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

[nealric]

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).

You are misreading him. He's not saying the conference is the wrong vehicle to discuss the lawsuit. He's saying a lawsuit against Facebook is the wrong venue to address terrorism. Instead of going apeshit, the judge could have simply asked more probing questions, and probably gotten much more illuminating answers.

[jbagelboy]

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.

what's sadly not captured in the transcript is whether the monologues are continuous or whether there were pauses and what the general rhythm was. you guys are only reading the literal language of the transcript, but it's possible the judge paused for several seconds between his statements and the defense lawyer didn't respond quickly enough or left an awkward pause.

for example, I could see the judge asking, "how long have you been at the firm," which seems out of place, if his questions immediately prior received no response or a shuffling of papers or something.

as the junior associate, plugged in because the more senior person on the case couldn't make it, I could also see myself being at a momentary loss for words if a judge was asking me questions at a high level that I wasn't prepared to answer because I didn't want to misinform or jeopardize the position of the client. it's not totally improbable that rather than "not giving him a chance," the judge waited 10-15 seconds before following up with the question about the attorney's experience level.

[smallfirmassociate]

You are misreading him. He's not saying the conference is the wrong vehicle to discuss the lawsuit. He's saying a lawsuit against Facebook is the wrong venue to address terrorism. Instead of going apeshit, the judge could have simply asked more probing questions, and probably gotten much more illuminating answers.

Ah yes, you're right. I shouldn't try to post on the internet after a day like today. But I can see why I had the perspective I had, based on the circumstances. The judge all but said it twice that he felt defendant had an obligation to work with plaintiff on resolving the matter.

[Court]: Reality is that people are
communicating through the social media, and not just FaceBook,
and the outcome of these inquiries, whether it's on Google or
using FaceBook or whatever else is used in this day and age,
it has the potential of hooking people up to do very, very
dangerous, bad and harmful things to other people in terms of
international and domestic terrorism.
So shouldn't you be like working this out as opposed
to litigating it?

MR. BURCHER: [The "unfortunate" quotation]
...
[Court]So what I am asking you is don't you have
a social responsibility as a public citizen of the world to
find solutions to these plaintiffs' problems without having
these plaintiffs come here to me in Brooklyn to try to solve
their problems? That's what I am saying to you.

Pretty tough question to be asked on the spot, but it's in the context of an injunction and not simply damages, right? So in that case, and given the earlier statutory conversation, I think the question is fair. Would have been a good time for the attorney to argue briefly whether he thought the statute was applicable (like the other atty did) and mention he felt P's motion wasn't grounded in the law or whatever. Just kind of shutting down like he did ... I can see why the judge got upset. I'm guessing there were non-verbal cues as well as probably some history with the firm that they weren't taking these conferences seriously.

I see what you're saying regarding what the attorney meant, but I think the judge still has every right to expect an attorney who could make a real argument and shed light on whether Facebook was making any effort whatsoever to resolve the issue of the injunction outside of court instead of just sending a baby lawyer to basically say merely, "Well it's frivolous." That much can be ascertained from the briefs.

[A. Nony Mouse]

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.

what's sadly not captured in the transcript is whether the monologues are continuous or whether there were pauses and what the general rhythm was. you guys are only reading the literal language of the transcript, but it's possible the judge paused for several seconds between his statements and the defense lawyer didn't respond quickly enough or left an awkward pause.

for example, I could see the judge asking, "how long have you been at the firm," which seems out of place, if his questions immediately prior received no response or a shuffling of papers or something.

as the junior associate, plugged in because the more senior person on the case couldn't make it, I could also see myself being at a momentary loss for words if a judge was asking me questions at a high level that I wasn't prepared to answer because I didn't want to misinform or jeopardize the position of the client. it's not totally improbable that rather than "not giving him a chance," the judge waited 10-15 seconds before following up with the question about the attorney's experience level.

Yeah, I think mostly this all points to the Rorschach's test-like nature of the cold record.

[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.

what's sadly not captured in the transcript is whether the monologues are continuous or whether there were pauses and what the general rhythm was. you guys are only reading the literal language of the transcript, but it's possible the judge paused for several seconds between his statements and the defense lawyer didn't respond quickly enough or left an awkward pause.

for example, I could see the judge asking, "how long have you been at the firm," which seems out of place, if his questions immediately prior received no response or a shuffling of papers or something.

I think that's a fair point.

Look, the judge was clearly in the mood to lecture Facebook. The judge's attitude seemed to be: "Well, I know the plaintiffs' legal claims are probably weak, but I want to give Facebook a hard time about not voluntarily doing more to fight global terrorism." Part of my negative reaction to the judge is that I don't believe that such lecturing is appropriate or helpful. But, as others ITT have suggested, he's hardly the only district-court judge to do this sort of thing.

The amusing irony is that the KE partner who shows up at the next hearing will come armed with some BS speech about how FB is taking measured steps to work with law enforcement while also protecting the privacy rights of its users blah blah blah. The judge probably had a better chance of getting an honest answer from the associate.

[jbagelboy]

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.

what's sadly not captured in the transcript is whether the monologues are continuous or whether there were pauses and what the general rhythm was. you guys are only reading the literal language of the transcript, but it's possible the judge paused for several seconds between his statements and the defense lawyer didn't respond quickly enough or left an awkward pause.

for example, I could see the judge asking, "how long have you been at the firm," which seems out of place, if his questions immediately prior received no response or a shuffling of papers or something.

I think that's a fair point.

Look, the judge was clearly in the mood to lecture Facebook. The judge's attitude seemed to be: "Well, I know the plaintiffs' legal claims are probably weak, but I want to give Facebook a hard time about not voluntarily doing more to fight global terrorism." Part of my negative reaction to the judge is that I don't believe that such lecturing is appropriate or helpful. But, as others ITT have suggested, he's hardly the only district-court judge to do this sort of thing.

The amusing irony is that the KE partner who shows up at the next hearing will come armed with some BS speech about how FB is taking measured steps to work with law enforcement while also protecting the privacy rights of its users blah blah blah. The judge probably had a better chance of getting an honest answer from the associate.

that's probably true.

I sort of have the criticism of the judge from the reverse side, which is that labeling hamas as a terrorist organization -- I mean, okay, sure that's one interpretation -- but there's some hard-core pro-israel pandering here and the judge totally ate it. I'm jewish so I'm not really trying to tie garaufis to a trumpian anti-dreyfusard inspired global jewry conspiracy or anything but I probably take most offense to the vocal zionism of it all.

like I'd be much more proud of the K&E associate if he pointed out that maybe neo-imperialism plays as large a role as terrorism and islamic extremism in the ongoing conflict in that region and that facebook provides a much greater forum in volume for white supremacy, neo-conservatism, the patriarchy, global projection of white american culture values, ect., but then again he married into the DuPont family.

[rcharter1978]

isnt it weird how the K&E associate didnt but in and correct the judge when the judge said "KE sent a first-year associate here..."? i.e., "Your honor, I have practiced for 3 years, but this is my first year at KE"

Instead he just accepted it

Yeah it's not weird. When a federal judge is yelling at you about how your firm didn't send someone with experience, saying you have 3 years experience rather than one isn't going to help you.

I also suspect at that point the judge was madder than it appears in the transcript (he got triggered by the associate referring to terrorism as "unfortunate" or whatever).

It sounds like a perfect storm: 1) the judge was upset about the "unfortunate" comment, 2) this is a case in New York referencing terrorism, 3) he wanted to be able to pressure a partner into pressuring FB to make changes/encourage settlement.

[rpupkin]

There are a couple of updates today that I saw in the legal press. I can't copy-and-paste because of subscription/copyright issues, but here's the summary:

There's been a fair amount of criticism in the legal community of Judge Garaufis's handling of the hearing. The criticism generally falls into two categories. First, the profession should be encouraging--not discouraging--opportunities for associates. It's already hard enough for law firms to convince clients to give associates the chance to stand up in court. When Judge Garaufis publicly upbraided a law firm for sending an associate to a hearing, it increases the chances that clients will become even more intransigent about associate opportunities in the future. The other main criticism is that the client has the absolute right to use the counsel it wants; it's improper for a judge to refuse to hear from a barred attorney who represents a party.

In any event, KE and Garaufis made up today. At the rescheduled hearing (which was attended by both KE partners and FB counsel), Facebook apologized for not sending a partner at last week's hearing, and the judge apologized for his conduct toward the associate.

[stego]

There are a couple of updates today that I saw in the legal press. I can't copy-and-paste because of subscription/copyright issues, but here's the summary:

There's been a fair amount of criticism in the legal community of Judge Garaufis's handling of the hearing. The criticism generally falls into two categories. First, the profession should be encouraging--not discouraging--opportunities for associates. It's already hard enough for law firms to convince clients to give associates the chance to stand up in court. When Judge Garaufis publicly upbraided a law firm for sending an associate to a hearing, it increases the chances that clients will become even more intransigent about associate opportunities in the future. The other main criticism is that the client has the absolute right to use the counsel it wants, and it's improper for a judge to refuse to hear from a barred attorney who represents a party.

In any event, KE and Garaufis made up today. At the rescheduled hearing (which was attended by both KE partners and FB counsel), Facebook apologized for not sending a partner at last week's hearing, and the judge apologized for his conduct toward the associate.

Was the associate present at the rescheduled hearing?

[rpupkin]

There are a couple of updates today that I saw in the legal press. I can't copy-and-paste because of subscription/copyright issues, but here's the summary:

There's been a fair amount of criticism in the legal community of Judge Garaufis's handling of the hearing. The criticism generally falls into two categories. First, the profession should be encouraging--not discouraging--opportunities for associates. It's already hard enough for law firms to convince clients to give associates the chance to stand up in court. When Judge Garaufis publicly upbraided a law firm for sending an associate to a hearing, it increases the chances that clients will become even more intransigent about associate opportunities in the future. The other main criticism is that the client has the absolute right to use the counsel it wants, and it's improper for a judge to refuse to hear from a barred attorney who represents a party.

In any event, KE and Garaufis made up today. At the rescheduled hearing (which was attended by both KE partners and FB counsel), Facebook apologized for not sending a partner at last week's hearing, and the judge apologized for his conduct toward the associate.

Was the associate present at the rescheduled hearing?

Yes.

[kellyfrost]

There are a couple of updates today that I saw in the legal press. I can't copy-and-paste because of subscription/copyright issues, but here's the summary:

There's been a fair amount of criticism in the legal community of Judge Garaufis's handling of the hearing. The criticism generally falls into two categories. First, the profession should be encouraging--not discouraging--opportunities for associates. It's already hard enough for law firms to convince clients to give associates the chance to stand up in court. When Judge Garaufis publicly upbraided a law firm for sending an associate to a hearing, it increases the chances that clients will become even more intransigent about associate opportunities in the future. The other main criticism is that the client has the absolute right to use the counsel it wants; it's improper for a judge to refuse to hear from a barred attorney who represents a party.

In any event, KE and Garaufis made up today. At the rescheduled hearing (which was attended by both KE partners and FB counsel), Facebook apologized for not sending a partner at last week's hearing, and the judge apologized for his conduct toward the associate.

This may be the most well written post I have ever read on this forum. Rpupkin, you should summarize more news articles, current events, and do more posting in general. I truly enjoyed reading this.

[A. Nony Mouse]

There are a couple of updates today that I saw in the legal press. I can't copy-and-paste because of subscription/copyright issues, but here's the summary:

There's been a fair amount of criticism in the legal community of Judge Garaufis's handling of the hearing. The criticism generally falls into two categories. First, the profession should be encouraging--not discouraging--opportunities for associates. It's already hard enough for law firms to convince clients to give associates the chance to stand up in court. When Judge Garaufis publicly upbraided a law firm for sending an associate to a hearing, it increases the chances that clients will become even more intransigent about associate opportunities in the future. The other main criticism is that the client has the absolute right to use the counsel it wants; it's improper for a judge to refuse to hear from a barred attorney who represents a party.

In any event, KE and Garaufis made up today. At the rescheduled hearing (which was attended by both KE partners and FB counsel), Facebook apologized for not sending a partner at last week's hearing, and the judge apologized for his conduct toward the associate.

Both of those criticisms are fair. (Although does an individual associate represent Facebook or does K&E as an entity represent Facebook?)

[EncyclopediaOrange]

Both of those criticisms are fair. (Although does an individual associate represent Facebook or does K&E as an entity represent Facebook?)

If it's K&E, couldn't Facebook direct the firm to utilize associate time as much as possible to keep costs low?

[A. Nony Mouse]

Both of those criticisms are fair. (Although does an individual associate represent Facebook or does K&E as an entity represent Facebook?)

Even if it's K&E, couldn't Facebook direct the firm to utilize associate time as much as possible to keep costs low?

I'm sure they could, though to be honest that seems like a silly thing for FB to do in this case.

[EncyclopediaOrange]

Both of those criticisms are fair. (Although does an individual associate represent Facebook or does K&E as an entity represent Facebook?)

Even if it's K&E, couldn't Facebook direct the firm to utilize associate time as much as possible to keep costs low?

I'm sure they could, though to be honest that seems like a silly thing for FB to do in this case.

Oh I'm sure, I guess it just goes to the "counsel of choice" criticism.

[rpupkin]

Both of those criticisms are fair. (Although does an individual associate represent Facebook or does K&E as an entity represent Facebook?)

That may be a more complicated question than you realize, but the short answer is: both. In any case, there's no question that the associate who appeared in Court was representing Facebook.

[A. Nony Mouse]

Both of those criticisms are fair. (Although does an individual associate represent Facebook or does K&E as an entity represent Facebook?)

That may be a more complicated question than you realize, but the short answer is: both. In any case, there's no question that the associate who appeared in Court was representing Facebook.

Yeah, I agree. I was just curious how that worked (being a mere cog myself).

[los blancos]

He's clearly insecure about being in the eastern district, too.

Wat

[rustyburger2]

He's clearly insecure about being in the eastern district, too.

Wat

I think the CR is that the judge should have retaken and tried again for the southern district