The American Bar Association hs been reviewing proposed judges’ qualifications for decades. The President nominates a federal judge, and the ABA reviews and assigns a rating. For the first time since 2006, it has publicly rated a judge “not qualified.” It found Leonard Steven Grasz, a Nebraska lawyer, unqualified for the the position of judge on the Eighth Circuit Court of Appeals. The ABA’s standing committee found that it did not believe Mr. Grasz could set aside a “passionately held social agenda” to respect precedent, including Roe v. Wade. See ABA Bar Journal report here and here.

Some senators, such as Ted Cruz, respond that the ABA is a liberal advocacy organization. Cough Cough. No, not quite. The ABA is composed of hundreds of volunteer lawyers who’s serve in various capacities. The ABA is composed of dozens of various volunteer committees and organizations. Yes, some activities or committees of the ABA are more liberal than others. But, the standing committee on judicial nominations is not and never has been. It is a nonpartisan committee. It is unfortunately a reflection of these very partisan times that the President has been nominating some extremist judges.

The standing committee on judicial nominations has assigned four not qualified ratios so far this year out of 53 nominations. The ABA standing committee has found other judges not qualified in years past, but sometimes, those nominations were withdrawn and the “not qualified” rating was not made public.This is the first time since 2006 that the “not qualified” rating has been made public, not just with Mr. Grasz but with three other nominations. Ultimately, it will be the American public who will suffer when they have to appear in front of marginal judges.

Among Pres. Trump’s recent nominations for a judgeship is Brett Talley, Harvard graduate, and conservative blogger. He is rated as “not qualified” by the American Bar Association standing committee on judicial nominations. The committee’s vote to rate him not qualified was unanimous. He is also a paranormal investigator, a ghost hunter. He is young for a judge at 36 years old. He has only practiced law for three years. He has never appeared in court for trial. See BBC news report. He has never tried a case. If he is confirmed, as seems likely, he will go from being an intern to performing brain surgery.

Mr. Talley is a member of the Tuscaloosa Paranormal Research Group. That apparently means he and others will go sit in spooky houses all night and observe activity. They apparently seek rational explanations for strange events. So, we can expect they apply some science to things that go bump in the night.

Still, I do not know whether to laugh or to cry. A judge who has never tried a case, but who has searched extensively for ghosts. Is a law degree necessary anymore? Is Jethro Bodine available? After all, Jethro “done gradee-ated” from 6th grade and moved to Beverly Hills with his Uncle Jed Clampett.

Filing suit in federal court is different. Federal court differs from state court in some key respects. One of these respects concerns attorney withdrawal. In state court, most judges would quickly grant a motion to withdraw. Not so in federal court. In GDC Technics, Ltd. v. Grace, No. 15-CV-488-ML, the Defendant’s counsel asked to withdraw. The motion to withdraw indicates the law firm would suffer financial hardship if the motion was not granted. That assertion suggests the firm was not being paid by the Defendant. The Plaintiff opposed the motion because 1) the trial date was about two months away, and 2) there was a corporate co-Defendant. J.R.G. Design, Inc. cannot appear in court without an attorney. Since Mr. Grace has not paid his current lawyer, argued the Plaintiff, then it is unlikely he would find a new lawyer. Thus, the corporate Defendant would have to be dismissed from the lawsuit, or a default judgment would have to be entered against it.

The Judge agreed. In a Feb. 10, 2017 decision, the court found that if granted, the status of the corporate defendant would be very problematic. Mr. Greace himself could appear in court pro se, but the corporate defendant could not. The court noted the law firm had represented the Defendant for well over a year. It seemed unlikely that the Defendant would be able to hire new counsel now.

A couple of months later, the same law firm, the Snell Law Firm, asked again to withdraw, citing some $44,000 in unpaid bills. The law firm noted that the client appeared to have funds with which to hire new counsel. The claims against Mr. Grace had been dismissed. The only remaining Defendant was J.R.G. Design. And, noted the Snell law firm, the parties had entered into a Joint Notice of Settlement. All the corporate Defendant had to do was settle the case. And again, the Plaintiff opposed the motion. The Court agreed with the Plaintiff. Finalizing a settlement agreement and transferring the disputed property would not require much time from the law firm. The Court did note that the conduct of Mr. Grace did appear to have caused additional work for his lawyers. So, if the remaining work became too much, the Court agreed it would re-hear the motion to withdraw. The Court noted that the Plaintiff had filed a motion seeking sanctions due to conduct of Mr. Grace. The Court seemed to be signaling its willingness to release the law firm if Mr. Grace mis-behaved.

That is the different between state and federal court. Bad behavior will have consequences much sooner in federal court. Another lesson appears in this decision, playing nice counts in lawsuits.

 

Coach Bev Kearney’s lawsuit has returned back to the trial court. She will soon start deposing various officials, including former Coach Mack Brown. She also plans to depose former school president, Bill Powers and former Athletic Director, DeLoss Dodds.

I previously wrote about her lawsuit here. Coach Kearney alleges she received harsher discipline in 2013 because she is black. Coach Kearney claims that other white coaches were given second chances for a similar offense. The coach was fired when a relationship with a student came to light. The university has spent $500,000 defending against the lawsuit so far. That is a shame, since the lawyers appear to have committed a serious error during the appeal. But, the university will have additional opportunities to make their point, that comparing discipline will not work when the supervisor in each situation as different.

 

In criminal law, a suspect has the right to request a lawyer. Everyone who watches any of the CSI shows would know that. But, what happens when the request for lawyer is not clear? In Demesme v. State of Louisiana, the suspect was being interrogated. At some point, he said, “. . . so why don’t you just give me a lawyer dog?” Or, did he say, ” . . . so why don’t you just give me a lawyer, dawg?” The Louisiana Supreme Court was confused. It found the request was ambiguous.

Mr. Demesme said, “If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” The defendant filed a motion to suppress evidence acquired after he made his request for a lawyer. He argued that any evidence obtained pursuant to this interrogation should not be used at trial. The Louisiana Supreme Court found that the defendant’s motion to suppress should be denied. The court explained that referring to a “lawyer dog” is not an unequivocal request for a lawyer. See ABA Bar Journal report.

Of course, the problem with that reasoning is that whether he said “give me a lawyer, dawg,” or he said “give me a lawyer dog,” he is still asking for a lawyer.

A woman was bicycling near Pres. Trump’s golf course in New Jersey happened upon the President’s motorcade. She could have swerved to avoid the traffic. But, realizing this was the President’s motorcade, she rode along and flipped off the President. She expressed her views. She engaged in the great American past-time, public protest, if a bit profane. She was then fired from her marketing position at Akima LLC. The employer explained that it is company policy to fire persons who post profane pictures on Facebook. See CNN news report. The picture went viral on social media. Nothing indicates she posted the picture herself. But, Juli Briskman seems to have expected she would likely be fired.

But, wait, isn’t she protected by the First Amendment? No, persons employed in the private sector do not have First Amendment rights. The First Amendment applies to actions taken by state and local governments. Private employers can indeed squash our free speech. But, you get the impression she felt it was worth it.

 

Former Texas Tech coach Mike Leach is still after the pay he believes he was owed. I wrote about his lawsuit against Texas Tech here and here. He seeks $2.4 million, including $1.6 million for a buyout clause. Under the terms of the buyout clause, he would be entitled to $1.6 million if he was fired without cause. Coach Leach recently hired a former news reporter to create a publicity campaign to help pressure the university. See Ft. Worth Star Telegram report. But, the thing is the school had pretty good cause to fire him., He had abused the son of an ESPN analyst, Craig James. Mr. James was also a former star running back at SMU and in the NFL. The coach might disagree whether the treatment of the young Adam James was abuse. But, the employer gets to make that call, not the employee.

He tried to sue his former employer for breach of contract. But, like most states, Texas has a law that a state cannot be sued unless it has given permission. And, it has never passed any sort of law that would allow a former coach to sue for breach of contract. He apparently feels like he was cheated in some way. But, everyone who deals with the state incurs that risk. Coach Leach is also a law school graduate. He may feel he has some inside knowledge. If so, it has not worked for him, yet.

Too, Coach Leach, while still employed at Texas Tech reportedly told his boss, the school President, to go f— himself. That sort of remark does tend to cause issues with management.

The thing about Bowe Bergdahl is why was he even in the Army in the first place? It is near suicide to walk off a FOB with no weapon and no protective gear. Yet, that is exactly what he did before he was captured by the Taliban. He had washed out of Coast Guard basic training after only three weeks. Coast Guard training is not as easy as some think it is, or so says Task & Purpose. But, being rejected from any of the services’ basic training suggests he was not ready for the Army and deployment. The Coast Guard psychiatrist who saw him recommended that he be evaluated first before any of the military services choose to accept him. That ought to have served as a major red flag. The Coast Guard diagnosed him with “adjustment disorder with depression.” In layman’s language, that means he did not adjust well to changing circumstances. Nothing changes more often or more quickly than a war zone.

He had an episode in the Coast Guard basic training in which he simply broke down. In the middle of the night, it appeared that he had gone into the latrine and smashed his face into the mirror. There was a lot of blood. When the trainees found  him, he was balled up and crying.

In 2008, the Army was struggling to meet its annual quota of recruits. They waived many entry requirements. According to Task & Purpose, the Army granted waivers to 20% of the new recruits that year. That was way above the normal 4-5%. Waivers are typically given for everything from convictions to excessive weight to psychological issues. See Task & Purpose report. Some of the waiver recruits actually do very well. But, studies have shown that many of the recruits who enter with a waiver are later problem soldiers. Certainly, Bowe Bergdahl was.

And, now it turns out the judge gave SGT Bergdahl no time in prison for his offense, apparently viewing his 5 years as a POW prison enough. He will lose his stripes, which is a big deal to most NCO’s. He will have to pay $10,000 out of his pay. See CBS News report. I know he did not intend anyone to get hurt looking for him. With his mental state, perhaps he did not realize soldiers would be looking for him. But, sure, for months no one knew what happened to him. Of course, they would move mountains to find him. Shame on him for bringing that on all the soldiers in his area of operations. I do not know what to think. He certainly suffered as a POW. But, he caused a great deal of suffering for his fellow soldiers.

 

There are reasons why Presidents never comment on pending criminal prosecutions. Anything they say will be amplified across the country and could undermine the prosecution. But, precedent never hinders Pres. Trump. Two days after the attack in New York City, Pres. Trump called for the attacker to be given the death penalty. He called for “strong” justice. Certainly, if anyone deserves “strong” justice, it is Sayfullo Habibullaevic Saipov. He killed eight people with a rental truck. But, in making those comments, Pres. Trump actually makes it more difficult to achieve those aims. Defense lawyers will not hesitate to ask for a change in venue if the local jury pool is tainted. But, since the publicity about the attacker and the President’s comments are national, there may not be a jury pool that is not tainted.

As one former federal prosecutor said, “Mr. President, your tweet takes it harder for DOJ to impose the death penalty, not easier.” See CNN news report.

But, this is what happens when you have a President who is anxious to change the topic of the news day.

Arbitration is becoming more and more a significant feature of the legal landscape. Arbitration is a creature of contract. Whatever the parties agree to becomes the arbitration. What if the parties agree to arbitration, but then allow some form of appeal? In a recent decision, the Fourth Court of Appeals wrestled with that question. In Methodist Healthcare System v. Friesenhahn, No. 04-16-00825 (Tex.App. San Antonio 10/11/2017), the employer invoked arbitration. But, the arbitration did not go as the employer had hoped. The arbitrator awarded the employee almost $214,00 in damages and $170,000 in attorney’s fees. So, the employer got creative and filed a motion to vacate the arbitration award. Methodist Hospital argued that the arbitration agreement provided for expanded judicial appeal. It pointed to a small number of cases that recognized arbitration agreements that provided for appeals of decisions which contain reversible error. That is, they sought to appeal the arbitration decision based on traditional litigation type appeals. For example, in one section, the agreement states that the arbitrator will apply the same law as would a judge in court. The employer argued this meant reversible error would be grounds for appeal.

But, no, the Fourth Court was not going there. The court of appeals discussed the provisions cited by the employer. It said those provisions do not provide for an expanded appeal. They simply explain that the arbitral forum is simply another forum. The same legal theories apply in arbitration and apply in court. To provide expanded judicial review, the agreement would have to apply limitations on the arbitrator’s authority. For example, noted the appellate court, the agreement could have incorporated a reference to reversible error. It did not include any such reference. See the decision here.

The employer wanted arbitration. It drafted the arbitration agreement and then invoked the agreement when the plaintiff field suit. But, in the end, the employer found arbitration was not what it wanted, after all. Be careful what you ask for. You just might get it.