March 13, 2017 Articles

Silly Lawyer Tricks VII

There are rare cases where you shake your head and say, “I don’t believe a lawyer actually did that.”

By Tom Donlon – March 13, 2017

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers on appeal.

Walker v. Health Int’l Corp., No. 2015-1676, 2017 WL 65402 (Fed. Cir. Jan. 6, 2017)
Sometimes it is better to take your medicine and move on rather than continuing a losing fight.

In this case, the parties agreed to a settlement after mediation. However, when the defendant filed a motion to extend all filing deadlines for thirty days to effectuate that settlement, the plaintiff opposed the motion. There followed a flurry of filings over the next month, including the plaintiff’s motion to file an amended complaint and the defendant’s motion to enforce the settlement. Finally, the plaintiff executed a general release, and the defendant forwarded the settlement payment.

At that point, one would think the case was over. However, the plaintiff continued to submit filings, including an opposition to the motion to enforce the settlement that he had already been paid. The defendant eventually sought sanctions, which the district court granted, stating, “Plaintiff’s actions have unnecessarily multiplied the proceedings at a time when the underlying claims have admittedly been resolved.” Id. at *2.

The plaintiff then made the poor tactical choice to appeal. Not only did the Federal Circuit affirm the sanctions, but it added additional sanctions (more than double what the district court had awarded) for a frivolous appeal. The court of appeals noted that the plaintiff had mischaracterized clear adverse authority, and, when the defendant pointed that out, “he continued to press this frivolous argument and reiterated it at oral argument.” Id. at *5. The court observed that the plaintiff also raised new arguments on appeal and added, “Particularly troubling are [the plaintiff’s] baseless assertions of misconduct against his opposing counsel and continued misrepresentation of clear, binding Supreme Court precedent even after the distortion was pointed out by opposing counsel.” Id. at *6.

The court noted that it “has long disdained the filing of frivolous appeals” because it burdens overcrowded courts and “delays access to the courts of persons with truly deserving causes.” Id. at *5. The court imposed sanctions of over $50,000, stating that “[a]ttempts to mislead the court in a frivolous appeal further compound the wasted resources because the court and opposition are forced to devote extra resources to sorting through half-truths and misused legal authority in an appeal that never should have been filed in the first place.” Id. at 6.

Making things worse for the plaintiff-appellant’s counsel, the court held him jointly liable for the sanctions award for misconduct in arguing the appeal, stating, “[W]e consider the attorney who wrote and signed the briefs to be equally responsible.” Id. at *6 (internal quotation marks omitted).

Counsel’s client was no better off after this appeal, and counsel was definitely worse off personally.

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