Lawyer Tries, Fails To Remember What The 14th Amendment Does

In fairness, it's not like it's one of the famous ones or anything.

It’s been a long time since law school, so lawyers can be forgiven if they don’t carry the particulars of the dormant commerce clause top of mind when they head into court. But there are a few sections of America’s governing document that lawyers should never whiff. The First Amendment is, well, first. It should be pretty easy to remember unless you’re a partisan hack elevated to the Supreme Court. Indeed, the entire Bill of Rights should be cemented into a lawyer’s head. Beyond that, there are some obscure amendments about presidential terms and congressional pay raises but the 14th Amendment is kind of a biggie.

Yet, for one guardian ad litem in Illinois, equal protection is just a massive hole in her swing. The full transcript is available here, but the crux of it is that the parties to this guardianship case appeared at a status hearing to deal with a bunch some confusing procedural knots. Eventually the frustrated attorneys got into this absolute gem of an exchange:

MS. MALONEY: …She is just making this up just like the — just like her petition somehow claims that the 14th amendment has been violated, which is, you know —
MS. BANKS: It has been violated.
MS. MALONEY: — the abolition of slavery. So I don’t know how that has been violated in this proceeding.

Um.

On the one hand, the referenced petition wasn’t on the agenda for this hearing so she hadn’t actually prepared to discuss it and would have, presumably, sorted out her error before heading in to argue that one. Though one would think due process claims would be fairly routine in guardianship matters. Still, everyone can have an off day.

On the other hand, since it wasn’t relevant to the hearing, why is she even bothering to bring it up? It’s thrown in as a gratuitous jab at her adversary’s credibility with a “gotcha” moment that backfired in epic fashion.

In any event, opposing counsel caught the error:

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MS. BANKS: That is the abolition of slavery? You want to try that again? That is the 13th amendment.
MS. MALONEY: No. That is the 14th, which you cited.

There’s a school of thought that says you should always double down after making an egregious and embarrassing mistake. It’s a poor school of thought.

Last word goes to opposing counsel:

MS. BANKS: Get a copy of the constitution. Sorry, your Honor.

They are quite affordable (affiliate link).

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.