Ask And Ye Shall Receive, Cox Edition

As a follow-up to my earlier post about Eugene Volokh’s post-win motion to sanitize the 9th Circuit’s opinion about his pro bono client, Crystal Cox, having “apparently” engaged in some dubious behavior, a brief post to add the latest amicus curiae submission, this one on behalf of a fellow named Martin Cain.

In attempting to excise the Court’s reference to her underlying extortionate conduct from the opinion (Petition for Rehearing), Cox apparently provoked Mr. Randazza to provide the Court with more definitive evidence as to her conduct, directed at himself and at others. In her opposition, Cox asserts that the MBRR findings presented by Mr. Randazza – as they were at the time – were merely “proposed” and thus should be disregarded. (Cox Opp. to Mot. for Leave to File Amicus Brief) Amicus hereby seeks to present this Court with the MBRR’s final Findings of Fact, Conclusions of Law, and Final Order (“Order”).

Amicus here is the actual victim referred to in the MBRR’s proposed finding of facts and conclusions of law (Randazza amicus Brief, Exhibit. B). While it is true that those were merely “proposed” findings of facts and conclusions of law, Amicus is in possession of the final Order.

The MBRR’s Order is even harsher than the proposed findings, to which Cox and her counsel objected. (Exhibit A, pages 1-3) In fact, the MBRR found that the proposed findings were too generous to Ms. Cox.

This situation bears a striking resemblance to the rookie lawyer on cross-examination who doesn’t know when to sit down.  After the witness testifies that the defendant’s back was turned to him when he bit off the victim’s nose, the n00b seizes the opportunity to go one question too far.

Q:  So if the defendant’s back was turned to you, how could you possibly know that he bit off the victim’s nose?

A:  Because he then turned around and spit it out.

Boom.  If you’re going to challenge the basis for a court’s equivocal finding, you better be pretty damned sure there isn’t far better authority lurking out there.  Better still, when you get a big win, get out of the courtroom as quickly as possible and never look back.


20 thoughts on “Ask And Ye Shall Receive, Cox Edition

  1. Turk

    This reminds me of the lawyer that got a defense verdict in a criminal case and then asked that the jury be polled.

  2. EH

    I hesitate to even suggest this, but it almost seems like Randazza did his job grudgingly and acceded to Cox’s unrealistic demands for re-filing, with the hidden expectation that she would get what she deserved in the end. I say this because it would surprise me, given his expertise, if Randazza didn’t know this was out there.

    1. SHG Post author

      I’m pretty sure you meant Volokh and not Randazza. I don’t know if Eugene did it grudgingly or not. I know that if I had taken Cox’s case pro bono, I would not have done it. Others have been critical of my view because of the mistaken belief that lawyers are constrained to take any action a client demands, no matter how tactically inadvisable or unrelated to the underlying purpose of their representation, suggesting that Eugene did what a lawyer should do. But they’re wrong.

      1. EH

        You are correct and I meant to refer to Eugene–if you could amend my erroneous comment to reflect the appropriate party I’d appreciate it. I had just come from reading Randazza’s blog and mindlessly mixed up the names.

        Others have been critical of my view because of the mistaken belief that lawyers are constrained to take any action a client demands, no matter how tactically inadvisable or unrelated to the underlying purpose of their representation, suggesting that Eugene did what a lawyer should do. But they’re wrong.
        I think that you may not entirely be recognizing the basis for some of the push-back.

        I would generally agree that a lawyer should not take a tactic which will produce a bad result for a client, when a better tactic is out there. However, it’s not a lawyer’s job to insert his or her opinion of what the client should want as a result.

        To illustrate with a hypothetical: Carl Client wants to bring a lawsuit. I tell him that although it’s not frivolous he’ll probably lose, and that even if he wins he will almost certainly not recoup the costs of the case. He’s better walking away.

        Should Carl bring the case? Should I?

        Well, if Carl happens to be one of those people who will, absent his day in court, lie awake every night for the next seven years stewing over the fact that he “let them get away with it” then it may be perfectly sensible for Carl to bring the lawsuit. And it may be sensible even if it doesn’t look that way to you, or even to me. It’s not that my “don’t do it” judgment is wrong exactly, but rather that the assumptions on which I am basing my judgment are wrong.

        People like Carl are common enough that most folks can see that hypothetical as reasonable. Plenty of Americans seem to have that particular hangup. Carl will probably be willing to explain it, and I to accept it and move forward.

        But of course people are varied, and other people have equally-pressing (to them) and less-common internalized values. Some of those values may even be relatively bizarre to a listener, but nonetheless be within the bounds of ethics. Not all of those people will necessarily share all of those values with their attorney, even if you could argue that such sharing would be appropriate.

        So at heart it seems to me that you might be mistaken here. When you say “constrained to take any action a client demands, no matter how tactically inadvisable or unrelated to the underlying purpose of their representation” what does that mean to you? Are you assuming that you and they are on the same page about the true “underlying purpose” of the representation? Are you willing to allow for the possibility that the client is driven by a need which they have not, cannot, or will not come to explain?

        To continue and illustrate with this particular example: It seems quite possible given her behavior that Cox is, shall we say, driven by different motivations, priorities, and/or values than you are I might have. It may have meant more to her to make the argument than to avoid the consequences.

        In such a case, what do you think an attorney should do? I”m not convinced that the obvious answer is “avoid the filing.”

        1. SHG Post author

          That was very long, but had completely misapprehended what I was saying. Now you’ve murdered my bandwidth for nothing. What I’m talking about involves a relatively nuanced ethical aspect of the attorney/client relationship, which your hypo totally fails to grasp. Please don’t do that again on my dime.

          Remember, this isn’t your blog. You don’t get to play the pedantic asshole here.

          1. bobo

            There are so many attorneys out there who don’t understand this concept, and I am not commenting on Volokh. It can make the practice of law miserable, and the results for the client bad, especially in a marital case where the problem of doing what the clients wants, including ridiculous tactics, is taken to the extreme. But the problem exists in criminal case as well. But I would say the boundaries in criminal cases are more clearly defined, or at least easier to understand. I totally agree with you that too many attorneys really screw this up. Not enough attorneys are willing to say, no I will not call the other side and say xyz, nor will I file that stupid motion you want me to file. And if you insist, go ahead and report me to the bar, or wherever you want.

            1. SHG Post author

              I do a CLE ethics lecture on this subject, and it’s usually a shock for lawyers to have a clear understanding of what how their ethical duty to the client cuts both ways, to say yes, but also to say no.

        2. Patrick Maupin

          Should Carl bring the case? Should I?

          Those are two completely different questions. IANAL, and I haven’t taken Scott’s ethics class or thought about it nearly as much as he has, but being a voluntary civil plaintiff is a completely different ball of wax than being an involuntary defendant of any stripe.

          If Carl wants to proceed, and you feel either that the case shouldn’t be prosecuted, or that it’s unwinnable, you’re not the right attorney for Carl, full stop. Even if you’re better qualified than the attorney Carl will turn to in your place. Even if he doesn’t really believe in the case either. There are so many things that can go wrong, and very little potential upside. I hope that you’re not a lawyer, or that if you are, you learn to respect yourself and your clients a bit more.

    2. Alex Stalker

      Mr. Volokh’s actions fueled the common misperception among clients that we are their sock-puppets. This is an excellent lesson in why one should not necessarily accede to client demands regarding strategy.

      1. Patrick Maupin

        Speaking of sockpuppetry, is there a good reason why Volokh would object to this brief? As a layman with limited understanding, this behavior looks even worse than Volokh’s original motion, but maybe I’m missing something.

        1. SHG Post author

          Eugene has put himself into a difficult situation. Having filed the original motion, challenging a tangential and immaterial aspect of the ruling because his client’s feelings were hurt by it, he’s now constrained to either pursue it to the bitter end or withdraw the motion. Should he withdraw, he will be subject to the slings and arrows of those (like me) who argue that it was a bonehead move in the first place. But this is where he gets a second chance to do right by his client, having neglected to counsel her thoughtfully before making the motion in the first place.

          Eugene should take the hit for his decision to make a tactically inadvisable motion and withdraw it.

          1. Patrick Maupin

            “he’s now constrained to either pursue it to the bitter end or withdraw the motion.”

            That sort of constraint would appear to go a long way towards explaining how so many prosecutorial actions snowball into huge miscarriages of justice. Maybe we need a “modified adversarial” system of justice, or something.

            In any case, valid constraints or no, winning a free speech case, and then immediately arguing that a third party should not be allowed to engage in the most sacred act of speaking to the government, looks extremely petty, mean, and hypocritical on the surface. Which actually causes a much worse perception problem for lawyers that the mere appearance of being sockpuppets.

  3. Crystal Cox Supporter 3

    Have it your way. do a google search for “judge dorsey nevada $150,000 harry reid” than you will find some interesting stories about donations. and then you can do a search for “marc randazza political contributions obama” and you find that he is a big democRAT donor. why you are fearing the evidence? the documents! they show you are hiding the massive corrupt political and legal scandal where donors are ganging up on (and gangstalking) an anti-corruption blogger!

    1. SHG Post author

      So you’ve made this comment to the wrong post, combining batshit crazy with blitheringly stupid. But the good news is that your “massive corrupt political and legal scandal” is idiotic. I’m going to help you out and report this to the correct thread, because I shouldn’t be the only one to appreciate this insanity.

      1. SHG Post author

        You didn’t just write that. Oh crap, you did. Thanks, Chris. I’ll send ’em to your house for further discussion.

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