Tuesday, March 6, 2007

"Fails in Every Possible Way"

Here's an interesting story from David Nieporent, posting on Overlawyered, about a lawyer with too much time and not enough skill. Here's the judge's decision imposing Rule 11 sanctions on the lawyer for bringing frivolous claims (the good stuff begins on page 17). Some key quotes:

  • "No reasonable attorney would have believed these claims were 'warranted under existing law' given the wholly deficient facts of the case."

  • "In support of his motion to recuse the Court, Mr. Aretakis cited a particular case as controlling, without disclosing he was quoting from the dissenting opinion."

  • "Mr. Aretakis seems to have simply ignored the overwhelming precedent on point."

  • "At oral argument, he maintained that his client had not been terminated as alleged numerous times in the amended complaint, but rather that his job had been stolen from him. The make-believe answer is unworthy of someone claiming to be a professional."

  • "[T]he amended complaint ... is littered with wholly irrelevant, inflammatory, and embarrassing facts concerning defendants and non-defendants alike that have no bearing on the actions brought."

  • "The Title VII claim fails in every possible way."
Ouch! Should have gone to med school, buddy. More entertaining stuff:
As with the action before Judge Chin, this complaint is sloppy and filled with mistakes. For example, it names a dead man as a defendant. (Am. Compl. ¶ 9.) It also repeatedly refers to the “Ratzinger defendant” who is not, in fact, a named defendant (Am. Compl. ¶¶ 82, 83 & 85); This is an apparent reference to the Pope, although one cannot be sure because the complaint refers to him as “the Pop.” (Am. Compl. ¶ 82.)
And we can't forget this:
He alleges a cause of action for “tortuous” interference with Plaintiff’s employment, a mistake made not just once, but twice. (Am. Compl. ¶ 116.)
In fairness, that could just be the Spellchecker talking.... Still, as much as I am in favor of tort reform, I quibble with Nieporent's contention that this case illustrates a need to reform the rules for sanctioning lawyers who bring frivolous claims. Nieporent opens with this:
As I've previously mentioned, one of my pet peeves is the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits. Technically, this claim is true. But it relies upon an extremely narrow definition of "frivolous" – the vast majority of absurd cases covered here on Overlawyered are not considered frivolous by current legal standards – and those who practice know how rare it is for judges to actually issue sanctions.
But this case does not illustrate the first point. Nieporent does not show how the definition of "frivolous" applied here was in any way inadequate; indeed, the judge found that the claims were frivolous, so it's adequate enough at least to catch this instance. I'm sure there are "absurd" claims that should be prevented but that are not, strictly speaking, "frivolous" – but this isn't one of them.

Nor does the story illustrate Nieporent's second point, that "those who practice know how rare it is for judges to actually issue sanctions." The lawyer was sanctioned here. Nieporent argues that the sanction was inadequate – okay, even assuming that's true, what does he suggest? Removing judicial discretion? That would be a very bad idea indeed, as the sanctions regime of Rule 11 is designed to be context-specific, and should not be applied by rote. How about broadening the meaning of "frivolous"? Okay, but in what way – and how then do you safeguard a lawyer's necessary ability to mount a vigorous, if inauspicious, argument? Will lawyers refrain from presenting all reasonable arguments on behalf of their clients for fear of Rule 11 sanctions?

But then again, the sanction was adequate. Nieporent argues that the lawyer here "was fined just $8,000 – far less than the defendants asked for – and told not to do it again." (The defendants were seeking reimbursement of all the lawyers' fees associated with their motions to dismiss.) He views this as inadequate.

But the purpose of sanctions under Rule 11 is to ensure that the offending lawyer does not behave badly again; it is not to compensate the other side for litigation expenses. The lawyer here has learned the hard way that doing a shoddy job could cost him quite a bit; in light of this, the sanction seems perfectly adequate. If Nieporent would change the law to make recovery of certain litigation costs possible, then we'll see lawyers urge Rule 11 sanctions a lot more often than they currently do. And Rule 11 is kind of like a scarlet letter: the mere filing of a motion for sanctions can harm a lawyer's reputation, regardless of whether the issue is fully aired. Do we really want to encourage this kind of gutter lawyering?

I've always viewed tort reform as a damages issue, mainly: the biggest problem is that juries (and sometimes judges) give outrageous rewards. For this reason, my preferred tort reform package would focus on restricting claims for duplicative damage types and setting caps on all damages. I also see tort reform as requiring serious overhaul of standing and jurisdiction rules in state courts that have become notorious for listening to any plaintiff that happens to wander by.

I should add, too, that tort reform is most pressingly needed not at the federal level, but at the state level. And that, of course, will require many different approaches, depending on the specific weaknesses in each state.

Despite all this, however, I have never been too concerned about the filing of silly claims. Many silly claims get much farther than they ever should, but most do not. (Indeed, in this case, the judge's ruling on sanctions came in the same opinion granting the defendant's motion to dismiss for failure to state a claim on which relief may be granted. It may have taken fourteen months from filing to dismissal, but that's not too bad in trial time.) And if the lawyer does this repeatedly (as was true here), the judge always has the tool of sanctions (as was also true here).

This story is certainly amusing; most "how not to be a lawyer" stories are. But I just don't see it as a poster child for sanctions reform.

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