Having now read Paul Clement's brief, I gotta say that I don't see anything in that brief that went over the line of zealous advocacy. Or anywhere near it. The court objected only to the "tone" of the brief, not to anything actually said. "Tone" is a nebulous objection. This litigation involves billions. It is not bridge game.
I had a similar reaction; the tone was aggressive/forceful but didn't descend into ad hominem or anything that warranted calling out as unprofessional. (I suppose whether it was good advocacy hinges on whether an ordinary judge is likely to find the ALJ's conduct/opinion as egregious and error-ridden as Clement describes it to be. I skimmed both briefs but quickly realized I didn't know enough about patent IPR proceedings to form a meaningful opinion.)
Thanks for pointing out that excellent NY Times article on the Murdoch Family Trust dust-up. It's a really interesting, entertaining read. Could easily be the basis for a TV series!
The "constitutional crisis" talk is probably somewhat overheated...but there's more than enough reason for concern that I have a hard time getting too upset over it.
Even so. Can we not simply be concerned about specific identified things, rather than transmuting them into a concern about a particular ascribed bit of emotional language? I think we're kinda doing the same thing we did first term of getting really upset over everything (Kennedy Center leadership, really?) and not maintaining an ability to say that specific actions in fact reflect distinctly new levels of danger. Separation of powers and power of the purse violations are in fact a new low, for example. Or "hey let's let this corrupt guy off because we can enlist him in serving our cause while leaving hand on the reins". But amid all the other din it's that much easier for skeptics to not recognize these are new, serious offenses and not the baseline of upset.
I think "Divided Argument" really had it about best when they discussed "constitutional crisis" recently. To summarize from memory: the term lacks a serious definition, Trump did talk to it fairly with "and then we'll appeal", and maybe keep the powder dry for later. Measured, and appropriate.
Kind of interesting that one of the judges laying into Clement is CJ Kimberly Moore, who was at the center of the controversial suspension of her colleague Judge Pauline Newman last year. Judge Moore was accused of serving as both complainant and adjudicator, and took a good bit of heat over her refusal to transfer it to an impartial circuit for review. Wonder if the experience left her a bit sensitive to accusations of judicial impartiality.
I'm of course generally aware of Mr. Clement's demonstrated chops as an appellate advocate, and I know nothing whatsoever of the case he was arguing. So the observation I'm about to offer ought not be construed to be intended as a guess, or to somehow comment upon or explain, what happened in this or any other case. I'm admitted to some of the same courts as he is, but I am otherwise nowhere within shouting distance of the leagues he stars in.
The worst appellate oral argument I've ever made, BY FAR and with, I hope, no close competitors, was in a case that I'd tried and won to a jury, for my all-time favorite client; then saw the verdict set aside based upon a bonkerstown assertion of jury misconduct; and then retried to a second jury, who found against my client. I knew I was struggling to remain objective, and turned over the drafting of the appellate brief to capable colleagues who were not "on tilt," as I was. But I insisted on arguing the appeal myself. I'd had months to revise and practice my closing jury argument since that loss in the trial court, and completely contrary to my intentions when I stood up — which was to be an effective appellate advocate addressing matters of law and record — I gave what was basically my improved jury argument.
We all struggle with objectivity, especially in long and fraught representations. My poor oral argument didn't cost my side the case; I've seen, on occasion, lawyers concede something during argument that becomes outcome-determinative, but I didn't do anything remotely close to that. But afterwards, and ever since, when I've thought about that case and that oral argument, I've raked myself deservedly over the coals of my conscience. Not just that favorite client, but all clients, deserve better.
AO doesn't think much of your reader's evidence-free assertion that Sassoon and Scotten did it for Big Law success, and I think Sarah and David have the right of that. What made that reader comment worthy of amplifying?
I pride myself on highlighting opinions I disagree with, and I needed to provide some views on the other side—because, as I noted earlier in the post, I myself am #TeamSassoon. I felt comfortable sharing this reader's comment because it's representative of others that I have received privately.
I happen to disagree with these views, as the post makes clear. But I believe it's important for us to be exposed to opinions we disagree with. If you have anti-Sassoon or pro-Bove commentary that you find more persuasive, please share it here in the comments; I'm eager to read it.
I'm the rare commentator who's more interested in learning why I might be wrong than in convincing you that I'm right. I always want to read the best arguments on the other side—the "steel men" (or "steel people"?), as Sarah and David would say on AO. (Speaking of which, I haven't listened to the latest episode—so if you're referring to the episode that went up today, I have some catching up to do.)
I agree with and appreciate your approach. The distinction I drew with respect to the comment that you amplified is that it was simply claiming personal gain motivations for which there is no evidence, not talking about the merits of Sassoon versus Bove.
I am not anti-Sassoon or pro-Bove but would only offer the insight that the filing or dismissing of federal (and, of course, State) charges for political purposes is as old as the Nation, and your view of the propriety of such moves depends almost entirely on your political persuasion. Start with the lawfare experienced by President Trump over the last 4 years. I personally witnessed several of those political filings/dismissals while I was at the DOJ in the Kennedy-Johnson years (yes, I am that old), including the forced dismissal of one criminal case I had worked on for years. And Ronald Reagan, bless his soul, personally stopped a DC grand jury, at the last minute, and at the personal request of his closest political ally Maggie Thatcher, from indicting British Airways, Pan Am and TWA for conspiring to drive Laker Airways out of business. Which they clearly did. One can always argue about whether those cases were justified in the first place, but I don't recall any of the prosecutors resigning in public displays of ethical grandstanding when asked to do the deed. Was the Eric Adams case justified in the first place? From what I can see what Adams did was pretty common minor stuff in New York City and he was singled out for not singing from the sheet music put in front of him by you-know-who.
The danger in our discourse right now is listening too little to views we disagree with, not too much. I can give you plenty of recommendations for sources where you’ll hear only one side (whether on the left or on the right), if that’s what you’re into. But that’s not my publication. I’ll happily err too far on the side of airing too many different opinions.
I think many mainstream-media sources have gone too far in rejecting what they consider “false objectivity.” And their credibility has (justifiably) suffered.
That’s a perspective that I wish were true but ultimately avoids having to make the difficult decisions in weighing the relative veracity of statements, in favor of the simplistic heuristic of “more speech is better.”
The central issue with this heuristic is that it presumes good faith. For instance, the president recently said that Ukraine “should have never started” the war with Russia. That is a falsehood. He and his press team have recently been presenting him as a king. That is a dangerous ideology.
Engaging with either of the above as if they are simply “views we disagree with,” is committing a category error (where you stand on, say, energy policy is different from repeating Russian propaganda), engaging in false equivalency, and a classic fall for the tolerance paradox. You’ll have to draw a line somewhere. For instance, will you present the arguments in favor of defying court judgments you disagree with (see JD Vance tweet), and if so, in what light?
P.S. I got the chance to listen to the segment, and I highlighted this reader's comment for the same reason Sarah Isgur did: it's a commonly held view.
As Sarah put it, "I saw a lot of people talking about how this was going to elevate her stature, allow her to get an even more high-paying job at some law firm. That's why that would motivate her to do this."
I rarely disagree with Sarah, but I do disagree with her a bit on Danielle Sassoon's job prospects: I believe Sassoon is more employable than Sarah thinks.
Yes, there are definitely some firms that would view Sassoon as "radioactive" in light of how the Trump administration feels about her. But—and I say this based in part on my (admittedly not long) time as a legal recruiter—there are other firms that would be open to her candidacy. They'd just put her on matters not involving the Trump administration, including commercial or state-court litigation. Firms that are already unpopular with the Trump administration, perhaps because they're involved in cases adverse to the administration, would be especially open to hiring her. (Also note that even if she were in the administration's good graces, she'd be ethically barred from working on certain matters anyway, based on her past work in the S.D.N.Y.)
And the Trump administration won't last forever. A firm with a long-term outlook—admittedly, many firms are very focused (I'd say too focused) on the short term—might hire her as an investment. She's clearly an excellent lawyer, and right now, in the lateral partner market, she might be trading at a "discount" because of the Trump stuff. But four years from now, she could be even more valuable.
Having now read Paul Clement's brief, I gotta say that I don't see anything in that brief that went over the line of zealous advocacy. Or anywhere near it. The court objected only to the "tone" of the brief, not to anything actually said. "Tone" is a nebulous objection. This litigation involves billions. It is not bridge game.
Would you mind emailing a copy to me? My PACER account is having… issues.
Sure. What is the email address you would like me to use?
Just emailed you (I'm able to see subscriber email addresses)—thanks!
Sent
I had a similar reaction; the tone was aggressive/forceful but didn't descend into ad hominem or anything that warranted calling out as unprofessional. (I suppose whether it was good advocacy hinges on whether an ordinary judge is likely to find the ALJ's conduct/opinion as egregious and error-ridden as Clement describes it to be. I skimmed both briefs but quickly realized I didn't know enough about patent IPR proceedings to form a meaningful opinion.)
To anyone else interested, courtlistener has the various merits briefs: https://www.courtlistener.com/docket/69634428/centripetal-networks-llc-v-palo-alto-networks-inc/
Thanks for pointing out that excellent NY Times article on the Murdoch Family Trust dust-up. It's a really interesting, entertaining read. Could easily be the basis for a TV series!
The "constitutional crisis" talk is probably somewhat overheated...but there's more than enough reason for concern that I have a hard time getting too upset over it.
Even so. Can we not simply be concerned about specific identified things, rather than transmuting them into a concern about a particular ascribed bit of emotional language? I think we're kinda doing the same thing we did first term of getting really upset over everything (Kennedy Center leadership, really?) and not maintaining an ability to say that specific actions in fact reflect distinctly new levels of danger. Separation of powers and power of the purse violations are in fact a new low, for example. Or "hey let's let this corrupt guy off because we can enlist him in serving our cause while leaving hand on the reins". But amid all the other din it's that much easier for skeptics to not recognize these are new, serious offenses and not the baseline of upset.
I think "Divided Argument" really had it about best when they discussed "constitutional crisis" recently. To summarize from memory: the term lacks a serious definition, Trump did talk to it fairly with "and then we'll appeal", and maybe keep the powder dry for later. Measured, and appropriate.
Kind of interesting that one of the judges laying into Clement is CJ Kimberly Moore, who was at the center of the controversial suspension of her colleague Judge Pauline Newman last year. Judge Moore was accused of serving as both complainant and adjudicator, and took a good bit of heat over her refusal to transfer it to an impartial circuit for review. Wonder if the experience left her a bit sensitive to accusations of judicial impartiality.
In other Clement news, I noticed he's representing the medical research university plaintiffs in their D.Mass. lawsuit against NIH over funding cuts: https://www.courtlistener.com/docket/69627688/association-of-american-universities-v-department-of-health-human/
Very thorough TRO motion; lots of strong statutory and separation-of-powers arguments imho: https://storage.courtlistener.com/recap/gov.uscourts.mad.280623/gov.uscourts.mad.280623.16.0_1.pdf
I'm of course generally aware of Mr. Clement's demonstrated chops as an appellate advocate, and I know nothing whatsoever of the case he was arguing. So the observation I'm about to offer ought not be construed to be intended as a guess, or to somehow comment upon or explain, what happened in this or any other case. I'm admitted to some of the same courts as he is, but I am otherwise nowhere within shouting distance of the leagues he stars in.
The worst appellate oral argument I've ever made, BY FAR and with, I hope, no close competitors, was in a case that I'd tried and won to a jury, for my all-time favorite client; then saw the verdict set aside based upon a bonkerstown assertion of jury misconduct; and then retried to a second jury, who found against my client. I knew I was struggling to remain objective, and turned over the drafting of the appellate brief to capable colleagues who were not "on tilt," as I was. But I insisted on arguing the appeal myself. I'd had months to revise and practice my closing jury argument since that loss in the trial court, and completely contrary to my intentions when I stood up — which was to be an effective appellate advocate addressing matters of law and record — I gave what was basically my improved jury argument.
We all struggle with objectivity, especially in long and fraught representations. My poor oral argument didn't cost my side the case; I've seen, on occasion, lawyers concede something during argument that becomes outcome-determinative, but I didn't do anything remotely close to that. But afterwards, and ever since, when I've thought about that case and that oral argument, I've raked myself deservedly over the coals of my conscience. Not just that favorite client, but all clients, deserve better.
AO doesn't think much of your reader's evidence-free assertion that Sassoon and Scotten did it for Big Law success, and I think Sarah and David have the right of that. What made that reader comment worthy of amplifying?
I pride myself on highlighting opinions I disagree with, and I needed to provide some views on the other side—because, as I noted earlier in the post, I myself am #TeamSassoon. I felt comfortable sharing this reader's comment because it's representative of others that I have received privately.
I happen to disagree with these views, as the post makes clear. But I believe it's important for us to be exposed to opinions we disagree with. If you have anti-Sassoon or pro-Bove commentary that you find more persuasive, please share it here in the comments; I'm eager to read it.
I'm the rare commentator who's more interested in learning why I might be wrong than in convincing you that I'm right. I always want to read the best arguments on the other side—the "steel men" (or "steel people"?), as Sarah and David would say on AO. (Speaking of which, I haven't listened to the latest episode—so if you're referring to the episode that went up today, I have some catching up to do.)
I agree with and appreciate your approach. The distinction I drew with respect to the comment that you amplified is that it was simply claiming personal gain motivations for which there is no evidence, not talking about the merits of Sassoon versus Bove.
I am not anti-Sassoon or pro-Bove but would only offer the insight that the filing or dismissing of federal (and, of course, State) charges for political purposes is as old as the Nation, and your view of the propriety of such moves depends almost entirely on your political persuasion. Start with the lawfare experienced by President Trump over the last 4 years. I personally witnessed several of those political filings/dismissals while I was at the DOJ in the Kennedy-Johnson years (yes, I am that old), including the forced dismissal of one criminal case I had worked on for years. And Ronald Reagan, bless his soul, personally stopped a DC grand jury, at the last minute, and at the personal request of his closest political ally Maggie Thatcher, from indicting British Airways, Pan Am and TWA for conspiring to drive Laker Airways out of business. Which they clearly did. One can always argue about whether those cases were justified in the first place, but I don't recall any of the prosecutors resigning in public displays of ethical grandstanding when asked to do the deed. Was the Eric Adams case justified in the first place? From what I can see what Adams did was pretty common minor stuff in New York City and he was singled out for not singing from the sheet music put in front of him by you-know-who.
David, I admire your work. Keep it up.
Curious if you have a line you won’t cross David. Not every political disagreement deserves the “both sides” good faith treatment.
The danger in our discourse right now is listening too little to views we disagree with, not too much. I can give you plenty of recommendations for sources where you’ll hear only one side (whether on the left or on the right), if that’s what you’re into. But that’s not my publication. I’ll happily err too far on the side of airing too many different opinions.
I think many mainstream-media sources have gone too far in rejecting what they consider “false objectivity.” And their credibility has (justifiably) suffered.
That’s a perspective that I wish were true but ultimately avoids having to make the difficult decisions in weighing the relative veracity of statements, in favor of the simplistic heuristic of “more speech is better.”
The central issue with this heuristic is that it presumes good faith. For instance, the president recently said that Ukraine “should have never started” the war with Russia. That is a falsehood. He and his press team have recently been presenting him as a king. That is a dangerous ideology.
Engaging with either of the above as if they are simply “views we disagree with,” is committing a category error (where you stand on, say, energy policy is different from repeating Russian propaganda), engaging in false equivalency, and a classic fall for the tolerance paradox. You’ll have to draw a line somewhere. For instance, will you present the arguments in favor of defying court judgments you disagree with (see JD Vance tweet), and if so, in what light?
P.S. I got the chance to listen to the segment, and I highlighted this reader's comment for the same reason Sarah Isgur did: it's a commonly held view.
As Sarah put it, "I saw a lot of people talking about how this was going to elevate her stature, allow her to get an even more high-paying job at some law firm. That's why that would motivate her to do this."
I rarely disagree with Sarah, but I do disagree with her a bit on Danielle Sassoon's job prospects: I believe Sassoon is more employable than Sarah thinks.
Yes, there are definitely some firms that would view Sassoon as "radioactive" in light of how the Trump administration feels about her. But—and I say this based in part on my (admittedly not long) time as a legal recruiter—there are other firms that would be open to her candidacy. They'd just put her on matters not involving the Trump administration, including commercial or state-court litigation. Firms that are already unpopular with the Trump administration, perhaps because they're involved in cases adverse to the administration, would be especially open to hiring her. (Also note that even if she were in the administration's good graces, she'd be ethically barred from working on certain matters anyway, based on her past work in the S.D.N.Y.)
And the Trump administration won't last forever. A firm with a long-term outlook—admittedly, many firms are very focused (I'd say too focused) on the short term—might hire her as an investment. She's clearly an excellent lawyer, and right now, in the lateral partner market, she might be trading at a "discount" because of the Trump stuff. But four years from now, she could be even more valuable.