Here, Whitaker's counsel failed to respond to discovery requests on time, the trial court issued an order to compel discovery, and Whitaker responded in a false and misleading way.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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A lawyer's possession of marijuana involves a nexus with the chain of distribution and trafficking of illegal drugs. The impact of that association affects adversely the public's perception of the lawyer's fitness to be an officer of the court. See Matter of McNeil, 704 N.E.2d 114 (Ind. 1998). And "[w]hen the law is broken by one whose job it is to enforce the law, the public rightly questions whether the judicial system is worthy of respect." Matter of McFadden, 729 N.E.2d 137, 138 (Ind. 2000).

The parties propose the appropriate discipline for Respondent's illegal conduct is a public reprimand. The discipline the Court would impose for Respondent's misconduct would likely be more severe had this matter been submitted without an agreement. However, in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases and the mitigating factors in this case, the Court now APPROVES and ORDERS the agreed discipline.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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The Court's issue was the appellants' failure to squarely address recently decided precedent. Between the time that the appellant's brief was filed and the appellee's brief was filed, new, controlling precedent had been issued. The appellees cited this precedent (as it was in their favor), but the appellants did not deal with this precedent in a straightforward manner in their reply briefs. In one of the cases, the appellant "unpersuasively" tried to distinguish the recent cases; in the other the appellant did not mention them at all. The Court was not impressed.


The Court then decided to use some visual aids and placed a couple of full-color photos into the opinion, one of an ostrich with its head in the sand and another of a man in a suit in the same pose.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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An employee of the Department of the Navy filed with the EEOC, claiming that she had been discriminated against on account of race, sex, national origin, age, and disability. The EEOC found the claimant's charge unsupported. The woman then filed a complaint in federal court that repeated the administrative allegations.

After the district court set a discovery schedule, nothing happened in the litigation until 7 months after the discovery deadline had passed, when the plaintiff moved for judgment on the pleadings. The motion incorrectly asserted that discovery was unnecessary because the proceeding was an "appeal" from the EEOC’s decision, when it was not. The motion did not discuss the administrative record or present any evidence. The district court denied the motion.

Again, the plaintiff did nothing. After more than a year of inaction after the district court denied the motion for judgment on the pleadings, the district court dismissed the action for want of prosecution. Plaintiff's counsel then filed an "Ex Parte Motion to Vacate Dismissal," which argued that the local rule allowing dismissal for want of prosecution was unconstitutional. The district court denied the motion because the plaintiff deliberately failed to serve the defendant.

Plaintiff's counsel then appealed. That was a mistake.


The Court goes on to describe a couple of ways that the brief is bad (mangling the summary of argument and standard of review) before going on.


The Court ordered the plaintiff's attorney to show cause why he should not be subject to monetary sanctions and censured, suspended, or disbarred "on account of his apparent inability to practice competently and diligently in federal courts."

Now stop rubbernecking and get back to work.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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The client in this case was represented by an Attorney Ross in a personal injury action. The proceeds from that action ($42,500) were put into a special needs trust, with Ross named as trustee, to preserve the client's eligibility for public assistance and to prevent rapid depletion of the funds. The client soon began demanding the money and was not happy when Ross advised her that this may not be in her best interests.

The client then consulted with Powell, who agreed to represent her for a third of whatever was in the trust. The following day, Powell contacted Ross and told him about the client's dissatisfaction. Ross told Powell that he would be happy to step down as trustee and have Powell take his place. Powell then prepared a short document, which Ross signed. Powell prepared an accounting that paid him $14,815.55 for this work and distributed the remaining 2/3 of the trust to the client.

The Court acknowledged that Powell was justified in entering into a contingency agreement at the outset, because he could have reasonably believed that Ross may contest his removal as trustee. "But within two or three days, ... he knew the case did not involve any complex issues, prolonged time commitment, risk of no recovery, or even any opposition."


When reaching this conclusion, the Court rejected Powell's argument that his conduct was justified because of "red flags" raised by this client. The Court rejected this argument.


The Indiana Supreme Court punished Powell by suspending him for 120 days without automatic reinstatement.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Stanard sued Nygren, 22 of his deputies, and McHenry County, alleging a conspiracy to violate his rights, but his attorney Walter Maksym proved unable to file an intelligible complaint.

...

Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym's persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge’s decision to dismiss with prejudice.

The original complaint was 52 pages long and purported to assert 28 counts, including civil RICO claims, §§ 1983 and 1985 claims, and various state-law claims. Each claim targeted "the defendants" as a group; the complaint did not specify which individual defendants were alleged to be liable on each claim. The complaint also included a number of obviously frivolous claims; for example, a violation of the Hobbs Act (a criminal statute that does not provide a private right of action), something called a "direct action under [the] U.S. Constitution," and a generic "federal class action."

The district court rejected Maksym's latest effort, outlining at length the many pleading defects in the second amended complaint. To illustrate its basic incoherence, the court quoted verbatim from a number of its paragraphs, including one that contained a staggering and incomprehensible 345-word sentence. The court also took note of the "grammatical and spelling errors" throughout the complaint, which it said were "too numerous to add '[sic]' where required."

At least 23 sentences contained 100 or more words. This includes sentences of 385, 345, and 291 words but does not include sentences set off with multiple subsections.

...

Much of the writing is little more than gibberish.

...

Given three attempts to file a proper complaint, Maksym could not even bring himself to correct the errors cataloged by the district court following the first two rejections.

One final note: Compounding the problems he exhibited in the district court, Maksym failed to file a reasonably coherent brief on appeal. All the deficiencies that plagued the various versions of the complaint also infected his briefs here. Maksym never directly addressed the issues before this court, relying instead on cases of marginal or no relevance. In the table of authorities in his opening brief, he cites 81 cases, but almost all of them are completely irrelevant to the issues presented here. In his reply brief, after the defendants had crystallized the issues, Maksym again failed to meaningfully—or even comprehensibly—articulate an argument. His appellate briefing was characterized by a reliance on irrelevant, conclusory, and often incoherent arguments of which the following is a representative example: "Plaintiffs claims were not 'intelligible'—no 'needle in a haystack' as Appellees' claim."

In short, Maksym's entire approach to this case was alarmingly deficient. For all the foregoing reasons, we hold that the district court was well within its discretion to deny leave to file the second amended complaint and to dismiss the case with prejudice. We also order Maksym to show cause within 21 days why he should not be removed or suspended from the bar of this court or otherwise disciplined under Rule 46(b) or (c) of the Federal Rules of Appellate Procedure. We also direct the clerk of this court to send a copy of this opinion to the Attorney Registration and Disciplinary Commission of Illinois for any action it deems appropriate.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Snyder was a pastor at the Bloomfield United Methodist Church. A parishioner in the Bloomfield church alleged that Snyder acted in a manner inconsistent with his ministerial duties. An investigation was undertaken and Snyder was placed on an involuntary leave of absence. Eventually, Snyder filed a complaint seeking damages for breach of contract and defamation. The defendants filed a motion for summary judgment. The trial court granted summary judgment on Snyder's breach of contract claim, but denied summary judgment on the defamation claim. The defendants appealed.

Because the claims involved a pastor and his religious duties, First Amendment principals prevented the Court from delving too deep into Snyder's suitability as a minister. Therefore, one of the primary issues on appeal was whether the allegedly defamatory statements had religious connotations.

On appeal (and presumably before the trial court), Snyder relied on the Court's recent decision in West v. Wadlington, 908 N.E.2d 1157 (Ind. Ct. App. 2009). The decision in West was published on June 10, 2009. The defendants moved for summary judgment on July 29, 2009, and moved for reconsideration on August 10, 2010. The trial court entered its judgment on October 26, 2010.

In the meantime, on September 26, 2010, the Indiana Supreme Court granted transfer in West and reversed and remanded for further proceedings. Snyder apparently either did not Shepardize West when drafting his appellate brief or did not understand the import of the Supreme Court's decision and relied entirely on the Court of Appeals's decision in West on appeal. This was a mistake.


The Court then reviewed the facts and concluded that the defendants had made a prima facie showing that the trial court erred by denying their motion for summary judgment on Snyder's defamation claim. Therefore, it reversed the trial court's denial of summary judgment on this issue.

We will likely never know whether Snyder's unwise reliance on West is the key factor that led to the Court's decision. The Court may have come to the same conclusion, even if the defendants were not required to simply demonstrate a prima facie case of error. However, Snyder's case was surely not helped by the Court's invocation of that principal. This just goes to show that you must always Shepardize all of you cases at every stage in the
proceeding. You never know when your key authority may no longer be viable law.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Harvey involved multiple parties, all of whom filed cross-motions for summary judgment. On December 2nd, the district court granted summary judgment to some of the defendants. It granted summary judgment to the remaining defendant on December 3rd, in an order that referenced the previous day's order. On December 28th, the plaintiffs filed a notice of appeal as to the December 2nd order (but not the December 3rd order), but mentioned all of the defendants.

On appeal, the defendant who was granted summary judgment on December 3rd argued that the Court could not exercise jurisdiction over him because the notice of appeal did not reference the December 3rd order. The Court agreed that the notice of appeal was technically deficient, but held that this did not make a difference in this case.


Bu this was not the plaintiffs' only error. It appears that the brief was poorly written as well.


Unsurprisingly, the appellants lost this appeal.

While we trust that our readers are astute enough not to submit a brief that would fit the Court's description of the appellants' brief in this case, there are still lessons to be learned. Avoid making your facts section too argumentative. While a facts section can be an important persuasive tool, this works best when you effectively use that section to tell a story, rather than making conclusions. Second, be familiar with the Appellate Rules when practicing in an appellate court. You should not rely on the good graces of the Court to avoid sanctions.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Brad A. Catlin
Price Waicukauski & Riley, LLC
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In December 2008, Whitaker filed a complaint for damages against Becker after Becker rear-ended Whitaker's vehicle, injuring him. Before filing suit, Whitaker's counsel had corresponded with Becker's insurance claims representative, informing him that Becker was expected to need surgery to address his injuries. On January 19, 2009, Becker filed his interrogatories and request for production. Whitaker did not respond to those discovery requests. Beginning on April 14, 2009, Becker's counsel wrote to Whitaker's counsel every two weeks, requesting responses to the discovery. Becker's counsel did not receive any answer from Whitaker's counsel. On May 27, 2009, Becker filed a motion to compel, which the trial court granted. Whitaker's discovery responses were now due on June 16, 2009.

On June 15, 2009, Whitaker served his sworn discovery responses on Becker. Three days later, on June 18th, Whitaker had surgery – a fact not indicated in the discovery he provided. On June 18th, Becker's counsel received a letter dated June 17th stating that Becker was "scheduled to have surgery on June 18, 2009." Becker moved for sanctions, including dismissal and fees, for concealing the plan to have surgery. Whitaker did not file a response, but argued against the motion at a hearing. After the hearing, the trial court found that Whitaker was in violation of the order compelling discovery and, as a sanction, dismissed the action and awarded Becker attorney's fees.

Whitaker filed a motion to correct error, arguing that he had not concealed his need for the surgery and that Becker was not prejudiced so severely that it could only be cured by dismissal. Whitaker's motion was not granted.

On appeal, the Court held that the sanctions imposed by the trial court were too severe.


It is noteworthy to point out that one of the factors the Court considered when determining that the sanction of dismissal was inappropriate was the trial court's failure to warn Whitaker that this was a possibility.


Thus, the Court affirmed the trial court's finding that there were grounds for sanctions, but held that different sanctions were appropriate in this case. Dismissal was inappropriate. However, "the conduct complained of ... could have been avoided except for the failure of Whitaker's counsel." Therefore, the Court ordered Whitaker's counsel to pay Becker a lesser amount of attorney's fees.

The Court's decision demonstrates great leniency, especially considering that the standard of review was abuse of discretion. However, this whole issue could have largely been avoided if Whitaker's counsel had simply communicated with Becker's counsel. This is always the better practice.

Update: The Indiana Supreme Court has granted transfer in this case and reversed the Court of Appeal's decision.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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