by Matthew J. Singer, Attorney, Novack and Macey LLP
Every day, in courtrooms across the country, judges criticize the lawyers appearing before them. Taking occasional flak from judges is an occupational hazard of being a litigator, and litigators quickly develop a thick skin about such criticism. From time to time, however, the criticism escapes the confines of the courtroom and becomes a bigger headache for the attorney on the receiving end of the judge’s ire. Especially in today’s interconnected world, these so-called “benchslaps” can become national news in a heartbeat. One attorney, who had the bad luck of being chastised in a judicial opinion that contained a cartoon, recently learned that lesson the hard way.
The case was proceeding in federal court before Judge Robert J. Jonker in the Western District of Michigan. At the same time that the attorney was participating in a status conference in the federal case, he filed a motion in New Jersey state court asking that court to enjoin the federal suit. Once Judge Jonker got wind of the New Jersey motion, he issued an order, which began by noting that the “Court feels a bit like the character in the following cartoon:”
The court expressed skepticism about the merits of the New Jersey motion and wrote that “[n]obody likes having someone build or attempt to build a brick wall in a bedroom or a courtroom overnight, especially without providing even the common courtesy of advance notice of the attempt — especially when the interested parties are already gathered in the courtroom.” Accordingly, the court ordered the attorney to provide a written explanation of his conduct within the week.
In his response, the attorney apologized for his failure to adequately communicate with the court and wrote that he had arranged for the New Jersey motion to be withdrawn.
This would have been a fairly routine, if unpleasant, interaction between a judge and lawyer — if not for the fact that that the cartoon in the order attracted the attention of national media outlets like Above the Law and the ABA Journal. What normally would have been minor kerfuffle, handled quietly by the judge and parties, instead became a national news story.
Although the attorney was unlucky to be criticized by a judge in such an unusual and noteworthy manner, this case still serves as an important reminder for litigators. Our actions in court and our filings are matters of public record. We never know when a muckraking reporter or a curious blogger will take an interest in our cases and shine a spotlight on us. Thus, we should proceed with caution.
Although strategic imperatives may require taking actions likely to provoke an unpleasant response from a judge, a little foresight might help avoid a situation where a judge’s frustration becomes national news.
(This is for informational purposes and is not legal advice.)