The Fine Art of the Benchslap
by John Browning    Mon, Nov 21, 2011, 08:14 AM

Lawyers frequently compare notes about judges, particularly those with a reputation for being tough or demanding.  Federal judges especially tend to be the focus of such speculation, perhaps because they are appointed for life or because of what some lawyers perceive to be a superiority complex.  An example from the sub-genre of lawyer jokes—the federal judge joke—is telling.  How many federal judges does it take to screw in a lightbulb?  Only one, the joke goes; he holds up the lightbulb and the universe revolves around him.  Colleagues of mine in states like New York and California swear that they practice in front of the toughest federal judges.  But for my money, I’ve found few judges that match ours in Texas for their skill in delivering what I like to call “the benchslap”—slamming a lawyer in an opinion or order for his or her conduct, professional competency (or lack thereof), or for the questionable positions taken.

 

Sometimes it is what the lawyer has written or how he’s written it that draws the judge’s ire.  When U.S. Bankruptcy Court Judge Leif Clark of the Western District of Texas’ San Antonio Division finally lost patience with one such lawyer, he used cinematic source material to express his displeasure.  In a February 2006 “Order Denying Motion for Incomprehensibility,” Judge Clark stated “The court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting.”  To illustrate his point, Judge Clark added a footnote in which he quoted the competition judge from the Adam Sandler movie “Billy Madison.”  In response to a rambling nonsensical answer from Sandler’s character, the judge replies “Mr. Madison, what you’ve said is one of the most insanely idiotic things I’ve ever heard.  At no point in your rambling, incoherent response was there anything that could even be considered a rational thought.  Everyone in this room is now dumber for having listened to it.  I award you no points, and may God have mercy on your soul.”  Ouch!

 

Sure, federal judges in other states can be tough, too.  In September 2011, the Chicago-based U.S. Court of Appeals for the 7th Circuit issued an opinion saying Illinois lawyer Walter Maksym’s writing was so bad, it ordered him to show cause why he shouldn’t be disbarred from practicing before the court.  The court called Maksym’s complaint “generally incomprehensible and riddled with errors,” and “woefully deficient.”  It went on to say that “Much of the writing is little more than gibberish,” citing a 345-word sentence as well as “rampant grammatical, syntactical, and typographical errors”—all of which “contributed to an overall sense of unintelligibility.”

 

But Texas federal judges won’t be out-done.  The 5th Circuit Court of Appeals, considering an appeal of a case from Dallas’ Northern District federal court, took the time to criticize both the plaintiff’s case and her lawyers’ lack of writing skills.  In  Sanches v. Carrollton-Farmers Branch Independent School District, the 5th Circuit began by slamming the controversy itself.  Judge Jerry Smith’s benchslap read “Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad.  It is a petty squabble, masquerading as a civil rights matter that has no place in federal court or any other court.”  Then Judge Smith unloaded on the plaintiff’s attorneys.  He said, “Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them.”  Snap—the court went on, giving specific examples of those blunders.  At one point, referring to the Plaintiff’s use of the word “incompetence,” the court noted “It is ironic that the term ‘incompetence’ is used here, because the only thing that is incompetent is the passage itself.”

 

Of course, it’s not always poor writing or lack of grammar that provokes a benchslap.  Lawyer behavior, particularly petty squabbling over discovery disputes, has drawn the ire of many a judge and has led some jurists to get creative—or just plain sarcastic—in their punishment.  On September 1, 2011, Delaware Superior Court Judge Peggy Ableman sent a letter to all counsel in a case directing them to appear at the courthouse on September 4, 2011—the Sunday of Labor Day weekend—for a “refresher course in first year ethics and civility.”  Motivated by “counsels’ inability to be civil and reasonable with one another,” Judge Ableman set an agenda for this “course” that included such topics as “[W]hy it is not professional to whine or complain” and “the importance of civility and professionalism.”  Just in case she hadn’t made her point about the lawyers’ childish bickering, Judge Ableman advised attendees that they “are encouraged to bring sleeping bags, toothbrushes, teddy bears, and jammies.”  Not surprisingly, the sarcasm hit home, although the “refresher course” was cancelled when Ableman’s boss, Judge James T. Vaughn, Jr. reassigned the case to himself.

 

Judge Ableman has nothing on U.S. District Judge Sam Sparks of the Western District of Texas (Austin Division), however.  In an August 26, 2011 order that went viral on the Internet, Judge Sparks vented his frustration with yet another set of lawyers who apparently couldn’t get along with each other or agree on routine matters.  He “invited” the attorneys of record to a “kindergarten party” that would take place at Austin’s federal courthouse on September 1, 2011.  The “party” would feature “many exciting and informative lessons,” such as “how to telephone and communicate with a lawyer,” “how to enter into reasonable agreements,” as well as “an advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.”  Judge Sparks further advised the lawyers “remember to bring a sack lunch,” and “to bring a toothbrush in case the party runs late.”

 

The lawyers presumably learned to get along and play nice, because the “kindergarten party” was cancelled.  But it is not the first time Judge Sparks has used his imagination to deal with problem behavior by lawyers.  In a 2007 case in which the attorneys were apparently disagreeing about the taking of a deposition (resulting in one side filing a Motion for Protection), Judge Sparks resorted to verse to get his point across.  Here’s a sampling from his caustic poem:

 

“Stallions can drink water from a creek without a ripple;

The lawyers in this case must have a bottle with a nipple;

Babies learn to walk by scooting and falling;

These lawyers practice law by simply mauling

Each other and the judge, but this must end soon

(Maybe facing off with six shooters at noon?)

Surely lawyers who practice in federal court can take

A deposition without a judge’s order, for goodness sake.

First, the arguments about taking the deposition at all,

And now this – establishing their experience to be small.

So, let me tell you both and be abundantly clear:

If you can’t work this without me, I will be near.

There will be a hearing with pablum to eat

And a very cool cell where you can meet.”

 

Not everyone finds Judge Sparks’ orders chastising lawyers funny.  Chief Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit reportedly sent Sparks an email recently that read, in part, “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.”  Judge Sparks, though, remains unapologetic and has no plans to change his writing style, pointing out that he received “hundreds” of letters from state and federal judges nationwide supportive of his “kindergarten party” order.  As he says, “I was just admonishing lawyers who couldn’t agree to anything.  It was kind of a wake-up call to the lawyers to use a little common sense.”

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