To start out, we have a very short section covering a phone conversation between Peter and David Humphrey of Heart of America. Peter breaks the news that they lost the case in the Ninth Circuit and that they’re appealing to the Supreme Court. David is glad Peter lost the case—though he doesn’t let him know that—because it means more money for Heart of America. After all, they can send out a new mailing, and what with the case going to the Supreme Court, David figures it will bring in even more money than the previous mailing’s $300,000.
Peter and David start talking about how much this will cost. Peter says that “our out-of-pocket costs will be about fifteen thousand dollars” but that “it would be nice to get some money for our attorney’s fees.” David is noncommittal on that front, but lets Peter know that “for sure we can cover the fifteen grand.” The rest of the money, presumably, will go into David’s pockets.
Farris tells us that Peter is working on the cert petition from 5 to 7 every evening. While doing research, Peter finds a case he hadn’t seen before—it’s Hill v. City of New York, decided in 1993. In it, the Second Circuit “held that while judicial immunity for social workers certainly applies to everything that happens during a trail; social workers were not immune from filing the initial papers if they contained information they knew to be false at the time of filing.” That is criminal semicolon use. That aside, you can see where Farris is going with this. Donna knew her initial papers included false information when she filed them.
Peter calls “Professor French” to ask about this case. (I use scare quotes because it’s interesting to note those who get honorariums and those who don’t—so far I think only French and Peter’s pastor do.)
“Ah, yes,” French said. “I was wondering when you were going to find that case.”
WTF? Least helpful law professor ever! French should have asked Peter whether he’d read Hill v. City of New York during their first conversation! If I were Peter, I’d be pissed! What, was French just going to let it go unmentioned if Peter didn’t find it on his own? Oh wait, French answers that question:
“I was going to tell you about it in a week or so, but I’m glad you found it. You know how important this case is, don’t you?”
Do you, sir, know how important Peter’s case is? Too important for games like this! Or at least, too important to Peter and Gwen for games like this. I’m less invested.
“Sure,” Peter replied. “It gives us a high-level case which announces a rule of law which is a lot more favorable to us.”
“That’s true,” the professor said. “But it’s a lot more important than that. One of the best ways to get the Supreme court to take your case is to argue that your case will solve what they call ‘a split between the circuits.'”
And this is why French should have led with this last week. Anyway, French explains what a split between the circuits means—if the Ninth Circuit has granted social workers full immunity and the Second Circuit has only given them limited immunity, it would behoove the Supreme Court to step in and sort it out. That French feels the need to explain all this to Peter is weird, because I knew this and I’ve never been to law school, but then I probably keep up with the Supreme Court more than most and I get that the point of this section is exposition for the reader, not for Peter—wait.
“Wow. Why didn’t they teach us this stuff in law school?” Peter asked.
“They probably did. But most wannabe lawyers never pay that much attention because it is well known that there is not much money in constitutional law.”
“They were sure right about that.”
“Peter, there’s one other argument that I think you have been missing in this whole case.”
“Yikes. What’s that?”
“Let’s see if you can figure it out. I’ll ask you some questions, OK?”
“Sure, I’m game. I never claimed to be a constitutional lawyer.”
And that is why you should have passed this case on to an actual constitutional lawyer, Peter!
“At what point in the process did they falsify the computer records?”
Peter thought for a moment. “Uh . . . It was after the state case was all over. It was after we had filed the federal civil rights suit.”
“Do you get my—”
“Oh, my goodness! I’m an idiot!”
“I take it that you understand my point,” the professor said.
“Yeah, they have immunity for perjury done during the trial. When the state trial is over, the immunity is over. We should have been able to clean their clocks for document tampering they did during the federal trial.”
“You got it.”
And, this is why Peter should have passed the case on to someone who actually knew what they were doing.
“Well, at least I learned it now. We just tell that to the Supreme Court and that will take care of it, right?”
“Not exactly. You’ve got a little problem.”
“What kind of problem?”
“You can only bring up issues in the Supreme Court if you previously raised some of those issues in the district court at the trial level, and in the circuit court at the appellate level.”
“Does that mean I can’t make this argument at all because I didn’t say it until now?”
Why is he asking these questions, and why didn’t he know that you can’t make an argument before the Supreme Court that you haven’t made already as you worked your way up through the courts? Once again, I knew this. I have never been to law school. Peter is in so far over his head right now that this should be a wakeup call to go find a constitutional lawyer to turn the case over to. But you know it won’t be.
French says that Peter may be able to make these new arguments if he makes it clear that they’re extensions of the same issues he’s been arguing the entire time. He says that this make make his case less likely to be taken, though, as the law clerks who look at his cert petition may feel that the case would have been resolved at an earlier level if he’d just raised these arguments then. And if they were to decide that, they’d probably be correct. But French didn’t say that. I did.
“I feel really bad. Have I committed malpractice?”
“No way. And besides, I don’t think your fiancé is likely to sue you for it anyway.”
A pox on you and your entire old boys network!
Seriously, though, this is why his behavior toward Gwen has been a problem since the very beginning.
“When do you think you’ll have your draft of the cert petition done?”
“Next Tuesday. That’s three days before the deadline you gave me.”
What was the point of that last line? I’m serious. The point is probably to let the reader know that Peter is a Really Good Lawyer Who Always Works Ahead, despite all evidence to the contrary, but as it is, it reads as if it’s Peter trying to show off to French. But you know what? If Peter has it done and submitted before French’s deadline, French will know that whether or not Peter reminds him that it’s before deadline. Peter’s remindingness comes off as him trying to prove something.
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