In Court this morning, opposing counsel said that he didn’t lie in his papers. “I didn’t say I never signed it,” he claimed. “I just said I didn’t remember signing it. That’s something entirely different.”
That was the basis for my motion for sanctions. Based on his attempted deception of the Court.
The judge looked at me quizzically. “That’s your basis?” he asked.
“Yes,” I replied.
“But, but . . .” the judge stammered. “We’re all lawyers. We see . . .” he went on.
“I feel like that line, from Casablanca,” the judge continued. Where Captain Renault says, “I’m shocked, shocked to find that gambling is going on in here!”
A while back I litigated a case in Supreme Court. I had made a motion for summary judgment (meaning that my side should win without even needing to go to trial). Opposing counsel, in his opposition papers, made an assertion of fact. “It’s white. White. Everyone knows it’s white,” he seemingly claimed. In his second set of papers, he took a diametrically opposite position, without ever explaining the discrepancy. “Oh come on!” he seemed to be saying. “Of course it’s black. Both parties agreed that it was black.”
Accompanying the judge to his robing room for a conference, I expressed my surprise. “I’m surprised judge, that you didn’t grant my motion for summary judgment. They contradicted themselves in their own papers,” I exclaimed.
“Then,” the judge replied, “I guess it’ll be a short trial.”
Why do judges tolerate dishonest lawyers? By sanctioning dishonest, sleazy, word-parsing conduct, they not only permit, but encourage lawyers to behave in this manner.
It then takes those of us who litigate with integrity and perseverance longer and makes it more expensive for our clients to prevail. Ultimately, we do, however, because there’s always a way to demonstrate the falsehoods to the Court. (Post date: 4/1/2016)