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.