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Amici Curiae Briefs Supporting Allegations of
In U.S. Federal and State Courts
“[A] broken system leads too many judges to call balls for one side and strikes for another.”
“[W]e should also ask ourselves what kind of a judiciary system this society has produced where judges can misstate the facts of a case and then proceed to apply the law to those fictitious facts. Can any person be safe in court if this practice is allowed to continue? If judges can listen to the evidence and then tell a contrary story, what remains of justice? The vaunted security we have in a free country and a just legal system turns to quicksand.”
Our Mission Statement
It used to be that, when a cop claimed to have shot someone in self-defense, the cop’s word was always believed.
But now, with smartphone cameras and the Internet, the question is being put directly before the public. And, more often than not, we see that the facts differ markedly from the official version of events.
This website strives to do the same thing with judicial decisions. By revealing the distortions of fact in the judges’ Findings of Fact, we let the public decide if a legal case was or was not honestly decided.
Thus, like Edward Snowden’s revelations of the NSA’s illegal surveillance programs (kept hidden by government secrecy laws), our revelations of the prevalence of corruptly “fixed” court cases (previously kept secret by attorney-ethics rules) will blow apart the fiction of the rule of law in the United States.
Case of the Month
Eileen L. Zell v. Frost Brown Todd LLC, et al.
Case No. 2:13-cv-00458 (S.D.Ohio, E.D., 2017)
A legal-malpractice case decided in a bench trial
by U.S. District Court Judge Algenon L. Marbley
AN EXCERPT FROM OUR BRIEF:
“A trial is supposed to be a search for the Truth. However, the trial in the instant case was a search for its obverse. And, what one searches for, one will inevitably find.
“… [D]uring the trial … the undersigned repeatedly characterized the Frost Brown Todd (FBT) attorney-defendants’ and witnesses’ testimonies as being ‘obviously’ perjured and accused the Defendant Frost Brown Todd law firm and Defendant FBT attorneys of having based their entire defense on those obvious perjuries. One implication of this is that anyone possessing even a passing familiarity with this case would have surely recognized the falsity of the FBT defendants’ and witnesses’ testimonies. Another implication is that such a prominent law firm as Frost Brown Todd would never risk its reputation, and its attorneys would never risk their law licenses, by committing such a serious offense as perjury and in such a way that it would be so obvious to all — that is, unless they had some reason to believe that they would get away with it.”
All Judicial Decision Making is Result-Driven
Scientific research has proven that all living things, including human beings, are inherently selfish. See generally Richard Dawkins, The Selfish Gene (1976). This means that we humans will always act in whatever way we think is in our own best interests — in fact, we are genetically compelled to act this way.
Like all living things, judges are also genetically compelled to do what they think is in their best interests. Accordingly, as the “Positive Political Theory” and “New Legal Realism” movements have pointed out, when judges issue a decision the judges are doing so solely because they think that this decision will serve their own personal interests rather than any idealized conception of the public interest. See generally Neil Duxbury, Patterns of American Jurisprudence 65-159 (1995).
While the personal interests of good judges would be to make a legally-correct decision — i.e., the one that the facts and the law lead to — most judges do not fit that profile. Instead, their personal interests are based on philosophical positions, political positions, personal biases or prejudices, which party (or lawyer) they like better, or which party (or lawyer) can help or hurt their career more. (Note that we are not including bribes, which — unless you consider campaign contributions to be bribes — we do not think is a significant problem.) And, because there is no penalty for making a legally-incorrect decision, judges will do so whenever their personal interests conflict with making a legally-correct one.
Even though there is no penalty for deciding a case erroneously, the judges will still try to make it look as if their decisions were correct, i.e., based on the facts and the law. This way, a higher court will be likely to uphold their decisions. Also, the self-interested nature of the judges’ decisions will be hidden from the public.
For example, it is a myth that judges mechanically apply the law to the facts of a case to arrive at their decisions. Instead, the truth is that judges first decide how they want the case to end up and then they look for legal rules and precedents to rationalize their decision.
As Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit explains: “The time to look up precedents, statutory text, legislative history, and the other conventional materials of judicial decision making is after one has a sense of what the best decision should be[.]” Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses 82 (2017) (original emphasis). Thus, “judges *** use precedent, if at all, as an ex post facto justification for their decisions.” See Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155, 2156-2157 (1998). Accordingly, legal rules and precedents “merely rationalize decisions; they are not the causes of them.” See Jeffery A. Segal & Harold J. Spaeth, The Supreme Court And The Attitudinal Model 66 (1993).
“Such rationalization comes rather easily as precedents are typically available on both sides of any case.” Cross and Tiller, 107 Yale L.J. at 2157 n. 6. And, when they are not, even authoritative precedents “usually *** can be got around by hook or by crook[.]” Posner, The Federal Judiciary at __. As a result, “if a judge desires a case to come out a certain way, *** the rules of law do not and cannot force him to decide the case against his own desire.” See Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L. Rev. 1313, 1346-1347 (1990). Thus, rather than the law determining how a judge will decide a case, how a judge decides a case will determine the law that the judge cites to justify that decision. And “the mere fact that a court cites precedent provides no evidence that precedent actually determines the outcome of the case.” Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 302 (Lee Epstein ed., 1995). In this sense, all judicial decisions are result-driven.
Local bar associations — the very same ones that prosecute lawyers for alleging result-driven judicial decision making — actually advise lawyers to assume that this is how the judge presiding over their case will arrive at his or her decision, and then to act accordingly. Although this is sound legal advice, the hypocrisy involved is astounding. Consider the following advice given in a recent video-recorded CLE presentation (titled “Fixing Broken Records: Ensuring That Essential Issues Are Reflected in the Record”) by attorney Paul Croushore as part of the CLE seminar “Appellate Practice Video Reply” sponsored by the Ohio State Bar Association.
Attorney Paul Croushore stated that appellate courts often use the phrase “harmless error” dishonestly. When an appellate court wants to reverse a lower-court decision, it will claim that the error was “not harmless.” But, when the appellate court wants to affirm the lower court, it will then call the exact same error “harmless.” Attorney Croushore went on to state that there was no other way to explain why the same error is treated differently in different cases. Thus, attorney Croushore advised lawyers not to focus on the law (i.e., whether the claimed error was actually “harmless” or not). Instead, he said that lawyers should to try to convince the appellate court of the justice in their client’s claim, confident in the knowledge that the court would then take care of the rest by finding a pretext on which to rule for that client.
Even where judges choose to ignore the law to arrive at what the judges believe to be a “just” result, in the eyes of the judges a “just” result is simply one that comports with their own philosophical positions, political positions, biases, prejudices, or other self-interests. But, as bad as that is, most result-driven judicial decision making is much, much worse. For, when one of the litigants is a prominent business or individual, that litigant’s interest often becomes the judge’s interest. Thus, “too big to fail (or lose)” becomes the controlling factor, trumping the merits of the case.
Even where both litigants have some political clout, judges can still play favorites as a result of partisan loyalty to one or the other litigant in the case. For example, as a major study of election cases has shown, judges often rule in favor of the political party responsible for putting them in office. See generally Michael S. Kang and Joanna M. Shepherd, The Long Shadow of Bush v. Gore: Judicial Partisanship in Election Cases, 68 Stanford Law Rev. 1411 (2016). And, as the authors of that study have stated:
There is little reason to believe that partisanship influences judges only in election cases. It could be that our work here exposes just the tip of the proverbial iceberg. If judges are influenced, consciously or not, by loyalty to their party in election cases, they are likely tempted to do so in other types of cases as well, even if it is methodologically difficult to isolate partisanship as cleanly there.
See id. at 1452 (original emphasis).
Besides election cases, judicial partisanship is also very obvious in legal-malpractice cases. There, a guild mentality leads judges to protect law firms and their fellow attorneys from all but the most egregious kinds of malpractice — and often from much of that as well.
For example, in a pretrial ruling on the statute-of-limitations issue in Eileen L. Zell v. Frost Brown Todd LLC, et al., Case No. 2:13-cv-00458 (S.D.Ohio, E.D., 2017), a federal district court essentially enabled Ohio attorneys to immunize themselves completely from all liability from any legal malpractice occurring in litigation. According to the district court’s ruling, all that the attorneys would have to do is merely to hand off a litigation case in which they had committed malpractice to another member of their own firm — as in the child’s game of “hot potato.” Then, if (for example, by filing an appeal) those other attorneys delayed the resolution of the case for one year (the length of Ohio’s statute of limitations on legal malpractice) and did not commit any subsequent malpractice of their own, the entire law firm would get off scot-free.
The above statute-of-limitations ruling was previously the subject of an (unsuccessful) petition for a writ of mandamus to the U.S. Court of Appeals for the Sixth Circuit. See https://casetext.com/posts/in-re-eileen-l-zell-eileen-l-zell-v-frost-brown-todd-llc-et-al. However, inasmuch as Eileen L. Zell v. Frost Brown Todd LLC, et al., will soon be before the Sixth Circuit again on appeal, we are currently looking for amici curiae to file a brief on behalf of our client. (By the way, this outrageous and legally-unsupported ruling on the statute-of-limitations issue is another aspect of the same case that was profiled in our “Case of the Month.”)
Although they have lifetime tenure, federal judges are not immune to partisanship. For, “while judicial independence may sometimes free a judge from unwanted political pressure, those structures do nothing to prevent an insulated judge from indulging her or his own political preferences or private agendas.” See Howard Gillman, Judicial Independence Through the Lens of Bush v. Gore: Four Lessons from Political Science, 64 Ohio St. L.J. 249, 264 (2003).
Indeed, as a study of eleven U.S. courts of appeal has shown, federal judges are every bit as partisan as their state-court counterparts, who have to stand for re-election. See generally Corey Rayburn Yung, Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts, 80 Geo. Wash. L. Rev. 505, 508 (2012). Criticizing both judges who came to the bench after private-law practice and those who came after government service, this study found that only formerly full-time law professors displayed a relative lack of partisanship because their personal interests more often dovetailed with rendering a legally-correct decision. See id. at 509.
Of course, that a judge has rendered a result-driven decision does not necessarily mean that the case was corruptly “fixed.” For, within limits, it is considered acceptable for a judge to cherry-pick the legal rules and precedents that lead to the judge’s desired conclusion. Moreover, even we recognize exceptions where the rewriting of legal doctrine to further a policy whose benefits were beyond the ken of earlier courts — as the esteemed Judge Posner has done with economic efficiency — can sometimes be a very good thing.
However, as will be discussed in the following sections, what is not permissible is for a judge to lie about the facts of a case in order to arrive at a pre-determined conclusion — especially where (as is often the case) the judge’s purpose is to favor a politically well-connected litigant. Indeed, judges who purposefully misstate the facts of a case and then base their decision on that misstatement are engaged in quintessential case-fixing because their decision was determined by something other than the merits of the case.
How Judges Fix Cases
THE FOLLOWING EXCERPT IS REPRINTED WITH PERMISSION FROM:
Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts,
11 Cardoza L. Rev. 1313 (1990)
“Do judges routinely display a casual attitude toward the facts of the case? I suggest that practicing attorneys be asked whether they have had cases where the judge’s statement of the facts was false. Every practicing attorney to whom I have asked this question has responded in the affirmative; some have told me that the practice is, unfortunately, quite common…. They feel that their work is subject to the whim of judges who play God with the facts of a case, changing them to make the case come out the way the judge desires…. Professor Monroe Freedman recently stated in a speech to the Federal Circuit Judicial Conference:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities….
“Professor Freedman wrote a letter to me in which he stated that at the luncheon immediately following his speech, a judge sitting next to him said (apropos of the passage above quoted), ‘You don’t know the half of it!’
“Apart from these professional concerns, we should also ask ourselves what kind of a judiciary system this society has produced where judges can misstate the facts of a case and then proceed to apply the law to those fictitious facts. Can any person be safe in court if this practice is allowed to continue? If judges can listen to the evidence and then tell a contrary story, what remains of justice? The vaunted security we have in a free country and a just legal system turns to quicksand. Our case may be factually proven, legally required, and morally compelled, but we can still lose if the judge changes the facts. And if we complain — no matter how loudly — higher courts will not be interested in reviewing a ‘factual’ controversy, and the legal community, as well as the general public, will assume that the facts were those stated by the judge….
“[Yet, in fact, the way that many judges operate is like this:] If the facts of a case conclusively prove that a certain thing did not happen, then the facts have to be changed in order to achieve a judge’s desired results.”
Case-Fixing is a Crime
Considering what Professor D’Amato (see above) called the “routine” nature of judicial case-fixing — deciding a case based on something other than its merits — we would expect that, at most, this is a very minor transgression. Otherwise, so many judges would not be doing it and doing it so often. But, if so, then we will have to find another explanation for its prevalence because case-fixing is a crime.
As the Ohio Supreme Court stated in Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶¶ 20-21:
[It is] a crime — conspiring to fix cases.
To accuse a court of appeals of affirming a conviction out of prosecutorial bias and corruption **** are charges of criminal or unethical activity[.]
And — as any number of convicted traffic-court judges have found out over the years — case-fixing is a crime even when it does not involve bribery. See, e.g., United States v. Bielak, 660 F.Supp. 818 (N.D. Indiana, 1987); United States v. Bruno, Criminal Action 2:13-cr-00039-6 (E.D. Penn. 2014).
Case-fixing can often be difficult to prove because to do so requires discerning the true basis for the judge’s decision. However, one area in which case-fixing is quite apparent is where the judge has purposefully misstated the facts of a case and then based his or her decision on that misstatement. There, it is clear that the case has not been decided on its merits and, thus, that the case has been corruptly “fixed.”
A variation of this — involving up to three separate crimes — is where judges (1) knowingly allow one of the parties to give perjured testimony, (2) then knowingly base their decision on that perjured testimony, and (3) do so as the result of a criminal conspiracy with that party.
Simply allowing perjured testimony to be given — even when it does not affect the resolution of the case — is the first crime. For example, in People v. Waterstone, 296 Mich. App. 121, 818 N.W.2d 432 (2012), Wayne County Circuit Court Judge Mary Waterstone stood trial for “knowingly allowing perjured testimony to be considered by a jury.” The perjured testimony came from a police officer who had falsely denied that the prosecution’s star witness was also a police informant. As one of the judges on the Michigan Court of Appeals explained:
Because this final charge concerns a trial judge knowingly allowing perjured testimony to be considered by a jury, it is the most troubling count on a variety of levels. In count 15, the AG [Attorney General] charged defendant with misconduct in office for “willfully neglecting her judicial duties by allowing perjured testimony [to] be heard by the jury….” *** [T]his charge encompasses a clearly recognized legal duty, because the commission of perjury in court proceedings has long been prohibited. A specific statutory provision addresses the action required of a judge when perjury occurs. In addition, it has long been acknowledged that *** the knowing use of perjured testimony is violative of *** due process rights under the Fourteenth Amendment.
Waterstone, 296 Mich. App. at 164, 818 N.W.2d at 454 (Talbot, J., concurring in part and dissenting in part).
Although the felony charges against Judge Waterstone were dismissed, the appellate court ruled that Judge Waterstone could be retried on misdemeanor charges. See Waterstone, 296 Mich. App. at 144, 818 N.W.2d at 444. This was so even though (in the underlying case) the perjured testimony went only to the credibility of a witness, the jury was deadlocked on a verdict, and Judge Waterstone had therefore declared a mistrial.
A second crime is when judges not only knowingly allow perjured testimony to be given, but then also knowingly base their decision on that perjured testimony. That is far worse than what Judge Waterstone did. For here the perjured testimony not only goes to the key issue in the case but also is then used as the sole basis for corruptly fixing that case.
Finally, to fix a case in this way through the use of perjured testimony generally indicates a conspiracy — typically, one planned during a prohibited ex parte communication — between the judge and the party offering the perjured testimony. This conspiracy, of course, is the third crime because any such “conspiracy between the trial judge *** [and one of the parties] to prevent *** [the other party] from receiving justice” [would, if proven, represent] “a criminal enterprise.” See, e.g., State v. Keller, 813 S.W.2d 146, 149-150 (Tenn.App. 1991).
Some Case-Fixing Creates Civil Liability
While criminal prosecutions of judges for case-fixing are rare, even rarer are successful civil suits against case-fixing judges. For, with regard to judicial misconduct: “[T]he general operating rule is ‘cover it up’ **** in all but the most egregious cases that would leak to the public anyway.” Anthony D’Amato, Self-Regulation of Judicial Misconduct Could Be Mis-Regulation, 89 Mich. L. Rev. 609, 609 (1990). For example, once a corrupt judge has been criminally convicted, the courts are much less likely to put up roadblocks to a civil suit.
A case in point: After two Luzerne County (Pennsylvania) Court of Common Pleas judges — Michael Conahan and Mark Ciavarella — were federally indicted in 2009 (and later convicted) in a “kids-for-cash” corruption scheme, they then became defendants in a federal class-action lawsuit on behalf of the thousands of children whose delinquency cases the judges had corruptly “fixed” to enrich the private owners of the juvenile-detention centers to which the children were sent.
In 2014, the children plaintiffs were granted partial summary judgment on their claims against the judges for violation of their right to an impartial tribunal and conspiracy to violate their right to an impartial tribunal as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. See Humanik v. Ciavarella, Jr., Civil Action No. 3:09-cv-0630; Clark v. Conahan, Civil Action No. 3:09-cv-0357; Dawn v. Ciavarella, Jr., Civil Action No. 3:09-cv-2535; and Belanger v. Ciavarella, Civil Action No. 3:10-cv-1405 (M.D. Penn. Jan. 9, 2014).
Based on self-serving judge-made case law dating back to the time of the Star Chamber in England, the court noted that the judges were immune from civil suit for their judicial acts “no matter how corrupt.” However, the court then found that the actions that Judges Conahan and Ciavarella had taken in planning their conspiracy with the detention-center owners and others were non-judicial in nature and, thus, fully actionable.
Accordingly, judges who conspire with one of the litigants to corruptly fix a case are also civilly liable for their actions.
* * *
Thus, what is extraordinary about judicial case-fixing is that the judicial officials who are charged with adjudicating guilt or innocence and meting out punishments are instead themselves the very persons who should be punished. But, as will be seen below, even more extraordinary is how the attorney-disciplinary officials and the courts deal with mere attorney allegations of judicial case-fixing.
Lawyers Are Prohibited From Alleging Judicial Case-Fixing
Incredibly, the courts in every state have enacted rules prohibiting lawyers from alleging judicial case-fixing. This prohibition is so broad that it even covers the legal briefs that the lawyers submit on behalf of their clients appealing the results of fixed cases. Since lawyers are the only ones who possess the evidence of judicial case-fixing, one of the purposes of such prohibitions is to keep these crimes a secret from the public. Indeed, hiding these allegations from the public is the stated purpose of the prohibition.
However, there is also a far more sinister (and obvious) reason that the judiciary prohibits lawyers from exposing its members’ criminal activities. For, as some judges have acknowledged, the claim that the public might somehow learn about the alleged case-fixing from a lawyer’s legal brief is a mere pretext:
Certainly, a motion for reconsideration in an appellate court, while a public document, would receive about as much scrutiny from the public if it were written on the wind. The offending statements were between this attorney and the bench, and were presented in such a way that only the bench and opposing counsel would see them.
Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 43 (Pfeifer, J., dissenting).
While acknowledging that the ordinary citizen “has a right to criticize [judicial] officials,” the so-called “ethical rules” governing lawyers require that:
The lawyer should do so with restraint and avoid intemperate statements that tend to lessen public confidence in the legal system.
Preamble to the Ohio Rules of Professional Conduct, par. 5 (“Respect for judges”). See A.B.A. Model Code of Professional Responsibility, EC 8-6 (“unrestrained and intemperate statements tend to lessen public confidence in our legal system”).
Since even true allegations of judicial case-fixing would “tend to lessen public confidence in the legal system,” all allegations of judicial case-fixing are thereby prohibited. However, to make the punishment that they impose on offending attorneys seem more justified, the courts typically engage in the fiction that the attorney’s allegation of case-fixing was false. Take, for example, the case of attorney Mark J. Gardner discussed in Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 793 N.E.2d 425, 2003-Ohio-4048 (2003).
Attorney Gardner had a client who, due to an error by the arresting law-enforcement officer, was charged with the “wrong” driving offense. In a misguided attempt to correct the officer’s error, a court then convicted the client of the proper offense even though the client had not been charged with that offense. In a motion for reconsideration, attorney Gardner correctly pointed out that, since his client had never been charged with the crime of which he was convicted, the client did not receive sufficient notice of that crime as required by due process of law. Therefore, in its rush to get a conviction no matter what, the court had “ignore[d] well established law.” See Gardner at ¶ 8. Accordingly, Attorney Gardner then aptly characterized the court’s decision as “biased,” “having a prosecutorial bent,” and being “result driven.” See id. at ¶¶ 3-4.
Arguably, attorney Gardner’s complaint about the court’s result-driven omission of material authorities fell short of alleging judicial case-fixing since the court had not fabricated the facts of the case. Nonetheless, in a decision that itself seemed result-driven, the Ohio Supreme Court suspended attorney Gardner’s law license, asserting — without any evidence — that “a reasonable attorney would believe that respondent’s [attorney Gardner’s] accusations were false.” See Gardner at ¶ 32. However, we are reasonable attorneys and we believed attorney Gardner’s allegations to be true. So did the local newspaper. See Frank Lewis, He Didn’t Play Nice: Criticize a judge in Ohio, and revenge comes swiftly, Cleveland Scene (Feb. 11, 2004), found at https://www.clevescene.com/cleveland/he-didnt-play-nice/Content?oid=1485421.
Moreover, our feelings are borne out by academic studies on judicial whistleblowers such as attorney Gardner. Those studies have found that, generally speaking: “[B]ecause the higher court learns the facts upon review, *** the whistleblower is always truthful.” See Beim, D., Hirsch, A. V., & Kastellec, J. P., Whistleblowing and compliance in the judicial hierarchy, 58(4) American Journal of Political Science, 904, 907 (2014). Considering that these whistleblowing attorneys are risking their law licenses by complaining, the charge that their complaints have been fabricated is itself the real lie.
Thus, the Ohio Supreme Court’s Gardner decision shows not only the Supreme Court’s disingenuousness, but also the impossible standard that is applied to attorney criticism of judicial decisions. In this sense, the standard required of attorneys who accuse judges of result-driven decision making is the same as that required by the Holocaust denier whom, it has been said, confronts Holocaust survivors with:
the absurd challenge to produce incontrovertible eyewitness evidence of their experience **** Not only was such evidence unavailable, but it also challenged the Jewish survivors to produce evidence of their own legitimacy[.]
Ulrich Baer, What “Snowflakes” Get Right About Free Speech, The New York Times (The Stone, April 24, 2017), found at http://nyti.ms/2pFSdf8.
Finally, as we have seen, it is a scientific fact that all judicial decision making is result-driven. Thus, just as the Tennessee court in the famous Scopes “monkey” trial of 1925 enforced the prohibition against teaching evolution, in the Gardner case the Ohio Supreme Court is likewise requiring attorneys to deny science. And, because the restrictions on judicial criticism seek to prevent attorneys from making truthful statements that contradict government propaganda, they are reminiscent of what occurred in the story of “The Emperor’s New Clothes.”
Indeed, through this very website in 2012, we previously attempted to survey “the reasonable attorneys of Ohio” to ascertain whether or not they believed that a decision rendered by Ohio’s Tenth District Court of Appeals had been “fixed” in the case of Michael Mindlin and Elizabeth Kurila v. Eileen Zell, 10th Dist. No. 11AP-983, 2012 Ohio 3543, 2012 WL 3200718. We created this survey — rather than go ahead and allege case-fixing — specifically to comply with the standard that had supposedly been set by our state’s highest court in Disciplinary Counsel v. Gardner.
In an unprecedented, unexpected and out-of-rule second reconsideration decision, the Tenth District Court of Appeals then retracted the offending parts of both its initial and (first) reconsideration decisions, thereby validating our previous concerns. In response, we promptly removed all of the material from this website pertaining to the case and the survey. Nonetheless, Ohio’s Disciplinary Counsel initiated (through our local bar association) a year-long investigation in which we were subpoenaed and forced to undergo an intrusive deposition. Although ultimately no charges were brought against us, the message was clear: Even raising the question of possible judicial case-fixing will not be tolerated.
Yet, we remain undeterred — and, unfortunately, so do the courts. For, ironically, a federal case that was born out of the Ohio Tenth District case mentioned above has now become our “Case of the Month.” We encourage you to read our attached court filings — starting with the notable excerpts from those filings — in that case: Eileen L. Zell v. Frost Brown Todd LLC, et al., Case No. 2:13-cv-00458 (U.S. District Court, S.D.Ohio, E.D., 2017). For you have never seen — and will never again see — issues of a more explosive nature than those involved in this legal-malpractice case.
Our guiding principle is that the public has a right to know — and, therefore, attorneys have a right to inform the public — about judicial case-fixing. For, if the public were aware of the prevalence of judicial case-fixing, the public might then demand that its perpetrators — the judges — be prosecuted to the fullest extent of the law. But that, of course, might be the very reason behind the courts’ self-interested prohibition against the exposure by attorneys of judicial case-fixing. For, in the absence of attorney whistleblowers, the crime of judicial case-fixing will remain hidden and its perpetrators will go unpunished. This obvious fact cannot have escaped the notice of the attorney-disciplinary authorities or the courts that enforce the prohibition on attorney whistleblowing. Indeed, they both are counting on it.
However, the idea that the judiciary can cover up its own crimes by punishing attorneys who attempt to expose those crimes is incompatible with the rule of law and should be anathema to a free society.
Here Is How We Can Help You
When you come across instances of judicial case-fixing in your litigation practice, we can (free of charge) point that out for you to the courts involved without subjecting you to any risk of professional discipline — and, in the process, we can also educate the public about the problem of judicial case-fixing. Here is how:
- If you are involved in a case (at either the trial or appellate level) in which you suspect that the judge might have purposefully misstated the facts to arrive at the judge’s pre-determined conclusion, let us know (even anonymously if you wish).
- If you send us a confidential message containing your suspicions of judicial case-fixing, we will promptly review those suspicions and, if we believe that there is a prima facie case of judicial case-fixing, we will then present our own allegations of judicial case-fixing to the lawyers on both sides of your case — including you — and will invite those lawyers (again, anonymously if they wish) to respond to our allegations. Naturally, we will never reveal the identity of anyone who corresponds with us and, if they choose to do so anonymously, we will not even know who they are.
- If, after receiving the lawyers’ responses (if any), we still stand by our allegations, we will then submit an amicus curiae brief to the court in your case presenting our allegations of judicial case-fixing (and will post a copy of our brief on this website).
- Depending on your particular situation, we can submit our amicus curiae brief in support of a motion for reconsideration of a judge’s pretrial ruling, a motion for post-trial relief, and/or an appeal to a higher court. Of course, if our amicus curiae brief supports your client’s position, the court and the other parties might assume that one of your client’s lawyers is the one who requested our intervention. But, because the allegations that we make in our amicus curiae brief will be our own, you cannot be held responsible for them.