"Bad Writing Does Not Normally Warrant Sanctions, but We Draw the Line at Gibberish"

|The Volokh Conspiracy |

A line from Judge Diane Sykes' opinion a week ago in McCurry v. Kenco Logistics Services, LLC; see pp. 11-16 for more details. The opinion closes with:

Because we have a duty to "maintain public confidence in the legal profession" and "protect[] the integrity of the judicial proceeding," we confronted [lawyer Jordan T.] Hoffman about his brief at oral argument. He replied that he is a "solo practitioner" who tries "to get the help of … clients and whoever can provide help to [him]" and then "merge[s] that information." Whatever that means, it in no way excuses this unprofessional conduct.

Hoffman's filings fall far below the reasonable standards of practice. We therefore order him to show cause within 14 days why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure. We also direct the clerk of this court to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission for any action it deems appropriate.

UPDATE: The brief is available here.

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  1. Yes, I know it is amusing to read comments like this. But remember that the lawyers never get to write snarky comments about judges, or belittle their stupidity at oral argument. Many judges routinely do things, and make rulings, that are richly deserving of mockery and scorn, but the lawyers can never deliver what is deserved. The worse (in terms of competence or temperament) the judge is, the more iron clad the rule. Having seen judges take matters off calendar or continue them where it is obvious that the judge didn’t read the papers (but is it better to hear a motion if you haven’t read the papers?), or because a footnote in a brief was single-spaced instead of double-spaced, it is up to the advocate to explain rude and abusive behavior to a client who will have to pay for hours of wastede time.
    Every judge should bear this in mind every time they are tempted to say something sarcastic about the counsel appearing before them — they should remember that in the struggle for civility in legal practice judges lead by example, whether they want to or not.

    1. That’s a good point, though if in this particular instance the lawyer did indeed turn in gibberish instead of mere bad writing (there’s no link to see), egregious behavior from some judges doesn’t excuse egregious behavior from some lawyers.

        1. That’s the opinion. I pulled the brief from the ECF and would be happy to post it if someone knows a free site that can host a 130 page PDF.

          1. What is the usual page limit for a PDF? (Would it be possible to [via cut-and-pasting??] break it up into sections of acceptable length? Or would giving us only, say, the first or last 20 pages give us a good sense of the ‘gibberish’ nature?)

            1. Well, here’s the statement of facts:

              In August and September of 2016, McCurry filed complaint(s) (16-CV- 2273 & 16-CV-2277) of employment discrimination with the District Court (Docket #1)

              On June 20 and June 21 of 2018, respondents filed motions for summary Judgment to dismiss plaintiff’s complaint pursuant to
              FRCP 56 (Docket #109, 110, 112 & 113).

              On August 28, 2018, Plaintiff filed a motion for
              reconsideration.

              But the interminable and rambling nature of the thing is a big part of it. (Seventh Circuit briefs are ordinarily limited to 30 pages.)

              1. Wait. Are you saying that those 3 sentences were the entire Statement of Facts?

                That would be pretty incredible, if my [really limited] appellate work is any guideline.

                1. Correct, although two pages later (under the “standard of review” section) there is a heading called “Factual Background” that reads:

                  In June of 2018 Defendants filed motions for summary judgment (Docket’s 109, 110, 112 & 113) with the issues at bar being lack of knowledge, retaliation, failure to promote, that Varvel was more qualified than Plaintiff, conspiracy, and unequal pay.
                  Plaintiff filed a response to the issues at bar in Docket #117; specifically, addressing those issues in their own subsections: Lack of knowledge-page 27 ¶ 2- page 28; Retaliation-pages 8 ¶2, 10 ¶ 6, 15 ¶ kk, and 57; Failure to promote-page 26 -27; Varvel more qualified pages 17-26, plaintiff’s declaration Docket #119-9 ¶245- 262; Conspiracy in relevant parts pages 9 ¶ 5, 10 ¶ 6, 11 ¶1, 14 ¶ jj,22-23,27¶ 6,5¶4,&61¶4; UnequalpayDocket#119¶57, 59, 224, 226-227, & 229-230.

    2. If a lawyer is billing a client $800 an hour to produce gibberish, the client should be told, and it would probably be inappropriate for the judge to handle it in any other forum. If a judge accepting a salary from taxpayers to produce gibberish, there are other ways of handling it.

      1. If a lawyer is billing a client $800 an hour to produce gibberish, the client should be told,</i.

        Definitely. All the more so if it's lengthy, hence time-consuming, gibberish.

        Wonder if the possible discipline includes a refund to the client.

        1. Forgot the left bracket after “told.” Sorry.

      2. $800 an hour

        Presumably a lawyer using an “@gmail.com” email address on his official filings is not charging his clients $800/hr.

    3. Every judge should bear this in mind every time they are tempted to say something sarcastic about the counsel appearing before them — they should remember that in the struggle for civility in legal practice judges lead by example, whether they want to or not.

      While I agree with your point as a general matter, and have certainly seen judges abuse their immunity, I’m not sure this case offers a good illustration. I don’t see anything sarcastic in Judge Sykes’ opinion, and I can’t agree that calmly but directly calling someone to account for bad conduct is uncivil. Filing frivolous appeals and incomprehensible 130 page briefs is a far greater breach of professional norms, and certainly imposes far greater unnecessary costs on lawyers and litigants.

      or because a footnote in a brief was single-spaced instead of double-spaced

      To be blunt but not, I hope, uncivil: I don’t believe you.

      1. Eh, I could swear I remember seeing the actual opinion that last one is from. Afraid I don’t have the reference though. Let me say I think it’s rare, and I do recall that judge receiving some negative attention for it after it went viral, but they weren’t elected so it doesn’t matter much.

      2. To be blunt, OK, it did happen in 1993; but on the other hand, the brief was from Gibson Dunn’s LA office.

    4. But lawyers do have an option against a bad judge — appeal their decision, or file a complaint with whatever their local judicial conduct regulator is. The inability to fire a “zinger” at a judge does not excuse any form of poor practice by an attorney. The number of ridiculously poor filings by attorneys is legion compared to the tiny bucket of comments actually made by judges against them. I’d actually prefer more judges to take these actions and encourage competency in the legal profession. If you’re not capable of writing a coherent argument, then you shouldn’t accept an appeal.

  2. No doubt he was told in school not to worry about spelling or grammar, and just ‘express himself.’

    1. Counsel should then argue that any sanction would be a violation of his First Amendment right, since the brief represent expression and the word speech in the 1A actually means expression.

  3. What might Judge Sykes think of illiterate tweets regarding matters of official public concern?

    Other than finding them dreamy.

    1. Off-point.
      (Nevertheless: heh)

    2. I agree, all those usually leftwing celebrities and influencer blue checkmarks spouting off ignorantly on things they know nothing about

  4. This was pretty entertaining, and IANAL. My favorite snippet (but it was a close call):

    “The brief includes a section entitled ‘GAMESMANSHIP,’ which contains the following assertion: ‘Defendants have been “gaming” the system.’ There is nothing else in the ‘gamesmanship’ section.”

    1. Arch. So *you* have read it, yes? Can you give me/us a link, so we all can enjoy (suffer?)?

      1. The link is in the 1st line of the OP. I think Eugene originally left it out, then corrected the omission in an update.

        1. Correct — sorry about the initial omission.

      2. Here’s the whole “Gamesmanship” page:

        imgur.com/a/xEefpyp

      3. Some of the other section headings I noticed while skimming include: “The BACKDROP TO THE Contrivance of the Scheme to Advance the Pretext”, “In CONTINUUM of the Scheme”, and “THE OPPORTUNITY: A SEGUE TO THE PRETEXT”.

  5. It probably says something unfortunate about my character/personality, but I love a good circuit court decision explaining why the court is imposing sanctions for attorney misconduct/incompetence

  6. This article at Loweringthebar discusses the opinion but also includes a link to the 86 page appellate brief at issue.

    1. Thanks Voize! I had not heard of this site.
      The Michael Jackson’s ghost item is hilarious.

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