Today there was a six-hour hearing in the Michigan Federal District Court. This is the latest stage in one of the multiple dismissed lawsuits claiming election fraud in the 2020 election. The purpose of the hearing was for the judge to decide whether the seven lawyers who brought this case should be punished (sanctioned) for filing the lawsuit and continuing to argue it after the case was finished.
Although you will hear a lot of posturing from those lawyers following the hearing, the reason why they were called into court to answer for their actions is a relatively simple one.
When lawyers file a lawsuit and sign their names to it, they are putting their reputations on the line. Their signatures affirm that the allegations contained in the complaint are true and accurate to the best of their knowledge.
What that means is that the lawyer has taken every reasonable precaution to make sure that the court is not mislead. This is also called “due diligence.” The lawyer’s responsibility extends beyond the complaint itself. It also includes sworn statements (affidavits) that are attached to the complaint. If you fail to exercise due diligence, the court may punish you with fines, suspension to practice law in that court, and referral to the state bar association who may take away your license entirely.
Seven lawyers had their names associated with the Michigan election fraud case. The judge called them all into court to find out who was responsible for what appeared to be an attempt to mislead the court or, as a related matter, to use this lawsuit to make political points.
The judge was interested in three things from each of them:
Question number one: did you actually READ the complaint and exhibits before you signed the paperwork?
Question number two: was there anything in the affidavits supporting the complaint that made you go: “Huh? That doesn’t make sense.”
Question number three: did you actually speak to the people who prepared to affidavits to make sure that their information was accurate?
These are all yes and no questions that get at whether you did your basic job as a lawyer and acted ethically.
The vast majority of the hearing consisted of those seven lawyers (and the two lawyers they had hired) studiously trying to avoid answering those three questions. On the other side of the aisle, the lawyer for the City of Detroit (who was asking for the sanctions) spent a lot of his time giving his opinion of the evidence, which was similarly improper.
At the conclusion of the hearing, the judge gave all the parties the opportunities to file additional legal arguments before she renders her decision.
Do not believe for a moment that the judge will have been confused by either side’s extraneous arguments. She got the information she needed to make a ruling, as a good judge does.
The post-hearing posturing will likely contain complaints about how “we weren’t allowed to present evidence.” This argument completely misses the point of the hearing and is designed to simply make points.
How the judge will ultimately rule remains an open question. If I had been one of the seven lawyers facing sanctions, you can be sure I would have been remorseful. But then, I would not have put myself in that tenuous position in the first place.
Side note: the judge showed extraordinary patience during this hearing. Even when she could have been justified in losing her cool, she did not.