BLEARY-EYED

Gaah.  I have been up since three a.m. madly writing a federal Circuit Court of Appeals brief in this case against a crazy person who is representing himself.  For those of you not familiar with the U.S. court system, the U.S. Circuit Court of Appeals is the highest level of the court system except for the U.S. Supreme Court.  Unlike Madeline, who does these briefs with her eyes closed, I have only done an appellate brief at this level once before.

Lemme tell you, it is very time consuming to put these things together, what with various sections you have to include and all the citations to case law and to the pleadings and transcript in the underlying case.  You would think it would be easier with an unrepresented person on the other side, but in fact, it is just the opposite.  The average crazy, unrepresented person is inclined to raise gazillions of different issues, all of which should be identified and addressed.  The average crazy, unrepresented person also tends to write rather badly and in a very haphazard way, so catching everything is tough.  Plus, the courts try to "construe [the crazy, unrepresented person's] pleadings liberally," which means that even if the crazy, unrepresented person doesn't quite articulate a valid legal argument, you have to watch out for the valid legal arguments that the court might read into the crazy unrepresented person's pleadings.  I really wish this person had a lawyer!  Anyone want the case? Will? Richard? Wdegraw?

Anyway, I still have hours of work to do.  I was hoping not to have to bother commuting into the office, but my secretary wound up scheduling me for a meeting that I now can't get out of.  So I have to drive an hour and back just to go to this meeting, and then resume my frantic research and typing here in my bedroom with all my notes and the papers to which I need to refer strewn about. Along with lots of empty soda cans, too.

Comments

[will]

Early in my legal career, I had to respond to a brief of a Federal Circuit Court of Appeals that had been written by a crazy person.

It was a pain to respond to, but very funny after the fact.

I was not sure how to respond to the argument that a nefarious governmental agency had broken into his house and masturbated him so they could use his sperm to impregnant women around the world. (This nefarious agency also made the 7-11 clerks act rudely to him.)

I should have written something about this "issue" not being "raised below."

[DaveL]

I'll bet my partner would be more than happy to trade cases with you. His crazy pro se plaintiff not only made the original case as difficult as possible but also sued my partner, me, and our law firm, falsely accusing me of assaulting him when he showed up, without appointment, demanding non-existent discovery materials he'd already been told he wasn't going to get. That case went to jury trial, which was kind of interesting (in a deeply warped way) but not fun. The jury took about 20 minutes to reach a verdict, but later told the judge they didn't really want to bring it in because they were afraid the plaintiff would leap into the jury box and attack them. Now, he seems to have abandoned his appeal of that case, but he's filed another suit against my partner, our current firm, and the local police department over an incident in which he was arrested for trespassing after refusing to leave our building.

Shall I put you in touch?

[h sofia]

This all sounds terrible, but my prevailing thought after reading your entry, HF, was "She has a secretary!?" I guess it makes sense, but I can't even fathom having a secretary. I don't imagine I ever will, either!

[Richard]

Working for the Pennsylvania State Atty General's Office about 15 years ago, I once had to answer a Section 1985 civil rights complaint written by a pro se plaintiff who was also a state corrections inmate (we got a lot of those). He was alleging that he had been raped twice in prison, and that the lack of prison security was to blame for his victimization. To be quite honest, the complaint wasn't badly drafted for an amateur engaging in recreational litigation, but the request for relief was hilarious. First, he concluded, he did not wish for his first rapist to get into trouble because that particular rape was, as he cryptically put it, "not offensive." And second, he would settle the entire case for the privilege a color television installation in his cell. I think we won the case eventually by a judgment on the pleadings, but we had to pretend the guy was some legal eagle and respond accordingly.

[j0lt]

My pro se adversaries were never as challenging as HF's and the others in the comments above. The most ridiculous one I had was a guy claiming that a product made by my client had poisoned him and given him a heart attack. Since the product would reveal the client I won't say what it is, but it was not one that could ever in a million years have any kind of that effect. Eventually, we got the case dismissed for non-pros b/c the guy didn't show up for his own deposition - twice! We suspect the guy may have died b/c he was never heard from again, but despite searching all the local papers, etc., we never did figure out what happened to make him drop the case.

[Chipmunk]

Gee, I have to address briefs written by a crazy person all of the time. Oh, wait, they're written by an Assistant U.S. Attorney. Even so, I'd still rather read pro se briefs. I've come across many good jail house lawyers and have read a lot of dreck written by members of the bar.

I need to return to the brief I'm writing. Have fun. There's nothing better than producing a brief for the Court of Appeals.

On a side note, use caution when blogging about your cases:

Judge Reprimands Temp Prosecutor for Personal Blog
Pam Smith
The Recorder
04-28-2006

When a temporary San Francisco prosecutor wrote on his personal blog about a misdemeanor case he was handling last December, he probably didn't think the judge would read it.

But Superior Court Judge Curtis Karnow heard about it. And he didn't like what he read.

Karnow didn't find the postings prejudicial enough to throw out the entire case, as the defense wanted. But in turning down that motion to dismiss this week, the judge still came down hard on ex-prosecutor Jay Kuo, calling his conduct "juvenile, obnoxious and unprofessional." Karnow also stated his intention to send his written ruling to the State Bar.

The contents of the blog posts were not available online Wednesday, but according to Karnow's ruling, Kuo at various points called his opposing counsel "chicken" when she asked for a continuance, directly alluded to her with some posting titles obscene enough that the judge did not repeat them and mentioned a prior conviction that had not yet been deemed admissible at trial.

For Kuo, the incident had already meant an early end to his service in the prosecutors office. While an associate at the well-known litigation boutique Keker & Van Nest, he became a prosecutor through a loan program that gives firms a chance to send their people to district attorney's offices so they can get trial experience while the firm picks up the tab.

Kuo, who declined to comment on the ruling itself, did say he resigned from the temporary position after his posts on the Web site livejournal.com had made their way around the DA's office. "It was just not a comfortable environment to be in any more," he said.

None of these events seems to have led to any hesitation about attorney loaner programs.

"What happened here is an example of what can happen when you hire anybody, whether it's a brand new DA" or a loaned attorney, said Linda Klee, chief of administration for the San Francisco DA's office.

Lawyers participating in the program have to go through an interview process and a criminal background check, Klee said. The loaned lawyers attend a series of a dozen in-house seminars, she said.

And Public Defender Jeff Adachi, whose office had argued for the motion to dismiss before Karnow, also defends loan programs as a "win-win" that have worked well for both offices for about two decades. Both the public defender and the district attorney take up to three loaned attorneys at a time to try misdemeanor cases.

Kuo left his job at Keker & Van Nest at the beginning of January to write and compose musicals, he said. His current production is called "Insignificant Others."

"I made the decision [to leave Keker] before [this incident], but everything kind of came together at the same time," Kuo said.

Keker & Van Nest managing partner Christopher Kearney declined to comment on the circumstances of Kuo's departure, saying it was a personnel matter.

None of Kuo's blogging amounted to a constitutional violation of the defendant's rights, Karnow concluded, because Kuo wasn't trying to interfere with the defendant's relationship with his attorney and didn't actually end up doing so.

"The issue of intent is of central importance," Karnow wrote. "Such thoughts were far from mind: He sought only to celebrate himself, tout his prowess and to preen his own feathers, as it were, unconscious of other effect."

Kuo testified at a hearing this month that he typically restricted his blog postings to a small group of friends. He suggested a security problem at the Web site he used might have been responsible for a breach.

Still, Kuo's actions were probably reckless, Karnow wrote, because the attorney should have known that his posts might, like private e-mails, eventually be "uncontrollably distributed."

As blogs, or Web logs, have multiplied, they've created increasing opportunities for conflict between employers and employees.

Raymond Hixson, a labor and employment partner at Heller Ehrman in Menlo Park, Calif., can rattle off a number of cases that have probed how employers can restrict their workers' online activity and how much an employer might be held liable for it if, for instance, workers go online to sexually harass their colleagues.

"Blogging is a relatively new phenomenon, but it's obviously on the increase," he said. "Most companies have not caught up with that trend in their personnel policies."

The district attorney's office has now, thanks to Kuo's case.

"I don't think we had particularly thought about it before," said Klee. "You would think common sense would have prevailed." Now, she added, the employee manual specifies that criminal cases and office business should not be mentioned on the Internet.

Prosecutors carry extra duties when it comes to writing about an ongoing proceeding, said John Steele, who teaches legal ethics at Boalt Hall School of Law.

"They have to 'do justice,'" he said. "Criminal defense attorneys are allowed to just win, as long as they don't break the rules. ... And virtually all the ethics rules acknowledge that special burden."

[c.]

When I was a summer associate I was in charge of the "crazy" file which included everything from legal pleadings to tracts regarding various government conspiracies to threats against the firm and the attorneys. Being a wee summer associate, I didn't have to write anything for the court of appeals (Gah! Could they have any more rules about font size and margins? It's like they want to dump your case). I did have to respond to a pleading by a pro se defendant that alleged that ever since the U.S. had gone off the gold standard, U.S. money was invalid so the defendant did not have to pay his mortgage in U.S. funds. I had to find case law saying that debts do have to be paid in valid U.S. funds, not specie notes provided by a "militia." Since it was a relatively simple concept (MUST PAY DEBT IN U.S. FUNDS), it was of course impossible to find case law on.
Oh, the crazy file. I actually miss it when I writing briefs for the court of appeals. I'm always afraid I'm going to make a wrong cite to the record and the court will just throw out our case.

[L.]

One of the many reasons I love this blog because it has made me SO GLAD I decided to go to journalism school instead of law school.

Thanks, HF -- and commenters above, too.

[mad]

Congrats on finishing the brief, Happy. While appellate briefs do get easier to write when you do them often, they are always a lot of work.

Also, I'm laughing at the first part Chipmunk's comment - and agree that pro se pleadings are not necessarily inferior to those of the lawyers.

[The Happy Feminist]

Thank you for all your kind words, everyone, even if no one is taking the case.

And thanks for the warning, chipmunk. I hope the fact that I didn't include any identifying detail about the case gets me off the hook. But one can never be too careful.