Wednesday Writs: Whistleblowers, SCOTUS, and Nixon v. Fitzgerald

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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27 Responses

  1. Avatar Oscar Gordon
    Ignored
    says:

    L9: Whenever we have a discussion about UBI, this kinda concern is always brought up. This kinda thing should be clearly illegal.Report

  2. Avatar Michael Cain
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    says:

    L3: You dropped the decimal point in the dollar amount.Report

  3. Avatar Jaybird
    Ignored
    says:

    L3: We now find ourselves in a place where only the rich can afford justice.

    This is bad.

    I appreciate that we have a system where it would be foolish for a person to represent himself in a courtroom but it strikes me as manifestly unjust that we have a system where it is foolish for a person to represent himself in a courtroom.Report

    • Avatar greginak in reply to Jaybird
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      says:

      Well for criminal cases we should have a robustly funded system of public defenders. For civil cases….well…that is harder. I see lots of people represent themselves in divorce/custody cases. Lots of the law is straight forward and relatively simple. A lot of of those people still represent themselves amazing poorly. The court here even has a center to help people learn how to represent themselves. Despite my strong suggestion for everybody representing themselves to use the help center many don’t usually to their disadvantage. FWIW some people do a good job of representing themselves. To tie it into another common debate. If you want to rep yourself in court, can you write a good 200 level college level course final paper. If yes you will do fine. If not, then you might have a problem. Being able to write that paper doesn’t mean you went to college of course, but do you have those skills.

      That isn’t even getting into stuff like:
      Pro Se litgant in trial: “I object:
      Judge: “What is your objection?”
      PSL: “Huh?”
      J: “What is your objection to the testimony of the witness?”
      PSL: “ummm I don’t like what they are saying.”

      Realistically even simple law is can be complicated.Report

      • Avatar CJColucci in reply to greginak
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        says:

        A fair amount of my practice involves cases brought under civil rights statutes that include fee-shifting provisions, which means that if the plaintiff wins, the plaintiff’s lawyer gets paid by the defendant. The payment is usually based on a largely fictitious market hourly rate. I say fictitious because few clients could afford the “market” rate or would pay it if they could for the stakes involved in the case. Where I practice, if I worked the plaintiff’s side, I could easily get $500 an hour. If my potential clients could afford that, they probably wouldn’t pay it based on the value to them of the case. And many cases get filed that don’t attract lawyers because the cases suck. And you’re probably familiar with contingency fees in, for example, personal injury cases. What we don’t have is a system where smallish-stakes commercial cases, where each side bears its own fees, can be tried in a cost-effective manner. Hence the rise of arbitration, which is itself getting expensive.Report

      • Avatar DensityDuck in reply to greginak
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        says:

        The other issue is that people assume trials are like arbitration sessions, and that all you have to do is calmly and clearly explain to the judge how you aren’t wrong and then you’ll win.Report

        • Avatar CJColucci in reply to DensityDuck
          Ignored
          says:

          If anything, arbitrations are getting to be more like trials rather than the reverse. And then there are the usually pointless, but expensive, appeals from awards.Report

        • Avatar greginak in reply to DensityDuck
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          says:

          Yes. People also confuse their opinions and desires with what can be proved. Which can be difficult and a real PITA. But some people think just saying how honest they are is enough to win.Report

          • Avatar Em Carpenter in reply to greginak
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            says:

            A lesson on getting a lawyer and then listening to her/him:
            As a prosecutor I had a case set for a prelim (probable cause hearing) on a possession w/intent -marijuana. There was a bust at a party and a rather large amount of weed was found. This young guy from out of town took full responsibility for the ownership of said weed and was thus charged with poss w/intent. I lay my case out pretty easily and it’s the defense’s turn.
            There’s an animated, nay, heated whispered conversation between the defendant and his lawyer, and she was getting visibly frustrated but finally says her client wishes to testify. This happens basically never at a prelim. The guy gets on the stand and very earnestly explains how, YES, the weed was his, and YES there was a lot but he was NOT selling it, duh! It was a PARTY and he was passing it out to the party guests! Such a misunderstanding!!
            Except of course nowhere does the statute require intent to sell. Only to distribute. Like for instance to party guests.
            He was flabbergasted to have the judge make a finding if probable cause and his lawyer was literally like “I told you so!”
            (Side note, it was not my call to do anything with the case other than have a hearing and I genuinely felt bad for the guy. He was a college kid. I really hope he got a good deal when his case went up.)Report

  4. Avatar Aaron David
    Ignored
    says:

    L6 – I have an idea; Get Rid Of So Many Laws! The traps that many areas have laid for people, in what is often referred to as the 3 Felony A Day problem, are the cause of all of this. “There oughta be a law!” is the root of all evil. Seriously, universities need to stop peddling that white privilege BS and start teaching people to mind there own business.

    /rant off.Report

  5. Avatar PD Shaw
    Ignored
    says:

    L7: I’m not sure the $1.5M in legal expenses adds up. There was no trial, probably no significant evidentiary disputes, just what sounds like a complex issue of legal interpretation of various statutes, in the face of negative precedent. The case went to the Supreme Court twice though. The numbers in the article are:

    $150k Before District Court
    $82k Before Court of Appeals (first time)
    $ ? Before Supreme Court (first time)

    By the time, he had incurred $700k in legal expenses.

    $56k Before Court of Appeals (second time)
    $155k Petitioning for Review to the Supreme Court (second time)
    $ ? Arguing / briefing before Supreme Court (second time)

    $1.5 M Total.

    It seems unusual for the legal costs on the second trip to be more than the first trip. What it looks like to me is that the nature of the dispute had broad implications for Alaska, particular outdoor activities and business. He was able to raise hundreds of thousands of dollars, perhaps over a million dollars from the Alaska Wildlife and Conservation Fund, the National Rifle Association, the Alaska Conservative Trust, national and international hunting groups, hundreds of ordinary Alaskans and one very wealthy one, who couldn’t remember whether he gave $250k, $300k or $400k. At some point, the legal fund is flush and it is paying $11k for the lawyers to “hone their strategy at three moot courts in Washington.”Report

  6. Avatar Mike Schilling
    Ignored
    says:

    L1 AKA The reck of Ernest Fitzgerald.Report

  7. Avatar George Turner
    Ignored
    says:

    L1: How does the ruling comport with Eric Swallwell’s assertion that “It’s an abuse of power to remove an ambassador for political reasons because you don’t like what they’re doing.” This follows many assertions that the ambassadors set foreign policy, not the President, and obviously not the people of the United States. Rich campaign donors and former Hollywood child stars should be left to control world events.Report

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