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August 30, 2004

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BTD Greg

I think the obvious answer to your question is "yes, of course they should." But that's of very little practicle consequence to lawyers, especially those who are practicing in the federal courts. The judge will behave as he or she will behave. The lawyer's job is to make sure that his or her interactions with the judge do not hinder (rather, help) the client's cause.

In this particular case, it's not clear whether the judge's response was justified, but it might have been. I also sympathize with the reasonable attorney who must deal with unreasonable opposing counsel, and gets caught in the crossfire when the judge decides he disapproves. I've seen that happen before, and it's not a good position to be in.

Evan

BTD Greg: I understand your point. But I tend to assume that most lawyers, even those who were the targets of the Texas judge's over-the-top metaphors, know that it's their job "to make sure that [their] interactions with the judge do not hinder (rather, help) the client's cause." And while the judge will behave as the judge will behave, those same lawyers are also responsible for zealously representing their clients' interests. I think it would be unfortunate if in doing so, their reputations are unfairly smeared by a frustrated op-ed writer residing within the body of an unhappy judge.

Maybe the "creative" judges need to have editors on their staffs, in order to protect them from their own "creative" excesses.

David Giacalone

Judges need to be civil but, like parents, need to keep discipline. I, too, am getting tired of judges trying to be cute and witty in their opinions. The availability of the weblawgiverse to instantly broadcast such "creative" decision writing (and turn obscure judges into folk heroes or contenders for Judge Judy's job) has a lot to do with this lack of good judgment on the part of judges -- too tempting to use that clever turn of phrase (as any weblog editor knows).

Judge Posner may have launched this trend of livening up judicial workproduct -- of course, he does it with much more talent and insight.

However, Evan, I don't think there's anything ironic in judges not liking lawyers. There are often many good reasons why familiarity (or consanguinity) breeds contempt.

UCL

I agree with David that maybe Judge Posner is the problem, not because of his style in particular (I'm actually a huge admirer), but because "everyone wants to be a Posner".

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