Don't mess with Judge Kozinski. Because if you do, you'll be the one burned, not him.
There's no better evidence of the truth of this aphorism than this order. Which, technically, is by the panel, and is unsigned. But since the underlying opinion is Judge Kozinski's, and given the tenor of the subsequent order, I've got a pretty good sense who wrote it.
The order is, essentially, eight straight single-spaced pages of devastating insults on counsel for the City of Tacoma. Judge Kozinski, in a footnote in the original opinion, had ordered defendants -- the City of Tacoma, the Tacoma Police Department, and various Tacoma police officers -- to show cause why they shouldn't be sanctioned for filing a frivolous appeal. Defendants responded to the order, and this order entails the panel's reaction to their response.
Let me give you a little hint as to how one should respond to Judge Kozinski, in particular, if he ever issues an order to show cause. Your mantra should be: "Mea culpa, mea culpa, oh, God, mea culpa. Please, oh Lord, oh please show mercy, in your infinite wisdom, on my prostrate and humble soul. I am unworthy. I deeply, and with reverence, aplogize for my transgressions."
Your mantra should definitely not be: "You're wrong. What I did was totally fine. You're mischaracterizing what I did and what I said. Get your act together." Because that's what the City of Tacoma did, at least in part, here. And, let me tell you, it did not have the desired effect.
It's not that Judge Kozinski gets especially nasty. But the panel's order is relentless, and pounds home both at length and in excruciating detail why the defendants are wrong, why their purported precedential distinctions are frivolous, and why the panel correctly assesed defendants' appeal as potentially frivolous. Moreover, one quickly gets a very keen sense from the order that, rather than make things better, the defendants' response to the order to show cause only made things worse -- and much worse at that. The response, which (according to the panel) merely continued to mischaracterize and misstate the record, only demonstrated that counsel was without remorse and still failed to recognize the impropriety of what has previously transpired. And so was in desperate, desperate need of a spanking. Which the panel was all-too-happy to administer.
Wholly beyond Judge Kozinski's particular personality traits, it's generally a bad idea to respond to an order to show cause from the Ninth Circuit with anything other than a profound mea culpa, especially in a case like this. Telling the panel "You're the one that's wrong, not me" isn't going to work, if only because (1) the judge, and -- perhaps even more importantly -- (2) his or her clerks will virtually uniformly defend, with gusto, their prior opinions and work product. Which is, in fact, precisely what you see in this order. And since the Ninth Circuit gets the last word -- after all, their opinion is published, and your response is not -- the panel has the ability to really publicly slam you, painfully, with little recourse on your part.
Everyone makes mistakes. Even big ones. And, at times, virtually everyone has been accused of something they don't think is right. I'm thus not surprised that the natural reaction of defendants (and their counsel) to the order to show cause was, at least initially, to be a bit defensive.
But you've got to let that go. If only for your own good. Otherwise you end up with an order like this one. Which ends not only by imposing sanctions, attorneys' fees, and double costs, but adds (for good measure) the following as its concluding sentence: "No later than 10 days from the date of this order, defense counsel shall serve a copy of this order, together with our opinion, on each member of the Tacoma City Council and on Eric A. Anderson, the Tacoma City Manager."
Not what you want to see -- or do -- if you're the attorney for Tacoma.
So memorize the words. Mea culpa. They may not do a world of good. But they're often a lot better than the alternative.
