Wednesday, August 19, 2009
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.