Oh, the venerable benchslap. The term is perhaps the greatest achievement of Above the Law‘s David Lat and is an all-purpose bringer of joy to attorneys everywhere — except the attorney getting slapped, of course.
For the unfamiliar, benchslap originally referred to one judge snarking at another, but now refers to any time a member of the bench crushes an attorney with wit, rage, or both. We all live in terror of it happening to us, but we circulate every benchslap that comes our way. Benchslaps are one-half “thank god I’ve dodged that bullet thus far,” one-half gallows humor, and one-half schadenfreude. Yeah, that is three halves. We law types aren’t noted for our math skills, but we are pretty sure these are the six best benchslaps we could find.
1. The “Learn to Proofread, You Idiot” Benchslap
Mr. Brian Puricelli managed to be such a relentlessly bad speller, spell-checker, and proofreader that not only did he get a benchslap — he got his attorney fees slashed.
First, there was the part where Puricelli spelled the judge’s name wrong.
In one letter, Mr. Puricelli had given the magistrate’s first name as Jacon, not Jacob.
“I appreciate the elevation to what sounds like a character in `The Lord of the Rings,’ ” Magistrate Hart wrote, “but, alas, I am only a judge.”
Did we mention the part where he also misspelled the name of the court in which he was filing?
Among Puricelli’s errors, he referred to the court as the “Easter” district of Pennsylvania. Judge Hart, who is Jewish, opined that considering his religious persuasion, “the Passover district might have been more appropriate.”
Judge Hart knocked Puricelli’s fees for drafting the pleadings down to $150 from $300, which is pretty much the ultimate benchslap.
2. The Benchslap From a Judge Who is Doing Time
It is tough to sing the praises of former U.S District Court judge for the Southern District of Texas Samuel B. Kent, mainly because he is in prison for lying to investigators about sexually assaulting two women who worked for him. He also initially refused to step down, so the House had to impeach him, which finally got the message through.
Now that we have cleared up that Kent is not a person to be emulated, we feel free to share with you his benchslap that roundhoused both attorneys in one opinion.
Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact–complete with hats, handshakes and cryptic words–to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.
You are a terrible human being, Samuel Kent, but that was a fine bit of snark.
3. “Please Dear God Let This Oral Argument End” Benchslap
Usually, telling someone to listen to an entire appellate oral argument is a a terribly mean thing to do, because let’s face it: we barely want to listen to our own oral arguments. But you are really missing out if you don’t listen to the entire argument in Wolf v. Walker.
Wolf was a challenge to Wisconsin’s same-sex marriage ban, and the hapless Timothy Samuelson, assistant attorney general in America’s dairyland, was benchslapped by the Seventh Circuit appellate panel of Judges Richard Posner, Ann Clair Williams, and David Hamilton for nearly the entire argument. Sam Glover already covered one of the most excruciating moments over at the Lawyerist Lab.
Samuelson offered to brief an issue related to the possible negatives of same-sex marriage. According to the Washington Blade, “Posner retorted, ‘How can you brief it, if you don’t know anything about it?'”
Posner is a reliable source of benchslappery, but in this case no one in the court room was buying anything Samuelson was selling as he tried to explain, vainly, that gay marriage was bad because it is bad. You can not help but cringe as Samuelson tries desperately to make the torment end. Posner is busy pummeling Samuelson with yet another question when the yellow light comes on, giving Samuelson the signal his time is close to up.
Samuelson: First off, the yellow light is on — may I respond, Your Honor?
Posner: Yes, because the yellow light, it just tells you that you’ve got….
Williams: It won’t save you.
This is the stuff lawyer nightmares are made of.
4. The Patent Infringement Benchslap
This is a new benchslap, courtesy of United States Magistrate Frederick F. Mumm, sitting in the Central District of California. Magistrate Mumm is currently presiding over a patent dispute between two aerospace companies, and things have gotten a bit testy during depositions, calling for a benchslap to both client and attorney.
The witness started the train wreck of a deposition by asking counsel “to clarify” what he meant by such obvious words as “responsibilities” and “educational background.” Counsel soon hopped on the bandwagon and began interposing inappropriate objections that perfectly clear (albeit broad) questions were “vague.” Like a tag team, the witness would respond by asking plaintiff’s counsel to “be more precise.” Counsel stepped up the attempt to disrupt any worthwhile examination by continually interposing inappropriate objections, “cluing” the witness to ask the questions to be rephrased, and wasting everyone’s time trying to engage plaintiff’s counsel in banter. The witness responded in kind, by essentially refusing to answer any question if he was not “100% sure” of the answer.
This benchslap came with an order that defendants were to reimburse the plaintiffs for attorneys fees and court attorney fees incurred during this train wreck of a deposition. The very best and worst benchslaps are the ones that cost lawyers money.
5. The “STFU With All Your Acronyms” Benchslap
Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit does not like acronyms one bit. Back in 2012, he mildly batted at some attorneys who dared to use nuclear power-related acronyms in their nuclear regulatory cases. Back then, however, Silberman limited himself to grumbling about the acronym use after the fact. These days, Silberman has stepped up his game and, along with some other D.C. Circuit judges, has now just stone cold banned some acronyms.
We do not envy the poor first-year associate who has to figure out what acronyms are uncommon. We also pity the fifth-year who is going to need to find out a way to eliminate 1000 words or so from a brief now that they have to spell everything out.
6. The Incredibly Nerdy Benchslap
The Prenda Law saga has been a multi-year odyssey encompassing copyright trolls, pornography, heroic small firm practitioners, and sanctions.
The Prenda Law firm is functionally a living copyright troll whose sole purpose is to threaten people for allegedly downloading copyrighted porn. The lucky souls Prenda targeted were then given the awesome opportunity to pay $4,000 for the privilege of not telling the whole world how much they love porn. Along the way, it turned out that Prenda was creating shell corporations, engaging in identity theft, and, in an especially nice touch, actually being the people sharing the porn in the first place. You can see why this would be an irresistible target for some solid benchslappery for whichever judge had to continue to deal with these people.
Judge Otis Wright is a federal judge in the Central District of California and is apparently a big fan of Star Trek. After presiding over a near-infinite number of matters involving Prenda, he decided to drop the bomb, or photon torpedo, on the troll-tastic law firm.
In lieu of a punitive sanction, Judge Wright ordered Prenda to pay attorney’s fees, referred their actions to the bar, and dropped this gem:
Third, though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage.
We are just going to pretend we understood all the nerdspeak, and remain secure in the knowledge that no one has ruled against us while using bad television jargon. Yet.
Originally published 2014-09-23. Last updated 2015-08-02.