Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Carlos Saenz had a huge laugh and a booming voice. He laughed a lot.  

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. See a tribute to 1SGT Saenz at the Arlington cemetery website here.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.

Like many of us, PVT Clevenger returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, let us recall the fallen – including the Confederate fallen.

In what industry are both white collar and blue collar managers and leaders trained for each level of promotion? In the military. In the military services, NCO’s and officers receive training for each level of promotion. For decades, the U.S. military has required attendance and graduation from schools designed to train leaders at every rank. This has resulted in a professional, competent work force.

Young lieutenants in the Infantry Officer Basic Course role plays various counseling situations. They emerge, not as qualified counselors. But, they know enough to listen to soldiers with dire needs. As we often say in the Army, “In the Army, we are in the people business.” That is our way of explaining that we focus on our most important inventory, the men and women who make up our forces.

Study

Yet, a recent study by the Duke University Fuqua School of Business shows many employers in the U.S. see military veterans as a poor fit for emotional social jobs. In one study, conducted in the restaurant industry, employers rated military veterans as much more suitable for low feeling positions, such as dish washers and prep cooks than for servers. See Army Times report here.

That is ironic since every Sergeant has graduated from at least one NCO leadership school which typically last 4-8 weeks, in addition to the experience of leading and managing men and women in garrison and in combat.

Iraq

I could write a book on the combat experience. But, I can say that there is no greater pressure cooker than a combat zone. In a war zone, every decision, no matter how trivial, presents life or death consequences. Stress is never greater. Leadership ability, including the simple ability to work well with others, is at a premium. I wondered, when I was in Iraq sometimes, about the Morale, Welfare, Recreation Centers. At the MWR center, a soldier could check out a movie or read a book. Would it set someone off if their favorite move was not available? In a war zone, everyone needs to be performing his/her job at top efficiency.

U.S. employers do not appreciate the sort of training we have had in the military. In my lawsuits, I often encounter businesses that provide no training for its mid-level managers. None. I find that simply astounding. Don’t you know that a young Sergeant with a couple of tours in Iraq could handle a busy night at a popular restaurant?

There has been much talk in the news recently about judges who supposedly should recuse themselves. Donald Trump, the serial litigator, has asked every judge in his criminal cases, except one, to recuse themselves. But, his motions have generally been based on pretty specious grounds. What are good, solid grounds for recusal? We get a look at some pretty good grounds in a case involving Delaware lawyer, Frank G.X. Pileggi.

Pileggi alleges that when he worked at a firm called Fox Rothschild, he got cross-ways with another member of the firm, Gregory Williams in 2008. At the time, both lawyers worked for Fox Rothschild. Pileggi co-hosted a fundraiser for a candidate for governor. Mr. Williams became irate when Pileggi omitted his name from the list of hosts. Williams was on the organizing committee at the time. According to Pileggi, Williams barged into Pileggi’s office, and stiff-armed him with both arms, knocking Pileggi backwards and knocking over several items.

Privacy

The two antagonists then took the matter to the privacy of a loading area in their building. Williams challenged Pileggi to a fight. Pileggi, believing the matter would be better resolved more peacefully, tried to walk away. But, Williams followed close behind, hurling insults and taunts at Pileggi.

Now, years later, Mr. Williams is a federal judge. He is presiding over a case in which Mr. Pileggi represents one of the parties. Lawyer PIleggi asked Judge Williams to recuse himself. The Judge denied the motion. The Judge wrote in his order: “It is highly doubtful that any reasonable person, with knowledge of all the facts, would reasonably question the judge’s impartiality.” (No, of course not, Judge. Who could think such a thing?)

Now, Mr. Pileggi has asked the Judge to reconsider that denial. Is this grounds for recusal? I would think so. But, whether these are sufficient grounds or not, they are far, far better grounds than anything offered by any of Mr. Trump’s many different lawyers. See ABA Bar Journal report here for more information.

In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

The Federal Trade Commission has voted 3-2 to ban non-compete agreements. NCA’s affect 18% of the work force, or about 30 million workers. They have been used for fast food workers and CEO’s alike. Perhaps as recently as 20 years ago, they were only used for senior executives. But, their use has since grown in popularity …. with Employers. There was a large hue and cry a few years ago when Jimmy John’s Sandwiches started using NCA’s for its low level workers. Soon after, Jimmy John’s dropped the NCA requirement.

Normally, the new regulation would go into effect 120 days after it is published in the Federal Register. But, it is certain that business groups will file suit to stop the new rule. The U.S. Chamber of Commerce has already vowed to file suit.

Various bills have been presented in Congress to ban or limit the use of NCA’s. It is unlikely the new regulation will survive judicial challenge. The Supreme Court has issued clear precedent stating that “major questions” cannot be addressed with agency regulations. Surely, a ban on NCA’s would be a text book example of a “major question.” Something needs to be done about the over-use of non-competes. They are more and more used for average, hourly wage type workers. It amounts to involuntary servitude. NCA’s impose a huge burden on hourly wage workers. Too, if the Republicans win back the White House, the rule is equally certain to be withdrawn.

See The Hill report here for more information.

Where do we file suits? Generally, we file lawsuits in the county or locale where the dispute arose. In some lawsuits, the proper location is murky. in Farrera v. Travis County Attorney’s Office, No. 23-CV-01406 (W.D. Tex. 2/14/2024), John Ferrara was arrested in San Antonio. He had posted some blog posts criticizing the City of Kyle. Kyle is mid-way between Austin and San Antonio. In his suit, the Plaintiff complained of conspiracy among various town officials of violating his First Amendment rights.

It started when the Kyle police arrested Mr. Ferrara for allegedly stalking the Kyle Chief of Police. The Hays County Attorney’s office recused itself. The Travis County Attorney’s office was then appointed to prosecute the harassment charge against Mr. Farrara. In Plaintiff’s view, the TCAO simply rubber stamped the Kyle Police Department’s investigation. The Plaintiff then filed various lawsuits in San Antonio Federal court alleging similar complaints. Plaintiff Farrara then filed the instant lawsuit alleging the conspiracy.

Motion to Transfer Venue

The TCAO moved to transfer venue to Austin Federal Court. The Western District Court then reviewed the various factors involved in a transfer of venue. The witnesses were all located in Kyle or Austin – other than the Plaintiff. Kyle itself falls within the Austin division. Documents could be easily transported to San Antonio, but most of the documents were maintained in Austin or Kyle.

There is a history in San Antonio. Since, Plaintiff’s two prior lawsuits regarding this same subject were field in San Antonio Federal Court. There was also a third Federal lawsuit then pending in San Antonio. The Plaintiff correctly pointed out that two San Antonio judges have experience with Ferrara’s allegations. The suit was likely to be decided on paper motions.

The Court noted that San Antonio and Travis County residents have equal interest in civil rights. So, in the end, the Judge denied the Defendant’s motion to transfer venue. The case would remain in San Antonio Federal court. The Judge made his decision based on these factors. But, one could conclude that the Judge knew a conspiracy claim is exceedingly hard to show. The Court might have felt it might be a quicker process to decide based on a dismissal motion the case than to transfer. See the decision here.

I first wrote about threats against judges here. Since then, one Donald Trump appeared. He has threatened and publicly attacked judges almost daily. Judge J. Michael Luttig has expressed concern about how Mr. Trump has almost normalized threats against judges. As the very conservative Judge has pointed out:

“We all have to understand that from the first time the former president began his attacks, vicious attacks on the federal courts and the state courts and their individual judges, his objective was to delegitimize those courts,”

Judge Luttig explains that Mr. Trump does this, so that when and if the judges rule against Trump, his followers will see the ruling as politically motivated. Mr. Trump is the only person claiming these institutions lack legitimacy. But, so far, no one in power is calling him out on his abuse, says Judge Luttig.

Attempts to Kill Judges

Just a few years ago, Judge Julie Kocurek was ambushed at her home in Austin, Texas. The Judge was shot four times, but survived. Judge Kocurek was a criminal court judge. The man who shot her had appeared before her in a fairly routine case involving fraud. But, he was also head of a large, complex, criminal fraud scheme. He wanted to be sure the Judge did not shut him down.

In 2020, a Federal judge in New Jersey was targeted by a lawyer. The lawyer managed to kill Judge Esther Salas’s son and wounded the judge’s husband. Judges take on real risk. Mr. Trump is exacerbating that risk. As Judge Luttig says, judges and their staff should not be attacked simply for doing their jobs.

In Donald Trump’s upcoming trial in New York he has again publicly attacked the presiding judge, Juan Meehan, and his daughter. Reacting to the attack on a family member, Judge Merchan warned: a person must “draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well.” 

See The Hill report here for more information about Judge Luttig’s comments.

Some of us trial lawyers enjoy watching the various Trump trials. Partly because we always enjoy watching someone else’s trial. And too,Trump’s legal machinations never cease to amuse and amaze. He disrespects judges hearing his case every day. He even attacks the Judge’s law clerk. In the litigation world, court staff are generally hands off. We all know not to fuss at them without a very, very good reason. The staff cannot push back. They can only utter a meek sorry if they commit an error. Donald Trump went way beyond litigation norms in attacking Judge Engoron’s law clerk during the trial.

Now, his chickens have come home to roost. He is having trouble finding the funds for an appeal bond. The bond is necessary, to prevent collection efforts during the appeal process. Mr. Trump can submit his appeal with or without an appeal bond. But, without the bond, there is no legal impediment to the New York AG starting collection efforts. The AG is named Letitia James. That is the same Leitita James Mr. Trump has been castigating for months.

In normal lawsuits, most Defendants do not start collection efforts during an appeal. It is a lot of bother and an appeal bond is usually a phone call away. And, too, usually, there is some minimal good will between the parties. But, Donald Trump has never met Mr. or Ms. Good Will. He does not know what they look like.

Hutzpah

Then, in a remarkable display of hutzpah, Trump asks Judge Engoron to be excused from posting an appeal bond. He would prefer to put up some real estate. He is good for it, his lawyers assure the Judge. This is the same Judge Engoron who Mr. Trump also has been insulting for weeks and months. The same Judge whose law clerk he attacked over and over. Now, Donald wants a solid from that same Judge Engoron.

There is a reason why the better trial lawyers try to not make lawsuits anymore personal than they are already. Anger, frustration, pain lie just slightly below the surface in every lawsuit. We do not need to make it worse by attacking very publicly the court and the court staff. Because, in every lawsuit, there are times when we do need a favor from the other side. Generally, the only favor is where the depositions will take place, or when one lawyer needs emergency time off for a sick family member. Or, sometimes, it’s when you want the Judge to believe you are acting in good faith and cannot raise the funds for an appeal bond.

As busy lawyers, we deal daily with the dreaded statute of limitations. State of limitations is the legal term referring to the deadline by which a lawsuit must be filed. Perhaps no area of law deals with the SOL more than Personal Injury lawyers. So, there is always some temptation to “fudge” the record if we outright miss an SOL. One Georgia lawyer, Jo Anne David-Vega gave in to temptation.

Ms. David-Vega had a large caseload which she accrued quickly in 2016. By 2019, she missed the SOL for an automobile collision. Her client called some 65 times asking for a status of his case. The client later filed a malpractice lawsuit and a grievance with the bar association. In her defense, Ms. David-Vega fabricated an email and text message supposedly showing that the client had fired her before the SOL had expired.

Different Font

The Georgia Supreme Court noted the email differed in format and font from other emails sent by the client. The email had perfect diction, capitalization and punctuation. Ms. David-Vega eventually admitted the email and text message were fake.

Ms. David-Vega expressed remorse for missing the SOL. She had accepted a new part-time job which suddenly added 150 cases to her caseload. Her parents were ill. And, she said, she had trouble saying no and had trouble asking for help. She had a good reputation with the judges before whom she appeared. A special master recommended a two year suspension of her license. See ABA Bar Journal report here for more information.

As litigators, we are often called on to summarize facts in one way or another. On appeal, we must summarize the facts of a trial below. What happens when we slant those facts? Good advocacy requires that we slant facts to some degree. But, if we go too far, then we have committed a deception on the court. That is what happened to a lawyer with Gibson, Dunn & Crutcher, a national, silk-stocking law firm.

Gibson Dunn submitted an appeals brief after losing trial in a California district court. The lawsuit concerned allegations that Gibson Dunn’s client, Zovio, Inc. and Ashford University, engaged in unfair competition and false advertising. Zovio lost the trial. The trial judge entered findings of fact. But, Gibson Dunn mis-stated those facts. In the brief, the Gibson Dunn lawyer:

  • Highlighted favorable testimony while minimizing or ignoring contrary testimony
  • Said the university sought to be a “place of opportunity” for disadvantaged students, while downplaying that the trial court found Ashford had deceived those same disadvantaged students
  • Said the role of admissions counselors was to “help and educate,” while ignoring the fact finding by the trial court that the admissions counselors were sales persons who were pressured to persuade potential students to enroll

Practice Guides

The appellate court noted the advice in a leading practice guide suggesting the brief should state fairly the critical facts, free of bias. But, the California Fourth Court of Appeals found Gibson Dunn’s brief to actually distort the facts. Yet, the appellants were not arguing sufficiency of the evidence. The facts found by the trial judge were not at issue.

The appellate court also noted the brief was peppered with statements that have no citation to the trial record. The defendant also argued that Zovio suffered financial ruin, which claims was based on material outside the trial record. The court of appeals said it was ignoring unsourced material and assertions based on evidence outside the trial record.

That is a rookie mistake, a string of rookie mistakes, to cite to evidence not actually in the trial record. It is equally blatant to not mention directly contrary facts. Many lawyers commit these errors. But, few commit this many errors in one brief. See ABA Bar Journal report here. This sort of tongue-lashing from a court of appeals is quite rare.