar in open court, the
>same result would ensue. That's contempt of court. Although a person may
>be free to say almost anything he wants outside of the courtroom, the judge
>has the right to enforce decorum and control his own courtroom. Without
>that, none of those laws they are enforcing, including the First Amendment,
>would have any weight either.
I disagree. Arbitrators don't have the power of contempt, but get
along just fine. If the parties don't behave themselves, he either
tells them to get another arbitrator, or ejects the misbehaving party
while he listens to the other side.
I think the real reason behind the whole "contempt of court" thing and
the insistence on proper decorum is that the original "courts" were
the court of a king. And you behaved yourself in the King's presence
or he sent you to the headsman for a height and/or attitude adjustment.
--
Finger bg...@nyx10.nyx.net for public key
Robert Bonomi
Oak 1900 <oak...@aol.com> wrote:
>>From the Sunday, Nov. 3rd New York Times:
>------
>Michael A. Wilkins, a lawyer in Indianapolis, will not be welcome in the
>Indiana courts for 30 days starting in early December. The Indiana Supreme
>Court, in a 3-to-2 decision, disciplined Mr. Wilkins on Tuesday, ruling that a
>footnote, in a brief, that criticized a lower court undermined "the public's
>confidence in the administration of justice."
>...
>The footnote criticized a ruling of the Indiana Court of Appeals in an
>insurance dispute as intellectually dishonest.
>
>"The opinion," the footnote said, "is so factually and legally inaccurate that
>one is left to wonder whether the Court of Appeals was determined to find for"
>the defendant "and then said whatever was necessary to reach that conclusion."
>------
>
>I would have thought a legal brief is a forum covered by the First Amendment.
Probably, yes.
>
>Was the Indiana Supreme Court in violation of the First Amendment in your
>opinion?
No.
>Are we increasingly seeing the logic of the legal profession being used against
>itself? Is this a predictable result of an adversary system gone awry?
Nope. You apparently suffer from a fundamental mis-understanding of the
1st Ammend. To wit: "Freedom of Speech" does *NOT* mean "Freedom from
the consequences thereof". The learned gentlemen exercised his rights.
And there _were_ consequences. No big deal.
If you use your 'freedom of speech' rights to libel/slander someone, they
_can_ sue you, and if the slander/libel is upheld, they *will* win. Nothing
different about the case you cited.
Dick Adams
> Oak 1900 <oak...@aol.com> wrote:
> [lawyer wrote the following in a brief and was suspended from
> practice before the Court of Appeals for 30 days]
>> "The opinion," the footnote said, "is so factually and legally
>> inaccurate that one is left to wonder whether the Court of Appeals
>> was determined to find for" the defendant "and then said whatever was
>> necessary to reach that conclusion."
>>
>> I would have thought a legal brief is a forum covered by the
>> First Amendment.
> Two problems with that view:
> < snip >
> That said, to this layman the lawyer's words, while perhaps heated,
> seem no worse than what some courts have written of each other. I
> suspect there is probably something else to it, perhaps some
> additional conduct not mentioned in the news story.
In Dyett v. Turner, one of the Justices of the Supreme Court of
Utah refers to "the inferior federal courts."
But the one I love is from State v. Richards (another Utah case):
"I concur, but only under the duress of the erroneous holdings
of cases decided by the Supreme Court of the United States.
In remanding this case for a new trial, we do so with certainty
that a burglar will be set free to prey again upon a law-abiding
society -- a society which seems to have scarcely any rights at
all under the Constitution as now interpreted."
Dick -- I never was an attorney
Daniel R. Reitman
<mjaco...@comcast.net> wrote:
>. . . .
>No. A court which was dissed is taking steps to require that it be
>respected.
IIRC, there's an old case from Arizona in which a similar statement
drew an immediate reprimand.
Daniel Reitman
Oak 1900
>On Mon, 04 Nov 2002 14:21:46 -0500, oak...@aol.com (Oak 1900) wrote:
>
>>>From the Sunday, Nov. 3rd New York Times:
>
>[. . .]
>
>>"The opinion," the footnote said, "is so factually and legally inaccurate
>that
>>one is left to wonder whether the Court of Appeals was determined to find
>for"
>>the defendant "and then said whatever was necessary to reach that
>conclusion."
>>------
>
>It might be worth reading the actual decision at
>http://www.state.in.us/judiciary/opinions/archive/10290201.per.html
>
>The issue is not as simple as it appears at first glance from a news story.
>
>>I would have thought a legal brief is a forum covered by the First
>Amendment.
>
>When I first read this, it looked superficially as if it were merely
>retaliation
>for the view expressed, but while the statement is phrased in neutral
>language,
>it is fairly clearly an accusation of dishonesty by the court. It amounts to
>calling the judge a liar.
Some judges have been shown to be liars and appropriately disciplined. Thus, to
make such a charge and then back it up is helpful to the legal system.
>The question is whether such conduct is
>conscionable. This must be taken in the context of the fairly strict
>standards
>to which lawyers are held in Indiana. Even there it is questionable, which
>accounts for the close decision.
You've made "conscionable" into a subjective (that is, depends on the state)
matter, whereas the courts try to make it objective. I think there should be
consistency on this. Of course, if pigs could fly, and so forth...
I don't quite agree with all you say in this paragraph, but it's not a big
deal. I happen to feel that one purpose of the First Amendment is to promote
vigorous political debate so as to get at the truth. If one cannot criticize
the courts, then one's political speech is being censored, IMO.
Is a legal brief a valid, First Amendment-protected forum for criticism? I'm
still not sure. The issues (defending one's client and having to do so, in some
cases, by noting a court's incompetence) overlap a good deal.
>In litigation one has numerous rights, however the right to completely free
>speech is not such a right, nor is a legal filing a public forum in such
>a sense (although a courtroom itself may be to some extent a public
>forum).
"Public forum" isn't always critical to First Amendment protection tests.
>In the case that the facts of the matter indicate that a court has indeed
>ruled in an intellectually dishonest fashion, I think it should be permitted
>to say no.
Agreed.
>Nor is the example for which Wilkins was punished rather
>harshly a particularly egregious example of legal bombast, although
>in the context of Indiana practice it may have been.
Oak
Mneumisi
> It's an attorney's job to "take offense" at any "legal realism" that does
not
> favor his client.
>
> If a reviewing court is persuaded by the attorney's claim that a lower
court
> has been dishonest, then the attorney will be fully in the right for
making the
> claim. If the reviewing court is not so persuaded, then who is to say that
the
> attorney should not have tried this tack, as long as he sincerely thought
it
> supported his client?
Yes, I agree. An attorney should advocate within the bounds of ethics and
the law. I think one theory of law is legal realism, and this court seems to
have taken great offense at this attorney arguing that it is improper. On
the other hand it is bad form to point out that a court is engaging in legal
realism because it implys that the court has disregarded the law. This guy
just seems to have crossed the line.
What I have to add, however, is I have read appeals with 81 parts that were
patently offensive, and perhaps in this situation the offender actually has
pissed the court off before. I don't know that, of course, but I would also
be interested in whether he won this appeal or not. I would guess that the
usual response to offensive conduct is taking it out on the lawyer's client.
>
> >Perhaps someone should suggest this to Justice Stevens.
> >
> >(I don't think the adversary system has gone awry.)
>
> You don't think that, if the sanctions stick in this case, something has
gone
> awry?
I don't think one event has any bearing on "the system."
Seth Breidbart
Robert Bonomi <bon...@c-ns.panix.com> wrote:
>If you use your 'freedom of speech' rights to libel/slander someone, they
>_can_ sue you, and if the slander/libel is upheld, they *will* win. Nothing
>different about the case you cited.
Apparently, there was. In an ordinary defamation case, the plaintiff
is not the judge.
Seth
David Chesler
> Two problems with that view:
>
> (1) The First Amendment says that the government cannot put prior
> restraint on publication or speech. It does not say that people are
> free from consequences after the fact.
Are you suggesting a content-based speech restriction which punished
but not restrained (for instance "Anyone who complains about the
President's policies is guilty of a felony punishable by ten years
imprisonment" would pass Constitutional muster?
(But I do wonder what prior restraint means -- we still generally
only convict after bad acts are committed.)
--
- David Chesler <che...@post.harvard.edu>
Every elementary school has to have a firing range --S1M0NE