Out-of-the-Box Lawyering

An out-of-the-box sanction is affirmed by the U.S. 9th Circuit – The court affirmed a trial court's award of $5,000 to plaintiff for her public embarrassment due to inadmissible trial testimony regarding her alleged past sexual conduct

A female police officer filed a sexual discrimination suit against a county police department. At trial the defense introduced evidence of plaintiff's alleged autoerotic and other sexual practices. However, before the evidence was introduced the defense counsel had been informed regarding the inadmissability under Rule 412 of the Federal Rules of Evidence of certain of plaintiff's sexual history. Moreover, the evidence was also inadmissible because the defense had not met the pre-trial time requirements of Rule 412 for introducing that evidence. After the evidence was introduced the district court gave curative instructions. Nevertheless, the jury rendered a defense verdict. Plaintiff's motions for a mistrial and a new trial were denied by the district court.

The court subsequently imposed sanctions of $5,000 to compensate plaintiff for her pain and suffering caused by her public embarrassment due to the testimony. Additionally, the court awarded her $5,000 for her additional attorney costs due to the issues raised by the improper testimony.

The Ninth Circuit, as Gregory P. Joseph reported in the June 23-30, 2003 issue of The National Law Journal, affirmed both awards. B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th Cir. 2002). In doing so, the court noted:

"The purpose of the amended rule [412] is ‘to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.' Advisory Committee Notes.
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"Here, because the alleged sexual behavior concerns the victim's fantasies or autoerotic sexual practices, the evidence is harmful and has no probative value."

The court added that, under the history of the case, "We cannot help but conclude that defense counsel's introduction of [the] testimony was a knowing and intentional violation of Rule 412." The court thus affirmed the award of the attorney fee sanctions under 28 U.S.C. § 1927.

The out-of-the-box portion of the case is the court's affirming of the $5,000 award for plaintiff's mental anguish under the "inherent powers" of the federal courts:

"The County argues that sanctions for compensatory damages to Plaintiff are unprecedented and beyond the scope of the court's inherent power. And yet, in Chambers [v. NASCO, Inc., 501 U.S. 32 (1991)], the Court delineated a broad range of situations for which a variety of sanctions were deemed appropriate, and noted that even outright dismissal of a lawsuit lies within the court's inherent power. The Court therefore reasoned that the ‘less severe sanction' of an assessment of attorneys fees was well within the court's authority as well. Id. at 43-45. Similar logic applies here, particularly given that none of the other federal rules or statutes govern the situation. See id. at 50 (‘[I]f in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.')."

Finally, the court reversed the trial court's denial of plaintiff's motion for a new trial and remanded the case for a new trial.

Here is an arrow for the quiver of both plaintiff and defense counsel. This is authority for a court to go beyond the usual sanctions and for counsel to be creative in requesting appropriate sanctions.

Stop reinventing the wheel – Here's how you can obtain briefs that have been filed in various courts and by various organizations – And maybe also find inconsistent briefs your opponent has filed in prior cases

Robert J. Ambrogi, in his always astute Web Watch column in Law Technology News, has an article in the July 2003 issue on Free Briefs.

He lists a variety of courts that are now publishing their briefs on the Web, including the Federal 7th and 8th Circuits and the supreme courts of Florida, Kentucky, North Dakota, Texas, and Wisconsin.

He also notes that the U.S. Department of Justice, Equal Employment Opportunity Commission, Office of Special Counsel, and S.E.C. also have some of their briefs online.

In addition, he lists various advocacy groups that publish some of their briefs. The A.C.L.U., Cato Institute, Children's Rights, Electronic Frontier Foundation, Lambda Legal, and Public Citizen are just some of groups that he lists.

The briefs can, of course, be valuable in helping you write your own briefs. However, an out-of-the-box use for them could be to discover where your opponent, such as, for example, the Department of Justice, has made an inconsistent argument in an earlier case and then use that inconsistent argument to your own advantage.

I have not included the links to the brief sites in this posting because you can see the article with those links on the Law Technology News website. (You have to register to see it, but the registration is free.)

I recommend that you consider subscribing to their monthly magazine. It always includes some valuable legal technology information. And you can't beat the price – it's free!

Do you have an "unsolvable" problem in a case? Let your client help you arrive at a solution. It worked in this case.

This may never have happened to you, but it has happened to other attorneys. It looks like you're on the losing side of a case or an issue in a case. What can you do? Here's what is for many attorneys an out-of-the-box solution: Ask your client to help you solve the problem in their case.

Let's say that, for any of a number of reasons, you want to change the venue in a case. But the other side has raised serious issues that could defeat the change and you've exhausted every solution you can think of.

Try this as an out-of-the-box solution: Tell your client what the problem is. Then ask the client for help. For instance, a change of venue problem might go like this: "Wilbert, you know where your case is going to be tried. And you know we need to change that, but there are problems that may stop us from being able to do that. Here's what the other side says. Do you have any ideas on how we might defeat their arguments?"

Now, here's what actually happened in a case in Louisiana. Wilbert Rideau has been incarcerated for over 35 years after having been convicted of murder. The New Orleans Times-Picayune, May 31, 2003, quotes Life magazine as having called Rideau "the most rehabilitated prisoner in America."

Without going into all the prior history of Rideau's various trials and reversals of convictions, he was going to be tried anew in Calcasieu Parish. However, that was a very unfavorable venue for him because, among other reasons, that was where the killing occurred. Over the years several lawyers have represented Rideau. His new attorneys were going to file a motion to change the venue, but they were worried that the judge would not grant their motion. Here's how the Times-Picayune reported that Rideau himself may have solved the change of venue problem that so vexed his attorneys:

"[A]mid the legal wrangling, Rideau stepped back from the fray and asked his attorneys why they were battling the Calcasieu [Parish] district attorney's office at all. Rideau pointed out that he had always filed court papers in East Baton Rouge Parish, where the case was moved in 1964 because of unfair publicity in Rideau's hometown.
"After some legal research, the response from his attorneys was a resounding, 'Duh!' "

And no one had even asked Rideau for help! Here the client may have himself solved the problem that could lead to his release. And this was without anyone asking him for help. Just think about all the other times that clients might have solved their own problems – but they were never asked for their input – and their case was lost.

Think about telling your clients in lay terms the problems in their cases and asking for their input. Try it even if you don't think it will help. You might be surprised. They may have what is for them an obvious solution. But that obvious solution might, for you, be a real out-of-the-boxer.

As with Rideau's attorneys, your response to your client's answer might even be "a resounding 'Duh!' "

Here is a real out-of-the-box question – Were all of the judges in my client's appeal qualified to sit on the appeal?– Here, the U.S. Supreme Court overturned a Ninth Circuit affirmance of the convictions of two defendants

Have you ever thought about whether the judge or judges who are deciding your client's case are authorized to sit on the case? That's a question that lawyers don't normally even think about. But maybe, just maybe, that should be an issue you at least turn your mind to.

Picture this. Your client has been convicted on federal narcotics charges in the District Court of Guam, a United States territorial court. You appeal to the Ninth Circuit and the three judges who hear your appeal affirm the conviction. What do you do? How about punting? How about arguing that the federal district court judge who was appointed to the three-judge panel, was not authorized to hear the appeal? That's what counsel for two petitioners for cert to the U.S. Supreme Court did. And their attorneys had not even raised that issue before they submitted the case for decision by the court of appeal. Moreover, they had not raised the issue in any petition for rehearing.

What did the U.S. Supreme Court do? In a 5-4 opinion, it granted the petition for cert, vacated the judgments of the court of appeals, and remanded the case for further proceedings.

Why the federal district judge was not authorized to sit gets a bit complicated. The very short version is that the district judge who sat was an Article IV territorial-court judge who had been appointed by the President and affirmed by the Senate for a ten-year term. The high court held that the judge was not qualified to sit because that judge was an Article IV and not an Article III judge. Indeed, the Solicitor General conceded in the Supreme Court that the panel was improperly constituted.

But, what about that failure of the defendants to raise the issue below? Could the defendants wait until after they lost their appeal and then raise the issue? The Court held that they could in this case:

"[T]o ignore the violation of the designation statute in these cases would incorrectly suggest that some action (or inaction) on petitioners' part could create authority Congress has quite carefully withheld. Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel."

What makes this out-of-the-box solution even more interesting is that, according to the Government, the improper composition was "an isolated, one-time mistake."

So, this is just one more to perhaps at least think about. One day you might end up with an "isolated" judge who just was not authorized to sit on your client's case. But you probably won't think about that unless you think about that. Nguyen v. United States, No. 01-10873, June 9, 2003.