Who’s Got Their Head in the Sand?

A federal judge has concluded that the U.S. Court of Appeals for the Seventh Circuit in Chicago did not violate the Code of Judicial Conduct when it ridiculed an attorney in a written opinion.

Circuit Judge Joel M. Falum, who was assigned to decide a complaint filed by the attorney, said the offending opinion  a three judge panel of the appellate did not impede the administration of justice by the court.

The 7th Circuit panel included in its written opinion two photos – one featuring an ostrich with its head in the sand and the other depicting a suited man with his head in the sand.

Judge Falum ruled on Dec. 21 that the photos were evidently meant to depict “complainant’s willful avoidance of dispositive legal authority that was repeatedly brought to complainant’s attention.”

The attorney who was the butt of the panel’s  “humor” complained that the judges violated a requirement that judges be “patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Judge Falum interpreted the question for decision as whether the “photo-enhanced opinion” had a prejudicial effect on the effective and expeditious administration of the business of the court.  “The inclusion of photographs to underscore a decision already reached by the court could not have such an effect,”  he decided, dismissing the complaint.

With all  respect to Judge Falum,  it is highly unlikely that a judicial panel furthers the administration of justice when it humiliates an attorney with which it disagrees in the course of denying the attorney’s requested relief.  It certainly doesn’t foster confidence among victims of workplace abuse when the court demeans the professionals who appear before it with hats in hand.   And, by the way, progress often occurs solely because an attorney challenges dispositive legal authority. (Remember slavery and women’s suffrage?)

Ridicule is a common tactic in workplace bullying scenarios.  Targets often are the subject of treatment that is designed to embarrass or humiliate them.  Such treatment can take a profound emotional and physical toll on the target.

The identity of the parties involved in the dispute were not disclosed – neither the complainant nor the three judges.  The case is In Re. Complaints Against Three Judges, Nos 07-11-90072-90074.

Postscript – It’s a myth that ostriches bury their heads in the sand. They don’t. A male ostrich digs large holes (up to 6 to 8 feet wide and 2-3 feet deep) in the sand to make a nest. Predators cannot see the eggs across the countryside which gives the nest a bit of protection.

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