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August 10, 2005

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At Minor Wisdom, the author discusses a brief filed on behalf of Wal-Mart Stores, Inc., named as defendant in an employment discrimination case. Statements made by counsel in the brief led a Ninth Circuit judge to chastise the attorney for [Read More]

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Mary Katherine Day-Petrano

Actually, the language is very typical of that used in disability discrimination cases. For example, "ignoring" a disability is a form of discrimination that is actionable. so is "trivializing," and "belittling." My problem with the Judge that did not like being called to task with this, in my opinion, rather mild language, is that criticism of a Judge's rulings is protected First Amendment activity. The penalty would appear to be a First Amendment retaliation. I have two cases where Federal District Court Judges have refused to follow Tennessee v. Lane squarely on the issue of State Court services, and further refuse to comply with this particular district's Communication Disability Act to reasonably accommodate a disability to enable Access to the Courts. What I have experienced is utter cruelty toward the disabled, by stripping the ability to defend, an inexplicable removal of a reasonable accommodations motion from the clerk's office for about 10 days in order to not have to decide it (even in the face a Court of Appeals Ordering the District Judge to hearing it), calling the exact disability communication impairments all sorts of disability slur things in the absence of providing necessary accommodations, using the aversion toward the disability as a reason to allow the opposing side to advance perjury (opposing side filed a Notice of false-testimony of its witness in the case) to bully a disabled person -- and all of it because the issue was raised as a pattern and practice that the District Court Judge adjudicated a very famous Florida euthanasia case during March 2005 against a Florida State Court Judge where Congress and the President intervened by passing a special law in which the District Court Judge had a State of Florida pension and therefore a financial conflict of interest requiring him to disqualify from that case. So the disabled woman was put to death because she was denied reasonable accommodations that could have enabled her to speak for herself (the State Judge violated Tennessee v. Lane), and the Federal Judge with the conflict of interest protected and favored the State Judge by not disclosing his financial conflict of interest on the record. I guess what I am saying, in sum, is that there has to be a remedy and ability to strongly object to judicial decisions that violate binding law if there is to be any integrity in the judicial process and an impartial judiciary. Isn't impartiality and fairness in the judiciary a cornerstone of our American adversary system? I also think this has a bearing on the incidents involving the disabled man and the Judge Lefkow tragedy. I am not one who is familiar with that case file or posture of the case as it was received by Judge Lefkow, and I would never advocate violence in any manner by anyone against any Judge who a person is unhappy with, and my heartfelt sympathy goes out to Judge Lefkow and her family; however, I think a larger issue was missed there. A disabled person with half his face missing who "rambled" is itself the definition of a disability requiring reasonable accommodations in the Courts. Why are our Judges so insensitive to communication disabilities? Maybe even before Judge Lefkow inherented that person's case (perhaps he was res judicata), some Judge somewhere violated the obviously disabled man's basic Due Process reasonable accommodations rights, locking him out of Court Access. That man just did not have the education and tools to fight a disability-hostile judicial system where is has become obvious the Nation's Courts need mandatory disability awareness judicial education. And, he should not have had to. Many disabled people facing discrimination feel the entire system is locking them out and creates a very hostile environment because of aversion to disabilities. So, I would believe in my heart that while violence against Judges should never be tolerated, on the other hand, vigorous First Amendment protections to strongly critical speech when a Judge is refusing to follow established law should not be penalized. A Judge who is not following binding law is not fair or impartial but rather a judicial activist who brings no integrity as viewed by the public to the judicial process. People have to believe they will get fairness and justoice in the Courts. Otherwise the system will eventually fail. I just don't see how Wal-Mart's lawyers made such a transgression as to be on the receiving end of such a punitive constitutional Due Process violation of stripping their ability to defend. I think strong language was called for in that instance, and I am NOT one who is an advocate of big greedy corporations by any means.

RNM

I'm afraid I agree with Judge Pregerson. Even though the red text constitutes a relatively small portion, it gives an unprofessional air to the entire brief.

Judge Pregerson wrote, in Harry Pregerson, The Seven Sins of Appellate Brief Writing and other Transgressions, 34 UCLA L. Rev. 431 (1986), that:

Generally, you injure yourself and your client's case if, in your brief or at oral argument, you vilify or belittle your opponents or their legal positions. A shrill tone in a brief diminishes its persuasive force. The reader wonders why disparagement is necessary. Is it a device to divert attention from a vulnerable position? If your position is strong and your client's cause just, there is no need to subject the court to a barrage of abusive argument. This approach is unpleasant, ineffective, and counterproductive.

Remember that the judges on the panel are looking at a cold record. We are not privy to the bad feelings that may have developed during the course of a hardfought trial. We read the briefs and go to oral argument hoping for reasoned dialogue between well-prepared legal minds. We prefer clear, concise, coherent, and reasoned presentations. The persuasive advocate presents a temperate, reasoned argument, and adopts a "friend of the court" approach. Your brief's primary function is to persuade the court that your client's cause is meritorious.

Id. at 436-37.

The same thing he said about not abusing your opponent applies to the trial court--perhaps to an even greater degree.

Ted

Out of curiosity, if a district court's certification order strips a defendant of its substantive defenses, how is an appellant supposed to communicate this to the appellate court?

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