JUDGE TURNS TO SCALIA FOR LESSON ON CIVILITY
One federal appellate judge is reading closely books by Justice Antonin Scalia and Bryan Garner. In a footnote in Nissim Corp. v. ClearPlay Inc., Judge Jimmie Reyna of the U.S. Court of Appeals for the Federal Circuit recently strongly chastised lawyers in that patent infringement case, writing, “The excessive hyperbole in the briefs makes them difficult to take seriously and unpleasant to read, and strips both parties of their credibility.”The parties characterized each other’s arguments, for example, as “moan[ing],” “absurd,” “bias-inducing screed,” “a massive waste of judicial time and resources,” “inexplicable,” “strange” and “baffling.” He said the parties would be “well advised” to heed Scalia and Garner in Making Your Case: The Art of Persuading Judges, where they wrote: “Cultivate a tone of civility, showing that you are not blinded by passion. A straightforward recital of the facts will arouse whatever animosity the appellate court is capable of entertaining, without detracting from the appearance of calm and equanimity that you want to project.” — Marcia Coyle
IN ‘THE NETWORK,’ TOP ATTORNEYS TELL ALL
In a Washington museum famous for its portraits of U.S. presidents and other notables, some of the nation’s top legal minds alive today are now on display.
The Smithsonian Institution’s National Portrait Gallery last week debuted “The Network,” a single-screen video portrait that uses software to combine similar topics from interviews artist Lincoln Schatz conducted with 89 lawyers and other influential Americans.
Former U.S. Supreme Court justices John Paul Stevens and Sandra Day O’Connor, as well as U.S. Court of Appeals for the D.C. Circuit Judge David Tatel and Seventh Circuit Judge Diane Wood, sat for the piece. Harvard Law School professor Laurence Tribe and University of Chicago Law School professor Geoffrey Stone also took part in the video portrait.
And Williams & Connolly partner Robert Barnett, Hogan Lovells partner Robert Bennett, Patton Boggs chairman Thomas Boggs Jr., Brownstein Hyatt Farber Schreck chairman Norman Brownstein, Akin Gump Strauss Hauer & Feld senior counsel Vernon Jordan Jr., DLA Piper partner and chairman emeritus George Mitchell and Arnold & Porter senior counsel Stephen Porter participated, too. — Andrew Ramonas
HONORS CASE BACK IN D.C. CIRCUIT
Six years ago, top U.S. Justice Department officials used political and ideological affiliation to screen potential candidates for attorney slots in the coveted Honors Program. A lawsuit flowing from that misconduct has kicked around ever since, and now the case is back in the U.S. Court of Appeals for the D.C. Circuit. On December 13, the plaintiffs’ lawyer, Daniel Metcalfe, urged judges Merrick Garland, Judith Rogers and Thomas Griffith to revive the suit. John Bates, a federal trial judge, said the case “arises from a dark chapter” at DOJ, but in the end he dismissed the privacy claims. The department, Metcalfe argued, was obligated to preserve the “deselection papers” — including the information DOJ gleaned from Internet searches about the applicants. DOJ officials “cavalierly destroyed” files that should have been kept for at least two years, said Metcalfe of the Collaboration on Government Secrecy at American University Washington College of Law. DOJ’s Daniel Tenny didn’t defend the malfeasance, but he argued there’s no indication the records caused any injury to the plaintiffs. Metcalfe said the plaintiffs look forward to “a judgment that serves as a strong deterrent.” — Mike Scarcella
February 2013 will mark four years on the job for Attorney General Eric Holder Jr. — assuming he sticks around until then as the top lawyer at the U.S. Justice Department. Holder hasn’t yet offered up any extended explanation of his government service plans. Last week, at an event at the John F. Kennedy Presidential Library and Museum in Boston, Holder again said he doesn’t want to remain at DOJ for another four years. But he didn’t give any clues about when he’ll call it quits. “I’ve got work that I still want to do,” Holder said. “I’m not going to be the Janet Reno of the Justice Department, who served two full terms.” Back in November, Holder told Ronald Weich, dean of the University of Baltimore School of Law that he wasn’t interested in spending another four years at DOJ. “I do not want to be the Cal Ripken,” Holder told Weich, making reference to the legendary Baltimore Orioles infielder who holds the professional baseball record for most consecutive games played. At the speech in Boston, on December 11, Holder trumpeted DOJ’s work in the civil rights arena, in particular the fight over the protection of voting rights. Section 5 of the Voting Rights Act, Holder said, “remains an indispensable tool for eradicating racial discrimination.” — Mike Scarcella
Former Ukrainian Prime Minister Yulia Tymoshenko’s legal rights were violated during her 2011 abuse-of-power trial, a team from Skadden, Arps, Slate, Meagher & Flom concluded following a recent investigation sponsored by the Ukrainian government, Partner Gregory Craig led the probe, which resulted in a 303-page report. The report was made public last week. “Under Western standards, Tymoshenko’s lack of counsel at critical stages of her criminal trial likely constituted a violation of her due process rights,” the report says. Tymoshenko’s challenges to the court’s legitimacy, however, likely would have warranted sanctions and contempt charges in Western courts, the report found. — Matthew Huisman
Another week, another development in the legal saga of former D.C. Council Chair Kwame Brown. This time, though, Brown got some closure (sort of). The U.S. attorney’s office announced on December 13 that it had ended its criminal investigation into Brown’s 2008 campaign. The probe, which began after the Office of Campaign Finance referred the case to prosecutors in July 2011, led to Brown’s resignation and guilty plea this year to charges of violating campaign finance laws and bank fraud. U.S. Attorney Ronald Machen Jr. recently noted that it was the first criminal enforcement of the 35-year-old campaign finance law at issue. Although the criminal side is closed, Machen warned that Brown wasn’t off the hook. The Office of Campaign Finance’s administrative case is still open, he said, and officials are still feel free to pursue civil penalties. Brown’s attorney, Frederick Cooke Jr. of Washington’s Rubin, Winston, Diercks, Harris & Cooke could not be reached for comment. — Zoe Tillman
Veteran U.S. Supreme Court litigator Paul Smith has rejoined the board of the American Constitution Society for Law and Policy. Smith, head of the Supreme Court and appellate practice at Jenner & Block, said he was happy to serve again for the ACS. He previously served on the board for six years and served as chairman for part of that time. “I think it’s an important organization with a role to play,” he said. Best known for his victory in the landmark gay rights case Lawrence v. Texas, Smith also has ties to other progressive groups, including a past stint as co-chairman at Lambda Legal. The ACS announced three other new board members: Harvard Law School professor Nancy Gertner; University of North Carolina School of Law professor William Marshall; and University of Chicago Law School professor David Strauss. — Todd Ruger