Seventh Circuit Refuses to "Strike" District Court's Accusations of Lawyer's Ethical Violation

Thursday's decision in Dotson v. Faulkner (Judge Frank Easterbrook, joined by Judges Michael Brennan and Doris Pryor) stems from a lawsuit by a woman who was forced into sex (and at one point choked unconscious) by a prison guard. The guard (Faulkner) was sentenced to prison, and the woman (Dotson) sued the guard and prison officials. "The district court granted summary judgment in favor of [the officials], ruling that none of them knew or had reason to suspect that Faulkner posed a danger to prisoners," and Dotson didn't appeal that; but here's what happened with the lawsuit against Faulkner:

Faulkner did not answer the complaint. The district court entered a default and held a hearing to determine damages. Dotson contended that the assaults reduced her expected income and would require long-term medical expenses. She sought damages to cover these losses, plus pain and suffering; she also requested punitive damages. The district judge awarded $1 million for pain and suffering plus $3 million in punitive damages but found the proof of other loss insufficient.

Although represented by counsel (Joseph W. Seifert of Milwaukee), Dotson did not introduce any evidence about her anticipated future income—either how much she would have expected to make in the absence of Faulkner's crimes, or how they affected her earning capacity. Counsel did proffer an expert report estimating the expenses that Dotson would incur for mental-health care, but the expert did not testify and the report was not authenticated. Nor did the report reduce future outlays to present value. The district judge generously gave Seifert 14 days after the hearing to fix those problems.

Instead of having the expert authenticate her report through an affidavit or a declaration under 28 U.S.C. § 1746, Seifert drafted, and the expert signed, a document that did not satisfy either option. It was not sworn before a notary, and it did not meet the statute, which requires language in substantially this form: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date)." The document that Seifert drafted for the expert says that it is "under penalty of perjury" but does not declare that the report's substance "is true and correct". The judge could not fathom why Seifert failed to copy the statutory words or use a notary. The judge concluded that the document did not comply substantially with § 1746.

As for the present-value calculation: Seifert did this himself rather than obtaining the expert's views. He added an annual cost increase of 4.3% while selecting a discount rate of 3%. The result nearly doubled the expert's cost estimate. He did not justify projecting annual cost increases (something the expert had not done) when all the district judge held the record open for was discounting to present value. Nor did Seifert explain how he could be a witness in Dotson's case, or what expertise he had to project medical cost increases or determine appropriate discount rates.

The district judge threw out the additional evidence, observing that Seifert had "failed to comply with basic law on damages and the rules of evidence." The judge added: "Counsel's submission shows a wholesale lack of care for compliance with" § 1746. This left Dotson with a $4 million award.

The Seventh Circuit upheld the district judge's rulings:

The brief's main argument is that the district court erred by not finding that Faulkner committed his wrongs in the course of his employment. The goal could be a judgment against the employer under principles of respondeat superior or a state law providing indemnification for some adverse judgments. Neither option has good prospects. [Details omitted. -EV] …

[But in any event,] the complaint did not name Faulkner's employer as a party. The result, the judge patiently explained, is that scope of employment "is not before the Court…. Plaintiff never sued Faulkner's employer, so this issue was never litigated."  Wisconsin is entitled to contest any assertion that Faulkner's criminal acts were within the scope of his employment, but the posture of this litigation has denied it that opportunity. Any declaration about its obligations, in a proceeding to which it is not a party (and so cannot be bound), would be an advisory opinion. About all of this Seifert's brief on appeal says … not one word.

Lawyers who ignore the ground on which a district court acts doom their clients' chances. You cannot persuade a court of appeals that a district judge erred if you fail to engage with the judge's reasons. At oral argument Dotson's lawyer stated that he believes that naming the employer as a party is unnecessary under Wisconsin's law and asked for a chance to file a supplemental brief to address the subject. That request is denied. Even the reply brief would have been too late. Arguments omitted from an opening appellate brief are forfeited, if not waived.

We entertain supplemental briefs on questions that appellate judges introduce into a case or issues that arise after the opening brief was filed. But when the district court decides a case on a particular ground, that subject must be addressed in the appellant's opening brief, if appellant wants it reviewed.

Seifert's work in this litigation falls far short of professional standards. Yet he went on the offensive in his appellate brief. While ignoring the ground on which his client lost the scope-of-employment issue, Seifert asserted that "[t]he [district] Judge's unfounded accusations of Attorney Seifert of ethical violations and attempts to deceive the lower court were slanderous and improper and should be stricken from the Record."

Seifert does not explain just how we are to "strike" language from the district judge's opinions, which are available to the public via the PACER system as well as Westlaw and Lexis. Are we also supposed to enjoin newspapers from publishing judicial language?

The All Writs Act permits a court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." We doubt that a Writ of Erasure is "agreeable to the usages and principles of law." Certainly it lacks provenance. Seifert's brief does not cite authority for the relief he seeks; it simply assumes that courts of appeals can blot unwelcome language from district courts' opinions. That is not within our remit….

I asked Seifert whether he had a statement on the case; I haven't yet heard back from him, so I thought I'd include his argument from his Reply Brief:

Appellees have chosen not to address the issue of the Judge's slanderous accusations against Attorney Seifert, except to state in a footnote that "Appellees take no position on that issue." While opposing counsel will often take adverse positions on every issue presented no matter how benign, certain matters transcend controversy and bid consensus, thereby making a contrary argument unfeasible. Simply put, Appellees took no position on this issue—but they should have. The matter of defaming an attorney affects not only Attorney Seifert but any attorney unfairly accused of attempting to deceive the court and providing substandard service to his client.

Appellant requests that this Court strike from the Record the defamatory comments made by the lower court. Namely as they pertain to the Judge's unfounded accusations of Attorney Seifert acting unethically and/or attempting to deceive the Court in his good faith completion of a present-day valuation.

For reference, Appellant's Counsel had filed an expert report detailing what future medical costs would be for Plaintiff. However, this Report was deliberately created without the inclusion of an inflationary factor; a factor which is critical to ensuring that Plaintiff is afforded the proper and just compensation for over forty (40) years of estimated future medical costs. The Report was designed for the Appellant to provide inflation adjusted figures as needed when calculating compensatory damages. It is uncontested that inflation should be considered when estimating present-day value of future long-term damages.

Attorney Seifert, recognizing that an inflationary factor had not been utilized in the Plan, had properly applied nationally recognized and industry standard formulas to calculate this omitted inflationary impact. Remarkably, Attorney Seifert was given no guidance or instruction by the lower court as to how this inflationary factor was to be included—or not included. Attorney Seifert was simply ordered by the Judge to prepare and submit a present-day valuation of the long-term care costs of the Appellant. No other instructions or limitations were given. Absent such insight, Attorney Seifert utilized the most logical and ethical path by using nationally recognized standards for calculating present value adjusted for inflation. Had Attorney Seifert failed to do so, he would have provided the Court with an inaccurate present-day analysis creating a grossly insufficient compensation award never anticipated by the Care Plan. Ostensibly, submitting such analysis could be viewed, and argued, as actually being in violation of the Judge's Order.

Upon Attorney Seifert's completion of the calculation, and appearing before the lower court, he was severely and grossly chastised. First, the lower court had ridiculed Attorney Seifert, stating that Attorney Seifert had "done little to help [his] client[,]" that he had, presumptively in bad faith, "took the opportunity to nearly double the Plaintiff's request for future medical costs[,]" and that he had done so" in the guise of supplementing the record with a present value for" such costs. These statements, and similar others, essentially amount to the lower court accusing Attorney Seifert of making disingenuous arguments with the intent to deceive the court—a very serious ethical violation.

The lower court made these extreme accusations absent citation to any evidentiary support (beyond the calculation itself, which cannot prove intent) or applicable case law. This was not the intention of Attorney Seifert and such alleged actions never occurred based upon his sound, reasonable, and reliable explanations as to how he had included an inflationary factor into Plaintiff's future medical bills. Attorney Seifert was at all times transparent with the lower court, especially considering it had afforded him no guidance in how it preferred the inflationary factor be included.

Courts have the ability to strike language from judges which are offensive or slanderous of attorneys. In re Williams (1st Cir. 1998). {This case directly reviews whether a judge's defamatory comments are considered a de facto sanction and, in doing so, analyzes the prospective impact such comments may have on an attorney's reputation. "It is trite, but true, that a lawyer's professional reputation is his stock in trade, and blemishes may prove harmful in a myriad of ways."} The court in Williams reviewed whether the chastising of an attorney on the record is considered a constructive sanction, and thus, whether attorneys have the ability to remedy this language and strike it from the record. The court concluded that a chastised attorney is not "remediless[,]" and that they may "request that offending commentary be expunged from the public record. Id.; See, e.g., Bolte v. Home Ins. Co. (7th Cir. 1984). This is typically done by filing a writ of mandamus.

Courts will consider striking certain defamatory language only in "those rare cases in which the issuance (or nonissuance) of an order presents a question anent the limits of judicial power, poses some special risk of irreparable harm to the appellant, and is palpably erroneous." Williams; citing U.S. v. Horn (1st Cir. 1994); accord Blondin v. Winner (10th Cir. 1987).

In Appellee's Reply, they failed to address Appellant's argument for the slanderous language of the lower court to removed, tacitly agreeing with Appellant. Because of such, Appellant's argument is undisputed and should be considered by the Court. The language used by the lower court regarding Attorney Seifert's present-day valuation appears to be made with an intent to lower his estimation in the eyes of the public and his peers. As a public record, and searchable by any future adverse counsel, such statements can have permanent damaging effect. The aforementioned language is both offensive and slanderous to Attorney Seifert and his practice of law and could easily cause irreparable harm. While Appellant's Counsel has not filed a writ of mandamus, they are nonetheless requesting that this Court use its discretionary powers to overturn the Judge's decision against striking this public degradation of Attorney Seifert's reputation.

First, Appellant's request is certainly within the power of this Court to hear and determine. Second, the comments made by the lower court prejudice Appellant's claims, especially as it pertains to Appellant's calculation of her medical damages. Finally, the comments of the lower court are palpably erroneous considering its' own failure to otherwise instruct Attorney Seifert in regard to its' request that he provide a present-day valuation. Attorney Seifert, who was given no insight as to how the lower court wanted to receive this calculation, had provided in good faith an appropriate and fully transparent valuation.

At all times relevant, Attorney Seifert was acting as he believed necessary, appropriate and as ordered by the Judge. The Judge's unfounded accusations as to Attorney Seifert's alleged attempts to commit egregious ethical violations by deceiving the Court are irreparably damaging to Attorney Seifert's career and standing in the community. When weighed accordingly against the potential chilling effect of a Judge's immunity with respect to making untrue statements from the bench, the long-term effects of slandering an Attorney's reputation should be paramount.