Why the Million-dollar Sanction Was Imposed Against Trump

In 2022, President Donald Trump filed a lawsuit against dozens of defendants, including Hillary Clinton, making several claims, including two under the Racketeer Influenced and Corrupt Organizations Act (RICO) and three under Florida law. The District Court ultimately found that all of these claims were “frivolous” and that the conduct of Trump and his attorney, Alina Habba, were so egregious that they were ordered by the District Court to pay nearly $1 million to the defendants as sanctions (penalties) for how they brought and pursuing such a meritless case. The 11^th Circuit Court of Appeals affirmed the penalty.

The purpose of this note is not to talk about the actual merits of the case, such as they were, but instead to show how many ways a plaintiff can screw up their own case.

The most difficult, yet extremely important, course your first semester of law school is called “Civil Procedure.” It outlines in great detail all of the rules you must follow in pursuing your case. It is not unusual to not understand how the rules all work together until two-thirds of the way through the course. However, unless you understand these rules, you are simply not qualified to practice law in the courts.

To appreciate why the million-dollar sanction was imposed, we will look as the exceptionally basic ways in which Trump and Babba violated the rules of civil procedure.

First, a case must be brought in a timely manner. The Statute of Limitations outlines how long you have to file a case, which varies depending on the type of case. The complaint against Clinton et al was filed after the Statute of Limitations had expired. That by itself was enough to kill the case.

Second, when a complaint is filed, the allegations must be “clear and concise.” If your complaint simply throws everything against the wall hoping something will stick, this is called a shotgun pleading. There is an easy way to avoid this problem. If you are claiming different reasons to win, you file these reasons in separate counts. Here, there were five theories, hence five counts.

To make things easier for the court, and to keep the complaint from becoming incredibly long, relevant fact paragraphs from the first count are often “incorporated by reference” in subsequent counts. The key here is that you only incorporate relevant facts into later counts. In this case, count three incorporated 633 paragraphs from the previous counts, whether or not they were relevant to the third count. This is classic shotgun pleading.

Third, a complaint is often amended to add additional information or to correct misstatements from the original complaint. The amended complaint failed to correct a number of misstatements in the original complaint, even though these errors had been brought to the plaintiffs’ attention.

 Fourth, once sanctions have been imposed, any objection to those sanctions must be filed according to specific rules. Plaintiffs failed to follow those rules.

Fifth, once you decide to appeal, the appeal must state ALL of the errors you believe were committed by the district court judge. Any arguments not presented in your appeal documents are considered “waived.” Trump and Babba decided to argue a few of the waived arguments on appeal, which is a basic no-no.

Sixth, supporting arguments on appeal generally have the following format. Appellants (Trump and Babba) file their initial brief in support of their appeal. This brief contains all of their arguments. Appellees (Clinton et al) file their brief in opposition. Appellants then may file a Reply Brief to address arguments made by appellees. Here, Trump and Babba raised entirely new arguments in their reply brief, something that appeals courts view with derision.

Committing even one of these errors is enough to cause the ire of a judge. Commit all six of these (including numerous minor errors that I haven’t bother to mention), and the judges can easily determine that your case is frivolous and brought in bad faith.

When all of these procedural errors were considered, along with ludicrous nature of the underlying arguments, The appellate court had little difficulty in concluding that the District Court judge properly exercised his discretion in imposing the sanction on Trump and Babba.

 

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.

Michigan Sanctions Hearing - Seven Lawyers Meet the Judge

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.

MAGA - My Attorneys Got Attorneys

Of the more than 60 post-election challenge cases that went down to defeat in states across the nation, one of the most high profile was in Michigan. Gov. Gretchen Whitmer and the City of Detroit among others were sued unsuccessfully in the U.S. District Court case in a case alleging voter fraud.

You may recall that one of the allegations of the complaint was that in some counties there were more votes cast than there were registered voters. What did not impress the judge was that the person doing this analysis used actual voting records from Michigan but related them to registered voters in Minnesota that had counties with the same name. Making this kind of allegation in a sworn affidavit has a name – a fraud on the court. The case was dismissed as having no merit.

Based on this and other defects, both procedural and substantive, the Michigan Attorney General and the City of Detroit told the court that the attorneys who filed and promoted this case should be sanctioned and fined. The sanction motion from January 28 stated:

It was never about winning on the merits of the claims, but rather plaintiffs’ purpose was to undermine the integrity of the election results and the people’s trust in the electoral process and in government. … The filing of litigation for that purpose is clearly an abuse of the judicial process and warrants the imposition of sanctions.”

These lawyers included “release the Kraken” proponent Sidney Powell who was one of Trump's lawyers at the time.

It is not unusual for winning lawyers to ask for sanctions against a losing party, especially when their conduct was unprofessional or incompetent. Typically, though, a motion for sanctions is denied or resolved based on briefs written by the parties.

However, U.S. District Court Judge Linda Parker took a somewhat remarkable approach. On June 17^th, she issued the following order:

Each attorney whose name appears on any of the Plaintiffs’ pleadings or brief shall be present [virtually] at the motion hearing. 

This is not an order that a plaintiff’s attorney wants to receive. Judge Parker set the hearing for July 6^th.

Nine days later, one of the plaintiffs’ attorneys asked that the hearing be rescheduled to a later date due to an emergency conflict with her schedule. The emergency? A previously scheduled family vacation. Out of what can only be described as the goodness of her heart, Judge Parker granted that request and reset the case for this coming week.

It gets better. Following the order resetting the hearing, the plaintiffs’ lawyers … got lawyers. These lawyers’ lawyers then asked the Court if they could appear in court on behalf of their clients (so that the original lawyers would not need to personally appear). The judge was not amused. In a one word order, she simply said “DENIED.” As one commentator noted, this was the equivalent of answering with a strong verb and a pronoun.

One more aside. As if the lawyers hiring lawyers at this late date in the proceedings isn't unusual enough, one of the original plaintiffs' lawyers (who now had her own lawyer) filed a pleading on her own yesterday. Without her lawyer. She misspelled her own name on the signature line.

The hearing Monday morning on all pending sanctions motions should be interesting.

Unrelated update to a previous article: Following and based upon Rudy Guiliani’s suspension to practice law in New York, the D.C. Court has also suspended his right to practice in that court.

Fifth Circuit upholds Sanctions Against Democratic Voting Rights Activist Marc Elias.

 Marc Elias is probably the preeminent Democratic lawyer in the field of protecting voting rights. His reputation is well deserved, particularly in the context of post-election litigation. These post-elections cases were decided almost universally in his favor. Since that time, he has changed his focus to challenge a variety of state laws that, he claims, are designed to disenfranchise voters. In one of these cases, he sued the Texas Secretary of State.

Texas courts have a long and well-deserved reputation for being staunchly Republican. The Fifth Circuit Court of Appeals, which includes Texas, also leans strongly Republican. The reality, then, is that any Democratic challenge in that state begins as an uphill battle.

Elias fared poorly in the early stage of his lawsuit. It makes little sense for me to get into the weeds about the process and arguments here. Unless you understand how a court’s specific local rules can affect a proceeding, any attempt at explanation would be fruitless.

Suffice it to say that Elias not only did not strictly comply with the local court rules, but his attempts to “correct” the issues violated others. The Court determined that Elias’ filings and legal arguments lacked the candor required by the court and he was subsequently sanctioned for his actions. (Sanctions here meant that Elias had to pay the other side’s attorney’s fees and court costs.)

Elias appealed the sanctions to the Fifth Circuit Court of Appeals which today upheld those sanctions against him personally but reversed them against his junior associates (who apparently did not have enough experience to know better).

It is not relevant whether or not I believe the sanctions were warranted. What IS important is something that all lawyers know. Not every court you appear before is a friendly one; some might be outright antagonistic to you.

When faced with an unfriendly court, you must be sure to scrupulously follow the court’s local rules. Failure to do that will ensure that any arguments you make, regardless of their potential legal validity, will fall on deaf ears. Technical violations are violations nonetheless and give the court an easy way to dispose of cases that could otherwise be problematic.

I write a lot about lousy lawyering and many of my articles have been about deficiencies by Guiliani, Powell and Wood, who are unabashedly Republican. Frankly, they are easy targets. I thought it particularly important to discuss the failing of a Democratic attorney, if for no other reason than to show that my analysis is intended to be legally rather than partisan based.