December 17, 2020 Articles

Silly Lawyer Tricks XXII

Tales of self-inflicted wounds, colorful language and tone, and attorney misconduct.

By Tom Donlon

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

Allen-Noll v. Madison Area Tech. Coll., 969 F.3d 343 (7th Cir. 2020)

A series of self-inflicted wounds in the district court led to a loss—and substantial monetary sanctions for the plaintiff. Showing that counsel failed to learn from his mistakes, the appeal resulted in another loss and more sanctions.

This case involved a claim for racial discrimination arising out of a college’s decision not to renew the contract of a nursing instructor. Following discovery (during which the plaintiff’s and her counsel’s conduct resulted in sanctions of over $14,000), the college moved for summary judgment. Although the local rules required an opposing party to answer each numbered fact proposed by the moving party, the plaintiff instead “submitted a photocopy of those proposed findings with question marks, underlining and some illegible handwritten notes in the margins,” while failing to file any proposed facts of her own. On the merits, the plaintiff “responded . . . but barely,” with a brief that “contained a single page of legal argument.” The plaintiff subsequently filed a late declaration that “contradicted her previous sworn testimony, so the sham affidavit rule applie[d].” The district court accepted most of the college’s facts as undisputed and held that the plaintiff had failed to offer any admissible evidence of discrimination. Id. at 348–49.

The U.S. Court of Appeals for the Seventh Circuit agreed that the plaintiff’s counsel’s “inscrutabl[e]” and “illegible” comments did not comply with the local rules. As for the plaintiff’s claim of a faculty conspiracy based on “an ‘antebellum’ climate where a racist ‘cabal’ of ‘elite Caucasians’ were attempting to rid the campus of Black people,” the court of appeals concluded that the district court had properly found there was “no evidence.” Id.

Addressing the college’s motion for sanctions, the Seventh Circuit noted that “[g]etting [the plaintiff’s] appeal filed in this Court was a challenge, as four iterations were stricken as procedurally deficient.” The brief finally accepted had major mistakes, including no statement of facts, excerpts from unfiled documents, and “a 30-page summary of the argument that was hardly ‘succinct’ and ‘clear’ as required.” As to the substance, the court rejected as “shockingly irresponsible” the “baseless assertions about the college crafting a racist conspiracy.” Id. at 351–52.

Despite having been previously warned and sanctioned by the district court, and now facing the college’s request for sanctions on appeal, counsel remained unrepentant. Instead, counsel’s sanctions response “engage[d] in inappropriate mudslinging,” including claims that the college “dance[s] to antebellum music of a kangaroo court band playing to the script of off tune frivolity—deserving of the boos of sanctions.” Id. (emphasis in original). The court pointed out that counsel had previously received a public admonishment from the state supreme court “to curtail his rhetorical style in future court proceedings or risk sanctions.” Id. at n.2. Abandoning ineffectual warnings, the Seventh Circuit ordered the plaintiff and her counsel to pay the defendants’ counsel fees on appeal, plus double costs.

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