Lawyer Lin Wood, the pro-Trump lawyer who filed a handful of election lawsuits, is being investigated by the Georgia Bar Association for alleged ethical lapses. In response, Mr. Wood published online the addresses for the 18 members of the Georgia grievance committee. Four of the addresses were home addresses. Disciplinary or grievance committees are typically composed of volunteer lawyers and a few public members at large. Mr. Wood asked that his followers “investigate” these 18 grievance committee members. Wood published the addresses on his Telegram account. Can someone say, “Please sanction me”?

More than 350,000 Telegram users viewed that post. Mr. Wood justified his action, saying the information was public. I do not know how the Georgia Bar Association does things. But, in Texas, us lawyer persons can choose to make our home addresses public or not. But, otherwise, our work addresses are indeed public. Mr. Wood said the state bar started the fight, but he would finish it.

The Georgia state bar said it is proceeding with an inquiry under its rule regarding lawyers who suffer a mental capacity issue or a substance abuse issue. See ABA Bar Journal report. Mr. Wood insists he has not taken a drink in eight years and that his doctors said he was mentally fit. Fit or not, this is a good way to find his law license in jeopardy.

Judge Lynn Hughes of the Southern District of Texas is at it again. In the case of Miller v. Sam Houston State Univ., No. 19-20752 (5th Cir. 1/29/2021), Judge Hughes flat denied the Plaintiff any depositions, while granting summary judgment against the plaintiff. Worse, he made statement after statement expressing skepticism about the plaintiff’s case. I have written about Judge Hughes here and here. He often denies discovery to one or both parties. But, in this case, he seemed to focus his ire on the plaintiff.

Early Hearing

At one early hearing, he insisted on dismissing two of the four defendants. The plaintiff had sued Sam Houston State University and its higher level entity, the Texas State University System. The Plaintiff also sued the University of Houston and its higher level entity, the University of Houston System, in a separate lawsuit. The judge told the plaintiff’s lawyer that she must dismiss two of the four, which two would she choose? Of course, that is very unorthodox way to dismiss two properly served parties. He then added the the “systems” were not important. All they did was make it harder for University employees to do their job.

As the early hearing progressed, Judge Hughes made other comments. Is there nothing the plaintiff has not complained about? He discussed Prof. Miller’s case, saying she seemed to be complaining about less pay and not getting tenure. He added,

“I have never thought about it, but I have had more tenure decisions than you can imagine working here. You wouldn’t think professors were litigious, but apparently they are.” 

He specifically ordered that Plaintiff Miller be deposed at his courtroom. As the hearing drew to a close, Judge Hughes suggested consolidating the two lawsuits, the one against SHSU and the one against UH. Both parties objected. The judge replied to Miller’s counsel: “All right. I will get credit for closing two cases when I crush you.” When the lawyer resisted, Judge Hughes interjected:“How will that look on your record?” 

Attending the Plaintiff’s Deposition

The judge then attended plaintiff Dr. Miller’s deposition. He participated in the deposition. He warned her that if she did not like his rulings, that is okay. This is a free country, he said. But, the Defendant has a right to to know exactly why she sued the defendant. He later lectured Dr. Miller when she tried to discuss her view of Supreme Court precedent. Meanwhile, Judge Hughes rejected repeated attempts by the plaintiff to take her own depositions.

The judge called for another hearing. The judge suggested the employer seek summary judgment. The plaintiff’s lawyer agued that they needed more discovery. She suggested the data provided by the defendant was inaccurate. Replied the judge, “I think you’re making that up.” 

The employer did submit a motion for summary judgment. At the close of an oral hearing on the summary judgment motion, Judge Hughes allowed the plaintiff to depose a key witness, but only for two hours. The court then denied repeated motions for more discovery. He later granted the motion for summary judgment.

On Appeal

On appeal the Fifth Circuit was quite annoyed. The opinion starts with a general discussion that the appearance of fairness is important. Fairness, said the appellate court, is upheld by avoiding even the appearance of partiality. The court was very troubled by the court’s dismissal of claims sue sponte. There was no pending motion to dismiss claims against two defendants. There was no briefing on the issue until Plaintiff Miller submitted a motion for reconsideration. The Fifth Circuit found the motion for reconsideration to have some merit. It was simply unfair to force the plaintiff to make her arguments after the decision had already been made. The dismissal, said the court of appeals, appeared to rest on the lower court’s assertion that “systems don’t do anything.”

The court then pointed to the decision in McCoy v. Energy XXI GOM, LLC, 695 Fed.Appd’x 750 (5th Cir. 2017,), another Judge Hughes case. In that case, Judge Hughes again only permitted a deposition of the plaintiff. As in McCoy, it was reversible error to prevent one party from conducting full and fair discovery, said the Fifth Circuit panel.

The Plaintiff also asked that the case be transferred to a different judge, an extraordinary remedy. The appellate court granted her court. It found that Judge Hughes had from the outset, shown a lack of impartiality. See the decision here.

Anytime a court of appeals transfers a case to a different judge, you know they have lost faith in the most fundamental requirement of any judge, that he not show favor or partiality.

Alex Jones and InfoWars were sanctioned in 2019. See my prior post here. Now, Mr. Jones’ motion to dismiss has been denied. Alex Jones has been sued in Texas by three families from the Sandy Hook Elementary shooting. Alex Jones and InfoWars claimed the shooting was not real. Two suits (field by Fontaine and Heslin) allege defamation. A third lawsuit (filed by Lewis) alleges Intentional Infliction of Emotional Distress.

Defamation

Among Jones’ various claims, he argued in court that Texas defamation law requires that the alleged slander be directed specifically at certain persons. It is not enough, argued Jones, that he spoke about the families in general. He needed to mention specific persons, claims his lawyers.  The lawyer for the family members argued no, on the contrary that InfoWars accused the families of colluding in a hoax. The family also argued that Mr. Jones’ statements were so reckless that no reasonable publisher would have published those statements without some corroboration. The majority agreed with the family. The court denied the petition seeking review of the lower court opinion. See Yahoo news report here. Two members of the court would have granted the petition for review. The decision was issued without an opinion. See Petitioner’s request for review in InfoWars v. Fontaine, No. 1901029 (Tex. 1/22/21) here.

In a related action, the Supreme Court also denied a petition to review regarding a third lawsuit. The Supreme Court also denied a motion for sanctions. See decision here. But, the decision is very brief and does not include the court’s reasoning.

Intentional Infliction of Emotional Distress

In a related suit, Scarlett Lewis, the mother of a child killed in the Sandy Hook Elementary massacre, sued Alex Jones for Intentional Infliction of Emotional Distress, not for defamation. On appeal, Alex Jones attacked the lower court rulings in taking what Jones described as an “expanded” view of the tort of intentional infliction of emotional distress. The Supreme Court also rejected that appeal without comment. Alex Jones v. Lewis, No. 19-1050 (Tex. 1/22/21). In this matter, the Supreme Court also denied a motion for sanctions. Plaintiff Scarlett Lewis had asked for sanctions because InfoWars changed its legal position on appeal. Before the lower court, Alex Jones argued that the only appealable issue was whether Intentional Infliction of Emotional Distress can lie for someone never named in a specific public statement. But, on appeal to the Supreme Court, counsel for Alex Jones admitted that no individual need be named in a claim of Intentional Infliction of Emotional Distress. The Supreme Court denied that motion for sanctions and rejected Alex Jones’ petition for review.

Sio, the two lawsuits go back to the district court to continue with the normal process.

 

At times like this, we don’t know whether to laugh or cry. Lawyer Paul M. Davis was fired from his job as Associate General Counsel after appearing at the assault on the Capitol on Jan. 6. I wrote about his firing here. On Jan. 18, he filed a lawsuit arguing that every member of Congress and the President hold their offices unlawfully. All the politicians were elected in procedures which violated the Help America Vote Act. The HAVA act helped state governments improve their voting systems. Passed in 2002, it also required that elections make provisions for voters with disabilities.

Mr. Davis filed his lawsuit against Mark Zuckerberg and every member of Congress. His original federal Complaint appears here. He has since filed some seven additional pleadings, including a request for a temporary injunction. In one of his pleadings, he cited The Lord of the Rings trilogy. He argued that like Gondor, the current government lacks a true king… err..  President. Of course, that analogy prompted the wiseacres at Above the Law blog to point out the ways in which a Gondor comparison does not apply. See Above the Law post here. This is all quite esoteric. But, ATL is quite correct. In the book, the Gondor king never “abandoned” his throne. The last king simply died without an heir.

Mr. Davis then responded with a new filing in his lawsuit, apparently to rebut ATL’s criticisms. This has all occurred before the named Defendants have even appeared in the lawsuit. In his most recent pleading, Mr. Davis explained that someone stuck bundles of wood and trash in his sewer pipe, forcing massive overflow inside his house. He explains that he is sleep deprived. He mentions in one footnote:

“Indeed, it is now 5:21 a.m. and counsel has not slept in an attempt to get more reasonable relief in front of the court prior to the court opening at 9 a.m.”

His pleadings do not include an address or phone number for his office. Indeed, his signature block includes such commentary as “Former Associate General Counsel” and “Terminated after peacefully protesting, Now Solo Civil Rights Attorney.” We can only assume that he is under much stress.

See ABA Bar Journal report here.

According to the ABA Bar Journal, Judge Alan Albright has indicated he may dismiss the lawsuit for failure to state a claim. Mr. Davis, we think, needs some sleep and, perhaps some counseling. This whole episode of assaulting the Capitol has not brought out the best in folks.

 

“Sanctions,” the word that causes every lawyer to tremble. Lawyers representing Pres. Trump filed some 60, what can only be described as “frivolous” lawsuits. In Michigan, the City of Detroit has asked that Lin Wood and other lawyers be sanctioned pursuant to Fed.R.Civ.Pro. Rule 11. Rule 11 requires that every pleading be signed in good faith. The City of Detroit claims that Lin Wood, Sidney Powell and others did not file that lawsuit in good faith. Detroit also asks that the lawyers be referred to the state bars of their respective states for investigation.

Sidney Poweell has responded that she did not sign the pleading. She appended “/s/ Sidney Powell” to the pleading. ….. Okay. Every trial lawyer in the country knows that the use of “/s/” in front of a typed name represents an electronic signature. Ms. Powell is deliberately attempting to hide behind a technicality. She is trying to argue, apparently with unintended humor, that Rule 11 does not apply to electronic signatures. But, of course, the Electronic Signature Act of 2000 specifically makes electronic signatures quite binding.

Ms. Powell also argues that senior partners in the firm, who typically appear as a simple typed name above the signature block for the lawyer actually working the case, have not “appeared” in the lawsuit. She is saying that lawyers who simply appeared via typewritten name cannot be sanctioned. …. Okay, that’s another one. Those lawyers who appear in the signature block simply as a typed name are assumed to be guiding or overseeing the more junior lawyer who did sign the pleading. It is disingenuous and perhaps dangerous to argue otherwise. It is problematic whether such a very technical argument will fly with the judge. But, it is very certain that such a technical argument will annoy the judge a great deal. Lawyers who oversee a pleading best not claim they knew nothing about the pleading. Senior lawyers should not hide behind a technicality. That violates Rule No. 1 in litigation: do not sacrifice your credibility without a very, very good reason.

See ABA Bar Journal report for more information.

 

In Rodriguez v. Dollar General Corp., No. SA-19-CV-00713 (W.D. Tex. 7/30/2020), we see the uncommon instance in which the Western District does not accept the Defendant’s mis-characterization of the Plaintiff’s evidence. The case concerns a warehouse supervisor who suffered from diabetes. The diabetes lead to complications which caused pain and swelling in his feet. The doctor recommended Mr. Rodriguez take 15 minute breaks every two hours. Mr. Rodriguez could still work during those 15 minute breaks, but he needed to be off his feet.

The defendant disputed that the foot problem was due to diabetes. Dollar General claimed the foot issue was due to an injury or to plantar fasciitis. The court rightly found that evidence amounted to an issue of material fact. The employer also claimed that the supervisor did not experience pain or swelling in his feet when he was away form work. Dollar General even argued that Mr. Rodriguez did not seek an accommodation at prior or subsequent employment. But, as the court noted, the Plaintiff explained that he did not need to rest his feet every two hours at his subsequent job, because the job already provided breaks every two hours.

The court noted the inconsistency in the employer’s motion. It argued that Mr. Rodriguez did not need a 15 minute break in his personal life. The foot issue did not affect him in his personal life, said the employer. Yet, the employer also argued that his inability to walk without the 15 minute break made him unqualified for the warehouse supervisor position. Dollar General was saying on one hand that he did not need breaks in his personal life. While, at the same time, it argued that his need for breaks made him unqualified for the job. The employer was arguing contradictory positions.

Dollar General also claimed that Mr. Rodriguez was not qualified for the warehouse supervisor position. His inability to maneuver through the warehouse meant he could not perform the essential functions of the job. But, Plaintiff Rodriguez testified he could call breaks as needed. He was the supervisor, after all. Too, he can still perform some work during his 15 minute breaks. The court found this to be another issue of material fact that prevents summary judgment.

Regarding whether Dollar General provided the plaintiff an accommodation, the court noted that the employer said it offered Mr. Rodriguez a position that required less walking. But, the employer did not dispute Plaintiff’s claim that a HR manager told him Dollar General would not accommodate “any” restrictions. The HR manager said he would forward the request for 15 minute breaks, but there was no way it would be approved.

Dollar General argued that Mr. Rodriguez was requesting that his job be converted to a desk job. This was probably meant as hyperbole by the employer, but the court noted that this claim was not at all accurate. The court found the plaintiff had never said such a thing. The court then denied the motion for summary judgment. Hyperbole may provide some momentary satisfaction, but it does not help build credibility with the court.

Lawyer Paul MacNeal Davis of Dallas decided to go to the demonstrations in Washington, D.C., to show his support for Pres. Trump. He posted a video of himself on Instagram outside the Capitol building. He said he had been tear-gassed. He said it was not acceptable to tear-gas the protestors. He said “we” were trying to get into the capitol to stop the certification of votes and to make sure the voting machines were inspected. The politicians, he said, could make all this go away if they would just allow an audit of the votes and inspection of the machines.

Within a day of his posts, he was fired by his employer, Goosehead Insurance Co. He was an associate general counsel. He is a 2011 graduate of the U.T. School of law. See ABA Bar Journal report.

Mr. Davis’ video was posted here on Twitter.

Lawyer Jerome Marcus has asked to be allowed to withdraw from his lawsuit against the state of Pennsylvania. In that suit, he represents Pres. Trump. The suit alleges voting irregularities. Lawyer Marcus is known for his statement in court several weeks ago that he is alleging “a non-zero” number of Republicans observing the vote tallies. In other words, he told the judge there were one or more Republicans observing the vote counting. He made the “non-zero” remark after initially claiming Republicans were excluded from the room. His claim directly contradicted Pres. Trump, who at the time was saying Republicans were totally excluded from the vote counting process.

Mr. Marcus submitted a motion to withdraw after the mob rioted in the nation’s capitol last week. His motion to withdraw was remarkable because it explicitly said he his client was asking him to commit a “repugnant” act. He said he and his client, Pres. Trump, had a fundamental disagreement regarding how to proceed with the lawsuit. That is lawyer-speak for “my client wants me to do something I believe violates the code of ethics.” He later told Politico that he believed the lawsuit was used to help incite the Washington, D.C. riot. He said the President had asked him to come to Washington to be part of a “wild” protest. He said he wanted no part of that. See ABA Bar Journal report. See his very brief motion to withdraw above.

 

Pres. Trump’s lawyers filed dozens of what can only described as “frivolous” lawsuits. Yet, so far, no lawyer has been sanctioned. Most of us would expect some sort of sanction if we had filed a lawsuit completely lacking in evidence. But, in one of the lawsuits, Judge Boasberg did indicate he would consider sanctions. That lawsuit was filed seeking to block Congress from declaring Joe Biden the duly elected President. The suit asked that various federal statutes regarding the selection of electors be declared unconstitutional. It was filed in Washington, D.C. on behalf of voters in Wisconsin, Pennsylvania, Georgia, Michigan and Arizona.

The court noted the plaintiffs all lacked standing. For some of the state defendants, it was filed in the wrong court. He said the lawsuit would be amusing if it did not seek to disenfranchise millions of voters. Their allegations amounted to nothing more than a generalized grievance that did not affect the plaintiffs individually. That is a clear and long rejected basis for standing. The lawyers had to know better. Even if they did not know better, any lawsuit that seeks such draconian remedies requires far stronger evidence.

But, worse, the plaintiffs never tried to serve the lawsuit on any of the named defendants. Judge Boasberg had issued a reminder that service had not yet been attempted. But, the plaintiffs did not respond. It appeared to the Judge that{ Pres. Trump filed the lawsuit simply to file the lawsuit. Courts, said the judge, “are not instruments through which parties engage in such gamesmanship or symbolic political gestures.” See ABA Bar Journal report. The judge said he would consider referring the matter to the appropriate bar grievance committee.

This is as clear a case of frivolous lawsuits as it gets. This lawsuit exhibits a remarkable level of cynicism about the judicial system.

With a nod to the research of Steve Vladeck, a University of Texas School of Law professor, the coming vote on Jan. 6, 2021 is over-stated in one key respect. Under Sec. 1 of the 20th Amendment, the current Presidential term ends on Jan. 20, no matter what. If no President then is qualified to assume the position going forward on Jan. 20, then the Vice-President elect will serve in the office until a President is qualified. If neither the President elect or the Vice-President elect is qualified, then Congress shall pass a law which declares who shall act as President. See Sec. 1 and 3 of the 20th Amendment here.

3 U.S. Code Sec. 19 then provides that if neither the President or Vice-President qualify for the office of President, then the Speaker of the House shall serve in the office until a President or Vice-President does qualify for the position.

Some eleven senators have indicated they will object to the vote certification on Jan. 6. Some 140 House Republicans have indicated likewise. If they get their wish, that move may well lead to the Speaker of the House becoming President. The House Representatives and the Senators can engage in public theater as they wish. If their goal is to perpetuate Republican power, they will be disappointed. But, in any event, this latest drama is more political than legal.