I probably come out somewhere between the majority and the dissent here; perhaps a middle ground. But if I had to choose, I'd probably say that Judge Ikuta's dissent has the better of the argument over Judge Kozinski's majority opinion.
Judge Kozinski, as he sometimes does, pitches his opinion with mystery and guile, commencing his missive with the following introductory paragraph:
"This is a strange case. Its resolution hinges on the absence, as a factual matter, of something we must accept as a legal matter. There are unlikely to be many more like it, so this opinion’s precedential value is probably limited. We nevertheless publish pursuant to General Order 4.3. While we’re at it, we offer some advice to lawyers: Don’t apologize unless you’re sure you did something wrong. And there’s also a lesson for district judges: Don’t accept too readily lawyers’ confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That’s why we have transcripts."
A neat little intro. Mind you, even as a facial matter, I disagree with one of the things he says in there: the part where he says lawyers should be less willing to apologize. Respectfully, I don't think that's really where the problem is these days. If I had to choose between telling counsel to put a thumb on the scale towards apologizing or a thumb on the scale the other way, I'd choose the former. So I'm not really sure I'd be as gung-ho as Judge Kozinski about publishing an opinion in an effort to try to convince lawyers to be more wary about offering an apology.
I get where Judge Kozinski's sentiment comes from. Here, there was an in limine motion, a lawyer seemed to violate that order during his closing argument, an objection was sustained and the lawyer immediately apologized, and even after sanctions were considered -- and even after sanctions were ordered -- the lawyer has consistently apologized and argued that his error was merely fleeting and accidental (rather than in bad faith). But Judge Kozinski thinks he shouldn't have apologized (much less been sanctioned) because what he did didn't violate the order in the first place. Hence the non-Dad-like advice: "Don't apologize, Son."
But I think Judge Ikuta's probably right. The transcript's admittedly somewhat unclear. And it can sometimes be hard to get the "message" that's intended -- especially during closing arguments -- when you're not actually at the trial. Particularly, I might add, when the transcript (as here) is probably not a perfectly verbatim recitation; court reporters aren't flawless. Here, opposing counsel heard what the other side said -- and presumably understood what he meant by it -- and promptly objected; the district judge heard the same thing and immediately sustained the objection, interpreting the statement in a way that indicated that it did indeed violate the in limine order; and even the offender thought (both at the time and consistently thereafter) that the statement did indeed violate the order, and apologized to the judge (and jury) and made a contemporaneous statement in his apology that seemed to suggest that, yeah, what he was inferring was indeed an effort -- albeit perhaps accidental -- to violate the order.
That's pretty good evidence, I think, that what was meant by the statement, and how the jury was meant to understand it, was shared by all the parties and entailed a violation of the in limine order. Sure, it's not crystal clear, and Judge Kozinski makes a tolerable argument the other way. But I can easily see how all the parties might read the statement the way Judge Ikuta does, and since all of the participants who were there at the time (and in the context of the actual trial) seem to have understood it that way, I think that's more than sufficient evidence to adopt the district court's interpretation.
One thing I know for sure. Judge Ikuta's right about Judge Kozinski's dissent. Judge Kozinski argues at length that the attorney was talking about the defendant's perspective during the closing argument. I agree, and Judge Kozinski's lengthy quotation amply proves this point. But that's not true during the portion of the closing argument at issue. The attorney clearly changed perspectives and started talking about the victim's perspective, including the part of the closing argument that led to the sanctions, and that lends credence to the district court's view that the statement violated the order. Judge Kozinski's "perspective" argument is simply wrong, and is half-a-beat too sly. Judge Ikuta catches him and points this out in her dissent, but Judge Kozinski doesn't budge. Proving that Judge Kozinski is far from a hypocrite, and is more than willing to follow his own advice about the dangers of apologizing or readily admitting error. Let the reader decide. Good for lawyers, good for judges.
But while Judge Kozinski seems wrong to me on this point, I think he might well be right with respect to the second portion of his opinion. In which he alternatively holds that he'd reverse the sanction on the ground that it was excessive. That seems quite plausible to me. The district court imposed sixty-some thousand dollars in sanctions, which was exactly the amount of the plaintiff's attorney's fees at trial, presumably on the theory that the violation of the in limine order caused the jury to hang. But I agree that this is probably wrong. The district court promptly corrected the error and sustained the objection, the wrongdoing attorney expressly (and immediately) told the jury that the inference that he was trying to get them to draw was wrong, and there's no reason whatsoever apart from the fact that this comment was made during a closing argument to think it actually had any impact whatsoever on the jury's ultimate decision to hang.
I agree with Judge Ikuta that the district court could spank counsel to uphold the integrity of the court and to deter future misconduct. But sixty-three thousand for a single comment, even if deliberate (and I'll concede for purposes of argument that it was), seems excessive for something that didn't matter at all. I'm not sure that Judge Kozinski's "$5,000" line really works. Maybe I'd permit an attorney in an appropriate case to be spanked even more than that. But a lawyer who utters a single erroneous line, who immediately apologizes, and who immediately rejects in front of the jury the inference that he was trying to deliver is sufficiently deterred, it seems to me, by having to write a check out of his own pocket for five or ten grand. Unless the guy's burning cigars with hundred dollar bills, sixty thousand-plus is unnecessary, and since it's not compensatory, but rather to deter and preserve integrity, I agree with Judge Kozinski that it's got to be brought down.
But not to zero. The dude did wrong. He should have apologized. And the fact that he did, I might add, would only encourage me further to bring the sanction award lower than I otherwise might.
So I in fact think that the lesson one should receive from Judge Kozinski's opinion today is precisely opposite to the one he actually delivers. Lawyers should be more, not less, willing to apologize. Not only because that's typically the right thing to do, and because counsel's instinct is usually overboard the other way. But also because, after today, you've got an opinion by the Ninth Circuit that says that even when you apologize, that doesn't mean a judge is going to conclude that you actually did the thing for which you apologized.
So it's the perfect world. Apology without meaning. Apology without effect. Apologies that are only an upside.
So apologize.
