The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Always Risky to Use Haikus as Legal Argument
"All know: talk is cheap; Liars can claim anything; No evidence?! Balk!"
From In re Wizenberg, decided yesterday by the Eleventh Circuit (in a per curiam before Judges Charles Wilson, Adalberto Jordan, and Britt Grant):
Anna Wizenberg's death in 2010 sparked a long and bitter intrafamily dispute between her sons, Peter and Howard Wizenberg. What started as a probate case and then moved into bankruptcy court is now before us as an appeal of a district court order imposing sanctions under 28 U.S.C. § 1927 against Peter, a pro se debtor. The district court's order adopted the bankruptcy court's report, which recommended sanctioning him for his conduct in an adversarial proceeding filed by his brother Howard, who is a creditor in the bankruptcy case.
Peter, a member of the Florida bar who holds himself out as a bankruptcy attorney, argues that the district court abused its discretion in sanctioning him. The conduct that led to the sanctions included, among other things, his repeated "shushing" of opposing counsel during a deposition; his submission of lengthy and superfluous filings, one in which he wrote a nonsensical haiku; his argument that the bankruptcy court lacked subject-matter jurisdiction to preside over a dispute explicitly provided for in the Bankruptcy Code; and his assertion that he did not know what a privilege log was despite being a barred attorney….
[At one point in the litigation,] Peter filed a 153-page motion for reconsideration of the bankruptcy court's order denying him summary judgment, including in it accusations of domestic violence against Howard, as well as other immaterial details about family life. The filing concluded with what the bankruptcy court would later describe as "pointless poetry"—the haiku, which read: "All know: talk is cheap; Liars can claim anything; No evidence?! Balk!" The bankruptcy court denied the motion for reconsideration.
Howard deposed Peter on August 6, 2018, and Peter deposed Howard the next day. Throughout Howard's deposition, Peter engaged in several hostile exchanges with Howard and opposing counsel. Peter asked repetitive and unprofessional questions, told opposing counsel to "[s]hush, shush, shush," and bickered with opposing counsel on the record.
The next day, Howard moved the bankruptcy court to compel Peter to produce a privilege log, and said that when Peter was deposed, he testified to the existence of relevant and responsive documents that he did not produce based on attorney-client privilege. Howard said that Peter had not produced a privilege log and that he claimed not to know what one was. The bankruptcy court granted Howard's motion and ordered Peter to produce a privilege log detailing which documents and communications he thought were protected.
The Eleventh Circuit affirmed the sanctions, and concluded Peter made frivolous arguments on appeal as well:
Because Peter relied on "clearly frivolous arguments," we grant Howard's motion for appellate attorney fees. We limit the award to the costs that he incurred for this appeal, because there is a corresponding Rule 38 motion pending in the district court seeking fees for that appeal. The costs for this appeal total $3,390, and we award Howard fees in that amount.
As the father of two sons (born 1½ years apart), I can confidently say: There's no bickering like sibling bickering.
Commenters: Bonus points if your comment is in haiku form. UPDATE: The commenters are rising to the occasion; check it out.
UPDATE: David Nieporent rightly chastises me for omitting this passage from the opinion:
Peter, a self-proclaimed bankruptcy attorney, filed an 88-page opening brief littered with exclamation points and rants about what he views as a grave miscarriage of justice. He fails to coherently cite case law, though he cites Bugs Bunny. The brief is difficult to follow, and deciphering and reorganizing his arguments wasted taxpayer resources that otherwise could have been spent on cases "worthy of consideration."