December 18, 2011

Of Michael Best's "horn book" Civil Procedure

Looky here:
Because the Wisconsin Supreme Court tied over the ethics complaint, Gableman couldn't argue to the board that he had won and the State should cover his fees, Michael Best & Friedrich's chief attorney Jonathan Margolies said in the letter.
Well. Isn't that something. I have been saying for years that Mike Gableman failed to win his ethics case, because the three-judge panel below the Supreme Court convened on Gableman's motion for summary judgment, and pursuant to his own motion, Gableman was unsuccessful. And it also happens to be a conclusion in which Justice N. Patrick Crooks, who has been a judge for more than three decades, concurs.

(I reckon Crooks, J. knows a thing or eleventeen about legal procedure.)

Therefore does the ethics complaint against Gableman remain pending.

Mr. Margolies might presumably know better than anybody, as it was one of his colleagues at Michael Best who participated in Gableman's defense.* This space's conclusion was based on an examination of the statutory framework governing the civil procedure with which the State deals with ethics allegations against judges. This space does not make substantive legal claims without having undertaken such examinations.

So it amuses me no end to recall that Richard Esenberg, a professor of the law at Marquette University, would criticize me by asserting that my view of the Gableman case's procedural posture was informed merely by "a reference to horn book Civil Procedure" which "does not cut it here."

A "horn book" is something like a Cliff's Notes that first-year law students use to prepare for exams. Esenberg is billed as a "prominent Milwaukee attorney" by Wisconsin Public Radio but his condescension on occasion most certainly does not comport with that description.

Now perhaps Esenberg can direct his scorn at MB&F's chief attorney.

I am always suspicious of Esenberg's claims, and you should be too. Yet Wisconsin Public Radio and other local media outlets continue to present him as a disinterested academic, whereas he's as partisan as they come.

Esenberg's former research assistant's claims are mighty lame as well.**

Feet of the master and all that, apparently. Laughable.

* At no charge, as it turns out. And a classy defense it was indeed.

** I trust that was the end of atrocious legal analysis from the faculty blog, since Prof. Esenberg is abdicated as one of the website's editors.


Rick Esenberg said...


Why don't you link to the post that you complain of? As I recall, there is noting inconsistent with the point that MB & F makes about "not prevailing."

The <a href= ";postID=1878498742821583448> point</a> that I recall making was not that Gableman had "prevailed" in the sense of being able to recover attorneys fees but that the case was "over."

My recollection is that my point was not that Gableman had "won" but that the case was over in that there were no facts to be tried that could result in a different outcome. In all events, the best that the prosecution could hope for was another tie.

illusory tenant said...

Because I couldn't find it. Thanks.

Display Name said...

That link doesn't work for me.

illusory tenant said...

I have the "horn book" putdown on this blog anyway. The Blogger/Blogspot search function is practically useless.

Rick Esenberg said...

Here is a better link

I am not going to engage you on your personal attack. The reason that I am not a blog editor at the faculty blog is that, as an adjunct, I don't do committe work. I have actually been encouraged to post there but have been too busy lately. Maybe next semester when I'm actually teaching a class.

illusory tenant said...

I see. You in effect accuse me of being barely competent -- if at all -- to evaluate the procedural posture of the Gableman case but it's me that's making a personal attack.

illusory tenant said...

In case you misread me, it was your former research assistant's analysis that was atrocious, not yours. As was duly explained in my responses to him, which he essentially ignored.

Display Name said...

Here is a more linky link.

Illy, the professor was probably referring to your remark about the condition of the knees of Suhr's khakis.

Rick Esenberg said...

I don't recall saying anything about your competence. But there is a difference between what I wrote and a claim that Gableman "won" - particularly in the sense of being entitled to recover fees. You should correct your suggestion to the contrary.

illusory tenant said...

Found it.