Tuesday, July 15, 2014

Lawyering against destiny

When I was spending a few months over at the Minneapolis City Attorney's office, the big issue in misdemeanor criminal defense was "source code" challenges to the Breathalyzer test in DUI cases. The criminal defense bar was arguing that it needed access to the machine's "source code" so that the results could be attacked with a scientific expert witness. In my view, this was a red herring—what mattered was whether the machine worked, something that could be verified with experiments, and it made no difference what assortment of ones and zeroes lived in its guts. (My understanding of "source code" remains murky.)

Anyhow, the state would have gladly turned over the source code if it had it, but of course it did not. The source code was owned by the maker of the Breathalyzer machines, and that company considered it a trade secret. So it was a perfect issue for the DUI attorneys: they could demand the source code, and when it was not forthcoming, move to exclude the evidence of the breath test as a sanction for failing to produce it.

The issue was raised in one my cases, a case that just so happened to be assigned the judge considered to be very pro-defense: Judge Jack Nordby. From the moment of the judge assignment, I knew my chances of success on the source code motion were slim-to-none. But Judge Nordby set a briefing schedule, and I intended to do my best.

Just a few days later, however—well before my brief was even due—the order came down: motion to suppress granted. I suspected that this was a sort of mistake; that Judge Nordby had issued the same order in the dozens of cases where the source code issue had been raised, and his clerk just threw my case in with the rest of them. But I couldn't presume that the judge had made a mistake like this. So I filed an emergency motion to reconsider, asking for at least a chance to be heard. This led to one of the weirder moments in my legal career: the phone rang, and Judge Nordby was on the line. He was calling to apologize: of course he would vacate the order and allow the briefing to go forward.

Which was nice. But, still, I knew I was going to lose. I'd already seen the order! Nonetheless, I wrote a pretty awesome brief. The one good thing about having seen the order in advance was that I could attack Judge Nordby's reasoning directly—I didn't have to guess at which arguments the judge would find most persuasive. And it turned out that Judge Nordby's order was more or less contradicted by his own treatise on criminal procedure. So I was pretty proud of my little brief.

But, still, I knew I was going to lose.

When the hearing came and Judge Norbdy handed down his ruling, he was very kind, complimented the brief, and said that he had seriously reconsidered his decision. But. He was not changing his ruling.

Which brings me to the Seventh Circuit fiasco known as Motorola Mobility v. AU Optronics, a Richard Posner production.  The story is set forth here, and I urge you to follow the link because it is pretty much unbelievable.

In short: there was a district court order, and it was appealed on an interlocutory basis—this means that the order wasn't "final" and wouldn't usually be appealable, but Motorola argued that it should be appealed right away. That request for interlocutory appeal was heard by a "motions panel" of the Seventh Circuit, which granted the motion to allow the appeal. At the same time, however, the motions panel (in an opinion by Judge Posner) decided the case on the merits, and affirmed the district court's order without allowing any briefing or arguments by anyone on this merits.

This was extraordinary, perhaps unique, and ruffled a lot of feathers. Among the feathers ruffled were those of the eagle in Great Seal of the United States, because the issue decided concerned anti-trust law that affects international business and international relations (somehow—I don't pretend to understand exactly how). So when Motorola filed a petition for rehearing in front of all the Seventh Circuit judges, the U.S. Department of Justice filed an amicus brief stating its view that the decision was wrong.

This led to the second round of nuttiness: Judge Posner issued an order, out of the blue, to the Departments of Commerce and State, asking them to submit their own briefs—even though the Department of Justice is ultimately the legal representative of both agencies. The Solicitor General wrote the court to inform it that the previous brief had been submitted on behalf of the United States, and that no agency-specific briefs would be forthcoming. Judge Posner responded with another singular order, ordering the Solicitor General, personally, to name the specific federal officers who had been consulted in preparing the brief, and the nature of the consultation. He was given a week to do so.

Then the panel withdrew that bizarre order the next day. Still, the appeal of the appeal went on. Until now. Today, the motions panel changed its mind, and set a briefing schedule on the merits. So it's like none of that stuff ever happened.

But, still, Motorola knows it is going to lose, right?

They've seen the order. So they are going to spend countless hours preparing briefs, spending god knows how much in legal fees, so that Judge Posner can just issue the same order in six months. What's the point? Just this, I guess: there's some lawyering to be done.


After some extensive lawyering, Judge Posner—surprise!—affirmed the district court's partial summary judgment (again).


  1. What a great story about you and Judge Nordby and an odd story about the 7th Circuit. Judge Posner is currently in 9th place in our tag listings. Now that the Wisconsin Supreme Court has started acting like rational people, I wonder if how long Wisconsin will remain in the lead.

    1. Never underestimate the Wisconsin Supreme Court.


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