Saturday, January 21, 2023
“Read Everything” Is Good Advice at Any Stage of a Case or a Lawyer’s Career
Happy 2023. I hope the new year is going well for all of you. As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled: “Read Everything.” My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again. Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things. You can read the order here: Dec. 30 opinion.
First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.” Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral. In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois. See Order at 3-20, 39-41.
Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.” Order at 33. As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed. Order at 3-20, 39-41.
As examples of various misconduct, the court explained: “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.” Order at 3. Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s “abdication of her responsibilities as counsel.” Order at 3-4.
For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations. See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order). In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.” Order at 9. Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.” Order at 10. In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.” Order at 10.
In the September 22 motions, Outley claimed:
Honorable Judge Feinerman did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.
But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’” Order at 10.
Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date. Order at 11-12. Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.” Order at 12.
Perhaps this admitted failure to read led counsel to “repeatedly transgress the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a
motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24. On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like: “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.” Order at 6. The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read. Order at 5-6, 24.
Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial. Order at 3, 4-5. In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.” Order at 3. The court concluded: “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.” Id.
As the court summarized: “It would be a substantial understatement to say that things did not go smoothly.” Order at 2. Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court. See Order at 5.
The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email. Cassens Weiss, supra.
Here’s to careful reading in 2023.