Wednesday, November 1, 2006

No Sanctions for Putting Law Firm’s Name/Address on Wrong Part of Page

Posted by Alan Childress
          That sounds about right:  No sanctions for placing the firm name above the individual’s signature rather than ... two lines down.  That’s the rule made yesterday by the Fifth Circuit (link to opinion) in reversing a summary judgment.  One had been granted below against a plaintiff whose lawyer’s Opposition had been de-filed as a sanction for being “signed by the law firm,” as the district judge had prohibited in a scheduling order a year earlier {because lawyers get licensed, not firms, you see).  The Fifth Circuit reasoned that “it seems a basic principle of fairness and good judgment that no party should lose a case solely because his lawyer listed the name and address of a law firm above, rather than below, the lawyer's signature."
          The Fifth Circuit is not lying in wait for a lawyer to make a technical boo-boo just to sock him or her with sanctions (or affirm them from below as “discretion”). That attitude contrasts with a Gavel_15_2  Seventh Circuit sanctions order last week sternly showing it has had it [‘with you young man,’ you can almost hear] with lawyers who filed a Statement of Jurisdiction based on diversity by explaining all the parties are “citizens of different states” when the local rule (but not federal) clearly requires them to name those states. For shame.

          Hats off to the Fifth Circuit for showing respect for the working legal profession even if mistakes were made. The opinion is by Judge Jerry Smith.  He is, by the way, smart, fair, and humorous.  But he is no softy who can’t tell up from down.  Two decades ago he dissented from an en banc ruling allowing appellate jurisdiction, chiding the majority for reading the statutory requirement of an “express finding” as satisfied with an “implied” one. This situation is  different in five ways, I realize, and his point then was that Congress had meant this language--but it does make me chuckle in nostalgia for that slight irony.  And appreciate him and the other two panel members here (Judges Wiener and Owen) for their fairness.  Judge Smith has no hobgoblinesque little mind.  But what is up with the judge below and the Seventh Circuit panel that seem so impatient with human misunderstanding?   As Judge Smith wrote, the dismissal “must appear to the casual observer to be judicial petulance.”

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