General counsel can relate to the opening line of "A Frolic of His Own," a novel by William Gaddis: "Justice? — You get justice in the next world, in this world you have the law." This line is sometimes true, sometimes not, when dealing with plaintiffs and their lawyers behaving badly.
Despite Gaddis’ glum outlook, there can be instant karma when a plaintiff or his attorney does something unfortunate and the consequences follow immediately. Read the 5th U.S. Circuit Court of Appeals’ 2010 decision in Brown v. Oil States Skagit. The opinion crisply sets out the tale of two suits. The same plaintiff was deposed in both: One involved an automobile accident, the other involved his claim of racial discrimination against his employer. In the first, he testified that the only reason he left his job and decided not to return was because of his injuries. In the second, he testified that the only reason he left his job was because of the discrimination.
The trial court in the employment case tossed the suit because of the conflict, and the 5th Circuit agreed: "Before the start of his two depositions, [plaintiff] took an oath to tell the truth. As the district court correctly observed, ‘this [oath] is not trivial. The proper administration of justice depends on people testifying truthfully under oath.’ We agree with the district court’s determination that Brown defied his oath and committed perjury."
Wow — that’s like a bullet: short, powerful and fatal.
Here’s some more instant karma from the 5th Circuit’s 2012 decision in Love v. Tyson Foods. The opinion relates it all. WillieLove, like Brown, was engaged in two legal proceedings: One in federal court for discrimination/retaliation and the other in bankruptcy court under Chapter 13. Love didn’t list the suit as a potential asset in bankruptcy. The defendant got wind of this tidbit, and the trial court granted its motion for summary judgment based on judicial estoppel.
The 5th Circuit affirmed, by a 2-1 vote. The defendant argued that Love’s motive to conceal was the prospect of keeping all to himself any money from the suit. Because all Love could say was that he made an inadvertent mistake, he lost.
Karma also can come more slowly. The long-and-winding-road type of karma was on display in Norelus v. Denny’s, et. al., which took 16 years to resolve. The last word came in 2010 from the 11th U.S. Circuit Court of Appeals.
Here is the case in a nutshell, from the opinion: The plaintiff sued for sexual harassment in 1994. The case was dismissed in 1996 because the plaintiff and her lawyers failed to adhere to a court order on discovery. Then, several defendants moved for sanctions under 29 U.S.C. §1927, which allows a court to sanction an attorney whose conduct "vexatiously" multiplies proceedings.
The 11th Circuit affirmed the trial court’s decision to order the plaintiff’s attorneys to pay $387,738.45 incurred by the defendants in attorney fees, costs and expenses. The trigger for the sanctions was an errata sheet to the plaintiff’s deposition, submitted by her lawyers, with 868 substantive changes, described by the appeals court as of "novella length."
What really sent the court into orbit was the decision by the plaintiff’s lawyers to continue to pursue the case after submitting the sheet. Rather than folding their tent and moving on as they should have, the attorneys, according to the court, were "like Ahab hunting for the whale" continuing to "relentlessly [pursue] the claims."
Plaintiffs lawyers, do not despair. There was a dissent, which argued that the sanctions were inappropriate because the plaintiff’s lawyers did not submit the errata sheet to the court reporter, and thus it was not part of the deposition.
Bad behavior, like karma, comes in different flavors. Some plaintiffs engage in self-help discovery. In Perna et al v. Electronic Data Systems (1995) the U.S. District Court for the District ofNew Jersey sets out some sad facts: Michael Perna, one of the plaintiffs in a commercial dispute, went to a document production with his lawyer. When his lawyer and the defense attorneys were at lunch, he saw that defense counsel’s briefcase has toppled over, some of the contents had spilled on the floor and one piece of paper had the written words "weasel out of???" on it.
Well, a flip apparently switched: He copied and reviewed all the documents on the floor (about an inch and a half thick). The truth, as it always does, came out, the defense fileda motion to toss his claim, and the court agreed.
The court rejected the explanation that litigation is stressful and that litigants take actions they normally would not, especially where, as here, Perna explained that the defendant was destroying his life’s work.
No, there is something more important, according to the court: the administration of justice and punishing those who would tamper with it. Perna’s conduct violated accepted norms, thus the court dismissed his claim.
The best remedy for plaintiffs behaving badly is a functioning, self-regulating legal system. Read Cadorna v. The City and County of Denver, a 2007 opinion from the U.S. District Court for the District of Colorado in Denver. It was an age discrimination case where the plaintiff’s attorney, according to the court’s opinion, acted improperly in front of the jury, rolling his eyes when the court sustained an objection and also insulting a witness. The plaintiff won, but the court granted a new trial. Listen to the court: "Short of
. . . incarcerating counsel, I exhausted [all] traditional means . . . I have seen nothing comparable . . . [to the] . . . disrespectful cockalorum, grandstanding, bombast, bullying, and hyperbole" as shown by the plaintiff’s lawyer.
Here’s another: Lee v. American Eagle Airlines, a 2000 case from the U.S. District Court for the Southern District of Florida. The opinion sets it out. The claim was race discrimination. The plaintiff won a big verdict. But the court slashed the attorney fees request from around $1.6 million to approximately $312,000.
Why? During the trial but out of earshot of the jury, the plaintiff’s lawyers told local counsel for defendant that he was a "second-rate loser," tolda black lawyer for the defense that she was only on the case because of her race, and told defense counsel, in front of their client, the following gems: "let the pounding begin" and "let’s kick some ass."
The court frowned on this conduct, saying that it must consider"professional competence" in awarding attorney fees and this conduct was far from professional. As my mother would say, always talk to people in a language they can understand.
Judges sometimes can calibrate justice with precision, but more often they cannot. They often must impose justice by dead reckoning. Still, the legal system — contrary to Gaddis’ great line — does pretty well in an often screwy world.