I recently came across a story about a federal judge in Miami. The issue is totally unrelated to workers' compensation, but it involves judicial behavior. It is noteworthy for several reasons. It all arose from a pro se gentleman (representing himself) and some errors of judgment. I have been unable to obtain a copy of the hearing transcript, so I operate from the basis of the news story that quotes it: Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid.
Fallacy number one, there is no kid involved in this story. The gentleman representing himself is 29 years old and in his second year of law school at the prestigious University of Miami. There are some other points worth making, and there is a disappointing assortment of language in the story that the author might have spared us (the author's language, not the judge's as far as I can tell).
Fallacy number one, there is no kid involved in this story. The gentleman representing himself is 29 years old and in his second year of law school at the prestigious University of Miami. There are some other points worth making, and there is a disappointing assortment of language in the story that the author might have spared us (the author's language, not the judge's as far as I can tell).
The language is more disappointing in that the author is the Executive Editor of Above the Law. I am persistently surprised by the language I encounter in modern prose. I expect I should not be, but I am. I think we can communicate our feelings without the expletives and insults. Maybe that style is just what it takes to draw readers; I hope not.
Anyway, this gentleman set out to represent himself in a proceeding to correct his credit score. He filed a legal action in federal court. And, as lawsuits sometimes do, the case proceeded more slowly than he hoped. We hear that complaint in the workers' compensation systems, and the refrain comes in similarly from civil practitioners that I speak with. Slow progress (whether truly slow or simply perceived as slow) is frustrating. It is more frustrating for those who lack familiarity with how the system works.
So, this gentleman decided that he would do something to prompt the federal judge into action. From his legal education, the solution he selected was a writ of mandamus. I briefly describe the three common types of appellate writs in Writ Protection as Opposed to Appeal (July 2017). Of critical import is that a party often has to wait until the trial proceedings end to seek relief by appeal, but the writs are available anytime during a proceeding.
The three common forms of the writ are "prohibition" (asking the appellate court to tell the trial court to stop doing something), "mandamus" (instead telling the trial court to do something particular), and certiorari (correcting an error of the trial court). And, in this case, the gentleman selected "mandamus." He thought this would spur the federal judge to action and get his case moving. As Ron White might say, "he was wrong." As an aside, before asking an appellate court for an "extraordinary writ," there might be some alternatives that should be tried with the trial judge.
This gentleman was working as an intern at the time for the United States Attorney's Office (USAO). That is a pretty prestigious job and a real honor for a law student. Some would suggest that being afforded such an opportunity speaks volumes about a law student's ability and academic success. The Executive Editor of Above the Law had another suggestion: "Turns out the kid’s father is also an attorney… wonder if that helped him get his sweet internship." Perception or reality?
The three common forms of the writ are "prohibition" (asking the appellate court to tell the trial court to stop doing something), "mandamus" (instead telling the trial court to do something particular), and certiorari (correcting an error of the trial court). And, in this case, the gentleman selected "mandamus." He thought this would spur the federal judge to action and get his case moving. As Ron White might say, "he was wrong." As an aside, before asking an appellate court for an "extraordinary writ," there might be some alternatives that should be tried with the trial judge.
This gentleman was working as an intern at the time for the United States Attorney's Office (USAO). That is a pretty prestigious job and a real honor for a law student. Some would suggest that being afforded such an opportunity speaks volumes about a law student's ability and academic success. The Executive Editor of Above the Law had another suggestion: "Turns out the kid’s father is also an attorney… wonder if that helped him get his sweet internship." Perception or reality?
Unfortunately, this gentleman did not know how to file a petition for writ of mandamus, and so he went searching for help. He went searching for help at the federal judge's chambers. Essentially, he went to a clerk (law school graduate) who works for the judge to in effect say "hey, your boss is not moving fast enough, help me file this writ to force him to speed up."
The judge's clerk, at first, was not even going to let this gentleman in the office. But, being a resourceful young man, the gentleman showed his USAO identification and perhaps intimated he was seeking admittance on official business. That was a mistake.
The gentleman then asked the judge's clerk how to pursue a writ of mandamus. He asked the clerk to provide legal advice to him on how to proceed. This was done without the other side of the case (the company he was suing to correct his credit score) being present. That is called ex parte communication, and it is not allowed. See What is Ex Parte (January 2018), Judicial Behavior and Ex Parte Communication (October 2015), and The Judicial Witness (February 2018). Ex parte is wrong, it undermines the fairness of the judicial process, and everyone knows it.
Well, the outcome was a thorough lecture by the judge. The judge first found fault with this gentleman's efforts to proceed with mandamus without paying the filing fees, as an "in forma pauperis" (unable to pay). The judge noted that this gentleman sought that status, but did so while attending a prestigious law school, wearing a suit, and seemingly being well taken care of.
Second, the judge took issue with the effort to speed up the process, the "mandamus." He noted that mandamus is "to tell the Court of Appeals that this judge needs to be told to do something because he’s sitting on his butt and not doing anything which can be done." The judge noted that this was sought despite the fact that the case was "not even two months old," which led him to believe that "wanting to petition for mandamus" was "ridiculousness." That is worth repeating, the case was less than two months old. The judge made clear that was not all he thought was "ridiculousness" (noting, for example, that the gentleman wanted to have a default entered against his opponent, which was not possible under the circumstances.)
Third, the judge took issue with the way in which the USAO identification was used to gain access to the judge's chambers. One does not use an official position to influence others. Though the judge did not hold this gentleman in contempt, he lectured him significantly about his reputation and the effects his actions might have on it.
The writer, Executive Editor of Above the Law, engages in name-calling throughout the article. He calls the gentleman "a little brat," a "little entitled ponce" (had to look that one up, Websters says it means "pimp" or "homosexual," a curious insult), and "an idiot." It does not appear the judge referred to the gentleman in these terms, but the writer who claims to defend the gentleman does. The writer concludes that this gentleman "made a series of dumb mistakes." If you have never made such a series, I congratulate you and your good fortune.
The writer then concludes that the judge went too far in lecturing this gentleman. There are references that the judge is behaving imperiously and the gentleman's treatment resulted because he has "offended the great and powerful Oz" (disparaging the judge), that the judge "started sounding a little shrill," and behaves "like the king of his very own anthill." The writer ends by describing his reluctance to defend the gentleman but explains his feelings of empathy because of the judge's tone and demeanor. The writer seems intent on insulting both the judge and the gentleman.
The writer then concludes that the judge went too far in lecturing this gentleman. There are references that the judge is behaving imperiously and the gentleman's treatment resulted because he has "offended the great and powerful Oz" (disparaging the judge), that the judge "started sounding a little shrill," and behaves "like the king of his very own anthill." The writer ends by describing his reluctance to defend the gentleman but explains his feelings of empathy because of the judge's tone and demeanor. The writer seems intent on insulting both the judge and the gentleman.
I have suggested that seeking the advice of secretaries and other staff is likely not the best course, see What can I do? (September 2012) When staff consults me, because someone has sought legal advice and they are unsure how to respond, I tell them to suggest to that someone that they consult an attorney. If the inquirer is an attorney, the advice is then to consult another attorney. Peers are a great resource and asking judicial staff for advice is neither wise nor productive.
Ex-parte communication occurs whenever there is substantive communication that does not involve all concerned parties. May someone speak to the judge's staff privately about anything? Certainly, calling staff to ask when the time for a motion hearing could be procured, whether documents arrived, or other procedural questions are not inappropriate. But speaking unilaterally to the judge or judge's staff regarding substance is simply inappropriate. The staff knows it, lawyers know it, judges know it, but I hear about it persistently nonetheless.
Finally, litigation is rarely rapid. A civil case might take a year to a year and one-half, according to the Florida Supreme Court. In Florida workers' compensation, we are constrained to mediate all claims within 130 days (about four months) and to hear them within 210 days (about seven months). Of course, the more complex the case, the longer it might take. Complexity might come from the nature of the injury, the number, kinds, location, or scarcity of expert physicians involved, the number of parties (most cases involve one injured worker and one employer, but frequently there can be more than one employer potentially liable), and more.
It seems there are a number of lessons illustrated by this article. Foremost, that we can discuss and describe without insults and name-calling, whether the gentleman or the judge. Second, ex parte communication is wrong and we should remind ourselves of that and resist it, persistently. Third, litigation is not a quick process. We try to keep it moving, but many challenges can slow progress. Fourth, attorneys should not mislead (using USAO or other credentials to accomplish access). And, finally, lawyers and litigants alike need to remember that judges and staff are not here to provide legal advice; judges are impartial arbiters whose job is to make decisions about issues with which they are presented, not advocates who decide how such presentations are formulated or made.
In all, a troubling story. A smorgasbord of lessons. Hopefully, some are learned and the gentleman will proceed to excel as an attorney. And, if others read about the scenario, perhaps they will save themselves from making similar mistakes?
Ex-parte communication occurs whenever there is substantive communication that does not involve all concerned parties. May someone speak to the judge's staff privately about anything? Certainly, calling staff to ask when the time for a motion hearing could be procured, whether documents arrived, or other procedural questions are not inappropriate. But speaking unilaterally to the judge or judge's staff regarding substance is simply inappropriate. The staff knows it, lawyers know it, judges know it, but I hear about it persistently nonetheless.
Finally, litigation is rarely rapid. A civil case might take a year to a year and one-half, according to the Florida Supreme Court. In Florida workers' compensation, we are constrained to mediate all claims within 130 days (about four months) and to hear them within 210 days (about seven months). Of course, the more complex the case, the longer it might take. Complexity might come from the nature of the injury, the number, kinds, location, or scarcity of expert physicians involved, the number of parties (most cases involve one injured worker and one employer, but frequently there can be more than one employer potentially liable), and more.
It seems there are a number of lessons illustrated by this article. Foremost, that we can discuss and describe without insults and name-calling, whether the gentleman or the judge. Second, ex parte communication is wrong and we should remind ourselves of that and resist it, persistently. Third, litigation is not a quick process. We try to keep it moving, but many challenges can slow progress. Fourth, attorneys should not mislead (using USAO or other credentials to accomplish access). And, finally, lawyers and litigants alike need to remember that judges and staff are not here to provide legal advice; judges are impartial arbiters whose job is to make decisions about issues with which they are presented, not advocates who decide how such presentations are formulated or made.
In all, a troubling story. A smorgasbord of lessons. Hopefully, some are learned and the gentleman will proceed to excel as an attorney. And, if others read about the scenario, perhaps they will save themselves from making similar mistakes?
