Sunday, April 19, 2020

A Question About Unexpurgated Language and Lawyers or Law Students

By Eugene Volokh - April 19, 2020 at 11:32AM

Here's an excerpt from a 2016 Ninth Circuit oral argument in an employment discrimination case, Reynaga v. Roseburg Forest Prods.; the questioner was the late Judge Harry Pregerson, a highly respected liberal judge:

PLAINTIFF'S LAWYER: I believe at one time there was a Black person there. It's a, it's a very White part of the, the world.

JUDGE: Now, Mr. Branaugh, he kept making references like this to your client and these are all in the record. He used to—he, he would refer to Black people as niggers.

LAWYER: Yes.

JUDGE: As niggers. And then Branaugh told Reynaga in September of 2009 after Reynaga received hunting tags for a second year in a row, "I'm a true believer that we should close the borders to keep motherfuckers like you from coming up here and killing our elk."

LAWYER: He did.

JUDGE: He's saying that to him?

LAWYER: Yes. It's undisputed.

JUDGE: And then he left a printed email in the break room that had an article about Obama being an illegal alien and stated that, our borders are like sieves.

LAWYER: Yes. Yes.

JUDGE: And [inaudible] he jury could take these as reference, all of these as reference to, to, to the plaintiff here.

My question: Say there were black lawyers in the audience—perhaps the arguing lawyers' junior associates, who came to help and to learn; law clerks (young lawyers working for the judges and preparing to draft the opinions); other lawyers whose cases were up later that morning; in some other case like this one, the arguing lawyers (these ones appeared to be white, but in another they could easily have been black); or anyone else. How do you think they likely reacted to the judge's accurately quoting the record, in saying that Branaugh had called Blacks "niggers"?

  1. They were traumatized or at least highly pained by even hearing the judge say the word—not just rightly angry that defendant's employee Branaugh had used the word in his workplace back in 2009 (an anger that they would have and should have felt even had they heard him described as saying "the n-word" instead), but deeply upset by the very fact that the judge had accurately quoted the word from the record in court. Chief Judge Sidney Thomas should have apologized for the pain the judge had caused black lawyers.
  2. They weren't traumatized or highly pained; instead, they listened to this pretty much as they would listen to most other unpleasant facts about unpleasant people doing or saying unpleasant things. They were just doing what lawyers do: They were just trying to think about how to best deal with this line of argument. Or they were trying to figure out what the judge and his colleagues were likely thinking about the case, so they could give their clients a sensible prediction of how the case would come out. Or, if they were law clerks, they were thinking about how to draft the eventual opinion. Or they were trying to learn more about the judge's approach to argument in preparing for their own argument. Indeed, if they were momentarily slightly upset, they made sure to suppress this reaction, so they could continue effectively performing their lawyerly tasks.

My sense is that the answer is (2). And, because of that, I think we should expect law students to be able to deal with such words just as we expect law clerks and practicing lawyers to do the same.

Indeed, I think we would be doing our students a disservice by operating our law schools as if students were entitled to be shielded from even hearing such words quoted. Taking such a view, and conveying it to students, would poorly prepare them to become lawyers in a world where ugly words are a staple of litigation, heard eventually at oral argument but before that quoted by clients, witnesses, colleagues, and opposing counsel, all discussing the facts of the case. And it would poorly prepare them for their first task as lawyers being to learn the unvarnished truth, whether about the facts of the case or what a judge is thinking or how some witness or adversary sees the world (even if, after that, the lawyer has to varnish it hard indeed to suit the client's agenda).

Now I acknowledge that the judge could have used a euphemism instead, both in oral argument and in the opinion (which quotes the word without euphemism three times, as more than 10,000 other court opinions do). But he didn't, perhaps because he thought that a Ninth Circuit courtroom is a place for people to discuss the facts of the case candidly and precisely (my view of a classroom as well). In any event, my question here is simply how lawyers in the audience likely reacted to this choice, a choice made in many other courtrooms as well.

But that's just my conjecture: Tell me what you think, in the comments.


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