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The Supreme Court appears determined to rule on a dispute between famed lawyer Johnnie Cochran Jr. and a disgruntled former client, in spite of Cochran’s death on March 29. The case of Tory v. Cochran, a First Amendment challenge to an injunction Cochran obtained to keep Ulysses Tory from picketing his Los Angeles office, was argued in front of the high court just a week before Cochran died at the age of 67 from a brain tumor. Soon after, the Court invited Cochran’s lawyer to file what is known in Court terminology as a “suggestion of death” informing the justices about Cochran’s death and advising whether it rendered the case moot. Cochran’s lawyer Jonathan Cole of the Sherman Oaks, Calif., law firm of Nemecek & Cole did just that on April 11, and his adversary Duke University Law School professor Erwin Chemerinsky responded April 13. Cole said some aspects of the case are moot, but some are not. Chemerinsky said the dispute is “as real and ripe now as it was the day before Mr. Cochran died.” Since then, the Court has met in private conference three times, but has not acted on the filings — leading the two lawyers and a top Supreme Court procedural expert to believe that the Court is proceeding with the drafting of a decision in spite of Cochran’s death. The Court’s next conference is Thursday. “It’s a reasonable inference that the Court is going to go ahead and decide the case,” says Stephen Shapiro, partner at Mayer, Brown, Rowe & Maw and co-author of “Supreme Court Practice,” the leading guide to Supreme Court procedure. “It shouldn’t take this long for the Court to decide whether the case is moot.” Chemerinsky agrees, stating, “My guess — and of course, it is just a guess — is that if the Court were going to dismiss the case as moot, they would have done so.” Cole, too, says, “My speculation is that they will probably decide the case.” All three lawyers hedged their bets, however, noting that the Court is not under any deadline to respond and could, in its own unpredictable fashion, leave the parties guessing until a ruling is issued — or the case is dismissed, as late as the end of June. “I’d bet 10 cents there will be a decision,” said Shapiro. “And five cents that they’ll dismiss it.” One reason that the Court appears to be unfazed by Cochran’s death is that neither side told the Court outright that the dispute died along with Cochran. Cole said the portion of the injunction that keeps Tory from defaming Cochran himself is, in fact, moot because “there is no recognized cause of action for an injury to the memory of a deceased person’s reputation.” In other words, what Tory says about Cochran himself from now on could not result in a lawsuit, because dead people cannot sue for defamation. Tory, angered by Cochran’s handling of a civil rights suit in the 1980s, picketed outside Cochran’s law firm beginning 10 years later when Cochran became famous for his successful defense of O.J. Simpson. Tory’s signs called Cochran a liar and a thief. At Cochran’s request, a Los Angeles Superior Court judge in 2002 issued a broad injunction ordering Tory to stop his protests and not to “orally utter” any statements about Cochran or his firm — presumably forever. Cole did say in his filing that the injunction “continues to be necessary, valid and enforceable, because it does much more than prohibit post-death defamation of Cochran by Tory.” Cole said it serves as “an ongoing deterrent” to future efforts to interfere with Cochran’s law practice, which has survived his death. “Tory may well have the ability to cause potential clients to decide not to hire lawyers formerly associated with Cochran as counsel, if he is permitted to return to his unlawful conduct.” Cole suggested that California courts would be able to modify the injunction and evaluate it in light of Cochran’s death. In response, Chemerinsky called Cole’s filing “baffling” because it argues both that the injunction is moot and that it should continue in effect. “Both, of course, cannot be right.” Chemerinsky said “every part of the injunction” restricts First Amendment activities relating to Cochran’s firm as well as Cochran himself, which means it is still a threat for Tory’s free speech rights. “The continued restriction of petitioner’s speech about Cochran’s law firm is sufficient to create a live controversy.” He urged the Court to rule. First Amendment advocates are also hoping the high court will use the Cochran case to keep judges from issuing sweeping injunctions that amount to prior restraint of speech as a way to remedy alleged defamation. Keeping the case alive may be a good thing “given the important First Amendment issues at stake that the Court should address,” Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, wrote in a recent Legal Times column. O’Neil filed a brief in the case in support of Tory. In an interview Cole said, “I’m not particularly opposed to the court ruling in the case. It’s the Court’s call.” He added, “I think the Court wanted to make a statement about this kind of injunction, and it decided this was the forum to do it in.”

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