Commenter DJR writes, apropos my criticism of the badly written Supreme Court brief:
I see that your (quasi-associated) firm hasn't filed an amicus brief (at least not as lead counsel) in this case. Even so, don't you find it at least a little bit in poor taste to be tearing down these attorneys' work in such a public way? It's one thing to disagree with the arguments or to think that they should have addressed matters more substantively. It's another thing entirely to make them look foolish on a widely read legal blog.
I'm puzzled by this position. It seems to me that when someone is in businesses offering goods or services to the public, it's perfectly proper to accurately criticize the quality of those goods or services. That's true whether the target is a large corporation or a team of four lawyers, and whether or not the critic is a fellow lawyer.
In fact, I'd think that such public criticism is on balance helpful. First, it might be educational for law students and young lawyers who read the blog — bad examples often are.
Second, it might remind some such law students and young lawyers that their work will be evaluated by outsiders, and might be criticized. This reminder could encourage such readers to be more careful themselves.
Third, to the extent the criticism does affect the reputation of the authors of the brief (which I doubt, since I doubt that many potential consumers of their services read this blog), it seems to me that this will help consumers: If I'm right that these lawyers filed a badly written brief, consumers will benefit from knowing the lawyers' weakness.
Naturally, if my criticism were substantively unfair, then it should be criticized for that; yet that doesn't seem to be the commenter's point. Likewise, perhaps it wouldn't be right for me to publicly criticize a law student's moot court brief, since the student is clearly just learning and should be cut some slack on those grounds.
But these lawyers are filing a brief in the highest court in the land, and representing a real criminal defendant. They are playing in the big leagues. If their play isn't up to what should be big league standards, it seems to me quite proper to publicly note that. Or am I mistaken?
Its interesting that you view this blog as an instructional device for young students and practitioners. Does that hortatory impulse govern other choices with respect to the content and content providers of this blog?
Give me a break. Imagine the chortling if this howler had been penned by George Bush.
He's not saying one is precluded from criticism; he's saying it's in poor taste. That seems right.
For example, this blog doesn't seem to make it a habit of criticizing the poor writing of academics. I don't recall seeing an entry along the lines of 'what slipshod writing Prof. X employs here.' Rather, the arguments are substantive in nature and generous with regard to style. One could claim that professors write more lucidly than lawyers do, but that seems a bit of a stretch.
In fact, this blog rarely, if ever, critiques anyone's written work product with regard to how it is written. I don't recall seeing judges being taken to task for poorly written decisions, or even other lawyers being taken to the woodshed for bad brief-writing.
So, in the end, what we have is a relatively unique singling out of a few lawyers for one brief. That seems harsh. If this blog made it a point of picking on lawyers' foibles routinely, maybe it wouldn't stand out so much.
Instead, the entry in question is titled: "What A Bad Supreme Court Brief." That title seems gratuitously insulting. I look forward to the same cold analysis used when the next law review article is examined here.
If Hertz points out Avis' flaws, that is good. So too if Eugene points out the shortcomings of his rivals.
No. (Well, not about this.)
In my own profession, I've occasionally done "quick-and-dirty" work when the circumstances required it: a customer's network is on fire, and they need something to fix it right now and it doesn't matter how ugly or slipshod the solution is, it just needs to work right now.
I wouldn't like that work to be blasted all over the Internet without the needed context. And have it turn up in Google searches years later.
Now, I realize we're talking about a Supreme Court briefing here, which is hardly a private affair. I could see that the lawyers involved should have realized that it would be public.
But without knowing the circumstances behind their work, this feels a lot like the 300-pound-blog bully beating up on the new kid in school.
I am trying to figure out what this means.
I'd add one more reason. I don't know if it's too late to file amicus briefs in this case or not, but perhaps wide dissemination of the poor quality of this brief by one of the parties will lead to the filing of amicus briefs by interested organizations which might not otherwise have done so.
I would tend to agree, and it likely would have been mean-spirited had Professor Volokh included the authors' names in the body of the post, but he didn't so the concern you express is not present.
To be fair, it seems to me that Eugene does post fairly regularly about writing issues in general, though you correctly surmise my point. "What a bad Supreme Court brief" is insulting. Eugene could make the same points about poor writing without resorting to insults. In fact, he elected to ignore what he thought were the major structural problems and focused instead on the more obvious and therefore more easily mockable errors.
I see this as an example of the decline of civility in the bar. The reason I pointed out that Mayer didn't file a brief in this case is that I would be horrified if one of my colleagues said something like that (true or not) on a case where I was working with or even against the lawyers who wrote the offending brief. If I were a lawyer at Mayer, which practices regularly before the Court, I would be surprised and embarrassed that Eugene had posted this.
Regarding Ilya's point, Hertz and Avis don't aspire to civility in their dealings with one another. Lawyers do, or at least they should.
It's kind of like the Daily WTF, a site that exposes horrible code and computer situations people run across, but keeps them anonymous.
The time to file amicus in support of Williams is long gone. From the docket, it appears he had three amici in support, all of whom filed before he did.
So unless they criticize everybody all the time, they are not allowed to criticize one person one time? Pshaw. If the "victim" can't handle criticism of his arguments, he has no business being a lawyer at all, let alone arguing before the Supreme Court.
Had Eugene made such a comment about a lawyer's brief in a case in which he was participating (which I'm certain he would never do), then I would agree it should be considered uncivil and not in accordance with the latest emphasis on "professionalism." But as neither he nor the firm with which he is occasionally associated is a participant in this case, I think there's nothing wrong with his criticisms. They are harsh only because harshness is justified.
But, on the other hand, Eugene might want to avoid shark-infested waters even more than before.
I don't think civility requires an absence of public criticism of competitors. If it does, then I would have to say that the value of civility is less important than the public interest and consumer welfare. Civility between lawyers is not important enough to trump the broader public and private interest in providing good legal services to clients. The latter is facilitated by public discussion of the strengths and weaknesses of firms and attorneys.
If these lawyers were too poor, too busy, or too poorly trained to do a good job on a Supreme Court brief, they should have availed themselves of the services of one of the many topnotch appellate lawyers who would have jumped at the opportunity to do a Supreme Court brief for free.
There's nothing wrong with Eugene's post. Some of the earlier ones about how bad it is can be helpful. But, before anyone criticizes Eugene - read that brief. It will blow you away. "Cannon of construction." I mean, the legal arguments are terrible, but hire a part time proof-reader in college for $15 bucks an hour. Please, something.
So yes. If you file a brief with the U.S. Supreme Court that reads and looks like you accidentally filed a preliminary draft written by chimps, then you cannot be surprised when it shows up on the Volokh conspiracy. Indeed, there are other bloggers who would likely show less restraint than Eugene has here.
In other words, he's screwing over his client so he can get "bragging rights" about appearing before the Supreme Court. This is very common in criminal cases.
Why should a lawyer who puts his own interest in front of his clients be insulated from criticism?
However, I've noticed that not all speakers at such seminars feel as constrained as I do. I can remember turning around and staring incredulously at a senior member of my firm while listening to one speaker. While he was obviously amused at the incompetence of the speaker (and at my astonishment), most of the rest of the room seemed unfazed.
"No, this is bad by first year legal writing class standards. This brief is egregiously bad; outrageously bad."
Having taught 1L Legal Research &Writing, I concur.
Some examples:
1. The brief needed to be proof-read, rather than merely relying on Spell Check:
At pe 5 of the brief:
"The language of the Section is unconstitutionally
vague and overboard for several reasons:"
At Pg 9:
"Moreover, the Section can be overboard even if it does not capture protected speech in a substantial way"
"Overboard" is what happens when a Sailor falls off a ship.
2. Making apparently non-responsive responses or a rhetorical response, rather than a substantive one to an opposing party's argument:
At pg 26:
"The Brief Amici Curiae of the National Law Center for Children and Families, Stop Child Predators, the Klaaskids Foundation, the Jessica Marie Lundsford Foundation, and the Joyful Child Foundation initially argues that the Section was “carefully” drawn. The fact that the Section was carefully drawn does not make it valid or cure the unconstitutional infirmity of the language in the Section."
While it is true that "careful" drafting does not cure a constitutional infirmity, I suspect that Amici's argument was more than that. Attacking Amici's argument solely on that basis leaves open questions raised by Amici's other arguments.
3. I also believe that "unconstitutional infirmity" is poor grammar. "[C]onstitutional infirmity" should have been used.
4. Unclear phrasing of the issue:
At pg 26:
"The issue is whether the language used by Congress and the manner in which the Section is currently drafted, poses constitutional offense to the First Amendment."
Does Williams’ attorney mean “violates the First Amendment”? instead of “poses constitutional offense”? If not, what’s the difference?
5. Statements made in the statement of fact that appear to have no relevance to the arguments. Mr. Williams' attorney states that the SA used "SamSpade.com" help identify Mr. Williams. He also described how URLs were used to track Mr. Williams. I kept asking myself why these, and most of the other facts in the statement, were important to the case. Apparently they were not. So, the attorney wasted words. This will mean that readers will be paying less attention when reaching the arguments, and also probably asking the same questions I did -- and wondering why such questions implicitly raised by the statement of facts weren't addressed. The statement of facts should, but didn't, focus the reader on Mr. Williams' arguments.
I believe that most of us understand that appellate judges largely make up their minds based on the briefs. Oral argument is for clarifying obscure points. This brief isn't clearly written. Thus, the Justices are likely to ask questions the attorney should have made clear in the brief, which reduces his time to respond to substantive questions and to make his most compelling arguments. Particularly in a case in which your client is unsympathetic, mistakes such as the ones noted above are very harmful to your client's interests.
DJR:
"I see this as an example of the decline of civility in the bar."
I disagree, particularly since this is a brief to the US Supreme Court in what may be a landmark case. This should be advocacy at its best. It isn't. Warranted criticism is not uncivil. Rather, I believe that failing to expect the best of our profession, and so silently condoning less than excellence in cases at this level, is a worse example of the decline of civility.
This is exactly right. And, quite frankly, should be the end of the discussion (at least on the point addressed).
"If you can't say anything nice about someone, don't say anything at all" is sometimes good advice. But it's not a requirement of civility.
It ALWAYS makes SOME difference how good the lawyering is. True, at the SCt level, even if you write a weak merits brief, the clerking and judging is of such quality that you are likely to get a result similar to what you would've gotten if you'd done a good job, so long as you simply point to the relevant issues- in which case, you were nothing but a drag on your client's chances. At most all other courts in the land, it's garbage-in-garbage-out: my first reaction to an opinion with a bad result or weak reasoning is to think the court was wrong; my second is to wonder if the lawyering was all it could have been. (One great way to study recent appellate cases, is to read the opinion AND the briefs- good results often follow good lawyering, and sometimes the quality of briefing makes it clear that one side COULD have gotten a better result had it done better work. I also size up my opposing counsel by reading their filings in other cases they've worked on.)
Look how sloppy this brief is, here is yet another example:
Leave aside the weak sentence referring to the lower court's "belief," and note the citation "form." Most briefs will have one or two little typos, at least in lower courts, but this is sloppy, pathetic work from beginning to end. The reasoning, the level of engagement with the issues, the persuasiveness, the general writing quality, even the typing, are at a level I would not tolerate in any court.
More significantly, if you can't take criticism, law is not for you. Go find another profession. You should be able to take even harsh criticism; what Professor Volokh has here is, if anything, excessively mild.
And there is a huge benefit to the criticism here. Hopefully, the lawyer in question will never have a chance to embarrass himself again before the Supreme Court with his complete incompetence. And, just maybe, if society is lucky, the embarrassment from the publicity will cause the brief writer to quit the practice of law altogether. If you can't write, you shouldn't be a lawyer.
Some people suck. The sooner they realize it and get out, the better off we all are. How many more clients must be screwed over by your bad writing? Some people cannot write and never will be able to write. Period.
2. I suspect you can get compensated at the Supremes on an appointed case. I recall reading that that was available as far back as the Miller decision in 1939.
3. I've seen plenty of examples in state appellate court that would make this seem like a Holmes opinion. I remember one death penalty case where the defense filed a 250 page brief that was, well, 10 pages of argument and 240 of whining. The court struck it, gave them 50 pages, and they filed a 50 page brief with 200 pages of end-notes. Lucky they didn't get held in contempt.
4. I quite agree that anything filed in the Supremes ought to be the best that is humanly available. (And to reinforce that point, as I recall they require that if you want to correct a typo, you fly to DC and hand correct it on ALL of the copies). It's not often that you're in a position where a win, or even a loss, may be the high point of your entire career.
5. Congress isn't the best at writing, either. "material or purported
material" -- can't help but wonder what "purported material" might be?
Why is it incumbent on appointed counsel to find EV (or an EV clone) when there are already amicus attorneys, the client is not getting a benefit, and time spent hunting up new counsel is unpaid?
If someone like EV had offered to help with the work (say as pro bono co-counsel), and had been turned away, appointed counsel might be subject to criticism.
No such evidence is on the table, and assumptions from folks not in the appointed counsel trenches are questionable.
With writing this bad, it is clear that he can't write period. This is not just an example of someone who did not have time to edit. This is someone who can't write.
And if you don't think that $5,000 is enough to do the job, don't do it. But, it seems very likely that this is not a matter of someone who could do the job but didn't, this is more likely a matter of someone who can't do the job. No matter how hard they try. Ever. This writing is truly horrendous.
Having a SCOTUS brief would be a great feather in anyone's resume?
You obviously don't know how the Supreme Court bar operates. Top lawyers trip over themselves calling people up to offer assistance and/or take over the case. I don't have personal knowledge whether such assistance was offered here; but I would be shocked if it wasn't.
Courtroom work and brief writing are different talents, which is maybe part of the problem here. A person who is a great actor in the courtroom may be a lousy writer. Don't most trial attorneys turn their appeals over to other firms?
Let me see. Congress is full of lawyers.
You know that couls explain a LOT.
God's bodkin, man, [use your fellow lawyers] much better! Use every man after his desert, and who shall scape whipping? Use them after your own honor and dignity. The less they deserve, the more merit is in your bounty. Take them in.
On DJR's point, you are quite right that there is a tradition within every profession, and beyond it, for members to refrain from criticizing each other in too loud terms. Lawyers don't slam other lawyers; doctors don't testify against other doctors; and GM doesn't attack the safety of Ford's cars. Thus, operating within the profession's norms, EV was way out of line. But the profession's norms are a form of CARTELIZATION. Long ago, lawyers figured out that if nobody within the guild criticized each other, clients would be worse off and lawyers could make more money. The breakdown of these norms, EV's critique being an example, is a terrible thing for lawyers but probably all the best for society generally.
suckperform poorly at something (even their job) are routinely given a free pass because it wouldn't be right to tell them that theysuckare bad. They might have self-esteem issues if you tell them that theysuckperform poorly at something at which theysuckperform poorly.If I did as poor a job as was done here, I wouldn't have a job. I WOULDN'T EXPECT TO HAVE A JOB But, it's in poor taste to point it out? Give me a break. It's in poor taste to have the audacity to do such a bad job and still have a job.
But the brief itself stands on its own; if it's very bad, it's very bad, and it's fair and accurate to say "this brief is very bad." It may be embarrassing or even humiliating to the author to say so, but that's a separate issue.
I'm 90% sure that was ironic.
I have no idea whether it was intentional, though.
I'm tuning in late here. But I have a question.
Why is SCOTUS hearing this case if, in light of the defendant's concurrent sentence of 60 months on Count 2, no change in his sentence will result?
Why is there a cert-worthy controversy in this case -- recognizing that the question itself was deemed cert worthy?
Your question appears to be why this isn't moot, given that the defendant's sentence won't change. The case isn't moot because a defendant has an interest in clearing his name of a crime of which he was improperly convicted, regardless of whether overturning the conviction will have any effect on his sentence. In short, it's worse to be convicted of two crimes than one, so if there is a basis to overturn one he should be allowed to pursue it.
agreed, and good lawyers can turn in crappy work; you are only as good as your last brief/argument/trial.
Let's see. Eugene Volokh teaches law. He teaches students how to write briefs. And so he points to good briefs and bad and says what's good and what's bad about them.
If you think that's impolite, don't go to law school. And if you do go to law school, don't go to THAT law school.
For a host of reasons, much legal writing is unspeakably bad. Making egregious examples available on the internet for public mockery may sometimes serve a useful social function. But it also seems a little mean-spirited to me, if no attempt is made to offer constructive criticisms that might help in avoiding the mistakes next time. It's a bit like shooting ducks in a barrel: it may thin the duck population a little, but it's not very sporting.
I'd pick some other portions of it to make that point.
Consider this from Williams' brief:
The assertion fails due to poor grammar (i.e., "only way for a person to avoid a possible violation . . . is more prudent to guard silence . . . .")
If the assertion were properly worded, it would be preposterous, because anyone can easily avoid violating the Section by simply not peddling or seeking:
1. an obscene visual depiction of a minor engaging in sexually explicit conduct; or
2. a visual depiction of an actual minor engaging in sexually explicit conduct.
To my understanding, the question on the floor is not whether Prof. Volokh was correct in calling the writing "remarkably shoddy." The question posed, I thought, was more whether there was something unseemly about Prof. Volokh's original post. Part of the reason I think there was is that the post detailed no actual substantive "criticism," but merely presented an unelaborated and undefended negative verdict. That the verdict could be defended and explained I do not doubt. My point is that had the post explicitly done so, I might have been able to see some more benign purpose in it -- e.g., a pedagogical one.
I should add, if it matters, that I greatly respect Prof. Volokh, partly because of his longstanding advocacy of civility in argument. I responded to his question only because he did ask it.