Federal Judiciary

Matt Powers and Microsoft

By Michael C. Smith

Zusha Elinson over at LegalPad (a blog over at Cal Law) has a short post today on Microsoft's Matt Powers being back in Judge Leonard Davis' court representing Microsoft after the rather hard-edged comments he put in an appellate brief last year. 

Not exactly news that I think Judge Davis will be fair to parties in his court, but it was nice to get a chance to comment that I don't think it is appropriate to use the kind of tone that was used to address a judge's decisionmaking process during a case.  You can disagree with a judge's rulings (and I often do - usually when I lose) but there is a line that you don't cross, because - well, first of all you might be in that judge's court again soon (a quick PACER search might have noted that Microsoft still had cases pending in Tyler).  In a small town, that's sort of a consideration.  I've had somewhere around 150 cases in which I've appeared before Judge Ward in Marshall - you think I'm going to use a broad brush when I need to appeal one of his rulings?  My first appeal at the Fifth Circuit was actually trying to get Judge Ward reversed on a damages issue - in later appeals I'm usually defending his rulings, which is usually a much safer position.

But more importantly, it's really a simple matter to attack a judge's ruling without attacking the judicial officer - lawyers do it all the time, and judges expect it.  Judge Ward (to use an example) is always helpful in giving parties the opportunity they need to make their record.  They give it their best shot, and as Judge Hall used to say "if the Fifth Circuit thinks I'm wrong, they'll tell me."  (I thought Judge Andy Hanen of the Southern District had a better observation when he said "They can reverse me, but they can't make me read it.")  Judge Lee Yeakel, I think it was, that pointed out to that he doesn't mind the "reversed" part - it's when it is followed by "...and remanded for a new trial."  Oh the horror.

The real problem, as I see it, is not the rhetoric itself - it is when lawyers believe that a reviewing court is actually receptive to rhetoric that is derogatory to an individual judge, and not just to the ruling in question.  The perception that that attitude exists gives lawyers a decision to make when trying to decide whether to present the case as a judge simply making a mistaken ruling which requires appellate intervention, or whether to cast it as something broader.  I don't think it's a difficult decision, because officers of the Court should certainly not be enabling any such attitude, even assuming it exists in the first place, but, hey, that's just me. 

Full post as published by Eastern District of Texas Federal Court Practice on March 04, 2010 (boomark / email).