• June 15, 2015

SpankingI am not in favor of corporal punishment of people, whether children or adults. Having said that, we all understand the idea. Inflict physical pain to deter intentional misconduct. Create an association between the intentional misconduct and some painful experience.

This is how sanctions against lawyers are supposed to work, of course. But many judges in Minnesota, at least, are extremely reluctant to impose sanctions. (See, for example, Hennepin County Judge Tom Fraser on the subject of sanctions here.)

I am not particularly “in favor” of sanctions, per se, but I think there is a place for them. Will lawyers adhere to rules or will they willfully violate them if there is no “painful experience” associated with their intentional wrong-doing?

There is no question that some lawyers will willfully violate court rules if there is no “painful experience” associated with their intentional misconduct. Rightly or wrongly, we call this “human nature.”

The next question, then, is whether the character of a particular “painful experience” is appropriately proportional to the intentional misconduct.

A $200,000 sanction gets one’s attention, for sure.

But consider the knuckle-rap in footnote 1 in the linked decision:

The Court must also comment on Mahoney’s counsel’s evasion of the Local Rule’s word-count limit in his submissions. See D. Minn. L.R. 7.1(f). It is contrary to the spirit, if not the letter, of the Rule to file a nearly 10,000-word, 38-page brief that includes no fact section but rather a nearly 10,000-word, 45-page affidavit.

Is the Court’s footnote comment a proportional “painful experience” to deter the intentional conduct? Is is a “painful experience” at all? If not, will the Court’s comment deter the “misconduct”? I suppose the Court’s comment is the proverbial “shot across the bow,” flagging to “Mahoney’s counsel” that “Mahoney’s counsel” had better not do it again in this case, at a minimum.

Get Out of Jail Free

Photo by Melissa Hincha-Ownby

For the rest of us, does it mean we get one “get out of jail free” card for weaseling the word limit? “Mahoney’s counsel” essentially got a pass but maybe the mild knuckle-rap is all the lawyers deserved.

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