June 19, 2020 Articles

Silly Lawyer Tricks XX

The traditional rules still apply—three strikes and you’re out!

By Tom Donlon

Royce v. Michael R. Needle P.C., 950 F.3d 939 (7th Cir. 2020)

There may not be many baseball games played in the current climate, but one attorney learned that the traditional rules still apply—three strikes and you’re out!

The attorney started the game off very well. After litigating a RICO claim for several years, he and his local counsel settled the case for $4.2 million. Id. at 944. Unfortunately, at that point, greed set in. The lawyer claimed that he and cocounsel were entitled to almost 60 percent of the settlement. The clients—and cocounsel—disagreed because a written contingent fee agreement set attorney fees at one-third. Id. at 943. This led to extra innings with “a long, tortured history.” Id. The legal issues were not unduly complex or novel, but the attorney “protracted it every step of the way.” Id. He “routinely and unapologetically tested the district court’s patience, disregarded court orders, and caused unnecessary delays.” Id. Yet, in the end, he lost the game.

The district court first rejected the attorney’s attempt to grab 60 percent of the settlement. It concluded that his arguments on this issue “were ‘not merely wrong but frivolous, disregarding what anyone having taken a first-year contracts class could identify’ . . . and ‘utterly devoid of merit.’” Id. at 945. Strike one!

The next pitch concerned how the contractual one-third contingent fee would be split between the attorney and his cocounsel. Although the attorney himself had drafted a fee-splitting agreement, he still tried to claim more than his share. Id. The district court rejected this claim as well. Strike two!

Then the curveball—the counsel representing the attorney withdrew (actually, two different firms withdrew). The attorney sought to appear pro hac vice, which the district court initially allowed. However, the court later revoked the attorney’s pro hac vice admission—twice. Id. at 946–47. The attorney’s conduct was so objectionable that the district court ended up sanctioning the attorney—four times. Strike three!

Having now struck out, the attorney should have slumped back to the dugout. But no—he decided to argue the call to the umpire, which in this case was the Seventh Circuit. The attorney raised a number of issues on appeal, many of which the court of appeals described as “underdeveloped and impenetrable”—and none of which were successful. Id. at 949.

The Seventh Circuit first rejected the argument that started the dispute—the attorney’s claim to 60 percent of the settlement—as “objectively frivolous.” Id. at 943. Next, the court of appeals held that the district court had not abused its discretion regarding the split with cocounsel, particularly because cocounsel “kept detailed, contemporaneous billing records, whereas [the attorney] did not.” Id. at 956. The attorney did not even begin to reconstruct billing records until months after the RICO case settled (years after some of the entries). The resulting submission included months where the entries were identical to those of the same month the prior year, and many others that “were simply implausible” (such as 11 days where he billed over 20 hours to the case and another 78 days where he billed between 15 and 20 hours). Id.

Finally, the circuit court turned its attention to the multiple sanctions that the district court imposed—one for filing a frivolous pleading and “three separate times for vexatious conduct.” Id. at 958. In one, after the district court granted the attorney the favor of appearing telephonically, he failed to call in on time; and when he finally did, the connection on his cell phone was so bad that the judge had to postpone the hearing. In another, after asking for 60 days to reply to a default motion, “[l]ike Groundhog Day, the day before his response brief was due [the attorney] moved for an additional two weeks” because “he just discovered he had not ordered a transcript he apparently needed. . . .” Id. at 947.

The Seventh Circuit observed that it reviewed these sanctions “not in isolation but in light of ‘the entire procedural history of the case.’” Id. at 958. The district court’s comments during the proceedings certainly could have colored the court of appeals decision. At various points during the proceedings, the district judge commented:

  • “I must tell you that you try anybody’s patience.”
  • “[A] case that has proved itself to be endless and to which endlessness you have contributed to extraordinarily.”
  • “The nature of [your] irresponsible behavior cannot be permitted to paralyze this litigation. . . .”

Id. at 954. The court of appeals affirmed all four sanctions, holding that the “district court acted reasonably—and with considerable restraint”—in each instance. Id. at 958.

As anyone who watches baseball will tell you, no one gets very far arguing with the umpire. At least the court of appeals didn’t throw him out of the game and suspend him (from the practice of law).

Marentette v. City of Canandaigua, No. 19‑205, 2020 WL 556382 (2d Cir. Feb. 4, 2020)

When I first started writing this column (hard to believe that there have been 20), I was surprised that there were always more cases. Now my surprise is how the same mistakes keep appearing. This is an example of one mistake that I would have thought would never be repeated.

A city fire chief, fired for disciplinary reasons, sought reinstatement and back pay in a state proceeding. He asserted, among other bases, violations of due process. Under New York procedure, his case was transferred to the appellate division. While that matter was pending, the chief brought a section 1983 action in district court for damages. When the state appellate division ruled against him, the district court granted summary judgment on collateral estoppel grounds. Id. at *1.

The same day that the district court entered judgment, the chief died. Although his attorneys filed a notice of appeal, they never moved to substitute a personal representative and, “[i]n fact, counsel neglected even to inform [the court of appeals] that Marentette had died.” Id.

Counsel also failed to mention their client’s death in their opening brief, filed months later. The appellee did raise the chief’s death in its brief and sought dismissal for lack of a personal representative. Still, counsel did not address the issue in their reply brief. Id. at *2.

Finally, 12 months after the death and a month before oral argument, counsel moved to substitute the chief’s ex-wife as representative, expecting that she would be named administratrix. Appellee opposed and cross-moved to dismiss the appeal. Id. A week before oral argument, counsel informed the court that the chief’s daughter, who they claimed had recently reached majority, would be the administratrix. Actually, the daughter had turned 18 six months earlier, and counsel admitted at oral argument her application had not yet been approved. Id.

When no appointment had been filed a month later, the Second Circuit dismissed the appeal. The court felt “obliged to note our concern at what appears to be a lack of candor on the part of [appellant’s] counsel,” adding that their failure to notify the court “for more than 11 months, even after [appellee] repeatedly raised the issue, is inexcusable.” Id. at *2. The court not only dismissed the appeal but also referred both counsel to its Grievance Panel. Id.

Lowrey v. Tilden, 948 F.3d 759 (7th Cir. 2020)

This case represents not only a mistake that this column has addressed before but also an area that the Seventh Circuit had previously addressed. The published decision by Chief Judge Wood points out that “[t]his court takes jurisdictional issues seriously—indeed, it is proud to have a reputation as a jurisdictional hawk.” Id. at 760. Only three years before, the chief judge had issued a written opinion to remind practitioners of the necessity of strictly following the rules, particularly regarding jurisdictional statements. Now, again, she issued another opinion to address failure to comply with the rules on that very point.

The court combined two pending cases for the ruling. Both had been heard by a magistrate judge. Due to the jurisdictional limits on a magistrate’s power, the Seventh Circuit’s rules required that the jurisdictional statement include the dates on which each party consented to have the magistrate issue a final judgment. In one case, the party failed to include the dates; while in the other, the party failed to even mention that the decision was by a magistrate judge. Id.

As the decision points out, the “rule is not a secret. It is clearly spelled out in [the local rules] and th[e] court’s Practitioner’s Handbook. . . .” Id. at 761. In fact, the “Handbook explicitly refers to the failure to provide dates of consent to proceed before a magistrate as one of the recurring problems that the court encounters when performing judicial screening.” Id. (emphasis added). The chief judge concludes with the “hope that this reminder will serve its intended purpose and that such readily avoided flaws will cease.” Id.

Fortunately for counsel, the court did not take any further action beyond requiring counsel to file an amended jurisdictional statement within seven days. Id. Anyone practicing in the Seventh Circuit should be careful in preparing the jurisdictional statement (and should probably read the Handbook).

TJM Atl. City Mgmt. LLC v. Schindler Elevator Corp., No. A‑0343‑17T2, 2020 WL 412877 (N.J. App. Div. Jan. 27, 2020)

This appeal arose out of a dispute between a hotel and an elevator company over whether or not a purported settlement agreement was enforceable. The appellate court, however, was as concerned about the parties’ failure to follow rules of procedure before it and before the trial court.

The problems arose out of the parties’ penchant for writing letters to the court to dispute issues on which there should have been a record. While the parties’ oral settlement agreement was recorded, both sides’ actions thereafter became increasingly informal. Id. at *1–3. By the time the case reached the appellate division, this created real problems.

On appeal, both sides referenced a hearing before the trial court a month after the settlement was placed on the record. The hotel’s statement of fact disputed what occurred at the hearing, without citation to the record as the appellate rules required. Id. at *3. No citation would have been possible because the appellant’s appendix did not contain either a transcript of the hearing or the order of the trial judge that resulted, also contrary to the appellate rules. Id.

As the party requesting the hearing be held telephonically, the appellant was responsible for ensuring that a verbatim transcript was made, which he failed to do, so there was no transcript for the court of appeals to review. Things only got worse as “[u]nfortunately the parties continued to communicate . . . in a manner that displayed an utter disregard for the rules governing how attorneys should interact with the court involving pending litigation.” Id. at *4. In lieu of motions, “the attorneys sent lengthy correspondence replete with incompetent factual assertions directly to the judge.” Id.

After months of this behavior, the elevator company finally filed a formal motion to enforce the settlement. The trial judge granted the motion, ruling that there was an enforceable settlement. The appellate division affirmed, but not before observing, “[W]e cannot conclude without expressing our strong disapproval of the ad hoc approach employed by the attorneys. . . . The wholesale departure from the rules governing adjudication of civil disputes that permeated this case significantly impedes meaningful appellate review and undermines the transparency of the judicial process.” Id. at 9.

Another example of attorneys taken to task in a decision for failing to read and follow the appellate rules.

Tom Donlon is counsel with the firm of Robinson + Cole LLP in Stamford, Connecticut. A former cochair of the Appellate Practice Committee, Donlon continues to serve as a vice chair while also serving as cochair of the Section of Litigation’s Amicus Curiae Brief Committee.


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