June 3rd, 2010

Elena Kagan In Private Practice (And Her First Amendment Experience)

I know, you’ve been sitting there on the edge of your seat waiting for this, ever since I discussed the serious lack of private practice work by Elena Kagan. Which wouldn’t be so bad except that only Justice Kennedy seems to have had any private practice experience. Basically, 98% of the legal time for Supreme Court justices has been in academia or public service.

So Kagan’s Senate Judiciary questionairre was released, and with drool running from my mouth I searched for all that I could on her private practice — much as I did with Sonia Sotomayor when I found her little private firm, Sotomayor & Associates that had no actual associates and subsequently became a minor issue.

And it turns out, while at the BigLaw firm of Williams & Connolly between 1989 and 1991, Kagan actually did some First Amendment work that was interesting. In fact, of the 10 “most significant litigated matters which you personally handled” that the the Senate Judiciary Committee asked her to list, five had to do with the First Amendment. And, despite being a very junior associate, she was actually given the chance to argue a couple of times in court.

[Note, Eugene Volokh has written about her First Amendment scholarship that followed the years of private practice. This post is only about the real-world experience that preceded it. A full round-up of her career, including scholarship but missing the real-world stuff, is at SCOTUSblog]

OK, here is the set-up — you’re sitting down, right? — on page 71…

I have had private clients only during the time I was an associate at Williams & Connolly. Those clients included business entities in civil litigation, press organizations defending themselves in libel and related actions, and white- collar criminal defendants.

She goes on to write that her private work was “primarily” in federal court and that it was divided 2/3 to civil and 1/3 to criminal. She concedes having never tried a case to verdict. That wouldn’t be so bad, of course, if the high court had others that had done so for private individuals.

Now to the meat and potatoes: On pages 188-195 she is asked to “Describe the ten (10) most significant litigated matters which you personally handled, whether or not you were the attorney of record.” As you can see below, some of this stuff is anything but interesting, which gives a bit of insight perhaps in to what happens to junior associates at BigLaw firms.

So here is Elena Kagan’s Top 10 List of private cases. The First Amendment ones can be seen below as d-h. (I’ve listed all 10, in case people find any of the other stuff interesting — two are criminal matters):

(a) Federal Realty Investment Trust v. Pacific Insurance Co., No. R-88-3658. We represented a real estate investment trust in an action against an insurer for the costs of defense associated with a prior litigation. I began work on the case in the middle of the litigation; I did some late discovery and drafted most of the pre-trial motions. On the eve of trial, Judge Norman Ramsey of the U.S. District Court for the District of Maryland ruled in favor of our position on the appropriate standard for allocating defense costs between covered and uncovered parties and claims (760 F. Supp. 533 (1991)). This ruling immediately produced a settlement favorable to our client.

(b) In re Seatrain Lines, Inc., Nos. 81 B 10311, 81 B 10916, 81 B 11059, 81 B 12345, 81 B 12525, 81 B 11845, 81 B 11004, 81 B 11512. We represented Seatrain Lines, Inc., a debtor in bankruptcy, in U.S. Bankruptcy Court in the Southern District of New York (Judge Burton Lifland presiding) in connection with an application by Chase Manhattan Bank and Milbank, Tweed, Hadley & McCloy for legal fees associated with the bankruptcy case. In response to the filing of the fee application, our client counterclaimed against Chase for the recovery of the costs of preserving and disposing of certain properties subject to Chase’s security interest. I handled some of the discovery and drafted most of the pleadings. When the court denied Chase’s motion to strike our counterclaim (and a subsequent motion for reconsideration), the parties settled on terms favorable to our client.

(c) Toyota of Florence, Inc. v. Lynch, Nos. 4-89-594-15, 4-89-595-15. We represented Southeast Toyota Distributors, Inc. in a suit brought by one of its franchisees alleging fraud, intentional interference with contract, violations of RICO, and a host of other claims. I drafted numerous pleadings in the case, including an opposition to the plaintiff’s motion to remand (granted by Judge Hamilton of the U.S. District Court for South Carolina at 713 F. Supp. 898 (1989)), as well as motions to dismiss and discovery motions (ruled on by Judge Edwin Cottingham of the Court of Common Pleas for Darlington County). I also handled some of the discovery. I left the firm prior to trial. Ultimately, a verdict for the plaintiff was dismissed on appeal.

(d) Byrd v. Randi, No. MJG-89-636. We represented defendant Montcalm Publishing Corp. in a libel action arising from an allegation that the plaintiff was in prison for child molestation. The case presented issues relating to the “libel-proof plaintiff” doctrine, the definition of a “limited purpose public figure,” and the actual malice standard. I did most of the discovery, drafted our summary judgment motion and other pleadings, and argued the summary judgment motion before the district court. After initially denying the motion, Judge Marvin Garbis of the U.S. District Court for the District of Maryland dismissed the case a few months later on a motion for reconsideration.

(e) In Re Application of News World Communications, Inc., Nos. 89-3160, 89-212. We represented the Washington Post and WRC-TV in this effort to compel release to the public of unredacted transcripts of audiotapes to be received in evidence at a criminal trial. I argued motions before Judge Charles Richey of the U.S. District Court for the District of Columbia to compel release of the transcripts and to prevent redaction. Judge Richey granted both motions, with the latter reported at 17 Media L. Rep. 1001 (1989). The Court of Appeals for the D. C. Circuit, with Judges Wald, Silberman, and Sentelle hearing argument, denied a motion to stay this order (17 Media L. Rep. 1004 (1989)).

(f) J. Odell Anders v. Newsweek, Inc., No. 90-715. We represented Newsweek, Inc. on appeal from a jury verdict in its favor in a libel action filed in the Southern District of Mississippi. The case raised questions about the actual malice standard, as well as numerous evidentiary issues. I drafted the appellate brief urging affirmance. The U.S. Court of Appeals for the Fifth Circuit held in our favor by unpublished opinion (judgment reported at 949 F.2d 1159 (1991)).

(g) Luke Records, Inc. v. Nick Navarro, No. 90-5508. We filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit on behalf of the Recording Industry Association of America and numerous record companies, challenging the decision of the district court that a musical recording was obscene under the standard set forth by the Supreme Court in Miller v. California. I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law. Judge Lively, joined by Judges Anderson and Roney, reversed the district court’s decision (960 F.2d 134 (1992)).

(h) Bagbey v. National Enquirer, No. CV 89-2177. We represented the National Enquirer in this libel action brought by a person mistakenly identified in the publication as being Jimmy Swaggert’s father. I drafted all pleadings and did all discovery in the case, which began in Louisiana state court but which we removed to the U.S. District Court for the Western District of Louisiana (Judge F.A. Little, Jr.). We eventually settled the case on terms favorable to our client.

(i) Chuang v. United States, No. 89-1309. We represented Joseph Chuang, a former bank president, on his appeal from a criminal conviction for numerous counts of bank fraud. The principle issues in the case concerned the propriety of two warrantless searches of the bank, one by the Office of the Comptroller of the Currency and one by the FDIC. I drafted most sections of the brief, which argued among other matters (1) that the statute authorizing the OCC’s search failed to provide a constitutionally adequate substitute for a warrant, as required by the Supreme Court, and (2) that the FDIC’s search was invalid because it went beyond the bank premises into Chuang’s law firm offices. The Second Circuit affirmed the conviction, with Judge Timbers writing and Judges Newman and Altimari joining (897 F.2d 646 (1990)).

(j) United States v. Jarrett Woods, We represented the former head of the Western Savings Association, a failed savings and loan, in both a grand jury investigation and a number of civil suits brought against him. The Federal Home Loan Bank Board had declared the S&L insolvent and placed it in receivership after discovering various suspect real estate loans. In addition to trying to keep the civil suits at bay, we tracked the grand jury investigation of Woods closely for more than a year – interviewing each of the many people brought before the grand jury – before Woods became unable to afford the representation. Woods was subsequently indicted and convicted of numerous counts of bank fraud.

So I was all prepared to say that we were about to put on the Supreme Court another person without any real private practice experience at all. But, in fact, she has a very small amount. Nothing earth shattering for sure, but a tiny amount nonetheless.

One quirk I noticed in (h), Bagbey v. National Enquirer: She says that “We eventually settled the case on terms favorable to our client.” I wonder if there was a non-disclosure agreement regarding that settlement, and if so, if her comments about settling on “favorable” terms violated it.

Update: I could see how some Senators might review some of her First Amendment briefs, which should be publicly available in court files, to inquire as to whether she actually believed in some of the positions that she took. That could put her on the spot to either defend, or distance, herself from a position that she advocated.

Update x2 — Elsewhere:

Kagan’s First Amendment record causes concern (David L. Hudson, Jr. @ First Amendment Center)
Who Gets the Gag? Elena Kagan’s First Amendment Problem (Gary Bauer @ Human Events)
Elena Kagan v. First Amendment (Chicago Sun Times)
Elena Kagan vs. that bothersome First Amendment thing (Jack Hentoff @ Jewish World Review)

May 10th, 2010

Elena Kagan: The Three-Year Hole in the Resume

OK, so Solicitor General, and former Harvard Dean, Elena Kagan has now been nominated to fill the seat of Justice John Paul Stevens.

But while others go looking for her judicial philosophy and look into crystal balls to see how she will rule in the future on their pet issues, I want to know what kind of people she has actually represented.

There are three basic niches for a lawyer to be in:

1. Public service;

2. Acadmia; and

3. Private practice.

So I checked out Tom Goldstein’s 9750 Words on Elena Kagan (more than you ever wanted to know) that is up at ScotusBlog. And I went looking for the private practice area, wanting to know if she had ever represented some individual, somewhere, in some kind of distress. I had the same interest in Sonia Sotomayor when I went looking into “Sotomayor & Asscociates” (and found no associates). Did Kagan appear in the trenches, battling for the little guy against powerful interests?

And here is what I found from Goldstein’s 9750 Words on Elena Kagan:

Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.

That was it, out of 9750 words. From there she went in 1991 to the law faculty of the University of Chicago. A three-year stint at BigLaw seems to be the sum total of her private practice. While I don’t hold out much hope she did anything other than represent corporate interests, there is the slim hope that she helped an individual. Maybe a pro bono representation of some kind?

Does anyone know anything about this three-year empty hole in the resume where she worked for BigLaw? Who did she represent? Why did she choose to go that route? Why did she find it more desirable to go elsewhere? Did she ever sit at her desk with a box of tissues for a client? Any client?

Will any of those questions get asked at the confirmation hearings? Unlikely. We will probably see lots of questions about the usual political issues; questions which she won’t answer, of course.

Update: Her father was a lawyer that worked for tenants. He died in 1994, while Elena was 34. I’d like to know if she did any work at her father’s firm, and perhaps saw some of the sad faces that came through the door. At least that would be something, as we get ready for a Supreme Court where 100% went to Harvard and Yale, and few seem to have done actual legal work for people in need.

Update #2: Max Kennerly has a round-up of the prior legal experiences of the Supreme Court justices that shows a real dearth of private experience representing individuals. Kennerly draws a different conclusion than I do about the significance of it, but it’s worth noting that the current level of trench-lawyer experience representing individuals against major interests might actually be zero.

——————–

Elsewhere, previously:

Birth of the Trench Lawyer Movement (Greenfield, 5/3/09)

…In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities…

Why We Need A Trial Lawyer on the Supreme Court (Pattis, 5/2/09)

…A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law’s reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immuity….

April 19th, 2010

The SCOTUS Nominee and The Tissue Box Test (Revisited)

A year ago I wrote my thoughts on what I’d like to see in a Supreme Court justice to replace David Souter in The SCOTUS Nominee and The Tissue Box Test. This probably doesn’t come as a great surprise, but one year later, with Justice John Paul Stevens having now announced his retirement, those thoughts haven’t changed.

I was looking for someone who had fought uphill battles for people in need. Supreme Court short lists always seem to be filled with those from academia, BigLaw or former prosecutors. And traditionally missing were those who had stood in the well of the courtroom with people whose bodies or spirits were broken or severely compromised.

In fact, it was that desire to find out what kind of people that Justice Sotomayor had represented that led me to find, last year, that she had named her solo law firm Sotomayor & Associates. While others were interested in how she would rule on hot-button political issues, I wanted to know who she had stood up for. I wasn’t looking for the minor ethics lapse that I stumbled upon, and wasn’t intending to cause a small kerfluffle, I just wanted to know who she had actually done work for.

I was heartened when I read in The New York Times last week that, when a clerk was interviewing for a clerkship, Justice Stevens pulled a plaque off his wall that honored him with a small town lawyer award. Not because he was a small town lawyer, but for the kinship he felt. The short piece, part of a longer piece on memories of Justice Stevens, read:

DURING my clerkship interview with Justice Stevens, we talked about our hometowns. When I mentioned that I had grown up in a small town near Seattle, he leapt from his chair and pulled a plaque off the wall. It read: “Small Town Lawyer of the Year: Associate Justice John Paul Stevens.” It had been given to him a few years before by the bar association of Poulsbo, Wash.

At the time, I was puzzled that the award was so meaningful to him. I shouldn’t have been. Although Justice Stevens has always practiced law at the highest levels of the profession, his modesty would make him feel right at home in a place like Poulsbo. He may not have actually been a small town lawyer, but he was definitely a kindred spirit.

While that doesn’t mean that Stevens fit the definition of what I would be looking for, at least his heart was in the right place.

Will our next SCOTUS nominee know what it’s like to struggle on behalf of the desperate and downtrodden, in at least one part of a distinguished career? One can only hope.

Stevens Retiring: Time For A Trial Lawyer (Norm Pattis)

…The current court is composed almost exclusively of lawyer’s whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation’s federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans…

Obama’s Diverse Shortlist (Orin Kerr)

…Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices…
Birth Of The Trench Lawyer Movement (Scott Greenfield, 2009)

…In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities…

February 23rd, 2010

How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)

In responding to my brother Dan’s letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn’t see how such an issue could even reach this nation’s high court.

I’m here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick. With respect to the first assertion, Scalia’s exact words were:

If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.

There are no shortage of people willing to criticize such a position, because he simply states that might makes right. But the physically stronger side winning is not legal analysis, it is merely guns and tactics and doesn’t tell you squat about any legal basis. Many found that odd from a guy like Scalia who thrives on analysis.

It is this first part that garnered almost all of the media attention that I noted yesterday when I published the rejection letters of other justices, and which Chris Matthews discussed on Hardball (brief video segment below).

But this post is really dedicated to Justice Scalia’s second assertion regarding who the actual parties to such a suit would be. And despite many dozens of blog postings regarding The Letter, I haven’t seen any discussion of this second point. Justice Scalia wrote:

Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter’s share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.

And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters “between two or more states.” There isn’t any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.

In fact, it’s this “It’s the money, stupid” plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off. Our three heroes use their status as potential founding fathers to further the never-ending pursuit of weed and women.

A Supreme Court battle forms part of the script, albeit not a giant one because courts aren’t as funny as standard-issue politicians or stoners, with the other states insisting that if Maine leaves they take their part of the debt with them. It’s all about the money.

But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer “between two or more states.” A seceding state would most assuredly claim that the high court doesn’t have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.

And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can’t hear the case because it is not between “two or more states.”

This analysis seems backwards from the way jurisdiction is usually discussed. Merits generally come after jurisdiction has been established. But in this case the merits discussion has to do with money owed. And the issue of whether the court can even hear the case as a dispute between states must first be resolved, and that means looking at the issue of whether secession was legal.

How the case would be resolved in the real world is, of course, beside the point. This is, after all, a movie and the level of detail above wouldn’t be in it.

But Justice Scalia had written that he can’t think of how the matter of secession would get to the court. Well judge, I see how the issue can get to you. At least in theory. And it’s a pure jurisdictional question in a battle between states over money.

And for those wondering how, exactly, the Supreme Court could enforce a judgment against a seceding state in the event the court dumped the unhappy secessionists? Well, that has always been a problem since the judiciary doesn’t have a military wing to it. In 1957, the Army was called in on Executive Order to integrate Central High School in Little Rock. It remains a problem today out in Maricopa County, Arizona, where a court officer was caught on camera reading the files of a defense lawyer while she was addressing the court. The guy was held in contempt, and ordered to apologize on the courthouse steps. This was followed by a law enforcement sick-out. Enforcement can be tricky.

But the difficulty with enforcement of a court order is an issue separate from having the matter heard in the first place. Under this scenario, if a military solution were to be used to stop secession, it would come after a legal analysis of the merits.

Dan’s script, being a political farce, obviously doesn’t end with a military solution. I can’t give away more since it is just now being entered in competitions and my brother is still scrapping for an agent to represent him. (Anyone out there? Is this thing on?) But of his five finished screenplays, this is the best. And all the others have advanced in competitions.

So in the end, Justice Scalia, I think it can be done. Granted, I’m pretty far afield of personal injury law — you really can’t get any further afield than this — but then, so is almost everyone else that opines on the subject with the exception of a few scholars.

If I’ve completely blown the analysis — and I admit that despite its simplicity that is certainly possible — I’m sure people will let me know.

Graphic by Dan Turkewitz

February 21st, 2010

The Supreme Court’s Other Responses to the Screenwriter’s Secession Question

Geez, you go to Florida for a few days vacation and that is the time for a post to go viral? It seems the interest in Justice Antonin Scalia’s response to my brother Dan’s request for assistance on his screenplay, dealing with Maine seceding from the U.S., drew interest not only from legal blogs but from numerous political ones as well. Maybe I should have published all the responses?

I watched (from my iPhone) with fascination as the story on my little post exploded across big time blogs/media (Washington Post, NBC, CBS, WSJ, Volokh, ATL, Politico, and many more). It’s tough to blog with an iPhone though, and Mrs. NYPILB would not have been pleased if I was tethered to a laptop instead of frolicking on Floridian beaches, pools and golf courses. (That’s Dan with my kids above, in his alter ego role as Super Uncle.)

Thus far, over 23,000 page views for that one post.

A little back story on why he wrote to the members of the court, over my objection, might be helpful. When he wrote his award-winning sci-fi thriller of astronauts stranded in space and fighting with each other for survival, he sought expertise on the plausibility of his plot. So he wrote to astronauts. And he got responses.

If astronauts would respond to him, he figured, why not Supreme Court justices, especially given the lack of people that could speak authoritatively on the issue of secession? When I told him he wouldn’t get meaningful responses, I was right on 9/10 of the justices he wrote to. Scalia was the exception.

But while Scalia was the only one to respond to the substance of my brother’s request, other responses did come in. He received three personally signed rejection letters from Justices Clarence Thomas, Samuel Alito and Stephen Breyer, which are all lovingly reproduced here. While reproducing rejection letters isn’t exactly the norm, these happen to be first rate, classy rejections. If you’re gonna get dumped, it might as well be by the best. Frankly, I was stunned that he even got these. And, as you can see, none of them are form letters. And they use top-notch stationary. Just in case you were wondering.

On the actual substance of Scalia’s letter, I will follow in another post with my thoughts on how the issue could reach the high court, despite Scalia’s protest in the letter that:

“Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

[Now added: How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)]

Regardless of whether one agrees with Scalia’s political-judicial beliefs, the guy clearly picked up major cool points for giving my brother a substantive response. Justices Thomas, Alito and Breyer also picked up a few of those points, to the extent that they did take the time to respond, albeit with rejection. Justice Souter picked up a single point for having a secretary respond.

On the flight back from Florida I pondered a question: Is there any significance to the fact that the responding troika of Scalia-Alito-Thomas form 3/4 of the conservative wing?

I’ll leave it to others to opine on that subject.

Addendum: A commenter notes that Justice Alito spelled our last name wrong and that this deserves a head-shaking response: “‘Turkwitz??’ Not true, Justice Alito, not true.”

(And yes, Dan still needs an agent.)