John G. Browning Oct. 29, 2013, 10:00am

We’ve all had those moments when we wish we had thought something through, taken a different course of action, held our tongue instead of speaking, or not hit “send” on that email.  Lawyers and judges are no different from everybody—sometimes we speak first and think later, much to our later regret.

For example, immediate past president of the Nebraska State Bar Association (NSBA), Warren Whitted Jr., unquestionably wanted to share his thoughts and praise with the lawyers who were advocating for a cause near and dear to his heart—mandatory membership in the NSBA.  You see, some lawyers were challenging the notion of being forced to join the state’s official bar organization, and the dispute was being heard by the Nebraska Supreme Court.

After oral argument, Whitted sent an email congratulating the lawyers who had argued in favor of mandatory membership, pointing out that they had to deal with “some ill-conceived and uninformed questions” from the justices.

Unfortunately, Whitted’s email slamming the justices had a "cc" list that included—you guessed it—the Chief Justice of the Nebraska Supreme Court, Michael Heavican.  Oops!

Whitted tried to do damage control with a follow-up email to Heavican trying to explain that the comments weren’t aimed at him, but it was too late.  The chief justice determined that he needed to disclose the email as an ex parte communication received about a pending case.  This sounds like one of those “Wanna get away” moments from the Southwest Airlines commercial.

Another incident that could have been better thought through came in a recent case before the U.S. Court of Appeals for the Sixth Circuit.  State Farm Insurance and its lawyers were contesting a coverage question about an aspect of an auto insurance policy in Bennett v. State Farm, and they were so convinced of the merits of their case that they decided their opponents’ argument was “ridiculous.”

Unfortunately, it would have helped if they’d been both a little more polite about it, and correct on the law.  As the court noted in reaching down to deliver a “benchslap” in its opinion.

These are good reasons not to call an opponent’s argument "ridiculous," which is what State Farm calls Barbara Bennett’s principal argument here.  The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” . . . But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.”

Ouch—that’s going to leave a mark.

But judges themselves can be susceptible to those moments of poor decision-making that can inspire the desire for a “do-over.”  A New Jersey Superior Court judge, Philip Maenza, has found himself under fire recently for referring to Italian-American litigants in a divorce case as “tomatoes.”

The parties took it as an ethnic slur, and accused Maenza of bias, despite the fact that he himself is Italian and that he says that the tomato reference was just an analogy to a divorce needing to be “distilled down to the basic facts.”

You say “to-may-to,” I say “to-mah-to,” maybe they should call the whole thing off.

And in a recent federal court case in South Dakota, in which a judge ruled in favor of a school teacher who claimed she was fired in violation of the Americans with Disabilities Act, logic somehow took a back seat.

The teacher had been given a poor performance evaluation, and was in danger of being fired.  She became depressed and met with a physician’s assistant who diagnosed her as suffering from “anxiety and depression, likely stemming from her concerns about possibly getting fired.”  The teacher was ultimately fired, and she sued claiming she was discriminated against because of her “disability”—being depressed over her fear of being fired.

The court incredibly ruled her way, saying she had made a satisfactory showing “that her anxiety constitutes a disability under the ADA.”

People, anyone would get depressed at the prospect of being fired; that doesn’t make it a “disability” that should excuse your poor job performance and keep you from being fired.  Now everybody gets a free pass, according to this judge.

But the most nonsensical decision by a judge lately comes out of Ohio, and involves a man named Donald Miller.  The 61-year-old Miller disappeared in 1986 after losing his job; he walked away from a wife, two kids and thousands of dollars in unpaid child-support.

His ex-wife, Robin Miller, had him declared legally dead eight years later, and began receiving Social Security death benefits.

Miller returned to Ohio “around 2005,” not knowing he’d been declared legally dead.

When he eventually tried to re-establish his Social Security number, Miller found that he couldn’t, because in the eyes of the system, he was “dead.”

The very much alive Donald Miller appeared in court recently, only to have Judge Allen Davis rule that Miller was, in the eyes of the law, “dead” since a statute in Ohio prevents changes in death rulings once three years have passed.

So, now that Mr. Miller has been told by a court that despite the blood coursing through his veins, the beating of his heart, and the words coming out of his mouth, he is “dead.”  It certainly sounds like someone in Ohio is brain dead, and it’s not Donald Miller.

Yes, we all have those “I wish I could take that back” moments.  Whether you’re the high school football referees who tried to “eject” a police officer doing crowd control duty (they were promptly arrested), or the school administrator in North Carolina who recently decided to provide an “enrichment lesson” to students by having a fake masked gunman appear in their classroom, some ideas are better left inside your head.

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