judicial tyranny

Justin Schwartz jkschw at hotmail.com
Fri May 18 09:47:33 PDT 2001

OK, fair enough. I knew that. What I meant was that I would retain confidence in my own judgment even when I have to be politic. I have to be politic now in dealing with the thickheaded opinions issued the 7C. I would never tell an appeals court that any of its thickheaded cases were stupid and wrong, whoever wrote the opinion. I have seen Judge Easterbrook lose his temper at counsel (granted, it doesn't take much to provoke him) for suggesting that he ought to accord special weight to his own cases. I don't think the 7C would appreciate it is we wrote an opinion saying, The 7C just decided to ignore the law, but we have to do what it says anyway--not that I haven't been tempted. Once I actually drafted such an opinion, but it was not issued. --jks

>From: John Mage <jmage at panix.com>
>Reply-To: lbo-talk at lists.panix.com
>To: lbo-talk at lists.panix.com
>Subject: Re: judicial tyranny
>Date: Fri, 18 May 2001 12:35:41 -0400
>Justin Schwartz wrote:
> > In my arrogance, I trust my own judgment about which cases are slam
>dunk; I
> > normally think I am right, like everyone else, although I have been
> > persuaded otherwise in granted motions to reconsider and the like. But
> > think I know the diffeence between cases where I think I am right, but
> > reasonable lawyers might reasonably differ, and the vast majority of
> > where I think there is no reasonable difference on legal questions.
> > (Questions of fact are another story.) John, why will I learn to
> > this? What's wrong with it?
>Why? When:
>1. As an appellate advocate you are looking up at a member of the panel
>who has just asked you how an opinion (which you "know" to be both
>stupid and wrong but you suddenly recall she just happened to write)
>affects the issues in your case;
>2. As an associate when a partner calls you into her office and tells
>you to draft a complaint on a theory recently permitted in an opinion
>you "know" to be both stupid and wrong;
>3. As trial counsel when your opponents' key piece of evidence can be
>excluded on a precedent you "know" to be both stupid and wrong;
>4. After an embittered client has gone to a new attorney who is filing
>an ineffective assistance claim alleging that you failed to advance a
>theory that would have decided the case favorably, your partner is
>asking you what happened while glancing at a copy of your malpractice
>insurance, and while you happen to "know" the decision that advanced
>that theory is both stupid and wrong, you also happen to have just about
>any other excuse in the world available including that the dog ate your
>john mage

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