Wednesday, April 23rd, 2008

X 3

In these cyber-pages, we’ve chronicled great feats of benchslappery by U.S. District Court Judges Kent and Sparks, Texas Supreme Court Justice Willett, and even documented the contempt-slapping of one particularly self-loving lawyer.

We have yet to come across a federal appellate benchslapping against a litigant–that is, until now. And, as an added bonus, this rebuke came courtesy of a per curiam opinion by three Fifth Circuit judges.

In the circuit court’s decision last week in Hartz v. Administrators of the Tulane Educational Fund, No. 07-30506 slip op. at 13-14 (5th Cir. Apr. 16, 2008 ), the unfortunate yet apparently deserving Mr. Roger Phipps received just such a [dis]honor.

The panel devoted an entire subheading to chiding Mr. Phipps for conduct:

E. Roger Phipps’ Conduct

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.

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.

Id. at 13-14. The conduct the circuit court found so objectionable included this exchange between counsel and the panel:

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. … 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.

Id. at 14 n. 4.

At least he didn’t attempt any explanatory hand signals.

Thx to the Legal Profession Blog, Above the Law, and SCOTX Blog

Happy returns

Following up on yesterday’s post about the 2008 Baker Botts bonus structure, Greedy Texas reports that Thompson & Knight might actually best the venerable Texas partnership for years five and above:

Class Year…..Bonus at 2,000 Hours


Class Year…..Bonus at 2,000 Hours


Thx to Greedy Texas


The plain-language movement is not isolated to legal circles, journalists are trying to eradicate overly-florid language as well.

Last week, one of The Hill‘s senior editors sent the following memo to staffers regarding proper usage of commonly misused words.

From: Hugo Gurdon
Sent: Thu, 17 Apr 2008 10:42:42
Subject: good usage

I need to repeat some guidelines.

Please use:

“before” rather than “prior to”

“supports” rather than “is supportive of”

“attended” rather than “was in attendance at”

“for” instead of “in favor of”

“lunch” instead of “luncheon”

“senior” or “leading” instead of “top”

Avoid “upcoming” and “potential” and “current.” They are usually
redundant. There are several unhappy examples in today’s paper.

Thanks, Hugo

Agree with most of these except where “before” may be repetitive, I’ll usually substitute “prior to” just to lessen the monotony. Also, to my mind, a “luncheon” connotes a formal lunch–usually accompanied by a speaker of some kind–which is a very different concept than a mere “lunch.”

Thx to FishBowl DC

Never forget

Al-Qaida is apparently upset at conspiracy theorists (including Iranian “President” Mahmoud Ahmadinejad and–unfortunately–our own Willie Nelson) who insist that 9/11 was an inside job.

Evil hobbit Ayman al-Zawahri denounced Iran for stealing the hellfire spotlight from AQ, saying “[t]he purpose of this lie is clear—[to suggest] that there are no heroes among the Sunnis who can hurt America as no else did in history. Iranian media snapped up this lie and repeated it.”

Thx to Volokh

A stunningly accurate portrayal of most Barbri lectures. So glad I dropped a couple g’s on these clowns/lecturers.

Thx to Volokh


Gilbert King has an op-ed in today’s NY Times that bemoans the SCOTUS plurality holding in Baze v. Rees, No. 07-5439, slip op. (Apr. 16, 2008 ), which upheld the constitutionality of the death penalty.

King lists three examples of botched executions, two of which were the basis of SCOTUS decisions cited by both Chief Roberts and Justice Thomas in their separate opinions. See Wilkerson v. Utah, 99 U.S. 130 (1878 ); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).

The circumstances of these three executions, while undeniably unintended and no doubt more painful and stressful to the prisoners than originally contemplated, cannot be viewed in isolation as examples of “cruel and unusual” punishment.

Let’s take a look at the manner in which these three hoodlums killed their victims that led them to death row in the first place, shall we?

First up is Wallace Wilkerson, who moved slightly just before the firing squad unleashed its volley in 1879, resulting in four fatal–if not immediately so–wounds. “My God!” Wilkerson shrieked, “My God! They have missed!” Twenty-seven minutes later, Wilkerson died. How did he dispatch his own victim? Ironically, by the very same method–gunfire–that eventually did him in. There is no account of how long it took Wilkerson’s victim to die after being shot by Wilkerson, or what his victim’s last words may have been.

Willie Francis was electrocuted in 1946 in Louisiana for gunning down his employer, but Francis failed to die in the chair because of negligence on the part of the drunken prison guard who prepared it. He was re-electrocuted in 1947 after his unsuccessful appeal to SCOTUS.

The last example trotted out by King is that of William Kemmler, who was electrocuted in 1890 in a fiery mishap. While Kemmler’s death was no doubt gruesome, it could not have been as disturbing as his common-law wife and victim’s demise, who he murdered with a hatchet on March 29, 1889.

Forgive me if I am not moved by the discomfort experienced by any of these murderes in meeting their maker. And thankfully, neither is SCOTUS.

Thx to the NY Times and How Appealing