The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.
Sanches, supra, at page 23-24.The Court seems to be overreacting to the brief simply because it's incomprehensible. I suspect, however, that the fact that this brief was gibberish is a mere pretext for publicly humiliating the lawyer. The real reason the Court wasted its valuable time to criticize the writing skills of the lawyer or lawyers who submitted the brief is that the lawyer engaged in the annoying, offensive, and time-wasting tactic of insulting the trial court.
Although a strict grammatical reading of the passage leaves it unclear whether the author is criticizing the magistrate in particular or all Article III judges, as a practical matter we know damn well who the target was. The brief is bad, but not unusually so. The author's incompetence in applying the principles of legal writing is not nearly extraordinary enough. We see bad writing like this all the time. Sometimes, when we're tired or busy or otherwise preoccupied, we produce it.
It's taken for granted in an appeal that you're saying that the decisionmaker in the court below made a mistake. So what? It's completely unnecessary and counterproductive to insult the judge or the legal system. Not only because the insult is rarely deserved, but because the tactic is among the least persuasive known to the law. So you think the trial judge was an idiot. Guess what! They've already heard it. It's kind of like the brother-in-law who feels compelled to tell you every lawyer joke he's heard. You've already heard it twenty times, and it wasn't funny the first time, but you put up with it.
The case seemed to be a dog anyway, and there was little chance of winning on appeal. There's a saying that if something is worth doing it's worth doing well. In the law that's nonsense. Sometimes you just have to get the brief in on time. And if your client has a crap case, you need to tell the client. But if the client won't see reason, sometimes you have to go forward with dog cases. This brief was barely worth writing. It certainly didn't merit proofreading, too.
You frequently have to go the distance with bad cases. The courts understand that. Hell, even good cases under federal anti-discrimination statutes are easy to lose. There are, of course, certain limits. You can refuse to make arguments that are meritless. But that's a hard line to find sometimes, particularly in the heat of battle.
What you don't have to do is be uncivil. Save it for the office. While I've been fortunate enough to have never been sanctioned for intemperate writing in my filings with the Court, I've certainly written stuff that would be worthy of sanction if I hadn't backed off and reworded it. (Though I'm more inclined to insult the lawyer on the other side, not the judge.) Maybe the you think the magistrate was wrong, and maybe he shouldn't have ruled as he did. Fine. Say the magistrate erred. Deciding a legal issue incorrectly does not make a judicial officer incompetent. If it did, every judge except those on the Supreme Court of the United States is incompetent from time to time.
Anyway, the real point of the story is that the American Bar Association published an article about this fiasco on its webpage. This generated many comments, including some that could have been written by the author of the brief the Court criticized. Yes, there were grammatical errors by self-styled experts expressing disgusw
There is an invincible law of the Internet that when you set out to criticize someone's grammar or usage you are almost guaranteed to make a grammatical error yourself in the very post in which you excoriate someone else's bad grammar. More often than not, the grammatical error will be a howler. Therefore it's probably not possible for this blog entry to be error free. None of my other ones have been. But I'm writing this because someone told Jerome that a regularly updated webpage would be a good marketing tool. Besides, there's this brief I really should proofread, but I don't want to.
So there you go, another blog entry about a case that barely deserved our attention at all. But I'm not the only one to blog about this turkey. See here, here, here, and, oh, Google it yourself.