This Dondi had nothing to do with motions for sanctions.

In the Northern District of Texas, lawyers know what you mean when you say Dondi — behavior that only a jerk would stoop to.

Today Blawgletter got a reminder of the word’s provenance, intent, and effects.  The refresher came in the form of a panel discussion by six federal judges who sit in Dallas.  And it marked the 20th anniversary of Dondi Properties Corp. v. Commerce Savings & Loan Ass’n, 121 F.R.D. 284 (N.D. Tex. 1988) (en banc). 

We recall highlights of the talk thus:

Judge Fish:  In 1988, the lingering economic downturn from a plunge in oil prices and the savings and loan mess led clients to try to stall lawsuits.  Their lawyers obliged with lots of garbage motions, particularly ones for sanctions.  It got way out of hand.  That prompted the en banc court to adopt standards of conduct for lawyers practicing in the Northern District.

Magistrate Judge Sanderson:  I see less unprofessional conduct now than back then.  The problems usually show up when lawyers don’t communicate with each other.  We need to make sure we hand on to the next generations of lawyers the same noble profession we inherited from our forebears.

Chief Judge Fitzwater:  Morris Harrell (a legendary trial lawyer) told a client who wanted him to act the savage that he (the client) should just let Morris win quietly.  Also, contrary to a common misconception, Dondi doesn’t imply any anti-lawyer animus by the court.  It instead positively helps lawyers by providing a means for persuading clients to allow them to do their jobs professionally.  It also reminds the lawyers of their duties to the profession, the system of justice, and the community.

Judge Godbey:  John Hill (another legendary trial lawyer) said "I’m disarmed in the face of courtesy", by which he pithily conveyed that an opposing lawyer’s jerkiness exposed a weakness that could be exploited.  Dondi aimed at restoring civility partly in reaction to the new lawyer v. lawyer (instead of party v. party) model that adoption of Rule 11 introduced.  Don’t try to win your case via sanctions.

Magistrate Judge Kaplan:  Communication between lawyers makes a huge difference.  My standing order requires genuine conferences before a lawyer can file a non-dispositive (including discovery) motion.  That’s vastly reduced motion practice.  A lawyer who acts like a jerk gets that reputation.  Judges try not to hold it against the lawyer.  And yet.

Judge O’Connor (our newest judge):  I’m standing on shoulders of giants.

Our thoughts:

Dondi can seem pointless; it has no teeth.  And praising its aspirations towards greater professionalism can strike one as naive. 

But what does it say that every lawyer in Dallas, Fort Worth, Wichita Falls, Abilene, Amarillo, and San Angelo immediately knows what you mean when you say Dondi?  It at least says we all understand that we shouldn’t act like jerks.

We (like Chief Judge Fitzwater) would like to encourage a more positive view of Dondi.  Instead of thinking of it as an epithet and condemnation, how about we reimagine it as a threshold for acceptable+ behavior.  Lawyers don’t just meet Dondi standards, they earn Dondi stars.  Two for good, three for very good, and four for excellent.  Judges and lawyers can award them.

Carrot beats stick, you know.

And rock beats scissors.

Harold Barefoot Sanders, Jr., died on September 21. 

Blawgletter admired Judge Sanders’s, well, judiciousness.  A lot. Also his humanity and compassion.  And we loved to hear that musical voice.

Barefoot Sanders embodied our ideal of a federal trial judge.  Here follows his NYT obituary:

Judge Harold Barefoot Sanders, who early saw the political utility of not using his first name and went on to play significant roles in matters from the Kennedy assassination to the desegregation of Dallas schools, died Sunday in Dallas. He was 83.

His death was announced by Chief Judge Sidney A. Fitzwater of the United States District Court for the Northern District of Texas.

As a child, Judge Sanders bridled at his colorful moniker, actually the maiden name of his grandmother Dennie Barefoot. He preferred H. B., and, as such, was crowned Freckle King at the Texas State Centennial Celebration at age 11 in 1936. Only after graduating from high school did he decide Barefoot, however odd, was a name few would forget, and he made the most of it for the rest of his life, even if it meant new acquaintances seemed always to be gazing at his feet.

Barefoot Sanders went on to become a three-term state legislator, United States attorney for the Northern District, a high official in the Justice Department and the White House during the Johnson administration who helped push the Voting Rights Act of 1965 through Congress, and a federal judge for 28 years who steered Dallas schools through the long process of desegregation.

His résumé does not convey his whole story, in part because it does not tell how close he came to achieving other things. He lost a hotly contested campaign for Congress in 1958, and another for the United States Senate in 1972. President Lyndon B. Johnson twice nominated him for a seat on the United States Court of Appeals for the District of Columbia Circuit, but he was knocked out the first time by a legislative technicality, and the second time when the newly elected president, Richard M. Nixon, substituted his own candidate.

Judge Sanders walked among the legends who once bestrode Texas politics, men like Johnson, Sam Rayburn, Ralph Yarborough and John B. Connally. Later, he lost elections to Republicans, as the once Democratic state moved rightward.

Mr. Sanders managed Dallas County for the Democratic ticket of Senator John F. Kennedy and Mr. Johnson in 1960. In 1963, Mr. Sanders urged President Kennedy to cancel his campaign visit to Dallas because the atmosphere was “very hostile,” The Dallas Morning News reported in 2006.

He was a few cars behind the president’s car in the fatal motorcade. After the assassination, he personally found and delivered a federal judge, Sarah T. Hughes, to swear in Johnson as president on Air Force One.

Harold Barefoot Sanders Jr. was born on Feb. 5, 1925, in a Dallas young enough for little H. B. to raise chickens in the backyard. He had plenty of freckles, but spent days in the sun to cultivate a new crop for the state-fair contest. He first used the Barefoot name to political advantage when he ran for cheerleader at the University of Texas.

He returned to the university after serving in the Navy in World War II. He was elected head cheerleader and student body president, advertising his campaigns with white stenciled drawings of feet. He graduated from the University of Texas and its law school and joined his father’s law firm in 1950.

He served three terms in the Texas House in the 1950s, then ran for the United States House of Representatives in 1958. Even though his mother made thousands of foot-shaped sugar cookies to hand out, he lost to the incumbent Republican.

After Mr. Sanders helped Kennedy win Texas, the new president appointed him federal attorney in Dallas. In 1965, Mr. Sanders joined the Justice Department in Washington, where he was in charge of all United States attorneys and marshals. He moved to the White House as legislative counsel in 1967.

He returned to private practice after Johnson’s attempt to appoint him to the Washington appeals court failed. In 1972, he challenged Senator John G. Tower, a Republican — this time throwing 200,000 of his mother’s distinctive cookies into the fray — but was buried in the Nixon landslide.

He was appointed to the federal bench in 1979 by President Jimmy Carter. As a federal judge for more than a quarter-century, including being chief judge of his court from 1989 to 1995, Judge Sanders wore a gold footprint pin on his judicial robes. His cases included overseeing the Dallas school desegregation case. He made most busing voluntary, ordering the building of attractive, effective magnet schools to lure students across neighborhood boundaries.

Judge Sanders is survived by his wife, the former Jan Scurlock; a sister; a brother; 4 children; and 10 grandchildren.

The sad day of the Kennedy assassination had what was almost a bit of Keystone Kops comedy, at least in retrospect. No one could find a copy of the president’s oath of office.

“I was looking for it — I think half the federal attorneys in the country were looking for it,” Judge Sanders said in the 2006 interview with The Dallas Morning News. “We were looking in the statute books, and all the time, there it was in the Constitution, pure and simple.”

Rest in peace, Barefoot.

Jonathan Weil says of the impending $700 billion bailout in his Bloomberg column today:

Whatever it takes to save our financial system from descending into oblivion, it will be tried, even if it all but guarantees we’ll have a bigger meltdown later. It’s not about principle. It’s about the money. And it’s about people like [Morgan Stanley CEO] John Mack protecting themselves from people like you, by whatever means necessary.

Heaven help us all if it doesn’t work.

Indeed.

Prof. Markham’s opus ranks a robust 1,210,641 on amazon.com.  It also sports 0 amazon reviewers.

Fresh from Bloomberg, Florida International College of Law at Miami professor Jerry Markham said, in connection with an administration request for what the news service calls "unchecked power to buy $700 billion in bad mortgage investments from U.S. financial companies in what would be an unprecedented government intrusion into the markets", that:

What you don’t want [to] happen is to have lawsuits that will slow things down and cause problems.

Professor Markham has published, among other stuff, "Excessive Executive Compensation — Why Bother", "Privatizing Social Security", and "How the Feds Stacked the Deck Against Enron".

Blawgletter would prefer, btw, that federal judges hold onto their authority to enforce, faithfully, the law.

Pretty soon you’re talking real money.

Borat didn’t actually come from Kazakhstan.  But you knew that, right?

The Second Circuit yesterday refused to compel a company to arbitrate its claims against an outfit that busted up a contract to buy 90 percent of a Kazakhstan oil and gas company.  The purchase agreement required arbitration of "all disputes and disagreements arising from" it, but the interloper, being an interloper, wasn’t a party to it.  The district court refused to let the contract buster enforce the arbitration clause against the buyer.

The Second Circuit reviewed its decisions in the course of almost entirely affirming the district court’s order.  It clarified loose language on the "equitable estoppel" method of forcing non-signatories of an arbitration-provision-including contract.  Those opinions, the court noted, turned on the voluntary nature of the relationship between a signatory and the non-signatory.  The tie between the signatory buyer and the non-signatory contract resulted, the court pointed out, from the interloper’s "wrongfully inducing" the seller to "breach his contract with" the buyer.  Sokol Holdings, Inc. v. BMB Munai, Inc., No. 07-2871, slip op. at 13 (2d Cir. Sept. 18, 2008).

The court did order arbitration of a specific performance claim.  The rub came from the necessity of treating the interloper as a party to the purchase agreement in order to require it to give specific performance.

Interestingly, the court quoted in passing from the dissent in the Fifth Circuit’s seminal case on equitable estoppel as a means to extend a contractual obligation to arbitrate to non-signatories.  The passage says that many instances of equitable estoppel arise from "an agreement implied in fact rather than ordinary equitable or promissory estoppel".  Id. at 12 (quoting Grigson v. Creative Artists Agency, L.L.C. (5th Cir. 2000) (Dennis, J.).

That sounds about right to Blawgletter.

Our feed enjoys a healthy respect for legal learnings.

The American College of Trial Lawyers — which strangely consists of about three-quarters defense lawyers — recently published an Interim Report.  The subject matter?  A survey of ACTL Fellows on the dysfunction vel non of the civil system of justice.  The report identified four "major themes" that emerged from the survey:

1. Although the civil justice system is not broken, it is in serious need of repair.  The survey shows that the system is not working; it takes too long and costs too much.  Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.
2. The discovery system is, in fact, broken.  Discovery costs far too much and has become an end in itself.  As one respondent noted:  "The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else."  Electronic discovery, in particular, clearly needs a serious overhaul.  It is described time and time again as a "morass."  Concerning electronic discovery, one respondent stated, "The new rules are a nightmare.  The bigger the case, the more abuse and the bigger the nightmare."
3. Judges should take more active control of litigation from the beginning.  Where abuses occur, judges are perceived to be less than effective in enforcing the rules.  According to one respondent, "Judges need to actively manage each case from the outset to contain costs; nothing else will work."
4. Local Rules are routinely described as "traps for the unwary" and many think they should either be abolished entirely or made uniform.

Blawgletter generally concurs.  But we note our sense that much of the trouble results from two causes:  Lack of lawyerly restraint, on both sides of the v., in burdening courts and parties with costly tactics that don’t advance a decision on the merits and a concurrent (and probably reactive) judicial insistence on perfection. 

How many times have you seen plaintiffs ask for the sun, the moon, and the stars in discovery and defendants bury plaintiffs in a blizzard of motions for protection and then drop a mountain of (largely irrelevant) documents?  Does any defendant anymore decline to file a Twombly motion to dismiss, a Celotex motion for summary judgment, and a Daubert challenge to expert evidence?  Do judges try very many cases these days?  Do appellate judges sustain most jury verdicts they disagree with?  And let’s not even talk about the frequency of tactical and abusive motions for sanctions.

We do recommend that you have a look at the Interim Report‘s Appendix A, which highlights some of the survey results.  These include 65 percent who think the Federal Rules of Civil Procedure do NOT promote the just, inexpensive, and expeditious determination of disputes; 81 percent who think litigation costs too much; 43 percent who believe that local rules promote inconsistency and unpredictability; a 64 percent preference for "fact" pleading; 77 percent who think courts don’t understand the difficulties in providing e-discovery; and 67 percent who believe that arbitration shortens the time to resolution.

The best lack all all conviction, and the worst are full of passionate intensity.

Herbert Hoover (1874-1964) didn’t deserve all the blame he got for the Great Depression.

The fundamental business of the country, that is, the production and distribution of commodities, is on a very sound and prosperous basis.

Herbert Hoover, News Conference Statement, on Friday, Oct. 25, 1929, the day after Black Thursday started the Wall Street Crash.

Our feed hopes for the best.