While I do not intend to write Blogwigging for Dummies, it is important to address the Judge Mills-said-what reaction and talk more about how blog comments could be considered ex parte.
There were two news stories reporting on the panel discussion on judicial ethics held earlier this week at the University of Mississippi School of Law – one in the Daily Mississippian and one that appeared later in the day in the the Oxford Eagle.
Panelist and folo moderator NMC provided additional confirmation in his comment to the blog’s post Earwiggers – Us?
In context, I think what Judge Mills meant is that he believes there is anonymous commentary out there that is written by people who have an ax to grind and are trying to persuade courts. Basically, he thinks some of the anonymous stuff comes from one side or the other, and thinks it’s improper for a side in a case to use blog commentary in that way.
Another making comment on the thread also wrote a post on his own blog that provides context for Judge Mills’ remarks, albeit unintended when it was written in March.
The climate of opinion about the Scruggs is decidedly negative and mean-spirited.
It includes an obvious glee in their fall and much enthusiastic speculation as to what is to befall Dick Scruggs or Zach Scruggs in the future when it is time for them to pay, at the time of sentencing. There is much optimistic speculation of further trouble for Dick Scruggs.
The climate of opinion has another interesting aspect. The people who comment seem part of a community of like-minded people. Like-minded in animosity toward Dick Scruggs.
Interestingly enough, this post followed one on what he called the Mississippi tradition of earwigging.
Earwigging is lobbying. It is similar to the efforts a lobbyist makes to sway legislator to the lobbyist’s point of view. It is private and it is personal. More often than not it does not involve bribery. And, of course it does not have to involve bribery.
Consider his use of the word private in light of the fact that Judge Mills raised the issue of non-traditional earwigging on internet blogs a month later. A comment on slabbed yesterday used the word secret instead.
the essence of ex parte is the one sided, secretive nature of the communication, in which one side secretly communicates with the court, so the other side cannot respond.
Connect the dots to ex parte – one-sided; secretive; communicated so the other side cannot respond
By far the easiest dot to establish is the first – the one-sided nature of the comments as indicated in this report on the afternoon of day two of the hearing before Judge Biggers when the Defense Motion for Change of Venue was discussed.
The judge noted they had done this thorough research, and asked whether they found all opinions on the subject are negative…Keker then said his associate has done all this research and found not one article saying “I don’t think he did it.”
Judge Biggers: “This is one of the most thoroughly researched briefs I have ever seen, but it’s hard for me to believe there were no statements” favorable to Dickie. The associate was allowed to come to the podium and talk about his research. Keker then took back over: What we found “was people piling on. Mr. Merkel. Mr. Tollison. The notion being at last he’s getting his comeuppance.” Keker says that Dickie’s friends are stepping back and seeing how it turns out…
Judge Biggers said, “I don’t know about the interest being only in Mississippi. I had lunch in Montana with several lawyers and they knew all about it. One asked whether the Grisham novel King of Torts is based on Scruggs. I know Grisham has denied that.” This then made an obvious segue—Oh, yeah! There was a positive remark. Judge Biggers said that “John Grisham’s opinion is respected in this area.”
As noted in the comment from the law professor in my first post and restated here in part, the secretive nature of the communication is an aspect of earwigging on internet blogs can be difficult for some to grasp.
I don’t see how a blog comment is ex parte. The other side can read it too and respond, right?
The short-cut to understanding is to let your fingers do the walking to Encarta, the dictionary of Microsoft Word.
Intentionally withheld from general knowledge; working or operation without the knowledge of the general public; acting..in a particular way without admitting to it.; something that is unknown, hidden or misunderstood; a little-know technique, approach that is the key to success in an endeavor.
In other words, it is the intent of the communication that defines ex parte in blog content. Earwigging on internet blogs is not only what Judge Mills reportedly called an non-traditional approach; the reaction to his comment leaves little doubt it is also a little-known technique meeting the definition of secretive.
A case can be made, in fact, that the secretive nature of the communication with the court includes all readers, even the judge as it is only important the communication has the desired impact on the judge’s decision; i.e., success in the endeavor.
Dot-to-dot with one dot remaining – for the communication to be ex parte it must be delivered in a way that prevents the other side from responding. The short answer, using USA v Scruggs again as an example, is the other side was the defense attorneys who were prevented from making public statements likely to influence an adjudicative proceeding.
Nowdoucit. Tomorrow – Part 3
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Over the wire or under the wig – ex parte is ex parte
Earwigging & blawgs: Katrina’s surge fuels the quest for money at the expense of ethics
Good ol’ boys blog their power plays
“If facts don’t fit the theory, change the facts”
“You furnish the pictures and I’ll furnish the war“
Hoo! Haw! As Al Pacino would say! Dang, good post!
Well, thank you, belle. Stay tuned!
Once again, you miss the point.
The opposing party can easily to respond to whatever publicly posted material it feels is relevant. It can file a responsive pleading to the court directly addressing the newly-raised material. Doing so violates no rule and addresses the percieved harm: the chance that blogged material might influence the judge. (Unless your problem is that the blogged material is persuasive to the public as a whole. But that has nothing to do with ex parte, does it?)
Funny, I don’t remember you guys speaking up in outrage on ths topic earlier, when the blogosphere was 99% pro-Scruggs and anti-carrier.
You seem to have discovered your ethics and outrage a little late in the game.
Wrong again, claimsguy. You’re just going to have to wait for Part 3.
We know all that Mr Claimsguy, federal Judge Mills is an old codger who doesn’t know when he has been earwigged and you are the authority on that matter. I think Judge Mills would beg to differ.
Tell me, why did David Rossmiller feel the need to hide his firms relationship with Allstate? Remember Steve said when he brought it up in a comment on Mr Rossmiller’s blog it was moderated out. How can a lawyer claim to be impartial when speaking on bealf of his client? Please educate us.
sop
As to Mills, it was you guys who felt the need to fake up the Mills quote to make it into something it wasn’t.
I have no doubt if that he was squarely asked how the Rossmiller blog (or the Merlin blog, or the others like them) fit into any ex parte scheme, he would react as I have. How, intellectually, you can distinguish between Rossmiller commenting on concurrent causation on his blog, or him writing the same exact article in Appleman’s or a law review, is beyond me. All are done in the open, for all to see, and should a litigating party need to respond they can.
And every time I have looked at Rossmiller’s firm’s site, Allstate was on the list of representative clients. That doesn’t sound very covert to me. I believe that he has said that he (and his firm) isn’t representing anybody in any KRW-related matters, so from where I sit, he can fairly comment on all of that.
You seem to be enunciating a standard that says if anyone at Rossmiller’s firm has ever represented (for example) Allstate, then none of them can ever publicly comment on any Allstate case anywhere and forever. That isn’t the law ANYWHERE. Go back and read the ABA rule that you have so recently and selectively fallen in love with. Read it carefully, and see if you can get it to apply the way you want. It won’t, and it doesn’t.
Mr Rossmiller’s master when he publishes scholarly efforts is the publisher. Mr Rossmiller’s “marketing” efforts benfitted Dunn Carney. You know that and so does he. He blawgwigged under the guise of impartiality on Weiss, which involved his firm’s client Allstate. This is precisely the type of situation Judge Mills alluded to in his remarks.
It is at this point that I should also again share the opinion of Richard Trahant , attorney for the Weiss family – he stated it plainly.
You tap dance all around Weiss as that case certainly is too painful for you to mention for good reason.
Mr. Rossmiller freely questions the ethics of other attorney’s based only upon the mention of a first name taken out of context in a deposition. I’m just a mushroom Mr Claimsguy waiting to see what happens. As always this little story down here has been chock full of twists and turns.
While we’re visiting on this topic of earwigging cases where the commenter has an interest wouldn’t it be most ironic if Dickie Scruggs were set free over something that was posted on Mr Rossmiller’s blog, Yallpolitics or Folo. A desperate man leaves no stone unturned. IMHO I think they are looking.
sop
Regarding Weiss, I ask you this: was Rossmiller’s firm (or Rossmiller) engaged (as in “retained by a party”) in that case?
While I don’t know the answer to that question, my hunch is that the answer is “no”.
Assuming that to be the case, I go back to what I think you are proposing as a test of appropriate or inappropriate commentary: if Rossmiller or his firm ever worked for Allstate anywhere, then they cannot comment on any other Allstate case, forever? If that isn’t the test you are enuciating, then please explain, because I think that is what you are saying. And if that is what you are saying, I regret to inform you that your position is simply and manifestly absurd.
Your “who is his master” test makes no sense, either. When Rossmiller writes, he is serving Rossmiller. More important are the ideas in play. The harm of ex parte conduct is about the opportunity for unrebutted and undisclosed communciation to the Court. Rossmiller, whether by blog or by book, triggers neither element. His communciations are not covert or undisclosed, and anyone else interested in the issue, including the litigants, have full opportunity for rebuttal.
I would think that bloggers such as yourselves would embrace a vibrant marketplace of ideas. Your wanting to muzzle an informed and articulate commentator smacks of censorship by losers: you can’t address his ideas head on, so you want to shut him down. You should be ashamed.
Rossmilelr’s firm didn;t need to be retained diurectly by Allstate Mr Claimsguy. Was Tim Balducci enagaged by Dickie Scruggs in his case against Jones. 😉
Pot meet Kettle.
sop
I take it that you do not claim that Rossmiller or his firm were retained by Allstate in Weiss. That being the case, then there is no reason, none, that Rossmiller can’t blog to his heart’s content regarding that case.
How you analogize Rossmiller to Balducci is beyond me. (Although that is a perfect illustration of your lack of moral clarity regarding Scruggs.) You think that two guys conspiring to bribe a sitting judge is morally equivalent to blogging about a case of great public interest.
If you don’t see the huge difference there, then you have lost your way, my friend.
Taking short break to add this note – I believe there is a process in place for an attorney to present information on a case before the court for consideration when representing neither party.
I’d to continue playing your “slather lipstick on the Rossmiller earwigging” game Mr Claimsguy but alas the first reply motions are trickling in. Mr Graves is not amused by State Farm or their shills like Mr Rossmiller. He is asking for sanctions. This is getting good.
sop