I sacrificed profit to pursue law for the common good … for this?
My first 10 years out of law school were spent as a corporate lawyer. The money was great but the intellectual challenge was marginal, and intrinsic satisfaction was non-existent.
I was new to Chicago, so, like a lot of young lawyers, I hung out with other young lawyers. Most of us, myself included, had borrowed at least $100,000 to get through law school, on top of whatever we owed for undergrad.
I was a nicely compensated hired gun but my job, at its core, was to move profits back and forth between corporate entities. Practicing corporate law didn’t serve justice, humanity, or animals abused at home or abroad. It didn’t solve for X, unless X began and ended with money.
Leaving profit for principle
Disillusioned, I was jealous of my poor friends who worked in public interest law. They were struggling to pay obscene rents but when they talked about their cases, their eyes projected an unquestionable sense of purpose. Win or lose in their cheap suits and goodwill shoes, unlike me, they were making a difference.
When I switched from corporate law to public interest litigation, everyone warned that the learning curve would be high — corporate skills wouldn’t transfer to the courtroom. By switching fields entirely, after 10 years, I’d be starting all over again.
They were right. Mastering the Federal Rules of Civil Procedure, in tandem with the Federal Rules of Evidence, is a serious undertaking. They are dense and byzantine. But I was motivated in a way I’d never been before. I replaced money with a passion for making a difference. And for a while, I felt like I did.
Drudgery of civil litigation
Most federal cases don’t get in front of a jury. Most don’t go to trial at all. The vast majority of federal cases presenting constitutional claims are resolved, after two, three, or four years of discovery, at the summary judgement phase.
Summary judgment, the lifeblood of any federal trial lawyer, is basically a trial on the papers. It follows years of discovery complete with motions to compel the other side to produce something other than boxes of worthless crap.
In summary judgment, attorneys on all sides of the case file statements of fact, distilling thousands of pages of evidence into short, numbered facts. Each salient fact must be supported by a pinpoint cite, directing the judge (and opposing counsel) to the exact line number, of the exact page, of the exact exhibit where a witness said what the lawyer claims he said.
Disillusionment hits hard
I presented the preceding overview of one aspect of federal trial practice as a snapshot of how much work goes into federal pleadings that, in turn, drive federal rulings. The breadth of work that goes into federal rulings adds to the depth of disillusionment when those rulings are ignored.
Watching republicans on the high court give a felon president immunity from criminal laws, then gut federal courts’ power to issue nationwide injunctions to stop him from doing his worst, makes me feel like an idiot. I spent too many years in the courts to watch casually as the Supreme Court dismantles centuries of precedent in overtly partisan service to a lawless president.
When I see the Roberts Court issue partisan, emergency docket rulings like American Federation, that completely disregard the work and input of the federal district and appellate courts, it feels personal. I feel dissonance and displacement. Is this the same federal judiciary I practice under?
SCOTUS belittles federal judiciary
In American Federation of Government Employees v. Trump, giving Trump unprecedented authority to dismantle the federal government without Congress’s input, the Supreme Court ignored the work of both the district court and the Ninth Circuit Court of Appeals.
The district court issued a 55-page analysis of the standard factors for preliminary injunctive relief, and concluded that Trump’s mass federal layoffs should be enjoined until the merits of the arguments could be heard. The district court found that Trump’s proposed changes to the federal government, by restructuring or closing agencies created by Congress, appeared to “intentionally or negligently flout the tasks Congress” specifically assigned to the agencies Trump seeks to dismantle.
After reviewing 69 sworn declarations and 1,400 pages of evidence, the district court found, as affirmed by the Ninth Circuit, that if they did not pause Trump’s restructuring, the egg could not later be unscrambled — after mass firings, federal agencies would “not be able to do what Congress directed them to do.”
Partisan court serves Trump by disregarding fact
Last week, the Supreme Court disregarded those factual findings and ruled on its shadow docket that the Trump administration was “likely to succeed on its argument that the (layoffs) are lawful,” without presenting any facts or law in support.
As noted by the dissent, longstanding precedent directs that “factual findings are reviewable only for clear error,” “with a serious thumb on the scale” supporting the district court’s evaluation of evidence.
Federal Rule of Civil Procedure 52(a)(6) similarly directs that a trial court’s factual findings “must not be set aside unless clearly erroneous.”
For Trump, apparently, those rules don’t apply.
In Dobbs, the immunity decision, the Colorado 14th Amendment case, and multiple decisions issued in Trump’s favor despite the strength of precedent against him, the Supreme Court’s Republican majority supported its outcome-driven decisions with distorted and cherry picked legal precedent.
That was bad enough. But in American Federation, the court simply announced its desired outcome without offering any support at all. It’s a growing, pernicious habit as the court decides Trump cases on the shadow docket, where reasons don’t have to be given.
After 20 years on the federal trial bar, I now consider the law to be largely illusory, its pursuit a bit naive. It’s hard to imagine that any trial lawyer could continue to respect the law under a high court that so flagrantly disregards it.
- Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.
