A Brief Post About Congratulations to Prevailing Lawyers

For several months, I've generally congratulated prevailing lawyers in cases I write about, as a mark of acknowledgment of their professional success on behalf of their clients. I've done so without regard to whether I agree with the lawyers' positions as a legal or moral matter; they apparently did a good job as lawyers, and my hat is off to them for that. (To be sure, it's possible that they just had a strong case that few lawyers would lose, or perhaps they did a shoddy job and won despite that, but I was willing to generally infer professional quality from the victory.)

Indeed, I was hoping to model for law student readers the principle that lawyers succeed by serving their clients, entirely apart from broader political questions. When I didn't congratulate the prevailing lawyers, that was generally because (a) I thought the decision as a whole (and not just the part I wrote about) was split enough to not be a victory, (b) the lawyers' names weren't easily obtainable, (c) there were so many lawyers on the winning side that listing them all would have been a chore, or (d) I forgot.

But though I had explained this practice in this post, it seems from comments that quite a few readers interpret congratulating a lawyer as a mark of endorsement of the lawyer's position—which, especially, to nonlawyers, is indeed a plausible interpretation. I've thus tentatively decided that I'd take something of a middle road (especially since this is certainly not a great matter of principle for me one way or another): I would note the names of the prevailing lawyers and indicate that they represent the prevailing party, a public acknowledgment that I hope will be seen as a gesture of professional respect, without saying "congratulations." And I thought I'd mention this expressly, so that readers don't assume that my noting some people when I had congratulated others before says something about my views on the merits. I hope this makes sense, to readers and to the lawyers involved.

Comments

[Mr. Bumble]

You overestimate the reading comprehension of many commenters.

[Noscitur a sociis]

I feel bad for the lawyers in the next case you post about…

[Martinned]

That seems like a sensible compromise, but of course it doesn't answer the question of why certain cases do or do not get the VC blog post treatment.

[Eugene Volokh]

Well, that's a different question. But let me ask you this: Why do you comment on some threads and not others? In response to some commenters and not others?

[Martinned]

For the avoidance of doubt, I didn't mean to pick a fight, but just to flag that commenters will complain no matter what you do. (Including, occasionally, me, I suspect)

[MaddogEngineer]

This is a really odd question, considering how the blog describes itself. It doesn't claim to be a general news/legal reporting enterprise.

Other who engage in this repeated questioning (the reverend) do so to be crassly derogative in a bad faith attempt to discredit.

No one is making anyone read any post here. It's painfully obvious the reason why things get blogged about is because it interests the conspirator. Probably because they have a strong opinion on the topic/issue. Not rocket science.

[Martinned]

Exactly my point. People will make inferences about the choice of cases that are blogged about in order to make claims about what "libertarian" means to prof. Volokh and the other conspirators.

[Commenter_XY]

Professor Volokh, I am amazed you even had to write this post.

Keep congratulating attorney's who win their cases. I don't think you should change that because of....well, malcontents who couldn't find their ass if you put their hands there.

Where are the Clarence Darrow's or Larry Kunstler's of the world? Who will congratulate them?

[CJColucci]

Who is "Larry Kunstler"?

[Rossami]

Defense attorney for the Chicago Seven (Abbie Hoffman and co.).

[Jett's Pop]

I think that was William Kunstler, no? https://en.wikipedia.org/wiki/William_Kunstler

[Rossami]

You are right. Why did William show up at the top of my search results for Larry Kunstler? And why didn't I check those hits more carefully? My apologies.

[Commenter_XY]

Yeah, I messed up the name (Larry, William)....duh!

[Juste Milieu]

As a practicing lawyer I rarely "lost"--which says more about the particular field of law in which I toiled than about my skill as an advocate. Nevertheless, on those few occasions that I did not prevail I always congratulated my opponent. I'm confident that my cordial gesture was never misinterpreted as an acknowledgement that the outcome of the proceedings was legally correct.

[Dan Schiavetta]

In the last two months I lost two dispositive motions I should have won, and won two that I should have lost.

And there was the one I lost that I should have lost. The judge looked exactly like my law school girlfriend (it wasn't her). She chewed me up and spat me out, just like my girlfriend used to do. (I did get the satisfaction of dumping her, though.)

(O.K., that's my daily T.M.I. comment.)

[The Margrave of Azilia]

I'll read about it when your memoirs come out.

[The Margrave of Azilia]

Congratulations to Reverdy Johnson and Henry S. Geyer, who represented Mr. Sanford.

[Sidney r finkel]

As someone who was in error with respect to interpreting Prof. Volokh's 'congratulations' as supporting the position of the attorney's he is congratulating I want to commend him for taking the time to clarify his intentions and apologize for any undue criticism I may have made about his comments of congratulating.

[Bwaaah]

It's not your criticism that is a problem. It's that the walls of permissible speech continue to narrow in unhelpful ways, now excluding "suspicious forms of congratulations." And though your criticism is not a problem, the effect of it is. That you finish by defending yourself, but not the permissibility and even value of congratulations, is par for the course of critics in matters such as these. Fear not: you're just another good person who has made the world an uglier place. Maybe there's something bigger to learn here other than that Prof. Volokh can be a commendable guy? (Probably not.)

[Alpheus W Drinkwater]

Is your position that it is bad to criticize anything someone says or writes because this would "narrow the walls of permissible speech?" Perhaps I am misunderstanding you.

And where in his comment does he "finish by defending himself?"

[Bwaaah]

Like I said, he's a good person. And you are too. And the Professor will shut up with his congratulations. Not that he doesn't feel congratulatory. It's just that people are sensitive to those things these days...you know...off-color kinds of congratulations. (wow)

Sidney R finkel's comment *is* a defense of himself (and further evidenced by his forgiveness of the Professor). But I didn't see any, "Congratulate away to your heart's content, Professor!" I know he may not like the Professor's congratulations. But maybe he'd rather that somebody *didn't* shut up because of him.

And you, too, are here to defend what? Against my suggestion of what? That we might want to expand room for people to comfortably express themselves freely, not perhaps for hateful invectives, but maybe open up to, even welcome, an expressed word of congratulations? NO NO NO NO NO NO NO.

Go away. I'm dirty to you.

[Bwaaah]

The prevailing view of one side of "the aisle" is that the "other half" of the country is immoral. All court outcomes are viewed through their partisan lens as being either good or bad for their team. Even if the outcomes were random, you would be congratulating immoral behaviors, in their view, 50% of the time. Why would you endorse immorality, in any manner?

I thought you were congratulating them for their successful lawyering. But now you censor and adjust your message, withholding your endorsement of their lawyering efforts in deference to a notion that THIS TOO, LIKE EVERYTHING, IS A PARTISAN BATTLE.

I [very] respectfully disagree. Let those narrow-minded observers be reminded that the partisan lens is not the only one. Capable legal advocacy, and even the notion of magnanimity in disagreement, are also important. I wouldn't mind if you expanded the walls back to "Congratulations!" for the odd chance that those who would be troubled by that might more thoroughly consider your proposition. (A list of prevailing lawyers' names is meaningless to me. Your congratulations, however, struck me quite like I think you intended, especially when you congratulated the Bad Guys.)