Category: second thoughts. From time to time SBM Blog has alerted readers to a particularly humiliating put-down of a lawyer in a judicial opinion, the latest being the likening of a lawyer to an ostrich (complete with photos) for the lawyer's failure to address obvious precedent. These posts are pretty popular. Among other things, they allow us to indulge in the smug satisfaction of being better than the lawyer who has been humiliated. We may also tell ourselves that the public humiliation has an edifying effect that will elevate the quality of practice.
Since the ostrich post I've had occasion to converse with an appellate lawyer who practices before the 7th circuit, some members of which are famously flamboyant in their put-downs, the ostrich opinion being just one example. After listening to her stories about the scene there and the atmosphere that public humiliation fosters, I'm now inclined to believe that snarky opinions do not have a beneficial effect on practitioners in general and thus that judges should not be encouraged to strut their cleverness in ways that publicly humiliate anyone.
The case against judicial snarkiness is simple. It sets a bad tone and it is unnecessary. Whatever the flaws of contemporary law practice, and there are many, we do not suffer from a shortage of incentives for lawyers not to screw up. Judges already have a sufficient arsenal of deadly weapons with which to punish shoddy practice. Clearly stating the nature and extent of a lawyer's offense and imposing an appropriate sanction should be sufficient to gain the attention of the practicing bar as to a judge's or a court's standards.
SBM Blog hereby invites its readers to provide examples of judicial opinions and behavior that effectively promote high standards without being humiliating. We look forward to celebrating gracious, good-humored correction.
Does that mean that SBM Blog will pass up posting tasty morsels of snarky judicial writing in the future? Yes, if we conclude that denying our readers such popular content will discourage the practice. In other words, probably not.