Richard Posner knows how to hit a judge where it hurts.

In a reply brief filed late Monday, the newly-retired U.S. Court of Appeals for the Seventh Circuit judge—now an advocate for pro se litigants—suggested Senior U.S. District Judge David Faber in Maryland is a lazy plagiarist.

Faber issued an opinion that “was little more than copying and pasting from the government's motion,” Posner wrote on behalf of his client William Bond, who represented himself before he had the tremendous luck to land Posner as his appellate counsel.

“The district court's laziness leaves a pro se litigant with the perception that the judge did not independently analyze Bond's complaint,” Posner continued. “The district court's actions create the impression of plagiarism and an abdication of its independent judicial duties.”

Lest there was any doubt about the copying, Posner offers lengthy, side-by-side comparisons of virtually identical language from the judge's opinion and the government's motion.

Damn.

So … look. We all know this happens. Lawyers regularly boast to me when judges adopt their language in opinions—they see it as a feather in their cap. Conversely, they complain when judges copy from opposing counsel's briefs. But I can't remember seeing a lawyer call out a judge on the practice.

That's probably because 1) It will make the judge hate you. 2) It's of dubious utility to the client if you have to appear before that judge on remand (see number 1).

But for Posner—the most-cited legal scholar of all time, according to the University of Chicago—the usual rules don't apply.

As I previously noted, Posner in September abruptly quit the Seventh Circuit (where he ate judges like Faber for breakfast), in part because he felt the court system treats pro se litigants so badly.

He launched The Posner Center of Justice for Pro Se's to provide pro bono representation, as well as assisting pro se litigants behind the scenes to help them to successfully represent themselves.

This is his first post-retirement foray into court as an appellate advocate. But to be clear: This is not one of those pro se cases where your sense of justice is easily outraged, with some poor soul rotting in prison because the court refuses to consider exculpatory evidence.

No. This is a convoluted civil claim, sprung from a long line of unsuccessful civil claims alleging unauthorized release of medical records, legal malpractice, judicial bias, copyright infringement and now, a First Amendment violation.

It's difficult at this point to tell if Bond has a decent case on the merits. Posner makes a good argument that he does, but in some ways, that's secondary.

The larger issue right now is that the court couldn't be bothered to sort it out. Instead, Faber dismissed Bond's second amended complaint without explanation, disregarding his new allegations and chastising him for “squandering” judicial resources.

Suffice to say, that didn't sit well with Posner.

“Article III district courts have the resources to produce more than a copy-and-paste job, followed by two unexplained orders and unsupported accusations of wasting judicial resources,” Posner wrote in his brief to the U.S. Court of Appeals for the Fourth Circuit.

“This response to a pro se litigant only feeds into an unhealthy distrust of the judicial system—especially as access to justice becomes more limited, as fewer cases reach a jury, and as more cases are shunted to arbitration,” he continued. “Litigants, particularly pro se litigants such as Bond, must not have the courthouse doors closed to them without a reasoned explanation.”

You get the sense that Posner (described by The New York Times in 2016 as “arguably America's greatest living judge” and whose books include “The Little Book of Plagiarism”) is especially offended by Faber's lack of original analysis.  

“The district court is not formally prohibited from copying sections of the government's brief,” he acknowledged. But “the practice raises troubling concerns in pro se litigation… Pro se litigants, such as Bond, will think the judicial process is compromised or biased when a trial court judge does little more than copy entire sections of the government's brief.”

By attacking Faber so directly, so personally, Posner is sending a message to all district court judges: Take the time to properly consider a pro se's argument. Do your own analysis. Explain your reasoning.

Because if you opt for the lazy way out, you also take the risk that he will swoop in and shame you.  And it will hurt.

 

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