Judge Slams K&E for Sending 1st Year Associate to Facebook Terror Hearing Forum

[nealric]

What an asshole judge. Attorney got to say roughly 3 things, all of which were cogent, before randomly getting lectured and shat on for no reason.

I agree here. The judge seemed to have already decided for the plaintiff's in the way he treated the parties. Maybe "unfortunate" was the wrong word, but that shouldn't be for the judge to decide.

Not only that, but it seems clear the judge is clueless about tech, and it sounds like the case would require a lot of technical testimony if it went to trial.

[A. Nony Mouse]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

[dixiecupdrinking]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

Yeah, reading the transcript, this really didn't seem that egregious. It is kind of a fuck you to the court not to send a partner to the very first appearance.

[RaceJudicata]

Didn't another federal judge not too long ago get pissed that the parties wouldn't let associates appear in court? I think those were routine status calls, and not the initial status/hearing.

[mjb447]

Didn't another federal judge not too long ago get pissed that the parties wouldn't let associates appear in court? I think those were routine status calls, and not the initial status/hearing.

http://abovethelaw.com/2016/03/proof-th ... velopment/

http://abovethelaw.com/2016/03/judge-de ... ssociates/

?

[Big Red]

They probably should have had someone over his shoulder, but yeah there really wasn't cause to start throwing rhetorical chairs around

LOL @ the swipe he took at the great republic of Texas

[shock259]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

Truth. This wasn't what my 1st year appellate advocacy class was like.

Thank god for transactional work.

[cron1834]

Maybe. But the fact that there are bigger assholes doesn't mean this guy isn't one.

[Anonymous User]

Garaufis is a nice guy: charming, witty, personable etc. But he does have a non-nonsense New Yorker streak that can come out sometimes. I think he went a little far here.

[rpupkin]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

I argue in federal court and I'm stunned that you're sorta defending the judge here. The judge was completely inappropriate. I thought the associate handled himself well.

[lavarman84]

Didn't another federal judge not too long ago get pissed that the parties wouldn't let associates appear in court? I think those were routine status calls, and not the initial status/hearing.

http://abovethelaw.com/2016/03/proof-th ... velopment/

http://abovethelaw.com/2016/03/judge-de ... ssociates/

?

This is reasonable. The judge here? Not so much.

[A. Nony Mouse]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

I argue in federal court and I'm stunned that you're sorta defending the judge here. The judge was completely inappropriate. I thought the associate handled himself well.

I'm not *defending* the judge, I'm just surprised people are shocked. I think the associate handled himself fine a
(apart from "unfortunate" but I'm not saying that was a major issue, just poor word choice), and that the judge has a problem with FB's approach to this case and was looking for an opportunity to rip into them. I just don't think it's an incredibly unusual situation.

[rpupkin]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

I argue in federal court and I'm stunned that you're sorta defending the judge here. The judge was completely inappropriate. I thought the associate handled himself well.

I'm not *defending* the judge, I'm just surprised people are shocked. I think the associate handled himself fine and that the judge has a problem with FB's approach to this case and was looking for an opportunity to rip into them. I just don't think it's an incredibly unusual situation.

The judge did not even give the associate a chance. As the judge knows (and as I imagine you know), there are many times when the Court would be better off hearing from a third-year associate who knows something about the case instead of from a partner who doesn't know what's going on. (Here, the judge actually solicited the latter, insisting that the firm send any partner.) And lol @ the notion that the K&E partners are in communication with "senior management" at FB. The partners are very likely communicating with in-house FB Attorneys, and the associate may have been speaking with those in-house attorneys as well.

No, this is not an unusual situation in the sense that certain judges can be mean and bullying. I guess we agree there. But I actually do think it's unusual for a judge to treat a junior attorney this way, particularly when the attorney did nothing to suggest that he was unprepared for the hearing.

[lurklaw]

This judge is a renowned asshole, apparently. He's the one who got slammed by the 2d Circuit in the FDNY quota case. And to add insult to injury, the 2d Circuit assigned the case to another judge on remand because this loser repeatedly demonstrated his inability to be neutral throughout trial. Good pick, Bill.

[tyroneslothrop1]

I'd characterize the comments regarding K&E generally, "I don't like what they are doing in Texas," to be bizarre rambling. Like what the fuck?

[jbagelboy]

Reading this transcript made my morning.

[jbagelboy]

I kind of feel like most people commenting here shocked about the judge haven't had to argue in court much?

I argue in federal court and I'm stunned that you're sorta defending the judge here. The judge was completely inappropriate. I thought the associate handled himself well.

I've interacted with judge garaufis many times and he's always been very friendly, charming, interesting, and generally non-sociopathic. Maybe he's just stopped caring, but I also wouldn't be shocked if there was something else to this story.

[smallfirmassociate]

From reading this thread, I figured the judge was in the wrong, but after reading the transcript, I understand his frustration. The defense attorney's first substantive statement started:

MR. BURCHER: Your Honor, I believe our position is that terrorism is an extremely unfortunate circumstance --

The "unfortunate" thing isn't even the rub. When an attorney says "I BELIEVE OUR position is...," ugh. The most disrespectful thing to a judge is to send an attorney who is not capable of fully participating in a conference. A total waste of time.

In his second answer, after a lengthy question by the court, the young associate says: "Nonetheless, this case is not the
proper vehicle in order to address those concerns."

Pretty sure at this point the judge is getting pissed. The judge asked a question; he wants an answer, not to be told not to worry about it. So then it goes:

Because if there is they ought to be doing it
because it's probably a lot more effective to do it that way
if you are agreeable to give this kind of issue immediate and
sincere attention. Because you have a lot of talent over
there at FaceBook and there are things you could do that
wouldn't involve a court, let's say the judicial system.
That's what I am saying.
How long have you been with this law firm?
MR. BURCHER: One year, your Honor.
THE COURT: One year: I don't disparage your
brilliance. I'm sorry. Kirkland & Ellis sent a first-year
associate to United States District Court to talk to a federal
district judge about this case. You are admitted in this
court, right?
MR. BURCHER: Yes, your Honor.
THE COURT: Right. You are admitted.
You tell your folks back at Kirkland & Ellis that I
don't much like the idea that they think so little of this
court that they didn't send a partner here to talk about this
kind of a problem which implicates international terrorism and
the murder of innocent people in Israel and other places.
MR. BURCHER: Yes, your Honor.

I really don't see where the judge was wrong. It is a permissible -- even encouraged -- role of the judge to identify issues and encourage settlement. Defendant frustrated that purpose by sending a junior attorney who told the court he didn't even want to talk about settlement because "this case is not the proper vehicle to address those concerns."

I had a similar issue in practice (luckily I was on the right side), and there is a federal court rule about sanctions against a party who frustrates the purpose of a case management conference. It's been years, but that would seem to apply. I believe the judge was in the right; the issue wasn't just the associate's position, but his conduct and answers that were frustrating the purpose of settlement.

[smallfirmassociate]

The judge did not even give the associate a chance.

Yes he did. The judge asked whether this is something Facebook should be addressing in its company based upon the social damage this problem can cause, including loss of life, and the attorney basically told the judge no and to fuck off and that this case isn't the proper vehicle for that (basically for a settlement that would change Facebook's policies). That comment frustrated the legitimate purposes of pre-motion conferences in federal court. The judge then tried (rather patiently, IMO, given that an associate attorney just told the judge what was/n't appropriate in a federal court conference AND WAS WRONG ABOUT IT) to explain how lawsuits can spur discussion and settlement, but the associate was obviously just there to delay, obfuscate, and not move forward the case. That's sanctionable conduct and the judge appropriately called it out.

[smallfirmassociate]

could have been joking about the AOL thing -- humor/sarcasm never translates to writing, especially court transcripts. More likely, though, this judge is insane and gets triggered at everything.

He definitely was joking. He was very collegial with plaintiffs' counsel throughout and obviously knows him.

[nealric]

From reading this thread, I figured the judge was in the wrong, but after reading the transcript, I understand his frustration. The defense attorney's first substantive statement started:

MR. BURCHER: Your Honor, I believe our position is that terrorism is an extremely unfortunate circumstance --

The "unfortunate" thing isn't even the rub. When an attorney says "I BELIEVE OUR position is...," ugh. The most disrespectful thing to a judge is to send an attorney who is not capable of fully participating in a conference. A total waste of time.

In his second answer, after a lengthy question by the court, the young associate says: "Nonetheless, this case is not the
proper vehicle in order to address those concerns."

Pretty sure at this point the judge is getting pissed. The judge asked a question; he wants an answer, not to be told not to worry about it. So then it goes:

Because if there is they ought to be doing it
because it's probably a lot more effective to do it that way
if you are agreeable to give this kind of issue immediate and
sincere attention. Because you have a lot of talent over
there at FaceBook and there are things you could do that
wouldn't involve a court, let's say the judicial system.
That's what I am saying.
How long have you been with this law firm?
MR. BURCHER: One year, your Honor.
THE COURT: One year: I don't disparage your
brilliance. I'm sorry. Kirkland & Ellis sent a first-year
associate to United States District Court to talk to a federal
district judge about this case. You are admitted in this
court, right?
MR. BURCHER: Yes, your Honor.
THE COURT: Right. You are admitted.
You tell your folks back at Kirkland & Ellis that I
don't much like the idea that they think so little of this
court that they didn't send a partner here to talk about this
kind of a problem which implicates international terrorism and
the murder of innocent people in Israel and other places.
MR. BURCHER: Yes, your Honor.

I really don't see where the judge was wrong. It is a permissible -- even encouraged -- role of the judge to identify issues and encourage settlement. Defendant frustrated that purpose by sending a junior attorney who told the court he didn't even want to talk about settlement because "this case is not the proper vehicle to address those concerns."

I had a similar issue in practice (luckily I was on the right side), and there is a federal court rule about sanctions against a party who frustrates the purpose of a case management conference. It's been years, but that would seem to apply. I believe the judge was in the right; the issue wasn't just the associate's position, but his conduct and answers that were frustrating the purpose of settlement.

He didn't articulate it artfully, but I think he articulated a clear position sufficient to provide a reasonable explanation for why Facebook was not prepared to settle. The company recognizes the grievous nature of the injuries, but does not believe those injuries are properly redressed by Facebook because the connection between Facebook and the injuries is too attenuated.

[smallfirmassociate]

He didn't articulate it artfully, but I think he articulated a clear position sufficient to provide a reasonable explanation for why Facebook was not prepared to settle. The company recognizes the grievous nature of the injuries, but does not believe those injuries are properly redressed by Facebook because the connection between Facebook and the injuries is too attenuated.

Where did he say anything about attentuation of damages or proximate cause or anything else? His answer was that this case was not the proper "vehicle." That's flat out incorrect and a misstatement of the rules. The associate said this:

Your Honor, I understand the concern
about the moral obligation here, and that this is a case that
the plaintiffs have stated a number of allegations about
international terrorism, including that of Hamas, are
unfortunate and concerning. Nonetheless, this case is not the
proper vehicle in order to address those concerns.

The judge realized that this kid doesn't respect the rules of the court, but just because he doesn't understand them. These conferences are specifically the correct vehicles to address issues of resolution outside of trial. Obviously he was in over his head. The judge then explained why this is an appropriate "vehicle" and then said this:

You tell your folks back at Kirkland & Ellis that I
don't much like the idea that they think so little of this
court that they didn't send a partner here to talk about this
kind of a problem which implicates international terrorism and
the murder of innocent people in Israel and other places.

It's been a while since I read the rules, but isn't the judge correct here?

p.s. When a judge asks you a question, don't tell him you're not going to answer it because it's not the right place (unless it one of a few select motions in front of a jury).

[rpupkin]

The judge did not even give the associate a chance.

Yes he did. The judge asked whether this is something Facebook should be addressing in its company based upon the social damage this problem can cause, including loss of life, and the attorney basically told the judge no and to fuck off and that this case isn't the proper vehicle for that (basically for a settlement that would change Facebook's policies). That comment frustrated the legitimate purposes of pre-motion conferences in federal court. The judge then tried (rather patiently, IMO, given that an associate attorney just told the judge what was/n't appropriate in a federal court conference AND WAS WRONG ABOUT IT) to explain how lawsuits can spur discussion and settlement, but the associate was obviously just there to delay, obfuscate, and not move forward the case. That's sanctionable conduct and the judge appropriately called it out.

You litigate in a different world than I do. ("His conduct and answers that were frustrating the purpose of settlement." Huh?)

Facebook's position is that the lawsuit is without merit. They're under no obligation to settle. It's absurd to suggest that the attorney's conduct was sanctionable.

[smallfirmassociate]

The judge did not even give the associate a chance.

Yes he did. The judge asked whether this is something Facebook should be addressing in its company based upon the social damage this problem can cause, including loss of life, and the attorney basically told the judge no and to fuck off and that this case isn't the proper vehicle for that (basically for a settlement that would change Facebook's policies). That comment frustrated the legitimate purposes of pre-motion conferences in federal court. The judge then tried (rather patiently, IMO, given that an associate attorney just told the judge what was/n't appropriate in a federal court conference AND WAS WRONG ABOUT IT) to explain how lawsuits can spur discussion and settlement, but the associate was obviously just there to delay, obfuscate, and not move forward the case. That's sanctionable conduct and the judge appropriately called it out.

You litigate in a different world than I do. ("His conduct and answers that were frustrating the purpose of settlement." Huh?)

Facebook's position is that the lawsuit is without merit. They're under no obligation to settle. It's absurd to suggest that the attorney's conduct was sanctionable.

He could have permissibly stated that the suit is without merit; that's a fine position (assuming the pending motion is a dispositive pre-trial motion). But that's not what he said. At least that's not how the judge took it, and not how I took it.

Regardless, whether he took an impermissible or sanctionable position, or whether he just couldn't articulate his (errr "our") position for shit, the judge is right either way.

[dixiecupdrinking]

I think it's pretty clear he was trying to say the lawsuit, being non-meritorious, is not the correct "vehicle" for changing Facebook's policies with respect to allowing certain kinds of communications. Not that the conference was not the correct "vehicle" for discussing the judge's concerns. He would have gotten there if the judge gave him some leash for inartful phrasing, which seems only reasonable given that the guy was probably nervous as hell.

That said, the judge decided immediately he didn't want to give this kid a chance, which seems totally fair and unobjectionable to me, since his beef is clearly with Kirkland and not the associate.