March 05, 2020 Articles

Silly Lawyer Tricks XIX

Will they never learn? When in a hole, stop digging!

By Tom Donlon

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

Waldon v. Wal-Mart Stores, Inc., 943 F.3d 818 (7th Cir. 2019)

Most of the cases discussed in this column have concerned mistakes by lawyers. This one definitely deals with misdeeds.

The case arose out of a simple slip and fall in a Walmart. The issue was whether Walmart had notice of the hazard—a plastic hanger on the floor. In support of summary judgment, the store offered an employee’s affidavit that she had visually inspected the area five to 10 minutes earlier and saw no hangers on the floor. In opposition, the plaintiff submitted two photographs showing debris on the floor. One photo was undated, and the other showed a date stamp 11 days after the accident. The trial court rejected this evidence because the plaintiff failed to demonstrate that the photos depicted the same conditions that existed at the time of the accident. Id. at 821.

On appeal, the plaintiff again relied upon the photographs. At oral argument, the court questioned the attorney on “a troubling point: Waldon’s counsel appeared to have altered photographs from the district court record. . . .” Id. at 824. In a court-ordered surreply, counsel admitted that the date stamps were deleted when the photos were reproduced in the appendix but blamed a copying mistake by a legal assistant. Id.

The court noted that attorneys are ethically responsible for their assistants. Further, not only were the photos cropped to cut off the date stamps, but they were the only pages out of a 248-page appendix with handwritten numbers, leaving the court to conclude that the “explanation offered by Waldon’s counsel for the alterations of the photos lacked credibility.” Id. “Even more distressing,” in the court’s view, was the fact that counsel’s brief repeatedly stated that the photos were from the date of the injuries, and “at least twice at oral argument Waldon’s counsel misrepresented that the photographs were taken the day of the incident.” Id. at 824–25.

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