I wrote about the Judge’s initial decision here. Judge Linda Parker, a federal judge in Detroit, found lawyers Sidney Powell, Lin Wood and others guilty of filing a frivolous lawsuit. Their weak lawsuit claimed there was election fraud in the Michigan 2020 election. Their allegations were just silly. Worse, they had no evidence with which to support their half-baked allegations. The lawyers even mis-represented to the court the qualifications of their so-called expert.

Well, now the Judge has announced what those sanctions will include. Those nine lawyers will have to pay $175,000 to the City of Detroit and to the state of Michigan. See That money will reimburse those entities for the attorney’s fees they had to spend defending the frivolous allegations. The Hill report here. It just amazes me that nine otherwise sober, talented lawyers will play dice with their law licenses.

Every few years, we have to re-litigate the so-called self-serving affidavit doctrine. I have written about that silly doctrine here and here. The self-serving affidavit more or less, provides that a person making a claim myst have some evidence to corroborate his/her factual statement. That does not make much sense. The U.S. Supreme Court expressly overruled the Fifth Circuit in Tolan v. Cotton, 134 S.Ct. 1861 (2014), because the Fifth Circuit disregarded competent testimony from a witness who also happened to be the plaintiff. And in Salazar v. Lubbock County Hospital District, No. 20-10322 (5th Cir. 12/7/2020), the Fifth Circuit again rejected the plaintiff’s testimony about her job performance because it was not corroborated. The Fifth Circuit has been making decisions which are best left to the jury.

This issue of which affidavits matter and which ones do not matters only because federal court litigation has become so mired in summary judgment practice. If the courts would reserve summary judgment for the lawsuits with little or no merit, this would not even be an issue.

Logical Fallacy

In the case of Guzman v. Allstate Assurance Co., No. 20-11247, 2021 WL 522810 (5th Cir. 11/10/2021), the Fifth Circuit re-visits the self-serving doctrine again. But, this the time the appellate court overrules the lower court because the lower court applied that old fallacy. In this case, Allstate denied insurance coverage for a deceased male, because he allegedly smoked. On his application for life insurance, Saul Guzman said he did not smoke. But, on his medical records, many of them described Saul as a smoker. But, Saul’s wife, Mirna, and his sister, Martha, both said Saul did not smoke. They testified via affidavits as part of Allstate’s motion for summary judgment. The lower court found the two affidavit to be self-serving.

The appellate court disagreed. The higher court noted that in a lawsuit, the two sides will always be interested in the outcome. “Inevitably,” evidence offered by one side or the other regarding summary judgment will appear to be self-serving. But, such evidence should not be discounted on that basis alone. Self-serving may affect the weight to be given that testimony. But, the particular weight some evidence ought to carry is a decision for the jury, not the court. The court then pointed to some prior Fifth Circuit decisions which found self-serving affidavits were not sufficient, but those cases actually involved affidavits which were conclusory, vague or lacked personal knowledge.

First-Hand Knowledge

In this case, Martha’s and Mirna’s affidavits were based on first-hand knowledge.  The two affidavits include fact based information, not conclusions. Competent testimony suffices for purposes of summary judgment.

Too, Allstate received medical records from Saul before his death which described him as a non-smoker. One of the three records in Allstate’s possession described Saul as a former smoker. All this is enough, said the Fifth Circuit, to deny summary judgment and let the jury decide the matter. See the decision here.

Clients and others sometimes ask me what “sanctions” are in the lawsuit business. This decision shows what the worst sanctions look like. In one of those frivolous election lawsuits filed late in 2020, the two lawyers have been sanctioned $180,000. U.S. District Magistrate Judge N. Reid Neureiter sanctioned two lawyers, Gary D. Fielder and Ernest John Walker. The Denber Judge ordered them to pay $50,000 to Facebook, $63,000 to Dominion Voting Systems and about $63,000 to a non-profit, Center for Tech and Civic Life, $5,000 to the state of Pennsylvania, and almost $5,000 to the state of Michigan. These amounts likely represent the attorney’s fees paid by those individual defendants in defending this frivolous lawsuit.

The two lawyers filed a class action lawsuit in December, 2020 claiming to represent American voters. The Magistrate Judge wrote a blistering opinion, finding that the lawyers sought to “manipulate gullible members of the public and foment public unrest.” The Judge labeled the lawsuit one large conspiracy theory. The lawsuit was used to manipulate a gullible public. The lawsuit had no experts or witnesses who could support their allegations of switched votes and government conspiracies.

Judge’s opinions will never castigate worse than this opinion. This is very strong language from a federal judge. As I have mentioned here before, most lawyers go through their entire career and never see a sanction. Now, these two lawyers have very large sanctions. See the Politico news report here for more information.

The decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.ed.2d 633 (1998), set up a framework for employers to avoid liability. An employer can avoid liability for harassment of an employee if the employer has a robust system in place for reporting on-the-job harassment. Once such a reporting system is in place, an employer will have an affirmative defense to sexual harassment if: 1) the employer exercises reasonable care to prevent sexual harassment, and 2) if the plaintiff employee unreasonably fails to take advantage of that reporting system. One can fuss about whether a reporting system works as well for victims of sexual harassment as it might for other sorts of harassment. Women find it harder to report abuse than victims of other sorts of abuse. But, even so, the affirmative defense exists.

Prompt, Remedial Action

In Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex.App. Texarkana 6/3/2021), the female plaintiff sued alleging her supervisor had placed a camera beneath her desk aimed at her seat. The employer fired the supervisor within minutes of Ms. Rivas’ complaint. The employee then sued for sexual harassment. The trial judge granted summary judgment.

Under the decision in Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999), the employer would be absolved of liability because it took prompt, remedial action in response to the complaint. Judge Edith Jones, in an over-wrought opinion, found that prompt remedial action would prevent liability on the part of the employer. Judge Jones reached that result, so as to square the Ellerth decision with the decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). The Meritor decision held that under Title VII, an employer is never “automatically” liable for harassment by a supervisor who creates a hostile working environment. Indest, at p. 267. Judge Jones argued that even though Ellerth modified Title VII in important respects, it did not affect the decision in Meritor Savings.

Only One Judge

The Texarkana court did not agree. Judge Morriss, writing for the majority, noted that Judge Jones was alone in her belief that the Ellerth case did not affect the decision in Meritor Savings. One Judge on the panel with Judge Jones strongly disagreed with her on the continued vitality of Meritor Savings. The other judge on the panel with Judge Jones concurred in the result only and did not join with either opinion.

And, Judge Morriss on the Texarkana Court of Appeals simply noted that allowing an exception for instances when an employer takes prompt, remedial action undermines the holding in Ellerth. It adds an exception that does not otherwise exist in that decision. The Judge is saying it simply contravenes the law of agency to craft an exception for times when the employer takes prompt action. That prompt action will still inure to the benefit of the employer. A plaintiff’s damages will be considerably reduced because the employer took that prompt, remedial action. But, the supervisor is still the supervisor.

See the decision in Rivas here.

I first wrote this for Veterans Day in 2009.  On Veterans Day, we note the spirit of service. Here are some examples:

The Ft. Hood 13

Today comes another Veteran’s Day.  Many of us recall a grandfather who served or an uncle who endured. The 13 who were killed at Ft. Hood exemplify the hundreds of thousands who have endured in this generation’s two wars.

CW2 (Ret) Cahill was killed at the age of 62.  Retired, he came back to Ft. Hood to serve those deploying and returning.  When I went to Iraq in 2005, many of those appearing with me at Ft. Jackson, South Carolina were retirees who volunteered to come back to active service and lend a hand.

After retiring as a major with service in the National Guard, CPT Gaffaney persisted for three years in his attempts to return to the Guard as a psychiatric nurse, his civilian occupation.  Hampered by a hearing deficit, he pushed to serve.  He finally returned for a second career as a Reserve officer.  When I reported to Ft. Jackson in 2005, we had one Lieutenant-Colonel, who pushed and pushed for two weeks to be sent to Iraq.  He had diabetes.  He swore that his meds could be obtained in Iraq.  But, the medical folks at Ft. Jackson did not believe him and would not let him go.

Iraq 2005

When I was in Iraq in 2005-06, I went on a mission to visit some significant Iraqi officials.  On that convoy was a young female NCO.  She had graduated from college right after 9/11 with an engineering degree.  She joined the Army as an enlisted person and became an intelligence analyst, a very good one.  Here she was going outside the wire to collect intelligence.  She could have been anywhere that day, but she chose to be in Iraq, risking IED’s and more to collect critical information first hand.

The Colonels

In 2005, the large group of us, some 100 of us, were sent to California after Ft. Jackson.  We were to marry up with our Civil Affairs units and conduct train.  We had seven “full bird” Colonels in our group.  A sharp, able bunch.  The Civil Affairs brigade called them to a meeting.  The brigade told the Colonels, ” we have some good news for you, we do not need you and you can go home.”  The Colonels responded, “no, you called us from our civilian jobs, you must take us.  We are here to serve and we will serve.”  One or two had contacts at the Pentagon.  They pressured the Civil Affairs Brigade to take them and put them to work.  They refused to be sent home.  All seven served their tours with distinction.

Basic Trainees

I served as Commander of a drill sergeant battalion in 2007.  I could not help but notice how many fine young people were volunteering for service during a time of two wars.  Today’s soldiers, marines, airmen and sailors accept the same risks their grandfathers and fathers accepted.  A couple of the drill sergeants mentioned in briefings that they had to respect the young soldiers joining now in time of war.

Pres. Obama said in a Veterans Day speech, 2009: “. . .  here is what you must know: Your loved ones endure throughout the life of our nation.  Their memory wil be honored in the places they lived and by the people they touched. Their life’s work is our security, and the freedom that we all too often take for granted. Every evening that the sun sets on a tranquil town; every dawn that a flag is unfurled; every moment that an American enjoys life, liberty and the pursuit of happiness — that is their legacy.”

When I entered the military in the 1980’s, older citizens would question our generation.  Would they serve as the “Greatest Generation” served in the 1940’s?  Yes, they have, we have, over and over.

Thank a vet today for his/her service.

 

It is no secret that we have been involved in a pandemic since March, 2020. The issue of masks has grown and grown. Some folks are vehemently opposed to wearing masks. One woman here in San Antonio has filed suit against Northside Independent School District, because she was required to wear a mask. Jamie Marroquin tried to attend a NISD board meeting without a mask. She was told to leave. She refused. So, two NISD police officers picked her up in her chair and took her outside. See San Antonio Express News report here.

Ms. Marroquin then filed suit in state district court. Her petition seems to rest on the theory that the NISD mask policy violates Gov. Abbott’s order that there be no no-mask orders. Yes, Gov. Abbott issued a mandate that there be no mandates. The petition also alleges a violation of the Texas Open Meetings Act.

I am no expert on law concerning state gubernatorial executive orders, but I doubt those executive orders provide any sort of private right of action. It is hard to imagine what her standing would be. She cannot show how a violation of the Governor’s order harms her in particular, as opposed to any other citizen of Texas.

Regarding the Open Meetings Act, it just seems unlikely that NISD would have violated the act on such a public, contentious issue.And, even if they did violate the Open Meetings Act, they can easily remedy that oversight by conducting another meeting.

Too, when it comes to courts in general, courts rarely, rarely take chances with public safety. That is a simple truism in all sorts of lawsuits.The courts do not like to get in the business of second-guessing safety concerns. Courts are just not set up to evaluate the efficacy of a given safety rule. Ms. Marroquin’s lawsuit, I think, is likely to fail. But,  a successful lawsuit may not be her real goal.

As trial lawyers, we appear in court often. We all have felt the urge to tell the judge how we really feel. Most of us resist it. But, not Elizabeth McLaughlin in San Antonio. Ms. McLaughlin objected to being assigned to a visiting judge. The judge who heard her objection overruled her objection. Ms. McLauglin, on a Zoom hearing, called the female judge a “bitch.” It was quite audible to some 100 participants. McLaughlin quickly apologized, but that was not good enough. The Presiding Judge, Mary Lou Alvarez, excused Ms. Mclaughlin from Presiding Court for two days. Later, Ms. McLaughlin asked to be admitted to Presiding Court and was allowed. See San Antonio Express News report here.

Judge Alvarez believes the comment was motivated by racism or ageism. She thinks Ms. McLaughlin would not have uttered a similar comment to a white, male judge. I cannot agree. I think many lawyers feel what McLaughlin felt. Most of us just are better at keeping our comments to ourselves. When I was a brand new lawyer in upstate Louisiana, an African-American lawyer, well-respected, heard a ruling from Judge Lauve, Caucasian, in Alexandria, Louisiana. The black lawyer did not like the ruling. “Your decision makes me sick!’ exclaimed the lawyer in court.

As lawyers, we care about our cases. Generally, the longer we represent a client, the more invested in his/her case we become. Judge Lauve in update Louisiana took the comment with equanimity. He always maintained a remarkable level of professionalism. I was too new at the time to notice. But, I am sure the African-American lawyer apologized later. In a small town, enmity cannot last long. You are just too likely to run into each other in a small town.

Too, as I learned many years ago playing football, you cannot let yourself get too angry or focused on the referees. You have to play well enough that you can beat the ref’s. The same analogy applies to the judges. You must present your case well enough that you can overcome less than perfect decisions from the judges.

Eliozabeth McLaughlin ought to know better. But, high emotions – on an occasional basis – are part of the job.

I previously wrote about Judge Sam Kent here and here. He was a Federal Judge in Galveston, Texas. Even before the allegations arose, he was known as a bullying sort of judge and one who was generally opposed to discrimination lawsuits. Allegations arose that he was harassing female members of his staff. He attacked and groped one woman, Cathy McBroom. He pressed her against the wall in his office lifted up her blouse and bra and put his mouth on her breast. The Houston Chronicle reporter, Lise Olsen, who broke the story, has written a book about the scandal.

Her book recounts the considerable pressure Ms. McBroom was under to not make waves. Even other female court employees told her to let it go. Other women who had been harassed by Judge Kent told her she should keep quiet.

Worse, one female judge on the Fifth Circuit Court of Appeals in New Orleans, Edith Jones, chaired a panel charged with investigating and recommending punishment. Judge Jones’ committee recommended four months suspension for the serial harasser. Rick Casey, who worked at the Chronicle at the time of the scandal, tells us that Judge Jones minimized the severity of Judge Kent’s crimes. Judge Kent could have been prosecuted for assault with two years in jail for what he did to Ms. McBroom. Mr. Casey adds that Judge Jones has long been consistently hostile to discrimination victims and sex harassment victims in particular. Casey mentions the case in 1989 when Judge Jones heard a sex harassment case.

On that case in 1989, a female worker had been grabbed and groped at work. She had been propositioned. These allegations came up during the hearing. Judge asked, “They didn’t rape her, did they?” apparently suggesting her treatment was not that bad. The lawyer responded that one co-worker had pinched her breast. Judge Jones replied, “Well, he apologized.”

Judge Jones, like Judge Kent, has long been viewed as hostile to discrimination victims. She herself faced her own accusations of making discriminatory comments in 2013. See my prior post about that accusation here.

Later, Judge Kent was transferred to the courts in Houston. He was then indicted for abusive sexual contact and attempted aggravated sexual abuse of a female employee.  He was found guilty and sentenced to 33 months in prison. He resigned his bench only after Congress impeached him in 2009. See Rick Casey’s column here.

Well, AG Ken Paxton lost another court hearing. I wrote about his loss at the district court level here. AG Paxton appealed that decision to the Third Circuit Court of Appeals in Austin. That court affirmed the denial of the motion to dismiss. Four senior level employees at the AG’s office complained to the FBI, the Texas Rangers and other law enforcement agencies. They were then fired weeks later. Those facts should amount to a cut-and-dry whistle blower lawsuit.

Not a Public Employee

On appeal, the Office of Attorney General argued that as Attorney General, Mr. Paxton is not a “public employee” or a “governmental entity” for purposes of the Texas Whistleblower Act, Tex. Govt. Code §554,011, et seq. But, as the court notes, it was the Office of the Attorney General which fired the four employees. The OAG employees acted at Paxton’s direction. As such, it was an act carried out by the OAG. Remarkably, the OAG also argued that the actions of Paxton cannot be viewed as actions of the Agency. The court then notes long-time principles of agency law to dispense with those weak arguments. There may be more silly arguments to make on appeal, but I cannot imagine what they would be.

The court then explains further how illogical it is to suggest that senior level executives of the a particular state agency are not the agency itself. State agencies, notes the court, act through persons. Those persons act on behalf of the state agency. It would be non-sensical to hold the second-in-command liable for sex harassment or whistleblower reprisal, but not the most senior employee himself.

Violations of Law

The court also addresses the argument that Jeff Mateer did not report violations of law. He only reported possible, speculative violations of law. The court disregarded Mateer’s deposition testimony. The court found theAG’s  motion to dismiss was filed under Rule 91a, which is based on pleadings only, not on extrinsic evidence. Mateer’s deposition testimony does not matter for a Rule 91a motion to dismiss. The court noted that the plaintiffs’ petition does indeed allege violations of law, not possible or speculative violations. The plaintiffs reported that Paxton appeared to violate the Open Records Act, that Paxton helped Nate Paul with an AG’s opinion regarding foreclosures, and Paxton used the AG’s office to hammer opponents of Nate Paul.

These acts had already occurred when the plaintiffs observed Paxton’s “bizarre” behavior. At that point, it became clear Paxton was using the AG’s office to benefit himself and Nate Paul. These allegations included bribery, falsification of government records, obstruction of criminal investigations, tampering with witnesses, all of which they reported to law enforcement agencies. It does not matter, said the court, that the plaintiffs could not identify a specific bribe or the details of a quid pro quo arrangement.

See the opinion in OAG v. Brickman, Et Al, No. 03-21-00161 (Tex.App. Austin 10/21/2021) here. Now, AG Paxton will surely appeal to the Texas Supreme Court, The Supreme Court is generally a very friendly venue for defendants. But, this defendant may find tough going there.

Many defendants do this to some degree in a lawsuit: they exaggerate the testimony of the plaintiff or other witnesses. There is sometimes a fine line between advocating a position and outright fabricating evidence. In Flores v. DISH Network, the defense firm, Littler Mendelson, crossed that line. Littler Mendelson primarily practices employment law across the country.

In Phoenix, Melin Flores sought FMLA leave and was fired. He sued for FMLA violations. Littler Mendelson moved for summary judgment, as most defendants do. But, this time, the firm said things that were mis-leading or flat untrue.

  • In “statement 9,” the defense firm claimed Ms. Flores had conceded that she did not think she needed leave. But, it turns out that Flores made that statement at a different point in time, not related to her requests for FMLA leave.
  • In “statement 12,” Littler Mendelson said Flores admitted the pain did not affect her daily living until after she had been fired. But, it turns out, said the Judge, that Flores simply said she could take care of herself for much of the time before she was fired.
  • In “statement 13,” the Littler attorney claimed Flores had said the pain never affected her ability to work and she never mentioned the pain to her supervisor. In reality, said the Judge, Flores actually said her pain did affect her sometimes at work and she mentioned that to her supervisor.

Judge Roslyn Silver said the blatant falsehoods in statements 12 and 13 are unusual in pleadings filed by attorneys. “These statements are not subject to reasonable debate or interpretation,” said the court.

The Judge said she could go on with more examples of falsehoods and mis-statements, but that would serve no useful purpose. The judge reprimanded the firm and found they violated Fed.R.Civ.Pro. Rule 11. Rule 11 requires attorneys to verify that factual contentions are supported by evidence. Violations of Rule 11 will result in sanctions. Doubtless, the law firm will see sanctions in its inbox very soon. See ABA Bar Journal report.