If You Want to Write Fiction, Write a Novel

The only thing more frustrating than a lawyer who lies in memos and briefs is a judge who refuse to call down the lawyer that did it. Part of the judge’s job is to rein in people who knowingly misquote cases or misquote the evidence in cases.

I am not talking about lawyers who make an argument based on decision that could be distinguished by the dimmest dimwit in the Bar. That is poor lawyering, but it is not dishonest. And there is nothing wrong with taking the strongest view of the facts supported by the record, particularly if you are entitled to take that position under the case law.

I am talking about people who routinely insert material into memoranda of law and briefs that is not true. That will stop if judges are willing to call the offending lawyer down on it.

I don’t have a problem with a judge giving a lawyer a free pass or two under the “anyone can make a mistake” theory. Mistakes can happen. But we all know lawyers in our communities who frequently taken unfair liberties with the facts and law in cases and they need to be called down on it.

This comes to mind because of a decision I read about at the Appellate Law and Practice blog. It references a footnote from a 2nd Circuit opinion that says this:

LBSF attempts to mislead this Court into believing that “contacts and the ‘nexus of the events at issue’ are irrelevant under the interest analysis test . . . .” Appellant’s Br. at 41. To support this assertion, LBSF offers the following selective quotation from a Second Circuit case: “the law of the jurisdiction having the greatest interest in the litigation will be applied . . . .” Id. (quoting Wells Fargo Asia Ltd. v. Citibank, N.A., 936 F.2d 723, 726 (2d Cir. 1991); internal quotation marks omitted). LBSF deliberately omits the rest of this quotation, which directly contradicts LBSF’s assertion that “contacts . . . are irrelevant” under the interest analysis test. The original language reads in full: “The rule in New York is that ‘the law of the jurisdiction having the greatest interest in the litigation will be applied and that the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.‘” Wells Fargo, 936 F.2d at 726 (quoting Intercontinental Planning, Ltd. v. Daystrom, Inc., 300 N.Y.S.2d 817, 825 (1969)) (emphasis added). Far from being irrelevant, contacts that “relate to the purpose of the particular law in conflict” are essential to interest analysis. Zealous advocacy does not call for this kind of misleading briefing, which disserves the client and tarnishes counsel’s reputation.

That’s what I talking about.

Someday soon, I will go off on a rant about people who knowingly, repeatedly violate orders on motions in limine. To be brief, these folks are lawyers who (a) don’t have enough confidence in their case to actually play be the rules; (b)lack the creativity to re-do their proof to conform to a judge’s order; or (c) are flat-out dishonest.

I am having trouble linking to the 2nd Circuit opinion. You can read the opinion by going to the Appellate Law and Practice blog.