It’s time for another edition of stupid judicial antics. As always, there is plenty of them from which to choose. And, as always, I am not making these things up.
That annoying district court judge in the Southern District of Texas just can’t seem to get out of his own way with his comments in court. The Fifth Circuit Court of Appeals woodshedded him for his sexist remarks and punitive actions. It looks like this judge could be one of the poster boys (and yes, I use that word deliberately) for term limits for federal judges.
Lifetime appointments should not be an unlimited license to dump on lawyers, albeit sometimes the temptation is irresistible. Benchslaps are appropriate when lawyers conduct themselves in manners that legitimately irritate the bench, and we all know what those are. No need to draw any pictures. Perhaps if there were to be term limits, we members of the bar and the communities the bench is supposed to serve might just see a change in behavior for the better.
Should there be a pretest, a performance test for judges, to get a glimpse as to how they might behave? Although bar associations provide evaluations, those evaluations, even if seen as useful by some, do not always suss out judicial temperament. I’m not talking about how a judge might decide a case (cough, cough) but how they might act on the bench, like treating lawyers and parties with the common courtesies that some judges seem to cast off as soon as they zip up their robes.
Imagine how you would feel if a judge said in open court that he would stop reading your opposition “when he got bored.” Really? Thank you, your honor, for sharing. How about being cut off while trying to explain to the court why a particular matter should not be stayed, and the judge ignoring that, only to have the appellate court reverse the judge on that very point?
How about the court proceeding with an OSC re dismissal in the absence of counsel, who had previously filed settlement agreements and dismissals without prejudice? Never mind, the court proceeded with the OSC, resulting in dismissals with prejudice. The plaintiff was then unable to enforce settlement terms. Did that merit even a “whoops,” much less an apology from the court? Of course not, since judges are never wrong. May attorneys use a “judicial whoops defense” to a legal malpractice action? Is that at all akin to the “devil made me do it?” Good luck with that.
How about making a motion for attorney’s fees that totaled $165,000 and the court awarding the munificent fund of $1,000? (Not a typo). Without explanation. The reason? The court in trying to explain himself said “it was based on the conduct of the litigation before him.” Say what? Sounds a little lame.
And guess what? All of these fact patterns arose from the same judge’s conduct or lack thereof. And all he drew was a public admonishment from the California Commission on Judicial Performance, even though he had prior discipline.
No wonder that there is so little respect for the judiciary these days. While most judges try to do the right thing, some appear to have lost interest. Are they burned out? Do they no longer care? If so, are they remaining on the bench purely to put in the time for whatever pension and other benefits they can then draw? What kind of impression does that leave in the eyes of the attorneys and clients, the public? Are they literally just bench warmers? (Pun intended.)
Check out this site. There’s no question many comments are sour grapes, disgruntled losing-side attorneys and clients, and the like. Even so, there’s probably at least a kernel of truth in some of the comments. Rudeness, discourtesies, and impatience comprise a fair amount.
And then in Indiana, and I am not making this up, of the three judges who got caught in a brawl, arising out of drinking in a White Castle parking lot, two of whom were shot, the lone judge who was unscathed, but drunk and disorderly, has decided it is better to hang up her robe and resign on charges unrelated to this debacle. Judge Sabrina Bell’s resignation was prompted by an ethics charge (i.e., domestic battery on her ex-husband in the presence of a child). Nice to know that law and order prevailed in this matter, or it’s more precise to say that the ethics charge prevailed. What’s even better for the citizens of Indiana is that she has vowed never to hold judicial office again. Hopefully, they will hold her to it. However, she will be able to practice law again after a period of time.
And last, but certainly not least for this California lawyer, I can’t stop writing about John Eastman, the former president’s coup-advisor-in-chief and another lawyer who flew too close to the sun. Not only is he facing discipline charges here in California, now another bar association is getting in the act. The 65 Project has filed an ethics complaint against Eastman, asking the United States Supreme Court to suspend him from practice before that court and to move forward forthwith with disbarment, (i.e., toss his keister out of the Court’s bar). An interesting sidebar issue is whether Justice Thomas will recuse himself, given the goings-on of his wife in all the “Stop the Steal” aka “The Big Lie” malarkey.
What do you think?
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at firstname.lastname@example.org.