SpankingUpdate 2.0 (July 5, 2016): The sanction, discussed below, stands. Hennepin County Judge Mary Vasaly’s denial of the request to file a motion for consideration was terse: NO.

Update (July 5, 2016): It is always a risky thing to ask judges to reverse themselves, which is what lawyers are doing when they ask for permission to bring a motion for reconsideration. It might seem even riskier when a judge has sanctioned you to ask her to “think again.”

Actually, it is not all that risky. First, the cost of asking for reconsideration is not great. Second, the worst thing that can happen is that your request is summarily denied. And, third, there is precedent (not legal precedent but anecdotal recent history) for judges sanctioning lawyers and then backing off on the sanction, recognizing that the spanking served its purpose (or, possibly, was abrupt, too severe, or even, in some cases, unwarranted).

So, in regard to the earlier post, below, one cannot fault the sanctioned lawyer and law firm for asking Hennepin County District Court Judge Mary R. Vasaly to reconsider her sanction. But opposing counsel liked Judge Vasaly’s original ruling and makes a spirited argument that it should stand.

Original post (June 17, 2016): I have interviewed many judges on Minnesota Litigator over the years and many of them have strongly expressed their reluctance to sanction lawyers (maybe most notably Hennepin County District Court Judge Thomas Fraser, interviewed here, to take, perhaps, the most extreme example). The main explanation of sanction-shy judges is that trial lawyers have difficult jobs and sanction-shy judges, in recognition of this fact, think that mercy and lenience, rather than strict discipline, should be their guiding principles.

Maybe someday, if a Court sanctions me, I will regret this post, but, in the meantime, I maintain that our rules of civil procedure include lawyer sanctions for good reason and sanctions, when warranted, should be administered. Moreover, they should not only be for most utterly low-down recidivists. Judges seem to widely favor second chances and I understand that mercy and compassion are good qualities. But the obvious consequence of “one free pass” is that every advocate knows they can cross the line at least once when before these indulgent judges. This, in turn, almost assures sharp practices until transgressors get one warning shot.

All people (and many lawyers) make innocent mistakes, which often excite our sympathy rather than our condemnation.  But some lawyers’ “mistakes” are willful, inexcusable, and costly. They gum up our legal system; they imposed serious costs on the lawyers’ own clients, on others’ clients and on the court system itself. The perfect example might be making a claim in a lawsuit that you have already brought in a separate lawsuit, that you have already lost and, by the way, that you elected not to appeal the first time around.

Misconduct of this type resulted recently in a sanction in Hennepin County District Court.

The sanction that Hennepin County District Court Judge Mary Vasaly levied on Plaintiff’s counsel, $3,507.50, is relatively small for the law firm involved and a shareholder like Plaintiff’s counsel. But, on the other hand, particularly if our trial bar learns of this and other knuckle-wraps for similar conduct (you’re welcome), it might deter “mistake”-prone lawyers from going too far in their advocacy. And it might spare our courts and our clients the substantial costs, financial and otherwise, imposed by frivolous claims and/or defenses or other misconduct such as bad faith noncompliance with discovery rules.

Adding a little more disincentive and deterrence for lawyer misconduct would not be result in a dramatic overhaul of our civil justice system but it just might be a slight improvement for the system and for the vast majority of lawyers who take great pains to maintain the integrity of their practices and who do their best to litigate as efficiently and cheaply as possible for their clients.

2 Comments on “In Praise of Sanctions (When Appropriate and Proportionate)

  1. Kevin Kolosky

    It may be that a bit more disincentive and deterrence for lawyer misconduct could bring about a slight improvement in our system of justice. But only if applied objectively rather than subjectively. The same rule has to apply the same way to each lawyer by each judge for each circumstance.

    Reply
    1. Seth Leventhal

      It is impossible to “apply the same rule the same way to each lawyer by each judge for each circumstance.” Litigators make their livings by distinguishing circumstances, by developing exceptions to rules, and so on. Judges decide nuanced questions, not ones with blindingly obvious answers. But I think I see your point and agree with it: if a rule is applied unpredictably and arbitrarily, it might not have the most optimal deterrent effect. (If the punishment is severe, there will be over-deterrence and if slight, no deterrence). I wonder if you are suggesting that the sanction in the case discussed seems to have been applied “subjectively,” and, therefore, improperly?

      Reply

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