I think it's fair to say that no attorney wants the Court of Appeal to call him or her a liar in a published opinion. Especially when you're at a white shoe firm like Skadden Arps.
So when Justice Willhite wrote last month that counsel for defendants -- Joren Bass, Richard Zuromski, and Raoul Kennedy -- repeatedly "misled" the Court of Appeal, including at oral argument, by stating a certain fact that wasn't true, you can understand why these attorneys might have been more than a little bit bummed. As well as prompted to immediately prepare a petition for rehearing that says, essentially: "Please, please, please: Whatever else you may or may not do, please get rid of that line."
Today, Justice Willhite obliges, and makes the following modification to the opinion: "On page 17, in the first line, the word 'mislead' is changed to 'are incorrect' so the line reads: we note that defendants are incorrect when they repeatedly state -- including at oral"
On the theory, no doubt, that it looks better to be stupid -- or a zealous advocate -- than a liar. Which is undoubtedly true. Or at least, for an attorney, better than being an unsuccessful liar.
POSTSCRIPT - A (very informed) reader disputes that Skadden is a "white shoe" firm, to which my only response was that I knew of no similar-but-more-accurate phrase. At which point he suggested: "How about 'green shoe,' to imply a lot of money and indifference to style." Ouch.
