The title may not be particularly witty, but it does catch your eye.  If for nothing else, to make sure it isn’t your brief he’s writing about. 

The Williams case is a child porn case.  There are four (count ’em, 4) lawyers listed on the cover.  And the brief is replete with misspellings, grammar and syntax errors.  Worse yet, the argument is poorly constructed, redundant and unpersuasive.  It’s one of those briefs where the lawyers think if you repeat the same platitudes over and over, no one will notice that you’re fly is open. 

Volokh received a surprise slap for this piece from some of his readers who found his critique to be in bad taste.”  When he pushed the envelope, the slap stung worse as readers raised the ugly specter that Volokh was being “disingenuous”.  After all, when was the last time a law professor publicly excoriated another law professor for academic writing that, well, stunk?  His defenders pointed out one need not criticize every work to be justified in criticizing any work.

Whether Eugene Volokh is disingenuous is best left to those more familiar with his sacred cows.  He is right, however, that when you submit a brief to the Supreme Court of the United States, you should expect scrutiny.  This is the big game, ladies and gentlemen.  This is not an opportunity to see whether spellcheck is as good as Bill Gates says it is. 

The Williams brief demonstrates the danger of a lawyer (or a group of lawyers) taking a case to the Supreme Court when unprepared to do so.  It is inconceivable that this gang of four could not be bothered to check the spelling of their brief.  That they lacked the capacity to write cogent sentences is another matter.  Their inability to present a well-reasoned argument is, well, very troubling.  Sure, next week there will be TV commercial airing in Coral Gables about how they are the only local criminal defense lawyers who have been to the big dance.  I doubt they will mention how their brief caused a bit of a stir. 

So how did they get there?  Well, apparently kiddie porn pays well, but doesn’t impart the level of judgment needed to select the right lawyer for an appearance before the Supremes.  But the issue raised obviously piqued someone’s interest.  And if the constitutionality of the underlying law is going to be decided for all of us, my preference is that we have better representation.  Notably, this is the respondent’s brief, meaning that these guys won in the Circuit and the losers sought cert.  Still, whether they are representing the appellant or respondent, this is not amatuer hour. 

So yes, Eugene, I think you were absolutely right to note publicly that this brief was poor.  Whether you needed to be so offensive about it is another matter, but that’s part of the game when you play in the big leagues as well.  My point in discussing this is to show the back-story in how bad law happens when bad work finds its way to the top. 

I will not, and cannot, say that the lawyers for Williams are not brilliant lawyers.  Under other circumstances.  I don’t know them and they may well be great lawyers.  But this brief was not great.  Not even close.  So when the stars align, and you get the opportunity to present your case to the Supremes, this is the time to play your “A” game.  If you are not up to it, then find someone else who is.  But don’t, for the sake of all of us, show up with a brief like this.  There is no excuse.  It has got to be the best it can be, and this brief was junior varsity at best.