Wednesday, August 19, 2009

Rule 11 Ruling in the DC Circuit

The ABA/BNA Lawyers Manual on Professional Responsibility reports that Judge Merrick Garland overturned a sanction against a lawyer who failed to distinguish between facts and inferences in his memorandum opposing summary judgment.  Judge Garland wrote: “There is no basis in the text of Rule 11(b)(3) for the legal proposition that an attorney must separately identify ‘fact’ and ‘inference.’ ”  Lucas v. Duncan, D.C. Cir., No. 07-5264, 7/31/09. 

The magistrate judge below had imposed the sanctions ($3,500) sua sponte.  The spurious distinction between a "fact" and an "inference" (which, after all, is a finding of fact based on circumstantial evidence) was rightly put to rest in the opinion.

The magistrate also apparently ruled that sanctions were appropriate because the motion told a one sided story - he believes that lawyers have an obligation to present evidence for both sides.  Judge Garland rightly ruled that the lawyer is under no such obligation.  A good lawyer ought to construct a narrative that can account for bad facts, but no rule in our adversarial system requires lawyers to recite the facts for the other side. 

I should also note that the underlying case was for age discrimination.  Studies have shown that Rule 11 sanctions are more common in civil rights cases. 


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Posted by: Susan | Sep 9, 2009 1:11:23 AM

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