Who pays for sanctions or contempt motion?

[quincy]

I did. Thank you and I almost forgot to tell you that I exchanged some emails with Richard "Dick" Posner. He told me that he could help me find an attorney or help me win pro se lol.

Thought you might find that interesting. He might end up regretting making his email so publically available, bless him. Have a great day!

The Posner update is interesting. Thanks for sharing it. Good luck.

 

[Taxing Matters]

Happy holidays everyone.

So I emailed them and told them I would be filing for sanctions and possible contempt and to get one attorney removed because I caught her misrepresenting facts; she basically changed the defense that they had previously used in motion to dismiss.

Changing their defense is not a violation of the rules of conduct or court rules. As the case moves forward, the facts and evidence get more fully developed, and the other party's positions become more clear it is not at all unusual that the defendant might change up the defense it wishes to make. There is nothing wrong with that. It happens frequently.

Defendant is delaying the case as much as they can, they know it, I know it and it is hard to prove but I want to try. But who gets sanctioned in the event of withdrawal? I thought that the costs were shared between Defendant and counsel?

As others have said, it depends on the sanctions imposed by the court. As you've not clearly stated anything that would give rise to sanctions I cannot speculate on whom any sanctions would be imposed.

The new representation is a large firm but much smaller than previous firm so it appears they were downgraded.

That's not a good assumption. A lot of nonlawyers have the erroneous impression that the lawyers in the biggest firms are always the best. It sounds like you might have bought into that idea, too. That is nowhere near being true. The size of the firm tells you very little to nothing about the quality of the lawyers in that firm. When I clerked for a federal judge we had a huge contract case in which both sides were represented by really large law firms, both among the 5 largest firms in the entire state. When I reviewed the briefs submitted for the motions I was assigned to work on, I was shocked just how poor the legal research was, and of course that bad research lead to bad argument. Even if the research had been good, the arguments they made from it were lackluster. I ignored their research entirely and researched the issue fresh, finding all the more recent case law that somehow both firms missed. (I know why the research they did was bad — they researched using only the archaic term for the legal principle involved and thus got back only old cases. I used the modern term and got back the modern cases, in which the courts had evolved to a new standard.)

Some of the best lawyers can be found in smaller to midsize firms as well as in big firms. Size of the firm doesn't tell you squat about how good the lawyers are. Certainly for some kinds of litigation or legal issues going to a large firm is the best choice because they can provide some resources that a smaller firm may not be able to do. But don't just go by size alone or even reputation of the firm as a whole. Look at how good the actual attorney is that will be handling the matter.

 

[quincy]

In big firms, many (most?) times briefs are handed off to new associates to the firm to research and to write.

 

[Taxing Matters]

In big firms, many (most?) times briefs are handed off to new associates to the firm to research and to write.

That is certainly the case in many instances, yes. I suspect that was the case with the briefs I reviewed on that contract case. Whomever did the research was evidently not really well trained on how computer searching works and also did not have the experience with the issue to spot that the term they were given to use was outdated and that they needed to find the modern term for it to get the more recent results. I would have thought when they found no cases past around 1940 or so on an issue that comes up relatively frequently in contracts that should have been a big clue that they were missing something, but evidently that went right over their heads.

 

[mrsjohnson]

Changing their defense is not a violation of the rules of conduct or court rules. As the case moves forward, the facts and evidence get more fully developed, and the other party's positions become more clear it is not at all unusual that the defendant might change up the defense it wishes to make. There is nothing wrong with that. It happens frequently.

What they did was change the meaning of the evidence. For instance, in the MTD, the evidence had a meaning that they used in their argument, but then later, they said the evidence didn't have the same meaning. So this is allowed? That seems careless and I'm quite surprised. They didn't win on MTD but if they did, and confused the evidence, isn't that a rule 403 violation? Confusion of the issues?

The withdrawal motion said that Defendant consented so it appears that the bigger firm wished to withdraw. I thought they had to list the reasons for it no?

Thanks for being so very helpful again!

 

[Taxing Matters]

What they did was change the meaning of the evidence. For instance, in the MTD, the evidence had a meaning that they used in their argument, but then later, they said the evidence didn't have the same meaning. So this is allowed?

As you described it, yes that would be allowed. The evidence in a case might be viewed any number of ways, and one can argue any of those that would help achieve the outcome in the case that you want. But without the exact details of it I cannot say if what the attorney did violated any rule.

They didn't win on MTD but if they did, and confused the evidence, isn't that a rule 403 violation? Confusion of the issues?

Federal Rule of Evidence (FRE) Rule 403 states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

Note that the rule focuses on the evidence itself, not the arguments that the parties make from the evidence. If the evidence itself is confusing, that might lead the judge to exclude it. And that is the remedy for it: exclusion of the evidence. Trying to present evidence the court determines to be confusing does not result in sanctions; it is not a violation of a rule. The rule does not say the party can't try to use that evidence; it simply says the court may exclude it. If the party's arguments concerning what the evidence means are confusing, well, that's something for the judge or jury to sort out when deciding the case. Confusing arguments would tend to work against the party making them.

The withdrawal motion said that Defendant consented so it appears that the bigger firm wished to withdraw. I thought they had to list the reasons for it no?

The only person who has standing to oppose the withdrawal of the other party's lawyer is the other party. If the other party consents to the withdrawal, there is no need for them to disclose to the court why the attorney is withdrawing, much less informing the opposing side.

 

[Ohiogal]

What they did was change the meaning of the evidence. For instance, in the MTD, the evidence had a meaning that they used in their argument, but then later, they said the evidence didn't have the same meaning. So this is allowed? That seems careless and I'm quite surprised. They didn't win on MTD but if they did, and confused the evidence, isn't that a rule 403 violation? Confusion of the issues?

The withdrawal motion said that Defendant consented so it appears that the bigger firm wished to withdraw. I thought they had to list the reasons for it no?

Thanks for being so very helpful again!

No they don't.

 

[mrsjohnson]

So they confused the evidence by bascially saying they misinterpreted its meaning years later so so they made themselves look like idiots. But that is not a reason to withdraw, or atleast I wouldn't think so. But I did tell them about the existence of evidence and accused them of hiding it and told them they had a duty not just to their client but to their profession. The evidence pretty much proves defendant committed fraud and that if they didn't know, they should have known and if they know and are delaying the case, which I think they are, then that was unethical. Then I told them I would be filing the sanctions and contempt unless something happened. Then poof! Gone.

The defendant has a horrible reputation and has lots of experience being one. Qui tam baby. That kind of thing and not just once...

I was filing for sanctions for deliberately stalling the case and contempt for violating the order to attempt to settle the case. They would not talk to me or respond.

On another note, when I was a kid, I always peeked at my Christmas presents, sometimes unwrapping them and rewrapping them. It literally drove me crazy not to know and I was comforted by knowing what I was getting. This need to know thing has affected my whole life...

That is my Christmas story and I'm sticking to it.

 

[PayrollHRGuy]

So they confused the evidence by bascially saying they misinterpreted its meaning years later so so they made themselves look like idiots. But that is not a reason to withdraw, or atleast I wouldn't think so. But I did tell them about the existence of evidence and accused them of hiding it and told them they had a duty not just to their client but to their profession. The evidence pretty much proves defendant committed fraud and that if they didn't know, they should have known and if they know and are delaying the case, which I think they are, then that was unethical. Then I told them I would be filing the sanctions and contempt unless something happened. Then poof! Gone.

You have been told many times already that it is not a problem if the other side changes their view of the evidence over time. You also have no idea why the other firm withdrew as counsel.

 

[mrsjohnson]

You have been told many times already that it is not a problem if the other side changes their view of the evidence over time. You also have no idea why the other firm withdrew as counsel.

What I'm gathering here is that you are really bothered by my desire to extrapolate.

 

[Litigator22]

I know!

Thanks for the links. I'm going to take a nap since I've been up since 3am.

After you nap maybe Quincy will pleasure you with a link on "early withdrawal".

 

[Just Blue]

After you nap maybe Quincy will pleasure you with a link on "early withdrawal".

Oh goodness Litigator! Did you just make a smutty pun??

 

[Just Blue]

WARNING! **** This thread is now rated MA. *****

 

[quincy]

Here for Litigator is a link to the ABA's Model Rules of Professional Conduct Rule 1.16, declining or terminating representation:
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation/

I believe attorney withdrawal was covered earlier.

(I deleted my earlier response to Litigator ... )