Lawyers and non-lawyers alike chuckled this week when a federal judge in Texas blasted attorneys –and one attorney in particular — from the Department of Justice in Washington, D.C.
Hughes thundered, “If the pretentious lawyers from ‘main’ Justice knew what they were doing — or had the humility to ask for help from the United States Attorney for the Southern District of Texas — it would not have taken three days, seven telephone calls, three voicemail messages, and one snippy electronic message for them to indirectly ask the court for assistance in ordering a transcript.”
This story displays two elements of the culture of the federal criminal justice system. The first is obvious: federal judges, who enjoy lifetime tenure and are almost never impeached, behave pretty much however they want. The black robe tends to amplify preexisting foibles; a bad temper, free from rebuke and guaranteed lifetime employment, grows steadily from an occasional peccadillo to a notorious habit. Fortunately, once you have reached a certain point in your career, being yelled at by a federal judge is merely bracing, like a brisk walk on a cold morning.
But another cultural truth lurks. There are two types of federal prosecutors: Assistant U.S. Attorneys who work at, and for, the 94 U.S. Attorney's Offices across the country, and the Assistant U.S. Attorneys who work in Washington D.C. at "main justice." The "main justice" attorneys often work in specialized and elite units, and frequently travel about the country "supervising" their cases. Those cases might involve terrorism, or civil rights, or political corruption. This can result in tension between main justice and the local prosecutors. To grotesquely overgeneralize, main justice can see the locals as hicks who don't know how to run "elite" cases, and locals can see main justice as arrogant, not as good as they think they are, and both clueless about and indifferent to local practices.
These are exaggerations, but there are occasional examples. About 20 years ago I was a young AUSA in Los Angeles, assigned to the "Complaints" division. Complaints handled intake, complaints, and search warrants on run-of-the-mill cases that didn't already have a federal prosecutor assigned. One day a team from main justice swept in seeking a search warrant on some "elite" matter. The legal core is the same — is there probable cause to believe the items sought are evidence of a federal crime and will be found at the specified location? — but the formatting and paperwork of warrants vary across the 94 federal judicial districts. Each set of judges likes its warrant applications prepared just so. This team from main justice prepared their warrant package the way they wanted to do it, and ignored my suggestions about how to conform to practices in Los Angeles. "Good luck," I said, not entirely sincerely. Sure enough, half an hour later I got a call from the duty magistrate judge. This man was the most pleasant and welcoming judge I've ever encountered; sometimes he was so nice on the bench that people worried he was making fun of them. "Mr. White," the judge asked, "could you please give these . . . . gentlemen some help preparing the warrant application to conform to the local rules?" asked the judge, using a tone suggesting that someone might leave this encounter in leg irons. I promised to do so. The main justice lawyers returned, fuming, indignant, railing against the fact that some backwater like Los Angeles didn't format its search warrant paperwork in exactly the same way they were used to in Washington. I helped them without comment.
Or there was the time that lawyers from main justice, during an argument on a securities case, blundered into the well. The well is the dead space between the counsel tables and the bench. In some places, it's considered culturally appropriate to walk into the well to address the court, just as it's considered appropriate to address the judge from a seated position in some places. But not in Los Angeles. The federal judge — a gentleman who has verbally flayed the flesh from my bones on more than one occasion1 — blasted them, and they were terrified and perplexed.
What's the point of all this? Well, it's partly about the easy truth that the system is made up of flawed human beings. But it's also about the job of lawyering. Nobody cares how you do it back in your courthouse. You're in this courthouse now, and effective representation of your client requires you to pay attention to how things are done here, however much you disdain the locals. Don't be an arrogant ass, it's bad for your client. Also: federal judges gonna federal judge, so shrug and move on.
- Federal Judge: Mr. White, what is that you filed? Me: A sur-reply, Your Honor. Federal Judge: Mr. White, can you point me to the rule that permits you to file a sur-reply? Me: There's no such rule, Your Honor. Federal judge: Mr. White, so I don't even have to read this, do I? Me: Yes Your Honor. It would be completely in your discretion whether to consider it or not. Federal judge: if that's the case, Mr. White, why didn't you say that? Me: I beg your pardon? Federal judge: Why didn't you say, in your sur-reply, that I didn't have to read it? Me: Well frankly Your Honor I thought it was self-evident. [Silence] [Partner winces] [client's eyes go wide] [commence protracted yelling]. It was imprudent. But a client loves it when you stand up to a judge. ▲
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