Tuesday, July 8, 2014

Love the Rebuttals, Comments Here. Obsidian v. Cox continues to Fight for the Constitutional Rights of All

Regarding the Pot Shot Taken Against Defendant Blogger Crystal Cox

"Turk - February 4, 2014 at 9:45 am

I hate to speak for Volokh, but I have to think he disagrees with you that his job was done with the reversal. He likely sees his job a bit more broadly — and that includes any motions to reargue or anything else regarding the decision — and doesn’t see his job as done yet given the pot shot that was taken at his client. It isn’t like Cox can make the motion on her own to amend the decision; she’s repped by counsel and only he can do it."

The "Pot Shot" has no bearing on the issue.

It is possible that his retainer agreement has broad language in it about taking care of all issues before the 9th Circ. And that would be important to do when you have a client you want to keep away from the courthouse. Speculation on my part, but it feels reasonable.
As to the “pot shot,” I say that because it had no bearing on the issue of how the trial court should have charged the jury regarding the standard to use in determining defamation ( “As he notes, this sentence is of no consequence to the holding…”)

A Lawyer Advocating for his Client, and the Issue of a Judge "slipping in" other..

"Aaron Williamson - February 4, 2014 at 8:55 am

It’s not unreasonable for Volokh to believe that his ethical obligation (formally or informally) to advocate for his client did not end with the publication of the opinion. After all, while a lawyer might take a case for the issue, his responsibility is to his client. His rationale here is the same that a criminal defense attorney would offer if the judge slipped in, “while the defendant may have a defense here, incidentally, I also read a newspaper article about some other stuff he’s supposed to have done, and it looks like he has a history of armed robbery.” Volokh’s right — the issue wasn’t tried and the court even slightly misconstrued the article it relies upon. Will he wake sleeping dogs by asking the court to modify the opinion? I’d like to think a 9th Circuit judge would be above that sort of petty retribution, but maybe I’m wrong."

"Anderson - February 4, 2014 at 10:56 am

Scott, unless there’s some sort of limited-representation agreement (and maybe not even then), a lawyer doesn’t get to tell the client “well I’ll represent you to the extent it serves my own interests.” If I represent Cox in a case, and she thinks a court opinion says something unnecessary and injurious to her, then I have a duty to represent her on that.

I don’t know why you find this puzzling. Would you treat your own client differently?"

"Anderson - February 4, 2014 at 3:23 pm

Sorry, I think the “your client” question is entirely appropriate: apparently, the case is over when you say it’s over? Not how things work in the Mississippi Bar. We have duties to our clients."

"WJ - February 4, 2014 at 12:45 pm

Apologies, I don’t understand how you are so certain that Volokh’s obligation to represent Cox ended with the issuance of the 9th Circuit opinion. Wouldn’t it depend on the precise wording of the agreement limiting his representation of her (which I assume exists)? If that agreement said he would represent her until the 9th Circuit opinon “became final” or “was issued in final form” or some such, wouldn’t he then have an obligation to continue taking (reasonable) directions from Cox until the window for a petition for rehearing expired?"

Regarding Representation of an Activist Litigant

"Pattern_Juggled - February 4, 2014 at 5:03 pm

"(standard caveat re neither condoning nor not-condoning the extant party’s behaviour, &c.)

Activist litigants often seek more than – or something different from – a mere “win” in a technical sense.

The precise wording of a judicial finding can be, to use, as important as the structural foundations on which it rests. Lawyers, and substantively invested laypersons, may well care more for the legal principles applied and, naturally, it is those principals which are most likely to impact future litigation regarding the matter in question.

However… in the court of public opinion – the big game, where wars of framing and context are fought and won – it’s that language that may prove more important than the deeper issues, or even whether one won or lost on a given matter. Kennedy’s language in Lawrence v. Texas, in that regard, is (nearly) as important as the overturning of Scalia’s beloved anti-gay statutes itself. It’s the language that fires the passion of other activists – or funding sources, or volunteers, or journalists… and so forth.

Which is to say: as an activist litigant, one may well have a deep interest in the precise phrasing of a judicial finding – an interest atypical for a litigant seeking simply to win a given case. And, a lawyer representing such a litigant does her a disservice if he fails to both understand and respect that interest; whether he actively seeks to further such interest, or not, does of course remain up to him. I doubt it’s subject to formal Bar rules, at least as I understand them and in the jurisdictions with which I have a tiny bit of firshand experience. Irrespective, I’d ask – not demand, or compel… but ask – counsel to do the same, if a ruling came down in our favour, but included in it language that I felt could be (and surely would be) used by political opponents in the future.

There’s litigation as a battle to win or lose, and litigation as a battle for control over the narrative itself. In the latter case, counsel becomes a component of the PR effort – good or bad – and can reasonably be asked to aid in that, in that grey zone where formal legal ruling shade into documents of public opinion.

Not every lawyer is going to have an interest in this sort of meta-struggle, and fair enough. But for those who take on cases for clients with expressly that interest, it shouldn’t be unexpected that they take a somewhat broader view of the boundaries of their obligations and where those obligations find a bright-line ending."

Source of Above Comments

Here is Eugene Volokh's Motion to Rehear

Check Out Crystal Cox's Statement In Support of Motion to Rehear