Sunday, June 22, 2008

One more problem with the Wuterich opinion

In addition to its more major problems, NMCCA's opinion in United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008), appears to have misidentified one of CBS News' lawyers in the case.

The opinion lists the counsel for "For Non-Party Appellee" (a seeming oxymoron -- Black's Law Dictionary defines "Appellee" as "A party against whom an appeal is taken . . . ") as: "Mr. Lee Levin, Esq., Mr. Seth D. Berlin, Esq., and Ms. Nicole Auerbach, Esq." I assume that first name should be Lee Levine, a founding partner of Levine Sullivan Koch & Schulz, L.L.P., an adjunct professor at the Georgetown University Law Center, and the past chair of the American Bar Association's Forum on Communications Law.


Gene Fidell said...

And why refer to an attorney as both "Mr." and "Esq."?

Anonymous said...


Because it's 2008 and the great majority of forward-thinking people believe that women and men are equal. Do you also have a problem with NMCCA referring to the female lawyer in the case as "Esq."?

egn said...

I've always been taught that you address a person as either Mr/Ms/Mrs/Miss OR Esq but not both. I believe that's the rule Mr. Fidell was referring to in his question/comment.

CAAFlog said...

1040 Anon:

(1) Huh? How did Gene suggest otherwise? (He didn't.)

(2) Garner agrees with Gene and EGN: "The mild honorific [Esq.] is used nowadays with the names of men and women alike; it is incorrect, however, to use this title with any other title, such as Mr. or Ms." Bryan A. Garner, A Dictionary of Modern Legal Usage 327 (2d ed. 1995).

(3) Apropos of your final question, Garner also tells us that "[o]ne law review has devoted several pages to an article on whether women attorneys should use esquire. See Richard B. Eaton, An Historical View of the Term Esquire as Used by Modern Women Attorneys, 80 W. Va. L. Rev. 209 (1978)." Id.

Garner provides this answer to the question of whether "others should append [Esq.] to women attorneys' names": "this practice is perfectly acceptable and extremely common. Anyone who is bothered by this practice should pretend that Esq., when used after a woman's name, stands for esquiress (recorded in the OED from 1596)." Id.

Rich McWilliams said...

I am also of the understanding that the term Esquire should not be used to describe oneself because (as CAAFLOG points out) it is an honorific -- for others. If someone signs a pleading "John Doe, Esq." I will will typically sign my reply brief: "St. Richard McWilliams, the LionHearted, Strikingly Handsome, JD who Graduated top 1/3 of His Class, Esq." It's kind of like Joe DiMaggio requiring that he be introduced as "the Greatest Living Ball Player" at all public appearances.

Bridget Wilson, Esq. said...

I do it just to irritate those who think I shouldn't.

Bridget Wilson, Esq.

AKA Her Royal Highness, Her Grace and Exalted Shareholder in the Firm

Betty Friedan said...


A very subtle point of logic: You cannot declare "it's 2008" and simultanously advocate "forward-thinking."

Think about it.

Gene, your master plan to disempower women has been foiled!

CAAFlog said...

The versions of Wuterich on both NMCCA's web site and NKO have now corrected Mr. Levine's name.

I'm on the road with very limited computer capabilities, so I haven't been able to do a merge docs yet to see if there are other changes, but I'll do that over the weekend.

CAAFlog said...

Based on an MS Word compare and merge analysis of NMCCA's original opinion in Wuterich and the version now on its web site, there were two changes: (1) correcting the spelling of Lee Levine's name; and (2) deleting a track changes formatting note in the originally posted version.