Civil Litigation Sanctions

[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?

 
Continue Reading Sanctions For Failing To Disclose Adverse Precedent Under The Duty Of Candor

Two weeks ago I wrote about a defense lawyer in a malpractice case being sanctioned for trying to intimidate the plaintiff’s expert witness. I’ve come across two recent Pennsylvania trial court opinions involving doctors and hospitals themselves being sanctioned for improper conduct.

First up is Borrero v. Lake Erie Women’s Center, et al., a shoulder dystocia birth injury case. (For some general background, see my Erb’s Palsy page.) Opinion is here. In discovery, the plaintiffs served Lake Erie Women’s Center and Hamot Medical Center standard interrogatories seeking “written policies in place in 2000 that pertain to or relate to … shoulder dystocia” and were told no such policies existed. At deposition, Hamot’s corporate designee confirmed there were no such policies, and that the only guide they used was Varney’s Midwifery. The case was tried twice, resulting in two mistrials, one for some problem mid-trial and the other for a deadlocked jury. I’m assuming it then sat for some time awaiting a new trial.

The same plaintiff’s lawyer, Patrick Loughren, then became involved in a separate shoulder dystocia case against Lake Erie Women’s Center and Hamot Medical Center while the case was already in suit. He learned that, in that case, the defendants had produced 56 pages of policies and procedures, including a specific protocol for shoulder dystocia.

“Oops” would be an understatement. “Pants on fire” would be more appropriate.


Continue Reading Civil Sanctions Against Pennsylvania Doctors And Hospitals

It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.

For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.

There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroom
Continue Reading Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case

A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.

Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”

1. What Not To Work On: Outwitting Witnesses At Trial

I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.

Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.

Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?

2. “Turn Every Goddamn Page”

There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:

For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaper­man once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”

“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that? 
Continue Reading How To Excel At The Basics As A Young Litigator

It may very well be the oldest trial lawyer trick in the book: noticing an insubstantial, trivial, or non-existent discrepancy in a witness’ testimony and then throwing a fit about it and claiming the whole case is a sham. That’s what happened in Bull v. UPS, No. 10-4339 (January 4, 2012), an employment discrimination case arising from an on-the-job injury at UPS. Here’s the Third Circuit’s new precedential opinion in the caseABA summary here.

In short, after the company’s orthopedist said the employee could not lift more than 10 pounds overhead, the company advised her it had no work for her and she had to go on permanent disability. On the recommendation of her union, the employee went to her own doctor, who at one visit said she could lift 50 pounds and then at the second visit said she could lift 70 pounds. UPS informally requested the original of the notes, claiming the copies she provided were illegible, but before she produced them she filed a worker’s compensation claim and an employment discrimination claim with the EEOC, which eventually turned into a lawsuit.

That’s where things got ridiculous. UPS knew one of the major issues in the case was her ability to lift heavy objects overhead. They also knew, before the lawsuit was even filed, that her primary care physician said she could lift enough weight, and they also already believed that the copies of the medical records they had were illegible.

At that point, any sane defense lawyer would have:

  1. served a subpoena upon her primary care physician for original copies of the record, and
  2. specifically requested from the plaintiff original copies of the record.

The company’s lawyer inexplicably did neither, and the issue remained dormant until trial, when the employee — who until that time understandably did not see anything wrong — said that she had the original copy at home, and that she could bring it in.

I am pretty sure that 9 out of 10 judges would have rolled their eyes when they heard the plaintiff had the originals at home, would have dismissed the jury for the day, and then would have told the plaintiff to go home and get that original and bring it in the next day. I have had exactly that same thing happen to me several times at trial. No harm, no foul is a good rule both for recreational sports and for sanctions.

For reasons that seem to me completely unfathomable, the judge responded by declaring a mistrial and inviting UPS’ lawyers to file a motion for sanctions, which the judge later granted, dismissing Bull’s case entirely.


Continue Reading The Third Circuit’s New Spoliation Opinion On Producing Originals In Discovery (And Bad Faith In Sanctions)

Back in the summer time, the House Judiciary Committee approved the Lawsuit Abuse Reduction Act (H.R. 966; identical Senate version S. 533 still in committee), the claimed purpose of which is “To amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability, and for other purposes.”

Attorney accountability? Sign me up! I’ve been railing against improper conduct by lawyers for years. See, for example, my posts on Grider v. Keystone Health, how lawyers deceive themselves into lying for clients, and a bogus sanctions threat I received. (For those of you who wrongly believe only plaintiff’s lawyers engage in misconduct, Grider involved misconduct by defense lawyers for a health insurance company.)

But the Lawsuit Abuse Reduction Act, if it becomes law, won’t increase attorney accountability. Quite the opposite, in fact. I assume those “other purposes” include “padding the profits of large corporate law firms,” because the Lawsuit Abuse Reduction Act is one of those exceptional bills that isn’t one-sided, but is just plain bad for everyone involved — consumers, employees, judges, and even insurance companies and corporate defendants — except for a single group of influential players, in this case the lawyers who represent big corporations in litigation.

The Lawsuit Abuse Reduction Act (“LARA”), it should be noted, has little to do with “lawsuit abuse,” to the extent that term even has a meaning.  Instead, LARA proposes a limited change to Rule 11 of the Federal Rules of Civil Procedure, the rule that governs sanctions for “representations to the court” in a “pleading, written motion, or other paper.” Rule 11 doesn’t apply to the vast majority of what people call “lawsuit abuse.” Rule 11 doesn’t apply to:

  • bogus threats to sue somebody,
  • unethical or vexatious conduct during discovery,
  • the destruction or concealment of evidence, or
  • use of improper arguments or falsified evidence at trial.

Instead, Rule 11 applies solely to what lawyers or unrepresented parties write to the court, and it requires the court find a conscious intent by the lawyer to do something wrong (contrary to Walter Olson’s reference to LARA punishing “negligent” conduct).  Keep that in mind: under both the current Rule 11 and under LARA, we’re talking about the very narrow situation of a lawyer or unrepresented party knowingly filing a paper with the court that includes false statements or which has no reasonable legal basis.

The current Rule 11 has a two-step process for sanctions. First, there’s a ‘safe harbor’ of 21 days, allowing attorneys to withdraw or revise any questionable “pleadings, written motions, or other papers” and thereby avoid sanctions. Second, if a court finds that a lawyer or unrepresented party “presented” to the court a writing for an improper purpose or which included a frivolous or factually unsupportable claim, “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation,” and those sanctions “may to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.”

There’s a lot of “may” in Rule 11, and for good reason: federal judges want discretion. As I wrote just last week, while discussing an example of lawyers needlessly filing sanctions motions against one another, in 2005, when similar changes to sanctions rules were being discussed, the Federal Judicial Center surveyed federal judges on a couple Rule 11 issues:

85% strongly or moderately support Rule 11’s safe harbor provision;

91% oppose the proposed requirement that sanctions be imposed for every Rule 11 violation;

84% disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation;

Those three proposals that the overwhelming majority of judges surveyed didn’t like — eliminating the safe harbor, making an award of sanctions mandatory for all Rule 11 violations, and making an award of attorneys’ fees mandatory — are the exact same proposals in the Lawsuit Abuse Reduction Act.

Let’s be honest: nobody thinks federal judges can’t handle their own courtrooms. They don’t need Congress telling them when and how to sanction a wayward lawyer for filing something with the judge that was misleading or false. The judges get it. They do this judging thing all day long, unlike the Members of Congress, not one of whom has ever been a federal judge for even a day.

So why the push for these changes?  Simple: because the threat of sanctions intimidates pro se parties and gives big corporate law firms another excuse to overbill their clients. 
Continue Reading The Lawsuit Abuse Reduction Act: Welfare For Overbilling Lawyers

I write a lot about lawyers doing dumb things in civil litigation. Sometimes they’re coaching witnesses at a depositions, sometimes they’re citing dozens of cases for no reason, and sometimes they’re disrespecting the court by hurling insults at their opposing party.

Thus, as soon as I saw the lede to this article, I knew I had a post in the works:

Call it judicial jujitsu in a case over a martial arts bear. A plaintiff who claims DreamWorks and Paramount infringed his copyrights in their Kung Fu Panda movies has asked the court to sanction the defendants for improper investigation tactics, but his opponents want the case dropped because he skipped a deposition.

After law students graduate, there are a variety of legal fields in which they can practice. Most don’t put them anywhere near a courtroom. Two fields, criminal defense and family law, toss them into courtrooms immediately. Personal injury tosses them into the courtroom quickly, too, sometimes for trials, but far more often to argue discovery motions. Grab a random first-year associate at a personal injury law firm (plaintiff’s side or defense side, doesn’t matter) and ask him or her what they’re doing: “I have a discovery hearing.”

Even if one of the older lawyers doesn’t tell you right off the bat, personal injury associates going to endless discovery court motions — where they can observe others winning and losing motions — quickly learn a few things, like:

  • Judges don’t like discovery court much in the first place.
  • Judges don’t like long discovery motions; the issues are usually simple and so the briefs should be, too.
  • Judges rarely grant sanctions and, when they do, it’s usually a simple monetary fine rather than an order affecting the merits of the case.
  • Judges hate to referee squabbles among counsel.

In 2005, when changes to sanctions rules were being discussed, the Federal Judicial Center surveyed federal judges on a couple Rule 11 issues. Take a look at how strongly federal judges dislike entering sanctions:

85% strongly or moderately support Rule 11’s safe harbor provision;

91% oppose the proposed requirement that sanctions be imposed for every Rule 11 violation;

84% disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation;

Do you see where this is going? Of course you do. Sanctions for “improper investigation tactics?” Dismissal because plaintiff “skipped a deposition?”

Not gonna happen.
Continue Reading Friends Don’t Let Friends File Pointless Sanctions Motions

Updated June 11, 2019

During the Iran-Contra hearings, Brendan Sullivan, a senior partner at Williams & Connolly (I wrote more about them here) who represented Oliver North, famously responded to Senator Daniel Inouye’s criticism of Sullivan’s repeated objections during the Congressional hearings with “Well, sir, I’m not a potted plant. I’m here as the

[UPDATE: The lawyer called me and asked to "restart" our relationship, including by removing the more provocative elements, so I did. Water under the bridge.]

Yesterday I received an email which said:

Pursuant to New Jersey Rule of Court 1:4-8, please allow this correspondence to serve as notice that Defendants intend to file