For a lawyer to do that once might seem bad luck, to do it 588 times seems rather like carelessness. [Beck on Eleventh Circuit review of Engle tobacco cases in Florida] Excerpt:
The district court displayed the patience of Job – for a long time it tried to get the plaintiffs to do after filing, what Rule 11 requires them to do beforehand, that is, to perform basic investigation of their cases. …
The court held, with remarkable restraint, that counsel’s inability to track down its own clients before the Engel filing deadline “was at least partially a problem of its own making” because they “signed up so many clients.” …
Maybe Engle Cases is an extreme example, but the problem this litigation exemplifies – massive solicitation of would-be plaintiffs, combined with utter disregard of pre-filing obligations such as Rule 11 – is present in just about every mass tort. In Engle Cases, out of the “4500 cases” originally filed, in the end “we are dealing with 29 ? and heading to 26.” The dirty little not-so-secret of mass tort practice is that the great majority (here it looks like more than 99%) of the cases clogging up the courts would be thrown out with little or no discovery if brought individually.
Personally liable in Philadelphia: “A Pennsylvania lawyer has been ordered to pay nearly $1 million in attorney fees for allowing an expert witness to refer to a lung cancer victim’s history of smoking in a May 2012 medical malpractice trial. Defense lawyer Nancy Raynor of Malvern, Pennsylvnia, told the Legal Intelligencer that insurance would not pay the sanction and her personal assets are at risk.” [ABA Journal]
U.S. District Judge Mark Bennett of the Northern District of Iowa, presiding over a product liability case, has asked defense counsel “to show cause as to why he should not be sanctioned for the ‘serious pattern of obstructive conduct’ he displayed” in a client’s deposition, which seemed aimed both at interruption for its own sake and at coaching the witness as to how to answer. “The attorney objected so many times that his name was found, on average, three times per page of deposition transcript.” [Nick Farr, Abnormal Use]
Rather than fine the lawyer, Judge Nelson ordered him to create and write a training video explaining the basis of the sanctions and demonstrating how to comply with the rules during depositions in state and federal court.
Federal judge Mark Bennett has resorted to what might be called a creative sanction against out-of-state law firm Jones Day following what he considered excessive interruption and witness-coaching during discovery in the case of Security National Bank of Sioux City v. Abbott Laboratories. [Above the Law]
Ken at Popehat has the story on a court’s ruling for fees and costs in Ergun Caner v. Jonathan Autry, filed by a religious leader who had come under criticism for less-than-forthright descriptions of his own past. “The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry’s young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the ‘you must be qualified to criticize’ argument), and most importantly (7) filed the case to silence criticism.” Under the prevailing “American Rule” on fees it’s extremely hard for the victim of a meritless suit to recover attorney’s costs, but this one was extreme enough to be an exception.
Sanctions have a role to play in managing litigation, and are probably under-used in the American courtroom, but this would seem to go too far. Saudi Arabia: “The Ministry of Justice plans to introduce tough new legislation to penalize malicious litigants, which would include fines, prison and lashes.” [Arab News via Crossroads Arabia]
A year and a half ago, as I noted at the time, the American Society for the Prevention of Cruelty to Animals (ASPCA) “agreed to pay $9.3 million to settle racketeering and other charges arising from alleged litigation abuse in lawsuits beginning in 2000 over elephant welfare,” while “other defendants in the countersuit, including the Humane Society of the U.S., have declined to settle [with Feld Entertainment/Ringling Bros.] and remain in the litigation.” Now the Humane Society and other groups have agreed to pay more than $15 million, suggesting the ASCPA settlement was not a freak occurrence. [AP/Houston Chronicle, Charles Schelle/Bradenton Herald]
My piece on the ASPCA settlement is here and Overlawyered coverage of the long-running litigation here.
“Tom Goldstein’s letter for rich client who threw porn star off roof for video” [@RandyEBarnett] is an “instant classic” [@adamliptak]. Goldstein is a prominent member of the Supreme Court bar and co-founder of SCOTUSBlog. [Josh Blackman] Concluding passage of letter:
If she sues, the complaint will be sanctionably frivolous. Your client should just box up almost every last bit of her property (please exclude all videos and photographs, as well as the seemingly inevitable small yappy dog) and drop it off with you in safe-keeping for Mr. Bilzerian. After he receives the judgment in his favor, he will have it all delivered to him. Then he will probably blow it up with a mortar in the desert.
I enjoyed our brief correspondence.
“In a blistering ruling against Cal Fire, a judge in Plumas County has found the agency guilty of ‘egregious and reprehensible conduct’ in its response to the 2007 Moonlight fire and ordered it to pay more than $30 million in penalties, legal fees and costs to Sierra Pacific Industries and others accused in a Cal Fire lawsuit of causing the fire. … Sierra Pacific, the largest private landowner in California, was blamed by state and federal officials for the blaze, with a key report finding it was started by a spark from the blade of a bulldozer belonging to a company working under contract for Sierra Pacific.” The company has contended that the cause determination was reached in haste and pursued with an eye to extracting legal proceeds for an agency-run settlement fund later found to be illegal. [Sacramento Bee; Robert Hilson, Association of Certified E-Discovery Specialists]
On the other hand, it seems to be open season on opponents in the Nutmeg State: lawyers will continue to enjoy “absolute immunity” from being sued by their opponents on charges of fraud. “Donna Simms [client of the lawyers in question] said she wasn’t excited about the decision because she’s been involved in court proceedings with her ex-husband for three decades and there may be more legal fights.” [Insurance Journal]
It’s against a law firm for allegedly wrongly naming a car dealership as a defendant in an asbestos case. The (unpublished) decision, denying a SLAPP-law motion, is here (Tulare SAG, Inc. v. Keller, Fishback, and Jackson LLP). Note: Link is a document download, not a page, and may not work for all browsers or users.
“An Indiana lawyer has been suspended for 30 days for a comment about the immigration status of his divorce client’s spouse in a letter sent to opposing counsel and the judge in the case.” [ABA Journal]