The ABA and judicial qualifications.

This story in the Hartford Courant via How Appealing illustrates why I find little credibility in the American Bar Association's review process for judicial nominees to the federal bench. Actually, I shouldn't limit my criticism to the ABA. I have the same problem with the way most state and local bar associations evaluate nominees/candidates for judicial positions on state courts (I am not ungrateful. The bar associations in my state have been pretty good to me over the years but this is a philosophical rant).

My problem is simply that no one knows what the criteria are by which nominees/candidates are measured by the bar associations. Note the quote in the Courant article from the chairman of the ABA's review committee, Roberta D. Liebenberg. "Liebenberg said the evaluation process is confidential and would not say what led to the revised rating."

The ABA's own brochure on the way it evaluates nominees to federal judgeships describes their process this way:

The circuit member examines the legal writings of the nominee,
conducts research about the nominee in both the print and electronic media and identifies and reviews legal and non-legal publications, speeches and other writings by and about the nominee. The investigator also personally conducts extensive confidential interviews with individuals likely to have information regarding the integrity, professional competence, and judicial temperament of the nominee, including, where pertinent, federal and state judges, practicing lawyers in both private and government service, law school professors and deans, legal services and public interest lawyers, representatives of professional legal organizations, community leaders and others who are in a position to evaluate the nominee’s integrity, professional competence and judicial temperament....

To merit a rating of “Well Qualified,” the nominee must be at the top of the legal profession in his or her legal community; have outstanding legal ability, breadth of experience and the highest reputation for integrity; and either demonstrate or exhibit the capacity for judicial temperament. The rating of “Qualified” means that the nominee meets the Committee’s very high standards with respect to integrity, professional competence and judicial temperament and that the Committee believes that the nominee will be able to perform satisfactorily all of the duties and responsibilities required by the high office of a federal judge.

When a nominee is found “Not Qualified,” the Committee, based on its investigation, has determined that the nominee does not meet the Committee’s standards with regard to professional competence, judicial temperament or integrity.

Note that there are no specific or objective benchmarks that a nominee must meet to achieve a "Qualified" or "Well Qualified" rating. In essence, the ABA's process combines a poll of a candidate's popularity among his/her peers with a subjective evaluation by committee members of how such peer reviews equal "qualifications." The result of course is a complete lack of consistency in what the words "Not Qualified," "Qualified" or "Well Qualified" mean.

Please don't get me wrong, the ABA and every other bar association in the land can say what they please about who they do or don't want on the bench. After all, this is America where anyone, especially lawyers, can express an opinion without regard to consistency or intellectual honesty. My point is simply that bar associations should feel free to say that they like/respect/prefer to deal with whoever like, respect or prefer to deal with the most but they shouldn't label judicial nominees or candidates as meeting some standard when no one knows what that standard means in any objective sense.

Would this ad make you run out and buy an Ipod?

If this is for real, Steve Jobs needs to find a new ad agency!

Why it isn't a good idea to sell porn to the police chief's teenage daughter.

On Friday, the Utah Supreme Court affirmed a conviction against John Haltom, owner of "Dr. John's Lingerie and Novelty [you can imagine what kind] Store," for dealing in material harmful to a minor.

Haltom had sold the video "Getting Wet, the Last Howl" to a customer who turned out to be the police chief's 17-year-old daughter.

My favorite line from the opinion:

"Finally, Mr. Haltom attempts to stiffen his arguments with an appeal to constitutional law."

Who says appellate judges don't have a sense of humor.

A Lawyer Walks into a Bar ....

Via WSJ Law Blog comes word that a documentary film is in the works which follows six people sitting for the California Bar Exam.

California is generally regarded as having the toughest bar exam in the land. Among those who have failed are two governors (Jerry Brown and Pete Wilson), the Mayor of Los Angeles (Antonio R. Villaraigosa), and the Dean of the Stanford Law School ( Kathleen Sullivan).

One of the "stars" of the film is Donald Baumeister, who has taken and failed the California bar no less than 41 times and is shown in the movie gearing up for attempt number42. Apparently, this time around, he actually plans to study for it.

Final Justice

I have been away for awhile and I have really missed blogging. I have a little more breathing room now and so I am back, albeit with less frequency than when I began this blog.

Anyway, at Oyez.org, I happened upon a couple of Google map files that show the final resting places of Supreme Court Justices. There are separate maps for Justices A-L and Justices M-Z.

Mon Dieu! The language of love, wine and food may become the language of law. Merde!

It seems the Director of the Committee for the Language of European Law has proposed that all European legal proceedings be conducted in French. He argues that "All languages are equal and all the national sensitivities are duly protected. However, as regards the interpretation of texts it is better to be certain what we are writing. The Italian language is the language of song, German is good for philosophy and English for poetry. French is best at precision, it has a rigour to it. It is the safest language for legal purposes...The language of Montesquieu is unbeatable."

If you are something of a bon vivant, you know that French has long been the language of haute cuisine. We go to the bistro for hors d'oeuvres and an entrée, à la carte, wish one another bon appetit, and wonder whether the plat du jour of chicken à la king would be more piquant with a soupçon of bouquet garni. But food is only the tip of the iceberg. The French have pulled off a tour de force of verbal imperialism, claiming carte blanche to rewrite the entire English language, and I don't see any chance of a rapprochement unless we isolate the whole French nation behind a linguistic cordon sanitaire.

First food and now law. Sacré bleu!

Most succinct Notice of Appeal ever!

No, I'm not resuming this blog but this is too funny not to share.

Courtesy of one of my west coast colleagues comes what may be the most pointedly succinct Notice of Appeal (this is a pdf file) I have ever seen.

What it lacks in legal sufficiency it makes up for in amusing candor. This appeal won't go anywhere but it has certainly brought a smile to the faces of a lot of judges who don't get out much and may do the same for appellate lawyers who often share the sentiment but must make the argument somewhat more professionally.

OK. I'm going back to oblivion now.

A sign that it's time to ride off into the sunset.

This report that Eminem is going to do a wide-screen remake of Have Gun, Will Travel is surely a sign from heaven that it is time for me to bring HOWT to an end.

I started this blog just over one year ago and I did it because I was intrigued by this new medium where you can share your thoughts and opinions with the world and I thought "What the hell. I'll take the plunge and play in the sandbox called the blogosphere for a while."

It has been quite a ride and for a good part of this blog's run, I tried hard to emulate prolific bloggers like Skelly, Ken, Steve and Howard. However, keeping a quality blog (not that this one qualifies as such) is a lot of work and in the last several months, in addition to an increase in my court's caseload, I have put a lot of other extracurricular irons in the fire in the form of collaborating on an appellate practice textbook and agreeing to take on a judicial study committee on the quality of indigent representation and a task force on technology in the judiciary. As a result the frequency of posting and probably also the quality of the posts, have suffered.

For a while now, I have been avoiding facing the reality that I have come to a crossroads where I have to decide whether to allow this blog to languish with just an occasional post like this blog or to just go ahead and end it quickly and for those 30 or so of you from all over the world who make HOWT a daily visit (at least according to my Sitemeter logs), I think I probably owe you a clean break.

So with Eminem waiting in the wings, I think that like Paladin, the western character who was the inspiration for the name of this blog, it is time for me to ride off into the sunset.

The trials and tribulations of selling the family van on UK e-Bay.

This is hilarious. The best part is found in the e-mail recaps below the pictures.

Thanks to Anonymous Law Student and Will Work for Favorable Dicta for the heads-up.

Sound advice for an effective oral argument.

For any of you who are interested in effective appellate advocacy, Steve at Virginia Appellate News & Analysis (you may have to scroll down a little) has a very thoughtful post on the subject of "Effective Oral Argument."

In addition to endorsing everything Steve says, my own two-cents is that the very best (and thus the most potentially effective) oral argument is a discussion between and among legal professionals about the application of one or more fine points of law to a particular factual scenario. Arguments that contain phrases like "I don't think it's fair" or those which make it apparent that the lawyer isn't familiar with all of the cases on point make it very difficult to have any sort of meaningful dialog about whether error was committed by the trial court.

For oral argument to be meaningful, all parties to the discussion (yes, that includes the judges as well) have to be completely conversant with both the facts that provide the context and the applicable and potentially applicable precedents, statutes and rules of procedure. Practice moot court rounds may make the practicioner feel better about his or her level of preparation and if so, it serves a purpose, but anyone who views them as a "dress rehearsal" is making a serious mistake because the judges aren't likely to follow your script.

Just what you need to boil your friends and family alive.

Just add beefstock, vegetables and a missionary or two.

How's this for irony?

Indians worry about their high-tech jobs being outsourced to Vietnam and China.

Happy Birthday to HOWT.

Although the early archives were lost in the HOWT blog implosion of July, 2005, HOWT came into existence on May 31, 2005.

I must admit that I didn't realize it myself until today. I never expected that this adventure would last a whole year and, truth be told, I don't know how much longer I am going to do this, but it certainly has had its moments.

Memorial Day

Memorial Day emerged out of the grim shadows of the American Civil War. Before the close of the war, women began decorating the graves of soldiers who had died in battle in that conflict.

The practice quickly spread and a few years later, May 30, 1868 was designated as "Decoration Day" -A day for placing flowers on the graves of both Union and Confederate soldiers throughout the United States

In 1882, Decoration Day became known as Memorial Day and soldiers who died in other wars were also honored. Over the years, it has become a day when all loved ones who have died in war and peace are remembered. In 1971, the United States Congress declaired Memorial Day to be observed annually on the last Monday of May

On this Memorial Day, I remember my uncle and others who gave their lives for our country, but I also pray for those that continue to serve to keep America free, and especially those who currently stand in harm's way. I hope you will join me.

So you want to be a judge....

In a comment to the post below, Anonymous Law Student asks "What's the typical path to becoming a judge? In school, it seems that we are only drilled for becoming associates somewhere on the horizon."

Before I get any farther into answering ALS' question, I should pause for a disclaimer that no matter the court and no matter the state, the process of becoming a judge is inherently political, at least to some extent. In most states, becoming a judge is simply a matter of winning an election so your political skills are at least as important as your legal ability. I don't intend to sound sarcastic when I say that because professional competence (or lack of it) is always a campaign issue but these days elections are won or lost on sound bites as much as anything else.

In states where judges are appointed by either the governor or the legislature, factors such as ethnic and gender diversity, geography and political affiliation are still important criteria in selection, even when political activism is not. Some states have set up judicial nomination commissions that screen candidates to insure that everyone in the pool from which a judge is ultimately selected by a governor or legislature is professionally competent but even when every candidate is qualified, those factors mentioned above are still considerations.

With that disclaimer out of the way, the short answer is that I don't think that there is a typical "career path" as such to being a judge.

The longer answer is that there are different "career paths" depending on what type of judge you are talking about. For example, you can pretty much forget about being a bankruptcy judge if you haven't focused your practice on bankruptcy law or becoming a family court or juvenile court judge if you know little or nothing about family law or domestic relations. Beyond that, I think that I can safely generalize as follows (although I am sure that there are exceptions out there that help prove these points):

If you are interested in sitting on a trial court bench, you will likely not receive serious consideration unless you have a significant amount of experience as a trial lawyer. By "trial lawyer" in this context I mean someone who knows their way around a courtroom where a jury is sitting in the box and who knows the rules of evidence as well as civil and criminal procedure pretty well. That usually means someone with criminal experience as a prosecutor, public defender or criminal defense attorney and/or someone with civil trial experience as a plaintiff's lawyer, legal aid lawyer or a member of a "litigation" section in a law firm. Because state and local bar associations also often have some measure of influence over the selection or vetting process, being well regarded by your peers doesn't hurt either.

If your goal is to sit on an appellate bench, your "career path" has a few more options. Law professors and lawyers who basically had an "office practice" and rarely set foot inside a courtroom are far more likely to be seriously considered for a seat on an appellate court than they would be for one on a trial court. The judges on most state and federal appellate courts that I am most familiar with, have a mix of backgrounds and my court is probably typical in that respect. Although the majority of the members of my court were trial judges and trial lawyers before that, we also have some former trial lawyers who did not previously serve as trial judges, a couple of former law professors and a couple of "office" lawyers with virtually no trial experience before joining my court. I personally think this sort of a mix is a good thing because of the different perspectives represented in each panel.

If you think you look good in black and want some advice, the best that I can give is to urge you to be the best professional you can be, both with respect to your clients and also with respect to your colleagues and the community. As a judge, you will be held to higher standards and if you demonstrate that you already hold yourself to those standards, you will stand out from the crowd when the opportunity comes along. Then it is just a matter of being in the right place at the right time, in other words, the political lightning has to strike you.

I hope this helps. Good luck.

For judges, how much $ is enough?

As the dust begins to settle from Mike Luttig's departure from the Fourth Circuit to Boeing's corporate suites in Seattle, it was inevitable that the debate about judicial salaries would bubble up again, as Southern Appeal notes here.

My two cents worth is that while it would be very nice to make more money, judicial salaries are not out of line in comparison to other upper level government jobs and are certainly much better than the average earnings of those taxpayers who pay those salaries.

As a state judge, I am not paid even what Judge Luttig walked away from but I doubt many of us do the job for the money. I took a pay cut to go on the bench and I have children at home who will soon be entering college, so money is not unimportant. I know I could easily find a job with a law firm that would quickly solve any potential financial problems. Unlike Mike Luttig, I can also safely say that I will never be on anybody's short list for a seat on the Supreme Court. So why do I stay?

I do what I do for several mundane reasons. First, I really enjoy the intellectual stimulation of wrestling with the finer points of the law. Second, I enjoy writing and I find a lot of satisfaction in crafting an opinion that resolves the legal issues between the parties and provides future guidance to the bench and bar. Finally, there are some great quality of life benefits in that you don't have to worry about clients or billable hours and because the job is 90% reading and 10% writing, you can do it anywhere and anytime. This means that the hours are pretty flexible and as long as you have the discipline to keep up with the work flow, I can go to my kids' sporting events, parent-teacher conferences and all those other things I missed before I went on the bench.

Obviously, if the compensation wasn't enough to support my family's basic needs, I would be doing something else but the nature of upper level government service is some measure of financial sacrifice for the greater good. Besides, and I recognize that I may be in the minority on this point, I don't have a big problem with people leaving government service after a while as long as there are good people available to fill the void and while getting them confirmed, appointed or elected may be another story, it doesn't appear to me that there is a critical shortage of highly competent men and women ready and willing to fill vacancies on state and federal appellate courts.

How about a really cool, envioronmentally friendly tree house.

Here is a concept design for the ultimate treehouse.

Loyal HOWT readers know that I find these oddball habitations kind of interesting.

HT to Gizmodo for the link.

R U There? OBTW, IMHO, need rescue or EOL!

Lost at sea, eating squid and drinking rainwater for 22 days, Aussies text message for help.

From a stretch in the pen to a stretch limo to another stretch in the pen.

You would think an experienced bank robber like this one, would know enough to use a more inconspicuous getaway vehicle than a stretch limosine.

Hat tip to Autoblog.

Thoughts on a 104 page "winning" brief.

Via CrimLaw, I see that Jack Chin over at CrimProf Blog (second paragraph) links to this New Jersey Appellate Division opinion in which a defendant had his conviction overturned and Professor Chin notes "I can't help but notice that the wordy and repetitive brief won."

No doubt about it, he did win but I suspect it was in spite of the 104 page brief his attorney filed and not because of it. In the first place, as the court notes in a footnote, the court "reluctantly" allowed the state to file an even longer 109 page responsive brief (apparently lawyers in New Jersey are paid by the word). Moreover, notwithstanding examples like this one and others noted previously here and here, it doesn't seem to occur to some appellate practitioners that it is called a "brief" for a reason. Appellate judges recognize and appreciate that lawyers must do their best to protect their client's interest on appeal and obviously one way to do that is to do what this lawyer did and throw everything against the wall in the hope that something would stick (which here it did). However, an effective appellate practicioner (one whose wins on appeal don't coincide with the occurrence of a total solar eclipse), will understand that the object of the exercise is the persuasion of an audience. Those who are consistently effective persuaders make their point(s) succinctly and get to it/them expeditiously.

Appellate judges read a lot of these things day in and day out and like any human beings, they (and I include myself) are more likely to be persuaded by fewer strong points (four or less) that are thoroughly and logically analyzed against the background of the facts and prevailing law, than anything the members of the audience (remember, these are the folks you are trying to persuade) find "excessively wordy and repetitive." Please note the entire sentence and the one which follows in the opinion:

The excessively wordy and repetitive 104 page 'brief' made it more difficult to discern whether the defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made....(Emphasis added)

For those who missed the cues here, the translation of what the court just said was that the lawyer did a lousy job representing the client's interest by laying out the alleged trial court errors in a coherent way (apparently the deputy attorney general wasn't any more effective for his client but got off a little easier since appellant's lawyer "started it"), so the court went ahead and did what the attorneys were supposed to do (and they aren't happy about having to do so).

The reality is that the burden of persuasion is on the appellant's counsel so if I pick up a brief that looks like the unabridged edition of War and Peace, I am going stop reading and start skimming, because I have a lot more briefs to get through before the day is out. For the same reason, if I can't quickly grasp what is being said I will move on rather than try to puzzle it out. The client here should be grateful that the court did his lawyer's job for him but this is an adversary system which means it is the lawyer's job to effectively fight for the client, not the court's.

Some might smugly declaim appellate judges, when something like this happens but at the risk of getting on my "high horse," the bottom line is that if you want to be persuasive in an appellate court, a trial court or anywhere else, you have to establish your credibility with your audience, give them one or more good reasons to want to side with you and then show your audience how to get there from here.

You can give the lawyer in this case the benefit of the doubt and say that he was thorough but that is not at all the same thing as being effective.