Trump’s Sanctioned Lawyers Learn the Meaning of “Lodestar”

Among the “vexatious and meritless lawsuits” challenging the results of the 2020 presidential election, one case filed in the State of Michigan was especially noteworthy. Judge Linda Parker found that the plaintiffs’ claims in that case were so excruciatingly bad that they rose to the level of being an abuse of the legal system. So, after dismissing the lawsuit, Judge Parker required ALL of the plaintiffs’ lawyers to appear for a hearing to explain why they should not be sanctioned (punished) for purposely undermining confidence in the election process. 

It was not a close call. In August, Judge Parker sanctioned all the attorneys, requiring them to take remedial ethics education and referring many of them to their respective state bar associations for possible disbarment. These lawyers included Sidney Powell and L. Lin Wood who continue to ask their followers to financially support them. 

Courts realize that “true believers” often do not understand the concept of sanctions. And, whether due to willful ignorance or the inability to make rational decisions, some will continue to believe the long-disproved narrative that the Powells and Woods espouse. 

Therefore, the court’s only other remedy is to hit the lawyers in the pocketbook. That is what Judge Parker did today. She ordered the entire legal team to pay the legal fees incurred by the State of Michigan and City of Detroit in defending the spurious lawsuit. The amount of those fees? $175,250.57. These are owed by the plaintiffs’ lawyers “jointly and severally,” which means that the money will come from whoever has the deepest financial pockets. 

$175,250.57 is an oddly specific number and it offers the opportunity to talk about lodestar. 

You are familiar with many different methods of computing attorneys’ fees. Sometimes, fees are based on a percentage of the amount recovered (such as in traffic accident cases). In other matters, such as probate proceedings, fees are awarded according to a court-approved formula. 

For proceedings such as this, however, those approaches do not work. Therefore, the court requires the lawyers requesting fees to document them using what is known as the “lodestar” approach: the number of hours worked multiplied by a reasonable hourly fee. 

The time sheets that document an attorney’s work are specific both as to the time involved per day (broken down into 6-minute increments) and the specific work performed. So, for example, I could not claim to have worked “all day on this litigation.” Rather, the description would be more like “2.7 hours drafting answer to count one of the complaint.” 

The hourly rate must also be “reasonable.” I may think my time as an expert is worth $900/hour, but if the average hourly rate for similar work in that same geographic region is $325/hour, my fee request must be closer to that lower figure. 

Judge Parker in her order reviewed the time spent and hourly rate in detail. After excluding amounts that she found were not applicable, she arrived at the final dollar amount.

Do not expect that a check to pay those fees will be coming any time soon. The order states specifically, that the payment will be due only after any appeals have been concluded. Will the plaintiffs’ attorneys appeal? Since this group is known to delay and delay and delay, an appeal would not at all be surprising. 

In the meantime, Powell and Wood will continue to shear their sheep financially. And, if you are thinking that Trump might be using some of his multi-million dollar defense fund to pay these costs (which were expended for his benefit), your money might be better spent on a MyPillow.

As an attorney, “Ignorance is not bliss—it is sanctionable”

Michigan District Court judge Linda Parker has ruled that the lawyers who filed the election fraud case in Michigan should be sanctioned. Her 110-page ruling is extraordinary in its detail and legal reasoning. 

The net result for Sidney Powell, Lin Wood and the other plaintiffs’ attorneys is that they must pay the other side’s attorneys fees, take continuing legal education classes, and face possible disciplinary actions, including possible disbarment, in their home states.

I can’t do justice to the intricacies of Judge Parker’s analysis in a brief note, but the ruling boils down to this: attorneys are responsible for what they file in court, they are presumed to know both the court rules and the laws that they are challenging and, most importantly, you never lie to the court. 

The Michigan lawsuit, which contained large elements that were cut-and-pasted from other state lawsuits, had dramatic shortcomings. The most notable was the complete failure of plaintiffs’ lawyers to perform even the most basic “due diligence.” In other words, these lawyers made little or no attempt to determine whether the claims could even arguably be supported. Furthermore, even when what they were asking for in the complaint was no longer feasible, they kept the case going. 

The actions of these lawyers were simply unconscionable. It is one thing to be merely incompetent. It is another entirely to purposely use the courts to promote their personal ends. 

The response by some of these sanctioned lawyers and members of the right-wing media has been boring in its predictability. The brilliance of Judge Parker’s ruling is that she anticipated—and answered—the hand-wringing responses that are being spouted. From the opinion: 

“Journalists”—like attorneys, Powell argued—“must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical.” 

Of course, Powell missed the most essential point. 

Attorneys are not journalists. It therefore comes as no surprise that Plaintiffs’ attorneys fail to cite a single case suggesting that the two professions share comparable duties and responsibilities. 

The Court also addressed the argument that the lawyers have First Amendment (free speech) rights that would be seriously undermined by the issuance of sanctions. 

Plaintiffs’ counsel’s politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation’s courts, however, are reserved for hearing legitimate causes of action. 

What Judge Parker’s decision demonstrated (in painstaking detail) is that there are plenty of public forums to peddle your conspiracy theories where they can be eagerly lapped up by people devoid of analytical capacity. However, when you come to court, you must follow the exacting rules to establish the truth. 

Trump’s lawyers failed to uphold even the minimal professional standards expected of attorneys. And they will now pay for their chicanery. 

Addendum. Judge Parker was appointed by a Democratic president. According to some, that means that her decision is politically motivated. That is an interesting but deluded argument, especially if you read the opinion. Had her intention been partisan, she would have taken a vindictive stance. She did not. In fact, one lawyer who asked for attorneys’ fees was denied them. The reason? Judge Parker noted that his participation did not add anything meaningful to the lawsuit. Had the judge been a political hack, she would not have been so careful in meting out the penalties.

The My Pillow Guy Has a Bridge to Sell You

About the time you think that Mike Lindell’s comments cannot be further removed from reality, you get his most recent screed. The latest is that Donald Trump will be “reinstated” as President by the fall (previously April, then August, but who’s keeping track). He says this will happen because of a 9-0 vote from the U.S. Supreme Court that will set aside the 2020 election.

It takes a delusional approach to the judicial system to come to this conclusion. There is simply no mechanism for the Supreme Court to even hear this case, much less to decide it 9-0. Zero. Zip. Nada. As a physician once told me: “there is no miracle without a mechanism.” And here, there is no mechanism to generate the miracle he promises.

So what we have here is simply a lie. One of the first things we are taught as a child is that sometimes we lie unintentionally. These lies, once discovered, are corrected, both a matter of personal integrity and to avoid harm to others. The principle is beautifully encapsulated in the tenth step of Alcoholics Anonymous. “Continued to take personal inventory and when we were wrong promptly admitted it.”

Whether due to ignorance or pathology, some people cannot admit to a lie. Instead, they double down or make even more egregious claims. When a personal who hawks pillows for a living does this, rational people will simply tune him out.

My main thrust here, though, is not to excoriate Lindell as much as he deserves it. Rather, it is to contrast his actions with that of lawyers who have a much higher duty of care to speak and act honestly. Many in our profession have a bad reputation, and deservedly so. We take an oath to act with utmost integrity and candor. When we violate that oath, in some cases by doubling down on lies, the public rightfully expects that lawyers should police ourselves and punish those who violate the public trust.

Legal sanctions that are being currently directed at lawyers like Rudy Guiliani, Sidney Powell and Lin Wood are not only legitimate but required in order to protect an unsuspecting and often gullible public. Most lawyers facing discipline will be contrite and apologetic. We have no use for the others.