Attorney sanctions and Judicial Temperament

The last month of election cases has been riddled with some of the worst lawyering I have ever seen, much of it arguably malpractice. It has run the gamut from violating procedural rules (general and local), egregious spelling errors, filing frivolous lawsuits, appealing to the wrong court, lying to the judge during oral argument, and pretended that made up language came from a quoted case.

Here are two examples from pleadings before the US Supreme Court that were filed yesterday.

Texas intervenors brief

“4. Under the current state laws in the respective states, the state legislatures do not take any votes to certify the Presidential electors. [Cite State Statutes and Constitutions]”

-- It helps when you remember to replace your placeholder with the actual statutes

Lin Wood intervenor brief

“WHEREFORE, Amici Curiae, L. Lin Woods, Jr. respectfully request leave to file”

– Since he’s doing this himself, singular, that would be Amicus (error throughout brief). You would also think he could spell HIS OWN NAME correctly.

Some people have wondered, legitimately, why the courts have not sanctioned (penalized) the lawyers for their actions. The answer has to do with something called judicial temperament. One of the functions of the court is to tamp down the volume of the controversy, not play into it.

One clear example was when Guiliani became nearly apoplectic about massive fraud during an oral argument. The court could have scolded him on the spot for make an unsubstantiated argument that was irrelevant to the issues of the hearing or berated him for making a first year law student mistake in the way the complaint was worded. Instead, the court gently reminded him to confine his comments to the scope of the hearing. That’s judicial temperament.

The courts’ calm and measured approach to applying the law is exasperating to lawyers and their clients who are accustomed to goading their opponents with hyperbole and invectives. All that is left for them following defeat after defeat is to take meaningless appeals and to reiterate their displeasure to their favorite media outlet.

Rest assured that the courts will not depart from their constitutional mandates. Occasionally, though, their disdain will become evident with such comments as this: “Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court.” [Written December 11, 2020]