Beyond the Underground

FEDERAL MDL PANEL: CHANGING OF THE GUARD . . . Find out what's new in federal Multi-District Litigation in this article from the Kentucky Courier-Journal: "Heyburn heads panel to consolidate, assign cases," by Andrew Wolfson.

While you're reading, don't miss the choice quotes from Legal Underground, which inspired Wolfson to ask the new MDL chief judge, John G. Heyburn II, whether he would bring the MDL panel to East St. Louis.

Predictably, his answer was "no."

Related post: "Yet Another Post About the Federal Judges of the MDL Panel."

Judge Maag's Defamation Lawsuit Explained--More Than in the Newspapers, Anyway

Judge Gordon Maag, the Democratic candidate for Illinois Supreme Court who recently lost to Judge Karmeier, has sued over an allegedly defamatory election flyer that was mailed to voters before the election. The defendants are the Coalition for Jobs, Growth, and Prosperity, whose name is on the flyer; the Illinois State Chamber of Commerce; and two individuals. Many newspapers have covered this story, including the Chicago Tribune and the St. Louis Post Dispatch. The Post article, for example, is here; another article from the Belleville News-Democrat is here.

The Belleville News-Democrat criticized the lawsuit in an editorial, calling it "over-the-top" and saying that Maag was out to intimidate his opponents. The News-Democrat also published a third article explaining why Maag was "unlikely to succeed"--

Bill Schroeder, a law professor at Southern Illinois University-Carbondale School of Law, . . . said Maag's chances of prevailing are not good.

"You've got to prove actual malice," Schroeder said. "You've got to prove people published something they knew was false, or that they had reckless disregard of whether it was true or false."

But Maag's attorney, Rex Carr, told the Chicago Tribune that "the charges are so blatantly false that no one could make them without lying or recklessly ignoring the truth." 

And you know what? He's right, as I'll explain.

Until yesterday, I didn't know anything about the lawsuit except what I read in the various newspaper accounts (there are more than I mentioned). Though most accounts were dismissive of the lawsuit or included quotes calling it "laughable," not one set out the allegedly false statements in detail or put the statements into context. It's not hard to do, however. Yesterday, I got Maag's defamation lawsuit from the courthouse, aided by my law-student assistant. The lawsuit attaches the entire flier that's caused all the controversy. (As I learned by accident, you can also see the entire flier by following this link to a pdf file, at least until someone takes it down.) Whether or not you agree with Judge Maag's decision to sue, it's not hard to see why he was upset about the flier: it's false from start to finish, and makes Maag out to be complete scum--a monster, in fact. It certainly must give him a bad feeling to know his long and distinguished career on the bench ended like this, with his reputation in tatters. (A close family member who doesn't follow politics or the courts and who lives in the area where the flier was distributed said to my wife Andrea about Maag, "He's the one who let that murderer out, isn't he?")

Justice Antonin Scalia To Get Own Reality TV Show

BURBANK—In a press release issued jointly with the Clerk of the United States Supreme Court, NBC Universal and 20th Century Fox TV announced the creation of a new reality TV show featuring Antonin Scalia, the colorful Supreme Court justice best known for his salty talk about “orgies” and “homosexuals.”

Reached today in Burbank, an NBC-Universal spokesman expressed delight about the deal.  “When we heard the judge was talking to audiences about orgies again, that cinched it,” she said.  “Even for relative unknowns, a little dirty sex talk and some Internet buzz is often all it takes—reality TV's a wonderful thing.”

There’s no doubt it's a formula that’s worked well for Ozzy Osbourne, Paris Hilton, and several others.  While no one is certain whether a Supreme Court justice will be similarly catapulted to fame, the consortium producing the show certainly hopes lightning will strike again.

Tentatively titled 'Justice 696,' a reference to a little-known Washington dance club, the show will fill a half-hour slot on Friday nights.  “Judge Scalia is as pumped up as we are," the spokesman said.  "We plan to have cameras follow him pretty much everywhere—shopping for flashy clothing, displaying his collection of funny masks, whatever he's doing at the moment.  And even though he’s contractually obligated to show off his beefy chest as he’s robing up for oral argument, it won’t be all about sex.  We’re just giddy with excitement.”

According to the spokesman, the only disappointment is that Scalia’s famously raunchy comments will have to be toned down a bit for network TV.  “The last thing we want is a big fine from the FCC,” she said.  “Be assured that the judge will be duly warned.”

From an office in Washington, the Clerk of the Supreme Court seemed unfazed.  “When it comes to reality TV,” he said, “Justice Scalia doesn’t favor bright-line rules.  Does it mean he'll go too far?  I’m not sure, but I think we’ll know it when we see it.” 

[Below the fold: Related posts]

What to Say to the Judge Who Crashes Your Next Orgy

If you didn't read it here, then you read it on one of a hundred other weblogs: according to Justice Antonin Scalia, the well-known humorist, "sexual orgies eliminate social tensions and ought to be encouraged."

Who would disagree? No one I know. But it leads to a problem: what's the proper response when confronted at an orgy by an orgy-encouraging judge? As with all the other participants, you should be polite, relaxed, and quick to smile. But you might still find yourself tongued-tied. If so, try one of these favorite there's-a-judge-at-our-orgy ice-breakers:

1. "How long have you been 'riding the circuit,' your Honor?"

2. "You will be happy to see me, Judge, and I'll know it when I see it."

3. "Wow. Who'd exclude that evidence?"

4. "Perhaps we should start with some informal discovery."

5. "Are you ready to file, your Honor, or are you just forum-shopping?"

6. "I really find myself wanting to please the court."

7. "What'll it be tonight, Judge? The sidebar, the reverse-and-remand, or the temporary restraining order?"

8. "I've prepared a motion to stroke, your Honor. May I proceed with oral argument?"

9. "So that's what's been underneath that robe."

10. "Oy-YEAH, oy-YEAH. I see the honorable court is now in session."

If you're familiar with other orgy-tested judicial ice-breakers, please leave them in the comments. Just remember, however--joking about "gavel size" is always in bad taste!

Good Morning, Federal Judges of the JPMDL

Sorry to wake you. I know you're in Philadelphia this morning for the MDL hearing, probably staying in these luxurious accommodations (which are more or less comparable, now that I think about it, to the luxury of a federal courthouse). It's been two months since I collected all my missives to you in a single post. Perhaps you thought I'd forgotten about my quest to convince you to hold one of your every-two-month hearings in East St. Louis, Illinois. Unfortunately for you, I haven't.

Will you promise to spend a little time thinking about me today when you convene at 9:30 a.m. at the James A. Byrne United States Courthouse at 601 Market Street? I learned all the details from your notice of hearing (pdf). Believe me, I'm sorry I couldn't make it. Not only would I have been able to confront you face to face, but I could have learned more about some of the important cases that are on the docket, for example, the Accutane Products Liability Litigation, the Pineapple Antitrust Litigation, the High Sulfur Content Gasoline Products Liability Litigation, and so much more (pdf again).

Obviously, you'll be much too busy to think about my request for you to come to East St. Louis. Don't worry about it, though--you probably wouldn't agree with me anyway. After all, you're in Philadelphia. Why would you want to be in East St. Louis?

I guess I'm going to have to come up with some other way to get you to come. Maybe a barbecue at my house following the hearing? Did I tell you I have the new Nelly CDs? And a basketball hoop in the driveway? Think about it.

Should Judges Be Civil, Just As Is Expected of Lawyers?

On July 21, a federal judge in Texas mocked some lawyers in an opinion that included this language:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

The full opinion can be found here (PDF). It was mentioned on a number of weblogs, including Begging to Differ, The Curmudgeonly Clerk, and Overlawyered.com. On Begging to Differ, the opinion was said to include this message to lawyers:

Just because the lawyers are litigators doesn't make overly litigious behavior acceptable. Petty sniping and inability to agree on matters that won't affect the outcome of the case are traits that will surely get a lawyer on the judge's bad side. And that just might affect the outcome of the case. It's not just bad manners, it's bad lawyering.

As a lawyer who litigates before many different judges, I tend to agree. On the other hand, I know some judges who, ironically, don’t seem to like lawyers very much anyway. Or perhaps I can put it more bluntly: they seem to hate lawyers. So when I see an opinion like the one from Texas, I assume there might be another side to the story.

[Below the fold: Differing views of the Texas opinion.]

Yet Another Post About the Federal Judges of the MDL Panel

I like the federal judges of the MDL Panel, I really do, but I get the feeling that I'm just not getting their attention.

Today they're meeting in Seattle on the 8th Floor of the courthouse on Fifth Avenue, according to their latest hearing memo (PDF). What's wrong with that? It's just that it's been five months since I invited them to hold a hearing at the federal courthouse nearest my office. That's the one in East St. Louis, Illinois. Since then, I haven't heard a word. Not a letter, not a postcard, not even a measly e-mail. It's like they're ignoring me or something.

Perhaps this is a job better suited to Underneath Their Robes, a weblog specifically devoted to the federal judiciary. Assuming the anonymous author of UTR is listening, here's my advice: every citizen would benefit from a little background about the MDL Panel, the super-secret group of seven federal judges appointed by the Chief Justice of the U.S. Supreme Court. Since I also understand that UTR wasn't around when I got started on my quest to lure the MDL Panel to East St. Louis, here's a brief summary of my posts to date:

1. What's the MDL Panel? In this post on February 27, I explained the MDL Panel to my unsuspecting readers.

2. And Where Does It Meet? In a follow-up post on the same day, I demonstrated why the MDL Panel usually packs light when it heads off for its hearings every two months.

3. Take the Aeroplane, Then the Mystery Train In this post during the Legal Underground's Rock 'n' Roll Week, I told the federal judges of the MDL Panel a few things they probably didn't know about East St. Louis.

4. Greetings, Federal Judges of the MDL Panel On March 23, before the MDL Panel's meeting in Jacksonville, I bothered them with a memo in which I admitted I'd never read Rule 16.1 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation.

5. MDL Panel Update: Federal Judges Heading to Baltimore. Two months ago, as the federal judges of the MDL Panel were meeting in Baltimore, I gave them some advice about what they could do there if they had any free time.

All these missives to the MDL Panel, but not a word. Could it be that the federal judges of the MDL Panel don't read weblogs? Stay tuned.

MDL Panel Update: Federal Judges Heading to Baltimore

It seems that my call for the federal MDL Panel to hold a hearing in East St. Louis has fallen on deaf ears. (My quixotical quest is described here; background on the MDL panel, funded by your tax dollars, is here.) Rather than East St. Louis, the next MDL hearing will be held in Baltimore on May 27.

Oh well. Baltimore's not so bad. I once spent three months second-chairing a criminal trial at the federal courthouse in Greenbelt, Maryland. The trial involved a government allegation that our client had faked fire tests to get its product installed in nuclear power plants around the country. Our client won, and I still get chills thinking about it--but that's blogging fodder for another day.

During the trial, I had an opportunity to get up to Baltimore quite a bit. As long as the federal judges are paying the city a visit too, they should make sure to eat some crabs and take a tour of the H.L. Mencken House. Meanwhile, I'm still working on the activities for the judges' visit to East St. Louis--if and when it happens.

Greetings, Federal Judges of the MDL Panel

Good morning, your Honors. I know you're in Jacksonville today and have many important matters to decide. Sorry to bother you again, as I did here and here. But when I woke up this morning, I was too excited to stay in bed. I was thinking, "This might be the day the MDL judges consider my request that they hold one of their upcoming MDL hearings at the federal courthouse in East St. Louis!"

But then I got to thinking about it some more. How exactly does the MDL Panel decide where to hold its hearings? In a moment of heart-stopping panic, I realized I forgot to read the rules. All good lawyers know to read the rules. What do they say about the location of the MDL hearings?

Luckily, I keep a spare copy of the federal rules next to my bed so I can work on memorizing them each night during David Letterman. I went back into the bedroom, opened the rulebook, and found Rule 16.1 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, which states, "The Panel shall convene whenever and wherever desirable or necessary in the judgment of the Chairman."

Now that's a lot of power someone gave the Chairman. But I understand. There are seven of you, and someone's got to decide where the next fun trip's going to be. Although I realize some consider East St. Louis less than "desirable," at least I've learned who needs to be convinced otherwise. I'm going to get to work on it right now. The Chairman will be hearing from me again soon.

Take the Aeroplane, Then the Mystery Train

To the Federal Judges of the MDL Panel: As we discussed two weeks ago, I know you like to meet in trendy places like Sacramento, Santa Fe, and Washington, D.C. But as I've been telling you, I think it's about time you broke with tradition and held one of your MDL hearings in the federal courthouse closest to my office. That's the federal courthouse in East St. Louis, Illinois.

Since I never miss one of your .pdf memos to me, I know that you'll be together in Jacksonville, Florida, on March 23. Can you discuss my proposal then? Keep in mind, I fully understand why my proposal might worry you. It's quite possible that you learned everything you know about East St. Louis by watching the popular Chevy Chase vehicle, Vacation. But quite a bit has happened here since that movie was made. For example, we now have a 627-foot fountain called the “Gateway Geyser.” We’ve also got a casino. And it’s easy to get here, too: just take the airplane to St. Louis and hop on the “mystery train,” which will take you over the Mississippi River and directly to the courthouse. (Around here, we call that mystery train the Metrolink.)

Have I sold you on East St. Louis yet? I hope so.

(Concluding note to everyone but the seven federal judges of the MDL Panel: The title of this post contains references to two rock ‘n’ roll songs. The extra bonus reference was to make up for the fact that I was too cowardly to use the most appropriate title for this post, which was “the Magnificent Seven,” a song by the Clash. It fit, sure, but I absolutely refuse to mock our magnificent federal judiciary on this blawg. Teasing, sure. Lots of teasing. Teasing all day and all night. But mocking? Forget about it.)