Chapter One: A Brief History of Benchslaps
The term “benchslap” has a short and ignominious history. It is derived from the misogynistic verb “to bitch-slap,” which originated in the early 1990s. “Bitch-slap” has migrated into the Oxford English Dictionary, where it is defined as “to deliver a stinging slap to (a person), esp. in order to humiliate one regarded as inferior, e.g., I would have bitch-slapped him for talking that way.” The etymologists at OED, eager to avoid any improper usage, add helpfully that the term refers to “a woman hitting or haranguing her male partner,” rather than to the subject of the slap. This distinction may be lost on the many would-be pimps and machismos who incorrectly use “bitch-slap” to mean “slap a bitch,” resulting in a delightful irony: a group of the most deplorable chauvinists who regularly call themselves “bitches” rather than describe their abuse.
Because “bitch-slap” refers to the origin of the slap, it follows that a “benchslap” refers to a slap delivered from the judicial bench. The slap is metaphorical, of course, and most often delivered through written opinions and transcripts. But many jurists would likely relish an opportunity to step down from the bench to issue some firm backhands. In fact, some judges, most notably Judge Ian Richards of the Broward County bench, have waded into the well to subdue violent or unruly litigants. Other judges, including Ohio Municipal Court Judge Stephen Belden, Idaho State Court Judge Peter McDermott and Los Angeles Superior Court Judge Evertt Discksey, have had bailiffs duct tape parties’ mouths shut. These literal benchslaps must await fuller treatment in another book.
Baltimore personal injury lawyer John Bratt defines a benchslap as any “judicial opinion [that] makes it clear, in no uncertain terms, that a party has done something that was not appreciated.” This author prefers the broader and more colorful definition provided by the Urban Dictionary: “A benchslap is when a judge humiliates an attorney, insults another judge, or reverses a lower court in a particularly demeaning manner.”
Benchslaps are common. Most litigators worth their shingles have advanced aggressive or creative arguments and have been smacked down for it. Though humbling, these benchslaps are a necessary risk to protect clients’ legal interests. This book is concerned with an entirely different kind of benchslap: where a judge, aside from addressing legal merits, uses a public opinion to criticize an attorney’s intellect, character, ability or judgment. Some critiques question whether an attorney should even be allowed to practice law. As examples in this book demonstrate, benchslaps can be career-ending.
The term “benchslapped” was popularized in the mid- 2000s by David Lat, the influential creator and editor of judicial gossip site Underneath Their Robes. Its usage was embraced and expanded by the legal blogosphere (the “blawgosphere”) to the extent that it is common today throughout the legal industry, even by such distinguished legal superstars as Eugene Volokh, Alex Kozinski and Charles Nesson.
Although any individual, party, attorney or judge can be benchslapped, this volume focuses only on judicial takedowns of legal counsel who appear to have demonstrated an exceptional lapse in skill, decorum or common sense. The word “lapse” is more appropriate than “lack” because, over the long and winding road of any legal career, even the most accomplished attorney or scholar can be bloodied by a judge’s pen. Laugh at the humiliating benchslaps described in this book, but laugh nervously.
You could be next.
If blog postings, Internet comments and chain e-mails are any indication, attorneys are endlessly amused to see colleagues publicly dressed down by the Bench. Part of this is rubbernecking. Like all people, attorneys exhibit morbid curiosity when confronted by tragedy. But there is more to it than pure schadenfreude. Attorneys can’t help but cringe when they read a benchslapping judicial opinion. Reputations are being tarnished. Clients are being lost. Career prospects are being crushed. Just as the highway motorist feels a sense of relief when passing a grave accident, a thorough benchslapping gives other attorneys an opportunity to reflect on their own good fortune at not being on the receiving end of a judicial smack down.
Of course, even this may be giving the Bar too much credit. Perhaps attorneys just like to watch losers. Witnessing a spectacular failure can make people feel better about themselves, and even more so when it is a peer’s failure. After all, they never would have made those comments, those choices or mistakes. Many attorneys believe wholeheartedly in their own infallibility until the very day they get benchslapped. At that moment, recoiling from their sudden infamy, they bemoan the unfairness of the judge who slapped them and the blawgosphere that made their shame public. And just as they once subtly mocked other victims of judicial smack downs, they begin receiving copies of humiliating opinions or transcripts in their inboxes from friends and colleagues, accompanied by words of consolation. Perhaps attorneys relish a benchslap because in the dog-eat-dog world of litigation each judicial takedown simply weakens the competition.
The good news is that the sting of even the most severe benchslap fades with time. Some attorneys even learn to laugh at the experience. And despite the sadistic enjoyment attorneys receive from reading about judicial takedowns, this author likes to think benchslaps provide learning opportunities. If nothing else, this compilation of benchslaps should give attorneys confidence that whatever mistakes they have made or will make in the future, someone has made that same mistake before them – and made it worse.