[Updated June 7, 2019, see below.]
A year and a half ago, I wrote a post, Philosophy Explains How Legal Ethics Turn Lawyers Into Liars, discussing a couple situations in which I witnessed my opposing counsel tell the judge an outright lie about the case.
I can’t say that I’m surprised to find that this problem hasn’t disappeared since that post, and I continue to devote many hours responding to opposing counsels’ objectively baseless motions. Generally, these motions aren’t quickly or crudely written; rather, they tend to be quite carefully crafted and polished to create the appearance of a legitimate issue for resolution, a patchwork of quotes taken out of context from distinguishable cases.
Most notably, in a recent example, the baseless motion (for summary judgment) made no effort to address the central issue, which was that the defendant had, for the past two years, engaged in a procedural tactic that one Circuit Court has called “dishonest,” a procedural tactic that automatically waived their argument. Indeed, our own federal appellate court, the Third Circuit, examined that exact same procedural tactic just last year and had specifically ruled against it; my opposing counsel found that case and cited it for a completely different purpose, ignoring the actual reasoning and holding, which rendered their motion frivolous.
I suppose I could have filed a one-page response simply citing that case correctly, with a couple opinions from other Circuits – the unanimous rule across country, including the Restatement rule, is to reject this “dishonest” tactic – but I don’t take briefing on dispositive motions lightly. More to point, no one should taking briefing lightly; as I have said before, one of the worst things you can do is listen to the Supreme Court and hamper your own brief by voluntarily dropping meritorious issues, and so I addressed every issue raised by the wayward brief, each in detail, each with appropriate citations.
I have no doubt their dubious motion for summary judgment will be denied. Here’s the question: do I threaten my opponent with Rule 11 sanctions for wasting my time and the Court’s? I take it as a point of pride to actually know what is and what is not sanctionable — see, e.g. my post on sanctions for deposition coaching of witnesses — so I’m not going to send that threat unless I think there’s a real chance of sanctions actually being awarded. And thus the question is: can you get sanctions for having to respond to an opponent’s brief that failed to address directly contradictory precedent?