Judges: Need Pro Bono Court-Appointed Amicus to Represent Public Interest as to Sealing/Pseudonymity Requests?

I'm glad to do such things, and to get students involved to give them practical experience.

In February, my UCLA First Amendment Amicus Brief Clinic student Pauline Alarcon and I were appointed by District Judge Stephen Clark (E.D. Mo.) as amicus to file a brief supporting the right of public access and opposing sealing of certain documents. The parties had both agreed to sealing, but "courts are duty-bound to protect public access to judicial proceedings and records," even as to "stipulated sealings … where the parties agree." And appointing an amicus curiae to represent the no-sealing position helps give the court an adversary presentation on the matter.

We briefed the case, and Pauline flew out to argue it under my supervision; I think she did a superb job. I hope the court found our work helpful in its ultimate decision on the matter, which was published several days ago (see here, plus here on why that decision was in some measure redacted). Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we had funding for travel costs, so none of this required spending court funds.

It seems to me that this sort of appointment is win-win-win:

1. The court gets arguments from both sides, which it can then impartially consider. (The court may of course end up disagreeing with our position.) I've litigated over 30 motions related to sealing in courts throughout the country, so I can make sure that the arguments are well researched and presented. And I've written the just-published The Law of Pseudonymous Litigation, and in the process learned a great deal about pseudonymity (plus I've also litigated several pseudonymity cases).
2. The public's presumptive right of access to court records is protected.
3. My student gets an opportunity to brief a real motion under my supervision, and argue it in court, if the court concludes oral argument is appropriate. This is a tremendously valuable educational opportunity for any law student, I think.

Of course, the parties who want the documents sealed may end up not winning; but, again, they aren't legally entitled to sealing just as a matter of mutual agreement.

In any event, I just wanted to flag this in case some other courts will find it helpful—we're always happy to help with such appointments. More broadly, we would be able to help:

• with briefs opposing sealing,
• with briefs opposing pseudonymity, and
• with briefs (usually in appellate courts) defending the decision below on any First Amendment or First-Amendment-related question, when the appellee isn't appearing (see Doe v. Arizona Board of Regents (9th Cir. 2022), which we did in basically that situation) or when the appellant and appellee both disagree with the decision below,
• in state or federal courts,
• trial or appellate,
• throughout the country (we'll get local counsel if needed).

We'd also in principle be open to being appointed to support sealing or pseudonymity as well, for instance if a party is pro se and hasn't been able to effectively present the legal arguments but the court would like to see a knowledgeable presentation on that side. Whatever my academic or personal views might be about the propriety of sealing or pseudonymity in any particular case, as a lawyer I'd be glad to provide the court with the best arguments for whatever position needs to be covered, and I'm sure my students would as well.

Comments

[DaivdBehar]

Participants in the rule of law need to hide out of fear of retaliation. Add this line of requests to the list of lawyer profession failures. The failed lawyer profession cannot protect litigants who have chosen to be legal rather than violent retaliation, cannot protect witnesses who have chosen to tell the truth under oath.

Anonymity is required due to the utter failure of the lawyer profession to punish people enough, in defense of the legal system.

[DaivdBehar]

Eugene has threatened to delete my comments for placing my thoughts, hopes, dreams, aspirations, careful thought experiments in one location for the convenience and welfare of the reader.

Go ahead, delete away, denier. He was a prodigy whose intellect was thoroughly destroyed by the Ivy law education. Now this nitpicker is a poster boy for the lawyer dumbass. He refuses to admit what everyone in the diner knows from 10th Grade World History. He believes and indoctrinates hundreds of intelligent students into supernatural doctrines prohibited by the Establishment Clause. Then he feels morally superior to me. Lawless denier.

[apedad]

Prof. Volokh went to University of California, Los Angeles, UCLA School of Law, Mirman School, not Ivy law education.

Maybe Palm Tree law education?

You know, cause they're nuts!

[DaivdBehar]

Sincere apology to Eugene for mistakenly accusing him of being Ivy indoctrinated. It is a scurrilous insult, and I retract it.

That being said, the indoctrination is standard across all those schools.

[DaivdBehar]

They destroyed his mind, and now Eugene is doing the same to hundreds of intelligent, ethical young people. The damage done to the mind of Eugene is in the $billions. Imagine his value and productivity as a tech billionaire. Gone.

[DaivdBehar]

You scumbag lawyers only prosecute 10% of common law crimes. You prosecute 0% of 100 million internet crimes, 0% of the millions of scammers victimizing those young ladies you invited to blog. When you have a guy, 20% of the time, it is the wrong guy. Worse, you implanted false memories, and made him falsely confess.

Eugene, you stink. It is high time for separately trained and adequately staffed judges to take over from you worthless rent seeking toxic scumbags.

[Krayt]

And Kirkland thinks he's all that!

[DaivdBehar]

Kirkland is just a dick. Eugene is a disappointment, in his denial of the obvious known to everyone at the diner.

[DaivdBehar]

I am about to banned, by a nitpicking denier, not based on content, but on format. Is format based free speech restriction kosher? And, this is the prohibited format, what you are looking at. It is a format for the convenience and for the welfare of the reader.

[Mr. Bumble]

Why the seeming increase in amicus briefs? Are judges and their clerks so overwhelmed and the law so convoluted that they are no longer able to do their jobs without outside help?

[apedad]

Prof. Volokh's appointment letter answers that.

"What makes a system adversarial rather than inquisitorial is . . . the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties."

[DaivdBehar]

The adversarial system copies the disputation method of Scholasticism. Cool in 1275 AM, total garbage today. This is maddening. You scumbags are stuck are stuck in the 13th Century.

The smartest, most mature, most experienced person in the room is that judge, allegedly. He needs to investigate neutrally. If he makes a mistake and damages a party, his insurance coverage needs to make them whole. He can be judged in accordance to professional standards of due care.

He needs to attend judge school, because law school is unrelated to the job of judging.

[Eugene Volokh]

1. Remember that in our adversarial systems, judges are *supposed* to get outside help, though chiefly from the parties. If the parties agree to sealing or pseudonymity, it's good to have someone in court representing the interests of the parties. That's both helpful to the judge (especially when the amicus is expert on this area of the law, perhaps more so than the judge and the clerks). And it also helps judges in such cases remain impartial umpires, rather than themselves looking up the law that may sort the public's interest, and thus potentially subconsciously becoming an advocate for the public.

2. In other cases, the parties are adversarial to one another, but amici (or their counsel) may be more knowledgeable about the law than the party they are supporting. That is especially true when the party is self-represented (see, e.g., the Sgaggio case), but is also often when the party has a lawyer who isn't a specialist in the relevant area (and, yes, many legal rules are quite convoluted).

3. In still other cases, amici have their own perspectives that they are supplying; the point there isn't so much to help the judge as to help the amici present their views.

4. I suspect there are cases, especially at the Supreme Court, where it seems likely that groups file briefs just to say to their donors "we've filed a brief in this case," even if it doesn't really contribute anything new (almost inevitable when there are dozens of such amicus briefs filed on the same side). But that's mostly a feature of especially high-profile cases, I think.

[DaivdBehar]

Of course, the adversarial system has only one purpose today. To generate crap, fraudulent fees for the lawyer scumbags.

The judge should be hiring experienced investigators and legal researchers loyal to his task of correct decision making.

[DaivdBehar]

Maddening that Eugene skipped 10th grade world history where they covered Scholasticism and the source of the stank of his vile toxic profession. They did have their Inquisition business model, and the lawyer profession has excelled at adapting it to modern times.

It ended when French patriots beheaded high church officials. And, that is the model for the remedy to the Inquisition 2.0 today.

[apedad]

Prof. Volokh, how does the appointment process work?

How does the judge choose someone (is there a list of volunteers)?

Are you compensated?

Can you refuse (and not be in contempt of court)?

Suppose your brief is not what the judge expected, e.g., was not "adversarial" enough?

From my 10,000 foot view, it seems like the govt is "appointing" a civilian to do government work but under what authority.

[Eugene Volokh]

1. Some courts maintain lists of lawyers who are available for pro bono appointment, usually to represent parties who can't afford a lawyer (including prisoners). Other courts put out public announcements that they are seeking amicus briefs. But when the court appoints someone to defend the judgment below, or to oppose sealing or pseudonymity, my sense is that the judge normally reaches out to a lawyer who the judge thinks will do a good job.

2. My sense is that such appointments are uncompensated, certainly without attorney fees. (Some statutes do authorize compensation for representing criminal defendants on appeal and the like, but that's a separate matter.) In some situations, there might be funds to reimburse costs, such as travel costs for argument, and the like; our Clinic is well-funded (thanks, Scott & Cyan Banister!) so we pay the costs ourselves.

3. We certainly can refuse such appointments -- they are requests/offers, not commands. Historically, judges did appoint lawyers on a mandatory basis to represent criminal defendants, before there were public defender's offices, and I think that's still seen as within the court's power (and within our obligations as members of the bar), but my sense is that very rarely happens.

4. If the brief isn't what the judge expected, he won't appoint me in the future.

5. Lawyers have long been seen as having certain duties as members of the bar, so helping courts in this way is generally seen as legitimately lawyers' work, and not just "government work." The very concept of a "friend of the court" brief reflects that; one shouldn't overstate it (most such amicus briefs represent the views of parties, and should zealously advocate for those views), but assisting the court in its deliberations is indeed part of the history of such briefs.

6. As to authority, Anglo-American courts have long had inherent power to do things that are helpful to the sound administration of justice -- not all things, of course, but many things -- and court-appointed amici are a longstanding aspect of that power.

[ragebot]

I had to laugh out loud when reading that EV wrote this:

"1. Some courts maintain lists of lawyers who are available for pro bono appointment, usually to represent parties who can't afford a lawyer"

It is easy to make a realistic argument that 95%+ of the population can not afford a lawyer and even for the small number of people who can afford a lawyer even if they prevail it is often so costly that lawyer fees needed to prevail are punishment in themselves.

When outside groups, often well funded or law school profs with students working for slave wages, weigh in for either side it makes it even harder for a private party to pay for adequate representation. Bottom line is the more parties in legal proceedings the more billable hours are generated; something that only increases the number of peeps who can afford good representation.

[dwshelf]

Reading this story is why I read Volokh.