Blawgletter wonders whether a district court may, via a protective order, bar lawyers from using documents and information, which they did not obtain in discovery, to do things necessary to represent their clients. The Eleventh Circuit today held insupportable an effort so to restrict lawyers in a civil case.  Romero v. Drummond Co., Inc., No. 06-13058 (11th Cir. Mar. 14, 2007).

The court concluded that a protective order limiting "extrajudicial" statements did not allow a finding that the lawyers violated the order by filing motions and declarations in support of the motions. The court disagreed that the order clearly prohibited the lawyers’ conduct, noting that the order did not ban statements in court filings, to which the public presumptively has access. It accordingly vacated the lawyers’ conviction of criminal contempt and reversed the order barring public access to the materials.

Blawgletter heartily agrees that protective orders — which aim at preventing improper use of documents that a party receives through discovery — have no business circumscribing lawyers’ use of documents that their clients didn’t receive in discovery, either because the clients possessed the documents pre-litigation or because the lawyers obtained them outside discovery after litigation began.  The Eleventh Circuit appears to hold the same opinion.

Barry Barnett

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The Ninth Circuit today reversed an order requiring disclosure of confidential attorney-client communications under the "crime-fraud" exception to the privilege.  The court distinguished between the proof necessary for a court to order in camera inspection of the attorney-client material and the procedure a court must follow before ordering "outright disclosure" of the material.  While a prima facie showing may warrant in camera inspection by the court, outright disclosure requires that the party claiming privilege have the opportunity to submit countervailing evidence and that the court consider all the evidence in determining whether the party seeking disclosure carried its "preponderance of the evidence" burden of proof.  In re Napster, Inc., Copyright Litig., No. 06-15886 (9th Cir. Mar. 14, 2007).

Some courts have ordered in camera inspection of attorney-client material and then, without considering evidence tending to negate the crime-fraud exception, went on to order outright disclosure.  The Ninth Circuit’s decision clarifies for those courts that both parties have the right to submit evidence and that a mere prima facie showing doesn’t authorize requiring disclosure.

Barry Barnett

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Loyal readers know how much Blawgletter appreciates vigorous enforcement of antitrust laws.  As the U.S. Supreme Court has said:

Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.  They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.  And the freedom guaranteed each and every business, no matter how small, is the freedom to compete – to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster.

United States v. Topco Assocs., 405 U.S. 596, 610-11 (1972).

A new paper by Jonathan B. Baker, a Professor of Law at the Washington College of Law, expands on the virtues of antitrust laws as a key guardian of economic liberty. The paper’s title, Beyond Schumpeter v. Arrow:  How Antitrust Fosters Innovation, hints at its grounding in economics.  Blawgletter hopes you’ll check it out.

Barry Barnett

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San Francisco Peaks.  Wupatki National
Monument in foreground.

A decision by the Ninth Circuit today took Blawgletter back to happy childhood days and a winter visit to a bison ranch.  Blawgletter remembers awe at the shaggy buffalo as they lumbered around and snorted wisps into the frosty air.  Then the ice.  Patches of yellow ice.  On the ground.  Near the buffalos.

Fear not, for Blawgletter’s impulse to snap off a piece of the xanthous solid for closer study set off parental warnings in the nick time.

Blawgletter’s reverie contrasts with the sacrilege from which the Ninth Circuit decision may have saved people native to the San Francisco Peaks area.  The tribes filed suit to prevent a ski resort from recycling "sewage effluent" to make artificial snow there, which the court noted has "long-standing religious significance to numerous Indian tribes of the American Southwest."  The court held that the United States Forest Service’s decision to allow the making of artificial snow from sewage violated the Religious Freedom Restoration Act and that an environmental impact statement did not comply with the National Environmental Protection Act.  Navajo Nation v. United States Forest Service, No. 06-15371 (9th Cir. Mar. 12, 2007).

As a Navajo might say, aoo’!

Barry Barnett

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Twelve Angry Men (1957) celebrated the reasonable juror.

Blawgletter sat not long ago in a courtroom full of potential jurors.  Among the potential jurors.  As a potential juror.  The experience both frustrated and enlightened.

The plaintiffs’ lawyer started by revealing that he represented a young woman and her two sons but — maddeningly for Blawgletter — told us almost nothing about them or the facts of the case.  Instead, he disclosed just enough to frame his questions, and no more.

And yet he put people at ease about answering.  He assured us that he wouldn’t embarrass anyone and wouldn’t criticize anybody’s truthful answers even if he or others might disagree.  He also sincerely thanked people for responses that seemed to hurt his case.  Anti-lawyer answers, anti-lawsuit answers, comments about greedy plaintiffs and lawyers, hostility to big damage awards, and worries about a tort tax and insurance rates.  He said:  "Thank you for your answer.  I know a lot of people feel the same way you do.  Who else here agrees with what Ms. Johnson said?"

Hands went up.  Panel members said what they felt and thought.

But the voir dire didn’t reach its climax until a gentleman who couldn’t wait to talk got his chance.  He said something like this:  "I’m the CEO of a Fortune 500 company.  I’ve just gotten back from meetings in Washington, D.C., with national leaders.  We want to put an end to this kind of nonsense."

Did the plaintiffs’ lawyer bat an eyelash?  No.  He said he appreciated the CEO’s point of view and used his statements as a springboard for identifying others who shared it.

The defense lawyers, by contrast, could hardly wait to talk about the facts.  They detailed the mother’s severe stroke a few weeks after she’d given birth, her permanent debilitation, the limits on her capacity to raise and care for her baby boys, and the hours she waited for care on a gurney in a hospital hallway as blood seeped into her brain.  The lawyers emphasized that jurors will feel powerful emotions and that they will have to make wrenching decisions.

The experience, while frustrating for Blawgletter as a potential juror, dramatized the essential importance to trial lawyers of using voir dire to identify enemies.  The lawyers on both sides labored not to convince the persuadable but to ferret out dogmatists and extremists, the people already certain of how the case should come out.

Many trial lawyers might shrink from inviting rants like the CEO’s.  But consider that the speech achieved the opposite of what the businessman wanted.  His "end this kind of nonsense" approach prompted fellow travelers to speak up — and told the plaintiffs’ lawyer who opposed his clients even before they’d heard the basic facts of the case.

Our justice system gives trial lawyers blunt instruments in the jury selection process — strikes for cause and peremptory strikes.  The lawyers in the medical malpractice case that Blawgletter observed made skillful use of them.  Go ye and do likewise.

Barry Barnett

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Blawgletter sometimes has a special talk with dear clients.  We discuss that, in litigation, insisting on principles costs money.  Business lawsuits almost always boil down to dollars and cents — how much should Party A pay Party B in light of the cost of trying the case and the risk that trial will produce a bad (and perhaps a very bad) outcome?  A client’s demand for vindication, for justice, for healing puts things on a wholly different dimension, one at which the law-and-economics crowd might not-so-politely guffaw.

Blawgletter doesn’t laugh.  We love to hear clients say, with passion and conviction, that they want nothing so much as justice.  Does that eliminate the economics of litigation?  No.  But it does make lawyering so much more fun.

Barry Barnett

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Law firm associates dream of partnership.  Do they really?  Blawgletter thinks many of them do.  And yet so few get her or his wish.

Blawgletter recalls a time when a law firm’s offer of employment reflected confidence that the offeree would in time make partner.  That era may have passed, even in cities way beyond Manhattan. 

But pockets of resistance remain.  Who succeeds at those renegade firms where meritocracy still works?  Those who see a routing slip that instructs "pls handle" and nothing more and in those words recognize the compliment — and opportunities — that they convey. 

Blawgletter urges associates to rejoice if a partner sends you a "pls handle".  It means that she trusts you to figure out what needs doing, how to do it, and to do it.  Justify her confidence in you, and before long you’ll enjoy the fine art of scribbling "pls handle" to go-getters hoping to emulate your success. 

Barry Barnett

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Blawgletter understands — we think — that bankruptcy proceedings aim to settle claims against the bankrupt.  Creditors of every description — bank lenders, bond holders, trade creditors, and even tort claimants — generally must go through the sausage-making apparatus if they hope to get some of their money from the insolvent one.  A decision today by the Second Circuit highlighted another key feature of the process — the proof of claim process.

Your proof of claim asserts that the bankrupt has stiffed you somehow.  The debtor and other creditors may contest your proof of claim.  If someone does pick a fight, the bankruptcy court usually resolves it.

What happens if nobody objects?  The court will likely rubber stamp the proof of claim.  And — prepare to gasp in horror — the rubber-stamp order will have the same effect as a final judgment. Res judicata, baby!

The Second Circuit decision involved a proof of claim by the Internal Revenue Service for back taxes.  The IRS claim sailed through with nary a fuss.  After emerging from bankruptcy, the former-debtor sued to get a refund.  The district court granted the IRS’s motion for summary judgment on the ground that the bankruptcy court’s order allowing the proof of claim constituted res judicata.  The Second Circuit agreed.  EDP Medical Computer Systems, Inc. v. United States, No. 06-0106 (2d Cir. Mar. 9, 2007).

Simple as that.

Barry Barnett

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