In the matter of White-Steiner (1/08/09)

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This is a review of a decision of the Disciplinary Commission. There is legally nothing new here but it and another recent court action emphasize a practice problem.

The lawyer’s trust account was fouled up, mostly because of sloppy treatment of credit-card payments. The hearing officer concluded that the lawyer’s actions were merely negligent; the Commission decided that she knew or should have known of the problem and therefore increased the recommended sanction. The Court adopted the sanction recommended by the hearing officer, pointing out that the Commission must defer to a hearing officer’s factual finding  — in this case that the lawyer was negligent — when the record contains a reasonable basis to support it.

The use of credit cards continues to cause problems. Whether coincidentally or not, the Court recently issued an emergency order (link is to a .pdf) on some of the same issues that tripped up the Steiner firm. If you accept credit cards, you need to read it.

Messina v. Midway Chevrolet (CA1 12/18/08)

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Messina is an insurance coverage case. The issue was whether a guy who bought a car but whose financing then fell through was a “customer” of the dealership — and therefore not covered by the dealership’s auto policy — when he ran into the plaintiff’s car. The Court of Appeals, affirming the trial’s court summary judgment, concluded that he was.

The interesting part is that the plaintiff attempted to ward off summary judgment by having somebody with experience at a car dealership sign an affidavit as an “expert” that the buyer was not a “customer” because he couldn’t pay for the car. The trial judge decided that he didn’t need an “expert” to tell him what “customer” meant. This gave the appellate court a chance to point out what often needs pointing out: you can’t always control a case just by pulling an “expert” out of your hat. It is always for the trial court to decide whether Rule 702 is satisfied (specialized knowledge will assist the trier of fact) and that decision will not be overturned, even on summary judgment, absent a clear abuse of discretion.

You have to give the plaintiff’s attorneys some credit, though; they went through four complaints (the original and three amendments) and “extensive” discovery even to get as far as losing a Rule 56 motion.

Wise v. Polis (CA2 memorandum 11/18/08)

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This is an inconsequential memorandum decision. Why blog it? To say a word, or two, about memos.

We know this is a memorandum decision because it says so at the top of the first page. It is otherwise indistinguishable from a published opinion: the form, style, and content are exactly the same, including the careful description of the facts and procedure, the he-said-she-said recapitulation of the parties’ arguments, the standard form paragraph reminding us for the nine-hundredth time what the standard of review for summary judgment is, the section headings, the footnotes, and the whole nine yards of what passes for “style” in opinions nowadays (which deserves a separate rant of its own – or, better yet, several —  but isn’t the subject of this one). The opinion is twelve pages long.

Why in the world do this with a memorandum?  A memo will be read by the parties and, possibly, by courts above and below. All any of them wants to know is which argument won.  The parties already know the rest; other courts can be told or reminded. As for the law, explanation of law is precisely what memos are not about.

A memorandum opinion should be a page or two long, the size of a long minute entry from the trial court. Like a minute entry, it should be an announcement, not a piece of literature. To write a memorandum just like a published opinion is a waste of judicial time and resources.

So why do the courts do it?

When our courts started doing memorandum opinions, disappointed litigants accused them of using memos to hide prejudiced, partisan, or merely sloppy decisions. And so the courts were careful to write long memos. But that wasn’t enough, the memos were “hidden”; so the courts put them on their web sites. But that still wasn’t enough: once memos looked like published opinions, and were publicized almost like published opinions, it became an “injustice” that they couldn’t be cited like published opinions. At that point, thank goodness, the courts had had enough: the Supreme Court not long ago turned down a requested rule change that would have allowed memos to be cited.

The courts have themselves to blame. They should have drawn the line on memoranda years ago. Judges should of course be responsive to criticism: to the criticism that memos try to hide something, they should respond “No, they don’t.” It is not a necessary part of  judicial demeanor to cringe at every petulant accusation, nor to waste your time trying to appease the simple-minded incomprehension that passes as sophisticated skepticism among far too many lawyers.

But the joke is on lawyers, who never quite seem to catch on to how things work. When judges want to pull a fast one they never hide it in a memo. They publish it for all the world to see, using one or more of the usual tricks of the trade, e.g., citing the wrong case and never mentioning the right one, accusing the lawyers of misunderstanding the precedent (when in fact their understanding is inconveniently accurate), using rhetorical and emotional flourishes to hide the missing links in the chain of reasoning. Those sorts of opinions are routinely praised, which shows what acute observers most lawyers are.