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"I try not to read that many cases, your Honor" - a case for the water cooler

By Michael Smith

Just when you thought you'd seen the most bizarre occurrence in a courtroom, along comes another one.  Although this case is not related in any way to the Eastern District of Texas, I thought readers might be interested in it.  In Hartz v. Tulane (5th Cir. 4-16-08), the Fifth Circuit was considering a Title VII and retaliation claim.  The opinion can be found at http://www.ca5.uscourts.gov/opinions/unpub/07/07-30506.0.wpd.pdf

The case was heard by three of (in my book) the best judges on the Fifth Circuit, former Chief Judge Carolyn King, Judge Carl Stewart and Judge Ed Prado. 

Briefly, the facts are these: after Plaintiff-Appellee Renee Hartz, M.D., was denied tenure by the Tulane School of Medicine, she brought a Title VII and breach of contract lawsuit against the school and hospital where she worked. She alleged that the denial of tenure was based on her sex and in retaliation for her previous equal employment opportunity activities. She also alleged that under the terms of the faculty handbook she had already acquired de facto tenure, and that her termination upon the denial of tenure was therefore a breach of contract. While the district court denied, in part, motions to dismiss for failure to state a claim brought by the school, the Administrators of the Tulane Educational Fund ("Tulane," the operator of the Tulane School of Medicine), and the hospital, University Healthcare System LC ("UHS," the owner of Tulane University Hospital and Clinic ("TUHC")), it certified an interlocutory appeal which this Court accepted. For the reasons set forth in the opinion, the Fifth Circuit reversed and dismissed.  

But the interesting part came at the end of the opinion, where the Court wrote the following (I have reproduced the paragraph and the footnote within it, which is interesting reading - it is especially interesting if you know Judge King, because I can just see the look on her face during the following exchange):

Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps' conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client's interest and for his obligation to the Court was both troubling and disgraceful.4 Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

4 An example of Phipp's interaction with the panel is included below.

Phipps: . . . so that's about all I have to say, Your Honor. I don't have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she's a doctor. She continues to earn a living, and she's generally unavailable if you call her because she, she's sort of a traveling doctor.

Judge: That's not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don't think it should.

Judge: What do you do about Morgan?

Phipps: I don't, I don't, I don't know Morgan, Your Honor.

Judge: You don't know Morgan?

Phipps: Nope.

Judge: You haven't read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don't know if that's not Ledbetter, I can't remember the name of it. Ricks is the one that I go by; it's my North star. Either it applies or it doesn't apply. I don't think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here-it's a Supreme Court case-and say you haven't read it. Where did they teach you that?

Phipps: They didn't teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all time first.

Phipps: That's why I wore a suit today, Your Honor.

Judge: Alright. We've got your attitude, anyway.

Not surprisingly, the two Loyola law schools are not happy to claim Mr. Phipps - as this blog post notes, Loyola - New Orleans flat denied he graduated from there, and he's listed in Martindale at Loyola - Chicago.  But is appears the Chicago is a mistake, and his classmates in the 1990 Loyola - NO class reluctantly admit that yes, he's from there.  As best I can tell, Loyola-NO has not retracted the denial (and was last reported drinking heavily in a bar on Bourbon Street).

 

Full post as published by Eastern District of Texas Federal Court Practice on April 30, 2008 (boomark / email).