Back in December, everyone was all a-twitter when SCOTUS threatened to sanction a lawyer, which basically never happens. It probably should happen more, but you know what a big softie Scalia can be. In the grand tradition of uninformative Supreme Court orders since the beginning of time, the order didn’t really make clear what it was about.
Howard Neil Shipley, of Washington, D.C., is ordered to show cause, within 40 days, why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari in No. 14-424, Sigram Schindler Beteiligungsgesellschaft MBH v. Lee.
What on earth could it be that would warrant a threat from the Supremes? Lies in the brief? Overly long filing with some sort of font or line spacing shenanigans? A penalty for having a company name as absurdly long and incomprehensible as Sigram Schindler Beteiligungsgesellschaft MBH?1 Turns out it was none of these things. No, it was because Shipley basically let his client write his brief, and the thing turned into an utter shitshow. Witness the nightmare hellscape that is the question presented in this case:
Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions—especially for ’emerging technology claim(ed invention)s, ET CIs’—by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework, or does the US Constitution for such decisions entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require—or meeting its requirements just by some lip-service—and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”
Just imagine handing that glob of words to your law school writing professor. When you got that paper back, it would have so much red on it that it would look like the prof opened her veins on your paper.
Oh, and we weren’t kidding. Shipley’s defense really does boil down to “I let my client write it because my client bullied me.” None of us here at Bitter Lawyer are admitted to practice before SCOTUS, mainly because we run a blog where we make fun of the profession instead of honing our litigation skills, but we are pretty certain you are not supposed to let your client write your brief even if he really really wants to do so. And if your client literally rips the brief from your fingers and adds a section that is nothing but acronyms and jargon, under no circumstance should you credit your client for his near epic level of stupidity. Especially since the Supremes actually tell you not to.
The Supreme Court clerk’s published guide for lawyers preparing petitions states, “Names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover [of the petition] under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.”
Shipley apparently didn’t read that part of the guide, because he let this gem of a footnote in.
Prof. Sigram Schindler, the primary inventor of the ’453 patent, should be recognized for significant contributions to this petition.
No, actually, he should not, because THE SUPREMES SAID NOT TO. That is pretty much the very exact opposite of what you are supposed to do. We’re sorry your client is a bully, but the Supremes are WAY bigger bullies, and only one of those entities has the power to discipline you. Figure out how to throw yourself on the mercy of the court. Hell, figure out how to literally throw yourself on John Roberts if you think it will help, because now is the time to be as abject a figure as you can possibly be. Good luck and godspeed.
[Illustration via Shutterstock]
Seriously, can one of our German readers tell us how the hell to say that? ↩