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June 2005
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Other Blawgs

Things have been slow at C&F.  I've been learning an area of law about which I know almost nothing (federal class actions), so my efficiency rate has been decreased.  Plus, when learning a new area of law, I focus on it to the exclusion of all other things (I haven't even read a civil rights case in what seems liked forever) - sorta like total submersion.   Yeah, yeah, this is unhealthy, I realize.  Once I'm a big success (and have all the trappings of a big success) I'll have a mid-life crisis and then obtain balance.  Until then, call me Mr. Unstable.  But there are other interesting posts out there for you to check out:

Doug Berman has this informative update to Doe v. Miller.

Evan Schaeffer notes that the defense lawyers are getting their asses kicked in the first Vioxx lawsuit.  I'm sure that when the plaintiffs win, it'll be because of "stupid juries" rather than less-than-stellar defense lawyers.

Lots of good stuff at JuryGeek.  Just click here and keep scrolling.

"Lazerwolf" at Appellate Law & Practice makes the crime/fraud exception to the attorney-client privilege interesting.  Honest.

By the way: Congratulations to those of you who finished taking the bar!

Seminal Opinion

David Giacalone (via PrawfsBlawg) is asking a great question:

Was there a particular case -- a Seminal Opinion -- that strongly influenced your attitude toward the legal system or the legal profession, or that helped you decide the role you wanted to play within the profession?  Did one majority or dissenting opinion plant seeds from which your lawyer psyche grew?  If so, what was it and what difference has it made in your professional goals or practice?

Before law school, religious convictions moved to me towards criminal defense and civil rights work.  But Atwater ensured my beliefs remained firm.  (In Atwater, a police officer arrested a soccer mom for not wearing a seat belt.  Her children cried as the police officer handcuffed her.)

Putting aside that Atwater is a constitutional abomination: what bothered me most was that the cop arrested a soccer mom, who now has a criminal history.  He left her children crying and screaming in the car.  Those of you who have children should have no problem putting yourself in Ms. Atwater's shoes.  How much trauma was done to Ms. Atwater?  Would her children remember?  What would Ms. Atwater tell them when they asked, "Why were you put in jail?"  Why did the police officer need to abuse his authority?

That such people as the arresting officer pervade the system reminded me why I wanted to be on the side of people.  That the Supreme Court ignored the factual injustice and constitutional violation reminded me why religious people are under a moral obligation to represent those charged with crimes.  Atwater reminded me that criminal defendants are truly "the least of thee."

What's your seminal opinion?

Chatigny-gate Gathering Steam

I doubt much will come of the investigation of United States District Judge Robert N. Chatigny. Oh, there may be some tongue-clucking and perhaps even the stern rapping of knuckles. But consequences? The only real consequences will be the end of any hopes the judge had harbored of movin' on up of the judicial ladder.

The United States Court of Appeals for the Second Circuit has decided to investigate a complaint brought against Chatigny by Connecticut state prosecutors. At issue is the judge's failure to recall that he had once sought to represent a serial killer whose execution the judge later blocked. So much for the appearance of impropriety.

The killer's name was Michael Ross. Ross waived off any potential habeas claims, and, after almost two decades on death row, was set to face the needle. Ross' lawyer was summoned to a hastily arranged teleconference with Chatigny and the various lawyers involved in the case. Although the United States Supreme Court had signed off on the death, and the execution was hours away, Chatigny threatened Ross' lawyer with loss of his license if the execution were not stopped.

So the lawyer stopped the execution.

Why'd Chatigny do that? Interest of justice, he said. One of the joys of his position is that he gets to vote his "conscience." Question for Chatigny: Who appointed you to play Plato?

In an earlier teleconference, a member of the Attorney General's office asked in stunned chagrin whether the judge had some sort of personal interest or conflict of interest in the case. How else to explain the judge's bizarre sua sponte behavior -- virtually rewriting a federal habeas petition from the bench and opining about Ross's innocence?

"No," the judge replied. And then his now infamous remark about his freedom to decide the issues according to his own conscience.

Well, it turns out the judge forgot to mention that years earlier he represented the state's criminal defense lawyer's club in an effort to get permission to file an amicus brief on Ross' behalf in the state's Supreme Court. Put another way, he once tried to become Ross' lawyer.

What defenses are available to Chatigny?

Oops, I forgot? Or will he have the courage of his convictions and go down swinging in defense of his apparent belief that he was appointed not judge, but philosopher-king?

Chatigny is an activist judge, feeling unconstrained by his robe to step into civil cases at will and sculpt them to his liking. One senses that he would be happier in Europe where the inquistorial role sidelines the advocates, and judges are free to make of a case what they will.

A special committee at the Second Circuit will consider the matter. It will be chaired by  the circuit's chief judge, John Walker, circuit Judge Peirre N. Leval and Southern District of New York Judge Michael Mukasey. Unfortunately, the hearings are confidential. Why?

Perhaps the Senate Judiciary Committee will give more than lipservice to the request for an inquiry from Connecticut lawmakers, who earlier requested an impeachment probe. There ought to be a public inquiry about Chatigny's role in the Ross fiasco.

Paper Trails Protect the Honest

I always like to have things in writing. I hate making deals on the phone or in person, and prefer having all discussions over e-mail.  Why?  Because I'm honest: having things on paper has never hurt me.  Luckily, with the advent of e-mail, people are more willing to put things in writing - even though they do so subconsciously.  Which is what allegedly happened at Orrick.

Patrick J. Hoeffner, a senior associate at Orrick, had a lucrative - and portable - client: indeed, he had two outstanding offers from firms willing to take him and his client.  Instead of accepting those offers, he continued working at Orrick after three partners allegedly offered to put him up for partner.

But partners, being partners, allegedly worried about their wallets - not their promises.  And they ultimately, according to the lawsuit, broke their promise:

[The] agreement was allegedly memorialized in a March 26, 2002, e-mail Hoeffner sent to Isackson, MacKerron and Anthony. The e-mail allegedly stated that Hoeffner's understanding was that he could elect to be put up for partner in September 2003, with the pledged support of "at least" Anthony, Isackson and Cote. According to a copy of the alleged e-mail provided to the Law Journal, Anthony replied: "Your understanding is correct. Thank you for making the right decision!"

Of course, Orrick's partner's are denying that anyone made an agreement.  Maybe they're right, though it's hard to understand why the associate wouldn't have accepted the other offers.  Plus, the associate is now working at Fulbright & Jaworski, which is no place for underachievers.  Orrick is going to have a hard time proving that someone with a portable book of business, other job opportunities, and high employability imagined the agreement.

Anyhow, the full article is worth reading.  Obviously, anyone considering working for, or currently working at, Orrick should watch her back.  And everyone should remember this maxim: An oral promise is worth the paper it's written on.

Right to Earn a Living in the Fifth Circuit

I'll have more to say after work.  Until then, here's the money quote:

We are persuaded that, for the purposes of overcoming qualified immunity, Stidham has properly demonstrated the violation of a clearly established right by showing that the defendants deprived him of his liberty interest without due process of law. The Supreme Court has said that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915). We have confirmed the principle that one has a constitutionally protected liberty interest in pursuing a chosen occupation. See Ferrell v. Dallas Independent School District, 392 F.2d 697, 707 (5th Cir. 1968) (noting that the right of professional musicians to follow their chosen occupation free from unreasonable governmental interference comes within the liberty concept of the Fifth Amendment); Shaw v. Hospital Authority, 507 F.2d 625, 628 (5th Cir. 1975) (holding that a podiatrist's application for staff privileges at a public hospital for purposes of engaging in his occupation as a podiatrist involved a liberty interest protected by the Fourteenth Amendment); San Jacinto Savings & Loan v. Kacal, 928 F.2d 627, 704 (5th Cir. 1991) (finding that the owner of an arcade had a protectible liberty interest in operating her business). Thus we find that Stidham has identified a protectible liberty interest in pursuing an occupation of his choice.

Stidham v. Texas on Private Security, No. 04-50775, Slip op. at 11-12 (5th Cir., July 22, 2005) (Hat tip: Southern Appeal).

Issue Framing in Section 1983 Cases

Conyers v. Abitz, No. 04-1630 perfectly illustrates the legal gamesmanship involved in  unpredictability of a Sec. 1983 qualified immunity analysis.  In Conyers, a prison inmate was not notified that a deadline to participate in the Ramadan Fast was approaching.  Before Ramadan, but after the deadline, Conyers requested that his meals be modified per Ramadan's requirements.  Prison officials denied his request (even though they could have accomodated it with ease), and he sued.

The state officials argued that they were entitled to qualified immunity since they "could not have been expected to know that not providing [Conyers] with advance written notice of the sign-up deadline would violate his freedom of religion."  Slip op. at 8.  In other words: Is there a case on point requiring a prison officials to notify prisoners that Ramadan is upcoming?  If the court had analyzed the case with this degree of specificity, then officers would always be entitled to qualified immunity. Even the most vicious dog would get one free bite.

The court, on the other hand, framed the issue more broadly: "The relevant inquiry is whether, at the time the defendants refused Conyers's request, the law was clearly established that prison officials must have a legitimate penological interest before imposing a substantial burden on the free exercise of an inmate’s religion, even when that inmate is in disciplinary segregation."  Id.  With the issue framed more reasonably,* the panel easily denied qualified immunity.  Id. at 8-9. 

The challenge for lawyers and judges is finding the "right" way to frame the issue.  (In truth, the "right" way is the one the court decides.)  This, of course, comes as no surprise to civil rights lawyers.  But it does illustrate why ever Section 1983 case is unusually challenging: even with great facts, the court can sink the case with one question.

*The panel took a middle approach in framing the issue. It could have said (unfairly broadly): Is the right to be free from substantial burdens on religious exercise clearly established?  Another (unfair) issue-framing would have been: Must prison administrators given written notice of upcoming religious holidays?  The panel instead focused on "the specific context of Muslim inmates who were denied pork-free meals while confined in disciplinary segregation," and noted that those decisions put prison officials on fair notice that they "must demonstrate a legitimate penological objective for decisions that impede religious exercise."


Recently I've been writing briefs in California's appellate courts - something new for me.  I always like to read examples of the best briefs available before writing.  I found an impressive collection from Mayer Brown's appellate law group.  They uploaded their briefs from several jurisdictions covering several issues, so you should be able to find a model brief at their website.