Does lawyering matter?

Perdue v. Kenny A. limited when judges could increase an award of attorney's fees beyond the lodestar for "superior performance and results." Chief Justice Roberts doubted the claim during argument; he posited that there was a knowable right answer in the case and that good attorney performance cannot change what that answer is. That "answer" likely is whatever the judge believes to be the right answer.

But that raises the question of whether lawyering matters at all. If the judge will do what she is inclined to do, does the quality of the lawyering matter? Case in point--Judge Cannon granted Donald Trump's motion (while acknowledging how "convoluted" this collateral-ish proceeding is) to appoint a special master and enjoined DOJ from continuing to review the seized documents for prosecution (although not for national-security) purposes. No one can objectively compare the papers by each side in this case and conclude that Trump's lawyers did a better job lawyering the case--making and supporting legal arguments with precedent, adhering to rules and procedures, not sounding like a Twitter fight, not throwing around random concepts ("fruit of the poisonous tree"), and focusing on the actual relief at hand. None of it mattered--the judge (for whatever reason) was inclined to rule a particular way and did so. Of course, she did so without any legal analysis--no explanation of how executive privilege applies against the executive branch; how equitable jurisdiction is not barred by laches; how 41(g) is the correct vehicle when executive-privilege documents still do not belong to Trump and thus are not returnable personal property; and why former presidents suffer greater "stigma" constituting irreparable injury than any other target of a search warrant. She also called her order a "temporary injunction," which is not a thing under FRCP 65--there are (non-appealable) temporary restraining orders and (appealable) preliminary injunctions; so getting the law right does not seem to be her strong suit. Of course, Cannon did a better job than Trump's lawyers--making something coherent (if wrong) of the nonsense they submitted.

The injunction is immediately appealable, without needing mandamus. Some knowledgeable folks are wondering whether DOJ will bother appealing or whether it will ride out the special-master process and deal with the few-week delay or appealing later problematic rulings from the special master.