No-nonsense judge, and how it maps to the charter

I cannot lie. There's an eleven minute audio track of a pissed off judge dressing down two lawyers for being unprepared and sloppy. A third lawyer apparently paid attention, didn't try to get cute, and said she was just there in case. It's great fun.

Anyway ... this case is about a prison guard who raped and choked a woman, then was sent to prison. She sued him and his employer, the state prison, for damages. The guard refused to participate, the judge threw out some of her future income claims against the guard for lack of documentation, and held his employer not at fault, it was just the guard. She got $4 million. On appeal, her lawyer didn't document her thrown-out income claims as told to, in fact made it worse, and wanted to talk about the dismissed claims against the employer. The judge cut him short for not having addressed that aspect in his written brief. It only goes downhill from there.

This is the case; one of the comments links to part of the audio.

(There's about a 45 second pause right after the first words; you can skip ahead to roughly 0:50)

Charter redress would handle some of this similarly, although the procedures are so different that any mapping is pretty tenuous. A charter appeal, for instance, is all about defects in a prior verdict; fresh evidence reopens the original case instead of filing an appeal.

• Here, where the lawyer was told his future income documentation was incomplete, he fudged the numbers and made it even worse. Charter redress would call that malingering for wasting time, and if he insisted on his new figures, that could be perjury. Same end result, different procedures.

• The employer aspect is harder to say. US judicial practice holds employers liable for all sorts of things their employees do, no matter how criminal and how much it violates the employer's own rules, probably because that's where the money is. However, this employer is a state prison, and prisons are somewhat notorious for mistreating prisoners and letting guards off with a slap on the wrist at most. The trial judge had thrown out the employer claims for the usual reasons, which frankly always smell a bit fishy to me, but that's what happened. The appeal lawyer did not include the employer claims in his written appeal, then tried to bring it up when talking to the appeal judge, and the judge chewed him out for such a simple Law 101 mistake. Charter redress is all those face-to-face negotiations, and any prison which turned a blind eye to misbehaving guards would soon be bankrupt. But suppose the victim did bring it up, the employer convinced the victim they had not condoned or known of his behavior, and she dropped them from her complaint with a verdict just for them; and then, days later, she tried to bring them back in again for the same reason. Without fresh evidence, that would be perjury.

We entertain supplemental briefs on questions that appellate judges introduce into a case or issues that arise after the opening brief was filed. But when the district court decides a case on a particular ground, that subject must be addressed in the appellant's opening brief, if appellant wants it reviewed.

Apparently the original trial lawyer (Seifert) didn't like being dressed down like a piss poor law school dropout, and wanted to claim slander against the trial judge. This verdict isn't having any of that nonsense either, and he got schooled a second time.

Seifert's work in this litigation falls far short of professional standards. Yet he went on the offensive in his appellate brief. While ignoring the ground on which his client lost the scope-of-employment issue, Seifert asserted that "[t]he [district] Judge's unfounded accusations of Attorney Seifert of ethical violations and attempts to deceive the lower court were slanderous and improper and should be stricken from the Record."

Seifert does not explain just how we are to "strike" language from the district judge's opinions, which are available to the public via the PACER system as well as Westlaw and Lexis. Are we also supposed to enjoin newspapers from publishing judicial language?

How much is judges sticking up for judges, I do not know. The poorly-documented, then worse-documented, future money claims would be malingering for the waste of time, and perjury for not correcting his figures as he agreed to do when his first figures were rejected.

One part puzzles me. The future medical cost claims extend over a 40 year period — a lifetime! It's not at all clear what this is for — permanent physical injury from the rape and choking? Mental trauma? For that matter, where is the $4 million coming from? Thus the legacy urge to sue employers for their deep pockets. Chartertopia would handle that by insurance, since not only is a convicted rapist unlikely to have that kind of money lying around, he's unlikely to ever get a job good enough to pay a lifetime of rape victim medical costs, and if he dies before her, who else can pay? Sure can't pass on debts as if inherited.