Inside Department of Justice Culture: Locals Vs. "Main Justice"

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.

  1. 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.  

Last 5 posts by Ken White

Comments

  1. Castaigne says

    Just a couple of questions.
    1) Why would Patel not take the time to dress correctly? Yes, he just came in from Tajikstan, but why wouldn't there be a suit waiting for him? And was Hughes right to lambast him like that?
    2) Have you ever seen a federal judge get smacked back for bad behavior of some sort?

  2. Seth says

    "Why didn't you say, in your sur-reply, that I didn't have to read it?"

    "Because in order to see that, you'd have to already be reading it."

  3. Scott Jacobs says

    1) Why would Patel not take the time to dress correctly? Yes, he just came in from Tajikstan, but why wouldn't there be a suit waiting for him? And was Hughes right to lambast him like that?

    As for why a suit was not waiting for him, most people (unlike Batman) don't have supply caches all over the place, just in case.

  4. Peter B says

    Theodotus: "Caesar, this is not proper!"

    Caesar (recovering his self-possession) "Pardon him, Theodotus: he is a barbarian, and thinks the customs of his tribe and island are the laws of nature."

    George Bernard Shaw, Caesar and Cleopatra

  5. Daniel Neely says

    Indeed, it wasn’t hard to get one. With the help of no lawyers, this reporter called the judge’s secretary and asked that the transcript be unsealed. The next day, the judge issued an order to do so, but with some redactions, and a copy was promptly provided to The Post.

    *snicker*

  6. ... But I Play One On TV... says

    Welcome back Ken! I've missed you…

    Yes, I also got used to being yelled at, both in VA's GDC (yeah, you know me…) by two particular judges (one of whom would look @ the docket, see my name & think, "Oh good! I can scream at an attorney today on the 9:00 docket…") & later, as a SAUSA, by two particular federal judges. One threw a temper-tantrum like a two-year old; when he was done everyone was so stunned you could hear a pin drop, but I was so dumbfounded that an adult would act like that, tenure-for-life-&-wearing-a-black-dress-to-work-being-a-recipe-for-megalomania-notwithstanding, I started laughing after he stormed out. I was sent to the duty magistrate judge's court, who also laughed hysterically… (that magistrate judge was a good egg)

  7. Jhanley says

    1. Seth is a genius.

    2. This is a great example of the importance of local/distributed knowledge (c.f. Hayek and E. Ostrom), and the tendency of too down governance to disregard it.

  8. AH says

    si fueris Rōmae, Rōmānō vīvitō mōre; si fueris alibī, vīvitō sicut ibi

    When in Rome, do as the Romans; when elsewhere, do as they do there

  9. Bees! says

    Ken, question regarding the rare impeachment of Federal judges: did you follow the impeachment of Alcee Hastings? If so, any thoughts on it? I find it fascinating that he was impeached despite an acquittal of the charges he was accused of in Federal Court.

  10. Wang-Lo says

    "Why didn't you say, in your sur-reply, that I didn't have to read it?"

    "That would be instructing the court, your honor." — might have saved you a scolding.

    Seth's answer is still the best, though.

  11. Peter Gerdes says

    Doesn't this suggest a deep and troubling inefficiency in the administration of justice?

    After all, I assume catering to local custom must genuinely affect your likelihood of getting a desirable result if for no other reason than avoiding wasted time you could use to be a better advocate.

    It also makes it needlessly more difficult for lawyers to move locals with no apparent benefit. Why isn't there some kind of movement to force standardization, surely the chief justice of the supreme court (or congress) has the authority to do it.

  12. Schismatism says

    One particular piece of legal documentation which I've recently been perusing states, without any doubt left open, that when you are in a court of law, you follow the rules of that courtroom. Mind, this was in Canada, and in regards to the rather nasty habits of 'sovereign citizens' to attempt to undermine a court, but the same applies. Just like you don't walk into a friend's house and immediately start eating their food without so much as a 'may-I', or pay for a theater ticket and then deliver a monologue on the front row, you don't walk into a courtroom and immediately start violating the local contract. It just Isn't Done.

    It is, however, always a source of amusement to watch someone else do this, and subsequently get chewed out.

  13. Chad H. says

    Just seems to be common sense to me that you should use the advice of the guy with his boots on the ground as to how best to convince the local judge to get what you want. Surely these Attorneys have been to law school, and should have picked up from that the idea that people are different – some of their professors would have liked things in certain ways and would have been more receptive to certain arguments – if you write it for the right audience, you're more likely to get what you want from that audience.

    I guess it goes to show even in the professions common sense aint all too common.

  14. Leroy says

    Peter Gerdes, the US is infected with an unfortunate variety of the localism political virus.

    Nation wide standardization is seemingly something we just can not have at any level. One needs only look at any instance of where this was attempted. In theory localism is supposed to address local needs in a responsive manner. In actual practice, it merely serves to preserve local fiefdoms and egos.

    There is no reason why local courts should not have a standard set of rules. Nor, is there a coherent reason we should have 50 different criminal codes. And, to really light a fire under localization proponents, there is no logical reason for different standards of education.

  15. Milo says

    1) Why would Patel not take the time to dress correctly? Yes, he just came in from Tajikstan, but why wouldn't there be a suit waiting for him? And was Hughes right to lambast him like that?

    As for why a suit was not waiting for him, most people (unlike Batman) don't have supply caches all over the place, just in case.

    As someone who used to work in a men's clothing store in a state capital near both a state and a federal courthouse, I can tell you that it's not at all unusual for an attorney to bring a (foreign, wealthy redneck) client straight from the airport to a store to buy them a suit mere hours before going to court.

  16. James says

    "…there is no logical reason for different…"

    To an authoritarian, no there isn't. To those who cherish freedom and liberty, there are large reasons.

  17. Encinal says

    @James

    You have that backwards. Having the legal system be a confusing labyrinth of conflicting rules and special cases catering to the ego of local despots is anathema to freedom.

  18. Encinal says

    @Schismatism

    If you are speaking pragmatically, yes. If you are speaking of propriety, then no. Your analogies are way off base. As much as many judges like to think otherwise, the courtroom is not their personal property. For everyone with business before the court, access is a right, not a privilege to be made contingent on pandering to whatever deference the judge thinks due. Any judge that takes adverse action based on their personal whims is misappropriating public resources for personal profit, even if that profit is emotional rather than monetary.

  19. pro-podean says

    I'd venture that footnote 1 is from Judge M.R., except that the story didn't end in you being held in contempt.