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October 02, 2017

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Enrique Guerra-Pujol

I too think Posner is onto something. Perhaps the right to counsel established in Gideon should be extended to all civil litigants and habeas petitioners, not just criminal defendants.

Deep State Special Legal Counsel

We need to re-examine Gideon and progeny. The right to counsel does not mean the government should pay for it.

During the 60s-90a it was darn near impossible to find a criminal lawyer to take work at low rates. Any lawyer back then, even a mediocre one could make a good buck just by hanging a shingle. There was no incentive to take on poor clients.

Today, with the grotesque oversaturation of the attorney market, many attorneys, including me, can be had for cheap. I find myself competing with the Public Defender...I can't compete with FREE.

I get a call when the PD's client doesn't like the State's plea offer. All of a sudden, they aren't indigent. Many folks lie on their affidavits of assets and liabilities to obtain a FREE lawyer.

Imagine how Wal-Mart would react if the County or State of Illinois opened up a shopping center that gave away groceries and tires. The Public Defender interferes with the free market.

Enrique Armijo

I thought the book was well worth reading - if for no other reason that it provided a window to a part of appellate law and practice that has long taken place in the metaphorical basement of the courthouse. And even if it is only a window into one court's basement, there's still something to be learned.

One thing did bother me throughout though, which you might plan to take on in your next post. It seemed to me that many of Posner's complaints concerning the staff attorney work product in his court are not strictly about what he claims to be his motivating concern for those complaints. In particular, Posner claims the staff attorney mistakes were making the reasoning behind court decisions less understandable to the pro se litigants who were affected. I wasn't persuaded that was always true.

By Posner's own admission, many of the staff attorney errors were "stylistic" or "verbal/grammatical infelicities" - for example, using adverbial surplusage like "presumably" or "essentially" where it wasn't necessary, or using "amends" rather than "has now amended," or the like, or the use of terms like "actual innocence" or "direct appeal" when there's no other kind of innocence or appeal. But do appellate judges and pro se litigants bring the same set of priors with respect to reading comprehension? Of course not. It is generally true that larded-up writing is harder to understand (Exhibit A may be this blog comment). But I didn't see how some of the infelicities that Posner sought to remedy by editing them out of 7th Circuit staff attorney memoranda had much bearing on how and whether pro se litigants understand the law that courts apply to their claims.

On the understandability point, I thought he was on firmer ground when advocating for the use of reading level indexes for orders and memoranda in pro se cases. And the book is at its most persuasive when he discusses the negative externalities associated with the overuse of unpublished appellate opinions. There is no doubt that limiting unpublished opinions would result in better work product from the appellate courts, and he is exactly right to be pointing that out. Maybe that's a federal judiciary-wide reform that will receive more traction as a result of his book.

Matt

The situation of pro se litigants is important. As someone who works on immigration law, it's something I've had ample time to think about. But when I read something like this,

"Posner came to the conclusion that, “uniquely among this court’s judges,” he had come to “a deeply felt commitment to the welfare of the pro se litigants,”"

All I want to say is, "Oh, barf. Please, do at least a little bit to get over yourself."

Deep State Special Legal Counsel

Matt,

"Barf" is right on. Judges, lawyers, clerks, Sheriffs (bailiffs), Probation, Social Services and on down to the court house janitor despise and hate. Pro Se litigants. They are unpredictable, talk to much (like Donald Trump) are unrealistic, mentally unstable in many cases, too cheap to hire a lawyer, want FREE legal advice or are adherents of the Sovereign Citizen movement. Pro Se Litigants are down right scary. I have observed courtroom deputies "close ranks" when a Pro Se litigant steps up to the bench.

There is no one iota of sympathy for Pro Se Litigants.

Robert Patterson

But what about his law clerks? Had he already hired law clerks for September 2017 and September 2018? If he had not, then that meant he was planning his retirement for some time. If he had hired clerks, then they are presumably adrift... Inquiring minds want to know.

Daniel

I have handled a few administrative hearings for other people, and a small number of pro se cases in court. I don't know if Judge Posner is right in his former court, but my experience is that most judges are biased against the self-represented, especially when the opponent has a lawyer.

Other court staff can be prejudiced too. In a juvenile case I filed with the court clerk a "parental motion for discovery." I forgot to two-hole punch the motion, and she said, "I can't let you file this without the holes." I said, "There is your two-hole punch, can I just use it?" She let me file the papers, but the worse part is that I saw another attorney just before me just grab the two-hold punch, use it, and hand his papers to the clerk without a complaint.

Mr. Grumpy

Posner comes across as mentally unstable in this latest screed, and it's good that he decided to retire. I seriously doubt that the staff attorneys office in the 7th Circuit does anything except give every case the attention it deserves. If Posner had all these concerns, where were his dissents from these "rubber stamp" opinions? I call bullshit.

Enrique Guerra Pujol

One of the ironies here is that Posner was willing to spend $100,000 of his own money to buy the necessary equipment to televise his hearings, but wasn't willing to spend a few bucks hire an editor for his latest book.

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