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Appellate Practice

Next Time, Wear a Tie, Fed’l Circuit Judge Tells Left Coast Lawyer

Posted Aug 21, 2008 2:07 PM CST
By Martha Neil

A popped collar button on a Seattle lawyer's dress shirt resulted in a sartorial instruction from Judge Randall Rader at the conclusion of a recent argument before a federal appeals court panel in Washington, D.C.

"Next time, wear a tie. This is the Federal Circuit," Rader called out to attorney Delbert Barnard as he was leaving the courtroom, reports the Wall Street Journal Law Blog.

The judge was "very polite about it," Barnard notes. And, as the law blog points out, the three-judge panel didn't hold the dress issue against the lawyer: It unanimously ruled in his favor in a written opinion (PDF) last week.

After the button popped on his only dress shirt, the intellectual property lawyer tells the Wall Street Journal, "I put it on, and put the tie on to see if it could lay flat even though the collar wouldn’t stay down, and it wouldn’t. I thought to myself, out here on the West Coast a lot of people will wear a suit with a turtleneck. I had a dark polo shirt. So I wore that.”

Comments

1.

Ellen Barshevsky
Aug 22, 2008 3:45 AM CST

This guy had only ONE dress shirt?  And he is going in front of APPELLATE judges?  I guess he needs some people from his law firm to give him a MAKEOVER.  Again, you would NEVER find a woman caught like this (stockings aside).

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2.

MC
Aug 22, 2008 4:12 AM CST

Has he not heard of the “Safety Pin”?  It’s a great little invention…

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3.

Bill
Aug 22, 2008 5:29 AM CST

Ellen -

I think we get it.  Men are jerks.  And pigs.  And idiots.  And only after one thing.  Something like this would never happen to woman.  Women rule!

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4.

Dan
Aug 22, 2008 6:33 AM CST

Agree with #1 - If I was going before a federal circuit court I’d hire a temp just to carry my 3 sets of backup clothes around.

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5.

gordon
Aug 22, 2008 6:53 AM CST

Look at Foundationforlegalreform.org, section on “pointless peer imitation” for a different perspective.

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6.

Good grief
Aug 22, 2008 7:06 AM CST

Ellen, good grief.  MUST you really make everything a gender issue?!  I have not seen one single post from you that isn’t divisive.  You are hurting your cause…  (And lest you attempt to lump me in with “the men” who so misunderstand and persecute you, I am a woman.)

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7.

Ronnie
Aug 22, 2008 7:20 AM CST

Thank you, good grief.  I was thinking the same thing about Ellen.  I thought, I agree with her down to the last sentence, and then I just roll my eyes.  And lest I also be persecuted, notwithstanding the name, I too am female.

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8.

MK
Aug 22, 2008 7:59 AM CST

Ellen, you’re correct, we would never find a woman caught like this - primarily because in my experience women are permitted to, and many of them have no problem with, showing up in court wearing stretch pants and a non-collared shirt with a wrinkled “wrap” or cardigan.  I think there is little doubt that the unwritten dress code for lawyers is far more relaxed for women.

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9.

STL
Aug 22, 2008 8:23 AM CST

THANK YOU Good grief & Ronnie.  I have also noticed Ellen’s obnoxious comments - and yep, I’m a female as well.

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10.

greg
Aug 22, 2008 8:58 AM CST

Wait…the guy’s an IP lawyer and he has ONE dress shirt? Either he’s way underpaid, or he’s cheap. Does he also only have one suit?

I wonder what kind of car he drives?

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11.

Who The Heck is Ellen Barshevsky Anyway
Aug 22, 2008 9:25 AM CST

She’s a man!!!!

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12.

R
Aug 22, 2008 9:46 AM CST

“It was a DARK polo shirt”? Like that makes it OK?

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13.

Heather A. Kmetz
Aug 22, 2008 9:56 AM CST

No really… who the heck IS Ellen Barshevsky?  If you Google her name and “lawyer,” all you get is a litany of her comments with respect to law posts.  Is she a practicing lawyer?  I use my name when I comment because I believe in taking credit or flack for my opinions.  While I did not often agree with Ms. Barshevsky’s assumption of gender bias in most all stories, I nonetheless admired her gumption.  If “Ellen Barshevsky,” is a pseudonym, then there is no gumption to be admired.

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14.

Donna
Aug 22, 2008 9:59 AM CST

MK, oooh, women are allowed to dress like women in a court?  I’m continually miffed that when I walk into court I feel like I’m cross-dressing because the only clothing acceptable for a woman to wear in court is a slightly feminized man’s suit.

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15.

K Sherry
Aug 22, 2008 10:01 AM CST

Maybe Ellen is a law student like me.

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16.

Appellate BS
Aug 22, 2008 10:01 AM CST

A tie has nothing to do with the legal arguments being made.  Pointless tradition and baseless decorum do not unprofessionalism make.

We should be able to argue to the court in a tshirt and jeans if we feel like it.  It’s our arguments not our appearance that matter.  The judiciary discredits itself when it makes these pointless assertions of authority. 

Judge Rader should be censured.

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17.

not news
Aug 22, 2008 10:18 AM CST

It sounds like he only had one shirt with him when he flew in from Seattle for the argument. Next time I’m sure he’ll bring two. And he did win the argument.
Appellate BS, censure a judge for suggesting professional attire at an appellate argument? I think we have more important things to worry about.
And I don’t know who Ellen is either, but I will note that there are ED Va judges (and I’m sure elsewhere) who won’t allow female attorneys in pantsuits in their courtroom.

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18.

A BS
Aug 22, 2008 10:40 AM CST

NN - Evidently you didnt read my comment, a tie does not make for professional attire.  My point is that such an idea is a fallacy and undermines the credibilty of the judiciary for suggesting such ridiculousness.

Professionalism comes from work product, not appearance.

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19.

Richard Gould-Saltman
Aug 22, 2008 11:38 AM CST

Professionalism comes from doing a good job for the client; that includes not letting my personal views on relatively trivial stuff, like court dress codes, get in the way of representing my client. 
If I know that a judge expects that all lawyers appearing in his courtroom will don gown, bands and wig, (ala a 19th century British barrister) and a red rubber clown nose, that my not doing so might substantially affect the judge’s attention to our argument, and that I’m nevertheless not going to do so, I’d better tell my client in advance, so he can decide if he wants to find someone who’s GOT that clown nose ready.

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20.

Charles
Aug 22, 2008 12:37 PM CST

Have to agree with not news - it sounds like he meant to wear a shirt with a tie, but didn’t have an extra because he had flown in for oral arguments. 

I have to say, though - when I read the first paragraph, I thought he had popped his collar up, rather than lost a button.  That would have been so much funnier.

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21.

Willem DeDonis
Aug 22, 2008 4:06 PM CST

The man was a bit of a Woody-Allen type.  Lovable, yet disheveled.  No one is perfect, but this fellow at least won his case, so there is no-harm, no foul.

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22.

Willem DeDonis
Aug 22, 2008 4:17 PM CST

BTW, Post #1 is spot on.  I think some of the women here just don’t get it.  Here’s an excerpt from a FEMINISTA LAW blog that says it more eloquently than #1.  I encourage you women haters to read it and then you’ll understand.

http://feministlawprofs.law.sc.edu/?p=3943

Men, patriarchy and masculine characteristics have predominantly been examined within feminist theory as a source of power, domination, inequality and subordination. Various theories of inequality have been developed by feminists to challenge and reveal structures and discourses that reinforce explicitly or implicitly the centrality of men and the identity of the top of a hierarchical power and economic structure as male.

The study of masculinities has been inspired by feminist theory to explore the construction of manhood and masculinity, and to question the real circumstances of men. It has explored how privilege is constructed, and what price is paid for privilege. Masculinities study challenges an essentialist portrait of men. Instead of seeing men as a single entity, and only described in terms of dominance and power, the study of masculinities reveals ways in which the dominant gender system subordinates and differentiates among men. At the same time, anti-essentialism also means exposing affirmative differences among men that challenge dominant definitions of masculinity. Masculinities analysis exposes how those alternative models are constructed as well as quashed by the dominance of a preferred, singular gender model that ultimately limits men’s freedom as well as resisting women’s equality

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23.

anonymous
Aug 22, 2008 5:51 PM CST

Ummm…“Mongo not know—Mongo just pawn in game of life.”

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24.

Fellow Unsatorial Patent Lawyer
Aug 22, 2008 10:44 PM CST

I think everyone is missing the real key to understanding the tieless lawyer’s dilemma:  he’s an IP guy.  Chances are he majored in science, probably has a graduate degree, and didn’t loose his virginity until after law school.  Knowing how to dress well just isnt’ an egghead’s priorty.  Packing well for satorial redundancy just doesn’t cross a typical patent lawyer’s mind.

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