When bloggers irritate judges

One of the best things about legal blogs is that they can irritate judges when the judges need to be irritated.  In my view, we judges (and that especially includes me) are far too sensitive to fair-minded criticism from lawyers who have an obvious interest in the business of the courts.

What follows is an example. But, you have to dig for it.

In June of this year, Howard Bashman, a distinguished appellate practitioner and blogger from Philadelphia, wrote a pointed but fair piece in a daily newspaper for lawyers (The Legal Intelligencer, The Oldest Law Journal in the United States) that was critical of the Pennsylvania Supreme Court because of that court’s slowness, particularly with respect to argued cases. The highly regarded Chief Justice responded. With a glaring exception that I shall next describe, the response was a spirited and fair defense.

Bashman dutifully reported and republished his initial piece and the response in his blog How Appealing in a posted dated July  19, 2013, at 3:48 P.M. Bashman was careful to link to the response of the Chief Justice so the reader could digest that response in full. In so doing, Bashman noted that he had “great admiration and respect” for the Chief Justice.

As it turns out, the Chief Justice was not satisfied with responding to the substance of Bashman’s criticism. He got nasty (just like I am prone to do). For example, at the end of his response, the Chief, addressing Bashman by name, wrote the following:

Bashman apparently has a feeling arising from a misapprehension of the business of the court and its currency, and then makes the mistake of extrapolating from his prejudgment erroneous universal conclusions. The opinion piece was useful to the extent it was a reminder that practitioners may be unaware of the breadth of the court’s responsibilities; I have attempted to fill that void. What is less helpful is the expression of a mistaken and subjective opinion that the court does not work hard and lacks a culture of efficiency and accountability. I realize that this sort of  sloppiness has become common in an age of standardless “blogging,” where viewpoint displaces facts. But, I am disheartened to see such a piece in a respected journal like The Legal.

Explaining the High Court’s Work Product and Efficiency, at pp. 4-5 (emphasis added).

About three months have passed, but, as you might predict, Bashman got the last laugh. Yesterday, he wryly wrote,

Speaking of appellate oral arguments, one of my cases is just days away from becoming an oral argument toddler, as this Friday will mark exactly two years from the date of my appellate oral argument in the case, without any ruling having issued thus far. Fortunately, as the links in this earlier post demonstrate, the court before which this appeal is pending claims to be very efficient, and its leader is not particularly amenable to criticism on that subject, so I shall not identify that court by name.

How Appealing, September 11, 2013 at 5:58 P.M.

I have no doubt that the Chief Justice of the Pennsylvania Supreme Court is a fine person and a capable and hard-working judge. But it is apparent that his problems have nothing to do with Bashman’s alleged “sloppiness” and “standardless ‘blogging.'” It seems that the Chief should swear off attacking the messenger and get back to work to prove that he, not Bashman, has the better of the argument. But, what do I know?

RGK

13 responses

    • Marc,

      Good point! But, I think Bashman has probably threaded the appropriate ethical needle. My guess is that the client is not very happy that the case has remained undecided two years after it was argued and that the client has no objection to Bashman’s blogging activity. After all, Bashman was engaged to get a timely decision. Bashman may even have an ethical obligation to push hard publicly since it appears that the case is in fact languishing. Indeed, such a public push may be what zealous advocacy not only permits but requires.

      All the best.

      RGK

  1. I had a case in which the statute of limitations required another suit be filed if the Judge ruled against my client (malpractice against the first attorney if Judge found Tort Claim Notice improper).
    I very much did not want to have the referring attorney sued by another lawyer on my recommendation. So I violated my rule of never asking a judge about the timing of a decision (learned that rule the hard way)
    I asked the bailiff if a decision would be coming soon and was told yes. The ruling was against my client. (and lI ost the other pending SJ in front of the judge -same day).The malpractice claim was then filed against the lawyer (or else I would have missed the SOL.

    Judge’s decision was reversed on Appeal.

    I dont care what any judge tells me, it works like this- “Oh you want a decision, —fine -here it is – you lose”
    And unlike Pennsylvania, in Nebraska we don’t elect judges.

    • Vince, I have been lucky enough to enjoy the opposite result, albeit on appeal. A case was argued before the Indiana Court of Appeals in the fall, and taken under advisement. Spring came with no activity by the court (I have read that the Indiana Court of Appeals is usually one of the fastest appellate courts in the United States, and our experience is that decisions usually take less than 8 weeks). After a few more weeks of waiting, and noting that all cases argued since ours had been decided, we sent a gentle e-mail to the court staff. The decision was issued less than 48 hours later, and we were victorious.

      We never did find an explanation for why the case took more than twice as long as the court’s average to decide, but we were certainly relieved that our prompting didn’t provoke a judicial rebuke or a different result.

      Reading about your experience, along with Judge Kopf’s story, help me realize how lucky I was to practice in Indiana for a large portion of my time in private practice. I had many complaints about practicing law there, but long waits for judicial actions wasn’t one of them.

  2. I think that this post raises an important point that I have struggled with before Federal Judges in several years of practicing exclusively in Federal Court. How long after a case has been fully briefed and/or after oral argument should attorneys wait before sending the District Judge or Magistrate Judge a friendly reminder that my client is suffering due to the wait? Love to see an entire blog post on your take on this issue and maybe some of your colleagues would chime in? I once waited over two years for a District Judge to issue a one-sentence adoption of a Magistrate Judge’s R&R that was unopposed by either party….

  3. I think we should not lump all judges together. Better to ask the Judge himself: Judge Kopf, would you ever issue such an intemperate ruling–fine, here it is; you lose!–inquiring minds want to know.

    • Dear Anonymous,

      I am behind the eight ball today. I will try to respond to your comment and the others regarding this post later this afternoon or in the evening. The short answer to your question is: Hell no (and no judge that I know would do so either)!

      All the best.

      RGK

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  6. Practicing in California can be wacky at times, but I sincerely appreciate California’s rule requiring that judges and justices must decide matters within 90 days or they cannot collect a salary.

  7. Pingback: What to do when your summary judgment motion goes missing in federal court « Hercules and the umpire.

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