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.

Concluding that counsel “intentionally altered the photographs” on appeal, the court ordered counsel to show cause why he should not be sanctioned, and then the court would decide whether to forward the decision to the state bar. Id. at 825.

In his response to the order to show cause, counsel continued to claim that the differences in the copies in the appendix were his assistant’s mistakes, that the date stamp was placed on the photos later, and that he honestly believed they were taken the day of the incident—and, therefore, he should not be sanctioned. Counsel also informed the court that he self-reported the matter to the state bar by sending the bar a copy of the court’s decision.

In a subsequent order (Case 19-1529, Doc No. 41), the court rejected each of the attorney’s excuses. The court reiterated that attorneys are responsible for their staff and that “ethical rules prohibit lawyers from disavowing responsibility for an assistant’s conduct.” The argument about the date stamp was “beside the point” because it did not change the fact “the photographs were redacted before they were reproduced in the appendix.” As for his good-faith belief, not only was that argument “weak” but also it ignored the key element of “his misrepresentations in his briefs and oral argument that the photographs were taken the day of the fall,” for which “[n]o factual basis existed.”

Concluding that the attorney’s actions constituted “unbecoming conduct,” the court imposed a monetary sanction. However, because he had already self-reported to the state bar, the court did not proceed with its own report.

McCurry v. Kenco Logistics Servs., 942 F.3d 783 (7th Cir. 2019)

Counsel knows that they are in trouble when the opening paragraphs of the court’s decision refer to the “monstrosity of an appellate brief. . . .” Id. at 786.

This case involved a discrimination claim arising from the layoff of a warehouse worker. The trial court found that the plaintiff had failed to comply with the local rules regarding summary judgment responses by submitting “a disorganized, rambling, hard-to-decipher mess.” Id. Deeming the defendant’s factual submissions as admitted under the rule, the trial court granted summary judgment to the defendant.

On appeal, the plaintiff’s submissions fared no better. The plaintiff did not challenge the trial court’s enforcement of the local rule. Therefore, the factual record consisted solely of the defendant’s submissions, resulting in affirmance. The court then turned to counsel’s appellate performance, noting that “[t]his appeal represents a shameful waste of judicial resources” and that “[s]anctions are appropriate . . . especially when the violations are multiple and flagrant, as they are here.” Id. at 790.

The court observed that the plaintiff’s brief, “which span[ned] 86 interminable pages,” was “neither concise nor clear,” was “chock-full of impenetrable arguments and unsupported assertions,” and was “organized in ways that escape our understanding.” Id. at 791. The court further noted that the plaintiff’s “appellate arguments [were] insubstantial to the point of incoherence and had no chance of prevailing in this court.” Id. Describing the brief as “bizarre,” the court concluded that “[b]ad writing does not normally warrant sanctions, but we draw the line at gibberish.” Id.

The court ordered counsel to show cause why he should not be sanctioned and sent a copy of its decision to the state bar without waiting for counsel’s response. Subsequently, the court decided to sanction counsel and awarded the defendants a total of $71,990.10.

Briganti v. Chow, 254 Cal. Rptr. 3d 909 (Cal. Ct. App. 2019)

In this case, counsel fortunately only had his conduct criticized as a “teachable moment” rather than receiving sanctions and a referral to the state bar.

The appeal arose from the trial court’s denial of an anti-SLAPP motion to strike. The court rejected counsel’s substantive argument that the plaintiff’s comments were not defamatory and then included a separate “Note on Civility, Sexism, and Persuasive Brief Writing.” Id. at 914.

The trial judge in this case was a woman who, after the trial, was elevated to the same California court of appeal. In the opening paragraph of the plaintiff’s reply brief on appeal, counsel described the trial judge as “an attractive, hard-working, brilliant, young, politically well-connected judge on the fast track for the California Supreme Court or Federal Bench. . . .” Id. Although counsel claimed that he meant this as a compliment, the court saw it as “gender bias and disrespect for the judicial system.” Id. Calling a woman judge attractive, the court stated, “is inappropriate because it is both irrelevant and sexist.” Id. at 915.

The court balanced its criticism of counsel by expressly thanking “the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our tasks more enjoyable.” Id. The court concluded its discussion by noting that the court does not require “perfection” in brief writing, but “[w]e simply did not find the peculiar style and content of the brief’s opening paragraph appropriate, helpful, or persuasive.” Id.

Counsel’s pride, and perhaps reputation, may have taken a blow, but at least he did not have to justify his choice of language to the state bar.

Davis v. TWC Dealer Grp. Inc., 254 Cal. Rptr. 3d 443 (Cal. Ct. App. 2019)

Experienced appellate counsel know that it is a cardinal mistake to respond in oral argument, “I did not try the case below.” The question here is whether it is worse to answer, “I did not write the brief.”

The appeal involved the denial of a petition to compel arbitration. The court observed that it “easily affirm[ed] the order” but published the decision to “remind the profession of the importance of candor toward the court.” Id. at 445.

The employer had moved to compel arbitration based on three separate agreements. The court’s concerns with candor surface early in the decision when it notes that the employer, in 72 pages of briefing, never quotes the entirety of any of the three agreements, or even the paragraph concerning arbitration. Id. at 446. Instead, the employer quotes selected language, using ellipses to omit 38 lines out of a 49-line paragraph. “We cannot help but observe,” the court stated, “the four ellipses in TWC’s quotation—and observe further TWC’s lack of candor, given how much the quotation misrepresents the Agreements here.” Id. at 447. The court concluded that the agreements were procedurally and substantively unconscionable, following a recent California Supreme Court decision involving another employer in the same industry who was represented by the same law firm. Id. at 452–54.

In a “Closing Observation,” the court addressed its principal concern. The relevant California Supreme Court decision was issued after briefing was complete, but before oral argument. However, “[w]e heard nothing from counsel, and so five days before oral argument our clerk’s office sent a letter to counsel advising that they should be familiar with [the decision].” Id. at 454. The letter specifically asked the employer’s counsel to be prepared to address two issues: the use of ellipses and why counsel did not inform the court of the intervening supreme court case. The letter specifically referenced a prior decision on the duty to advise of adverse precedent. Id.

At oral argument, an attorney whose name was not on the briefs appeared for the employer. Id. When asked the two questions from the court’s letter, the attorney said that he had no answer to the use of ellipses, admitting that he never even spoke to the attorney who signed the brief. Id. As to the failure to cite precedent, the attorney attempted to distinguish the recent supreme court decision; but when pressed, he admitted that he had not even read the case concerning counsel’s duty to disclose adverse precedent, which the court’s letter had referenced. Id. Stating that it was “hard to imagine a more obvious violation” of the rules requiring “Candor Toward the Tribunal,” the court affirmed the decision below and awarded costs to the employee respondent. Id. at 455.

Although the employer’s law firm might have made a tactical decision to send a lawyer whose name did not appear on the brief, that attorney should have at least acquainted himself with the contents of the court’s letter and formulated responsive answers before appearing for argument.

Morrison v. Walker, 939 F.3d 633 (5th Cir. 2019)

This is yet another appeal of a sanctions order that does not end well for counsel. Will they never learn? When in a hole, stop digging!

In an earlier state criminal case, the presiding judge accused the defense counsel of suborning perjury and referred the attorney to both a grand jury and the state bar. Seven years later, after the judge had left the bench, the attorney sued the judge in federal court, alleging that the judge had fabricated the perjury charge. Id. at 636.

The judge moved to dismiss the claims, based on judicial immunity. To avoid dismissal, the plaintiff’s attorney alleged that the perjury charge “had nothing to do with a case that was pending or had been adjudicated in [the judge’s] Court.” Id. In response, the judge submitted the transcript of the criminal case, proving that the attorney’s assertions were untrue. Id. at 637. The plaintiff’s attorney promised to look into it. After six months without hearing anything, the district court ordered a response, and the plaintiff conceded that the transcript was accurate. The district court dismissed the claims against the judge and, as a sanction, awarded him attorney fees.

On appeal, the U.S. Court of Appeals for the Fifth Circuit upheld the sanctions against the plaintiff’s counsel, stating that “[i]t cannot be seriously disputed [he] multiplied the proceedings” and that this was “unreasonable and vexatious” as counsel “pursued a baseless claim with reckless disregard for his duty to the court.” Id. at 638. In light of the “glaring red flags” in the record, the court rejected counsel’s argument on appeal that he could rely on his client’s representations. Id. at 639. The court concluded that counsel’s appellate “contentions get marks for audacity, if not veracity.” Id. at 640.

The result of the appeal was that counsel still had to pay the attorney fees sanction and was out his own costs on appeal. Plus, the criticism of his performance now appears in a reported court of appeals decision instead of in an unreported district court order.

The collateral effects of a sanctions order, in addition to the obvious financial ones, may encourage an attorney to appeal a sanctions award. One must consider, however, if that will just make the situation worse.

Atakapa Indian de Creole Nation v. Louisiana, 943 F.3d 1004 (5th Cir. 2019)

Some appeals are so unjustified that they should never be brought. Here, the court of appeals held that was true as a matter of law and dismissed the case for lack of jurisdiction.

The opening sentence of the decision sets the stage for the ultimate result, noting that the plaintiff, “a lawyer who styles himself both a monarch and a deity, brought claims on behalf of an [unrecognized] Indian tribe alleging that [Louisiana and the U.S. government] have, among other misdeeds, monopolized ‘intergalactic foreign trade.’” Id. at 1005.

After originally commencing a habeas corpus proceeding “based on a gumbo of federal and state law,” the plaintiff filed a pleading “to reclassify the action as a ‘libel suit’ under maritime jurisdiction.” Id. at 1005–06.

The plaintiff attorney referred to himself in pleadings as “His Majesty,” “[T]he Christian King de Orleans,” “[T]he God of the Earth Realm,” and the “Trust Protector of the American Indian Tribe of . . . Moses.” Id. at 1006 (emphasis in original). His “claims are no less bizarre,” alleging “that the Atakapa are being held in ‘pupilage’ [the final stage of training for an English barrister] by the United States and as ‘wards’ of Louisiana.” Id. Regarding the claim of monopolizing “intergalactic foreign trade,” the court notes that “[t]his was no typographical error” because the plaintiff argued on appeal that the defendants “are attempting to monopoliz[e] . . . domestic, international and intergalactic commercial markets.” Id. at 1007. As relief, the plaintiff sought an injunction to restrain “the Doctrine of Discovery and the Doctrine of Conquest more commonly known as the Doctrine of White Supremacy,” based on the assertion that the “1803 Louisiana Purchase Treaty is not ‘Law of the Land.’” Id.

The court observed that it “could say more, but these examples are enough to show the plaintiff’s claims are wholly without merit,” holding that the district court lacked jurisdiction over claims “so attenuated and insubstantial as to be absolutely devoid of merit.” Id.

The court did not take any action against the attorney. Perhaps the court questioned its ability to effectively sanction a “God of the Earth Realm” and a “Christian King,” but the earthbound attorney was lucky to escape.

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.


Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).