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Over-the-line briefing?

As previously reported at Crime & Federalism and Appellate Law & Practice, a couple of days ago during an appellate oral argument, Judge Pregerson of the Ninth Circuit publicly chastised counsel for the defendant, Wal-Mart, for what he considered to be harsh language toward the trial judge in Wal-Mart's brief. Last night, Howard Bashman posted a link to a PDF file of Wal-Mart's brief on his blog, How Appealing.

I've just finished reading Wal-Mart's brief to see what set Judge Pregerson off. Below the fold, I've quoted some passages that jumped out at me. The parts where Wal-Mart may have stepped over the line are in red text.

There will likely be many varying opinions about whether Judge Pregerson's ire was justified. By writing this post, I don't mean to criticize Wal-Mart's briefwriters. It's very easy to criticize from a distance; it's a lot harder to actually write a brief that conveys some honest feeling (a good thing)1 without crossing the line that Judge Pregerson thought had been crossed. The sole purpose here is for all of us to learn from this incident, as Wal-Mart's counsel undoubtedly has.

If you read below the fold, keep in mind that I've pulled these passages out of a 60-page brief that just barely sneaked under the 14,000-word limit. In other words, what you're getting here is the arguably offensive parts in concentrated form. If you want to see the passages in context, you'll have to read the entire brief.

1 See Bryan A. Garner, The Elements of Legal Style § 7.2 (2d ed. 2002).

"The district court's order, albeit prolix, establishes that the court failed to engage in the 'rigorous analysis' mandated by Falcon and Rule 23 by glossing over the widely divergent claims of the named plaintiffs and 1.5 million class members, altering the substantive law, and trampling on Wal-Mart's due process rights instead of recognizing the impossibility and unfairness of litigating these claims in a single, massive class action." Wal-Mart brief at 16. (In his comments on Monday, Judge Pregerson singled out this passage.)

"The district court tried to sidestep the obvious lack of commonality inherent in plaintiffs' theory of the case ...." Id. at 21.

"The district court, however, simply ignored this unrebutted evidence." Id. at 24.

"More fundamentally, the district court altered the substantive law by ignoring the store-by-store evidence of extensive non-discrimination." Id. at 27.

"In this regard, the district court simply ignored Wal-Mart's actual company-wide policies, which prohibit discrimination and encourage equal opportunity." Id. at 29. (Wal-Mart italicized "ignored" and "actual.")

"The district court's refusal to apply Daubert was erroneous and stands as yet another example of the court's twisting the substantive law in furtherance of the procedural class action device." Id. at 30.

"The district court's failure to apply this elementary principle is grounds for reversal." Id. at 31.

"The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Unmanageable" Id. at 35. (This text was in a section heading, in bold text and up-style capitalization.)

"The court nonetheless concluded that this action presents no problems of manageability. To do so, the court repeatedly denied Wal-Mart its substantive defenses—which, if employed, would concededly render the class unmanageable... It could not be more clear that the district court's certification violates the Rules Enabling Act's prohibition against 'abrid[ing], enlarg[ing], or modify[ing] any substantive right.' The court's remaking of substantive law in order to render this class manageable for class treatment mandates reversal." Id. at 35.

"Instead of denying certification, however, the court decided to strip Wal-Mart of its right to defend itself in order to serve the class action device." Id. at 37–38.

"In dispensing with Teamsters hearings, the district court purported to rely on a handful of stale cases ..." Id. at 39.

"When it came to Domingo's provision for Teamsters hearings, however, the district court reversed course and stated dismissively that Domingo had 'simply imported this procedure from Teamsters without considering whether it was necessary.' ... In dispensing with the 'binding precedent of this Court and the Supreme Court in this manner, the district court committed reversible error." Id. at 42.

"Contrary to the district court's unfounded assumption ..., this is an affirmative defense that may be asserted by the employer regardless of whether it is put in issue by the plaintiffs." Id. at 44.

"In addition to being incompatible with Title VII and the Teamsters framework, the novel procedures the court adopted would also violate Wal-Mart's basic due process right to present a defense before being deprived of its property." Id. at 45.

"Far from permitting Wal-Mart to present 'any relevant rebuttal evidence [it] choose[s],' the district court has unabashedly denied Wal-Mart the opportunity to present any evidence at all—or otherwise to participate further—during the second phase of the trial, in clear violation of due process." Id. at 46.

"In short, the district court's repeated disregard for governing substantive law compels reversal." Id. at 49.

"The district court failed even to evaluate the requirement that the challenged conduct be 'generally applicable to the class, ....'" Id. at 51.

"Wal-Mart's unrebutted statistics, improperly ignored by the district court, show that the vast majority of class members did not work at facilities where discretionary decisionmaking was used to discriminate ...." Id. at 52.

"The district court recognized that 'plaintiffs have foregone compensatory damages in this case,' presumably because a request for such damages would have certainly rendered (b)(2) certification unavailable and made commonality and typicality even more far-fetched than they already are." Id. at 53.

"The district court paid lip service to this rule ..., but then proceeded to apply a different test ...." Id. at 54.

"Ultimately, the district court found this class to be certifiable only by devising an unprecedented process that will have the inevitable consequence of abridging Wal-Mart's substantive rights, running roughshod over basic concepts of fairness and due process, and compromising the rights and interests of absent class members." Id. at 58.

"The certification order simply dispenses with these principles." Id. at 59.


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.


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.


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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