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.

Why Filing Identical Election Defamation Lawsuits Is a Shrewd Move

Last week, Smartmatic filed suit against attorney Sidney Powell in the U.S. District Court for the District of Columbia , claiming damages for false statements she allegedly made against the voting machine company in connection with the 2020 presidential election. The suit is virtually identical to the one they had previously filed against her in New York. 

Was this a crazy thing to do? No, it is quite the opposite. The reason relates to two issues: jurisdiction and the statute of limitations. 

As we saw in all of the failed election challenge lawsuits, your first step to succeed in a lawsuit is to make sure that you are suing the proper defendant in the proper court. Sometimes it is easy for the court to agree to accept or reject jurisdiction claims. In other cases, the answer is not so easy. 

In the first suit by Smartmatic against Sidney Powell in New York, there is some question whether that court has “personal jurisdiction” over Sidney Powell. If jurisdiction over Powell is denied, the case is over in that court. 

An attorney who loses a case on jurisdictional grounds might well decide to then file in another court where jurisdiction is clear. That option is not available to Smartmatic. The reason is due to the statute of limitations. 

The purpose of a statute of limitations is to make sure that an injured party acts promptly to claim damages. So, for example, if I am injured in a traffic accident, I cannot wait 10 years to decide to sue. Individual state laws set the maximum time period to file suit. In election defamation cases, that period is generally one year. 

The one-year statute of limitation period is quickly coming to an end for Smartmatic lawsuits. If they were to lose in New York on jurisdictional grounds, they would have no place to go to get relief because time had expired, unless … 

Unless they file what is called a “protective lawsuit” in another court where jurisdiction is assured. This is exactly what Smartmatic did. Interestingly, Smartmatic told the D.C. court exactly why they were filing the lawsuit at this time. They went so far as to tell the court that they fully expected (and wanted) the case to continue in New York and would not take any further action in D.C. until the jurisdiction question in New York was settled. If New York accepts jurisdiction, the D.C. court will be dismissed. 

The protective action by Smartmatic is smart legal practice. 

You might be asking how Smartmatic filing suit in different courts is different from the election contest cases. In the election contest cases, almost identical cases were also filed in different courts. 

The difference is that Smartmatic is not filing spurious claims in multiple courts, hoping that, like spaghetti thrown against the wall, maybe something will stick. In other words, the goal of the Smartmatic cases is to actually win, not simply to keep unfounded claims in the news.

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.

Dominion Sues Fox News Network: Why This Case Is Different

Dominion Voting Systems has already sued a number of individuals for defamation, including attorney Sidney Powell and My Pillow’s Mike Lindell.  These lawsuits all concern post-election statements that questioned the integrity of Dominion’s products and how manipulation affected the presidential election. Today, they also sued Fox News Network (FOX) for $1.6 billion.

What makes this case different?

When you sue an individual for defamation, you are maintaining that the person knowingly made false statements about you (or that the statements were made with reckless disregard for the truth), that they were believable to the audience, and that you can trace your damages to the statements they made.

The defense that individuals offer, even assuming that their statements were wrong, often hinge on the credibility of the person offering the opinion. Remember, for example, that a prior defamation case against Tucker Carlson was thrown out because he was a pundit and not a journalist. As his attorney stated: “No reasonable person” believes his statements to be factual.

Similarly, in the current defamation case against Sidney Powell, her lawyer’s motion to dismiss argued against her own credibility, explaining that much of what she said was (and was understood to be) overstatement and hyperbole. Again, no reasonable person would take what she said at face value.

News organizations are held to a different standard. It is expected that what they report as “news” will be accurately reported. News organizations are therefore generally careful to cover themselves from making false statements by using weasel words in their reporting. That is why their reporting of ongoing investigations so often uses the words “alleged” or “allegedly.” At times it may seem ridiculous to hear news reports talk about an “alleged shooter” when there is video of him, but this is the level of care news organizations take to ensure that they are not misrepresenting facts.

In a splendid move, the Dominion lawsuit against FOX “accuses” them of being a reputable news organization. Dominion notes that FOX has millions of regular viewers and reaches them through a vast variety of media. And, as a huge for-profit company, FOX’s primary concern is its financial bottom line.

Dominion further suggests that FOX, which once touted itself as conservative news outlet that was “fair and balanced”, morphed into an organization that tied its financial well-being to the adulation of Donald Trump and his most ardent supporters.

Seeing its viewership drop precipitously after FOX called the state of Arizona for Biden, and was chided for it by Trump, Dominion alleges that FOX needed to do something to reengage the faithful. They saw Dominion as an easy target to help promote the concept of election fraud.

In painstaking detail, the complaint shows how a variety of FOX news and opinion shows promoted the allegations by Guiliani, Powell, Lindell and others that accused Dominion of wrongdoing, One result, Dominion says, is that FOX reentered the good graces of Trump, recaptured its viewership, and improved its bottom line. The victim in this scenario was Dominion Voting Systems.

FOX cannot claim ignorance of its actions, according to Dominion. Ninety people within the FOX organization regularly received factual updates from Dominion about the security of its voting systems and the fact that it has no relationship to Smartmatic or Hugo Chavez in Venezuela. Numerous requests for retractions were ignored.

All of these allegations suggest that FOX is being held to a different standard than political pundits or individuals who are engaged in self-promotion. FOX has, according to Dominion, violated a public trust to their detriment.

Reminder: the filing of a lawsuit is just the first step in litigation. As always, Dominion will need to prove their allegations and show that the standards for defamation are met.

Sidney Powell’s Defamation Defense: No Reasonable Person Would Believe My Election Rigging Claims on FOX

Dominion Voting Systems sued Attorney Sidney Powell for $1.3 billion for defamation. The suit said that she knowingly made baseless claims about Dominion, its background, and the reliability of its results. The suit said that some of her comments were “inherently Improbable” if not “impossible.”

When you are sued, the first thing you try is to get the case thrown out before it is even considered. You might suggest that there are procedural reasons to have the case dismissed: wrong party being sued, wrong place to bring the lawsuit, wrong time to bring the suit, etc.

You can also claim that the complaint, even if everything in it is assumed to be true, would not give the person suing you any right to the relief they are requesting. This is called “failure to state a claim upon which relief may be granted.”

All of these arguments are raised in a “motion to dismiss.” Sidney Powell has raised virtually all of these arguments in her motion to dismiss the Dominion complaint.

For purposes of this note, I’ll focus on just the “failure to state a claim” argument.

You may remember from a couple of years ago that Tucker Carlson was sued for defamation. The complaint against him was dismissed because, according to the court, no reasonable person would believe that Carlson’s statements were factual. To put it bluntly, if you take what Tucker Carlson says on FOX at face value, you are stupid.

This is essentially the Sidney Powell defense. She quotes from the complaint’s allegations that her comments were “wild accusations” and “outlandish claims” to prove that a reasonable person would not believe her claims, even though they were repeated both on FOX and in some of her previously filed post-election lawsuits.

Tucker Carlson actually had a decent defense—that he is a pundit and not a journalist. It remains to be seen whether the judge will agree with Powell that her comments are, in actuality, political statements “that are inherently prone to exaggeration and hyperbole.”

Remember that defense: no reasonable person would believe her.

When the Supreme Court is not impressed

There were two instances in the last week when the U.S. Supreme Court gave none too subtle indications what they thought.

The first concerned yet another California case that challenged the indoor church ban. Even after the Supreme Court had issued an injunction against the ban earlier in the month, the Ninth Circuit in a different case allowed the ban to continue. Within less than two weeks of the Ninth Circuit ruling, the Supreme Court overturned them. The slap down on the Ninth Circuit decision made it clear that the technical distinctions between the cases were not enough to reach a different decision. As one pundit put it, these were distinctions without a difference.

As an aside, the lawyer for Santa Clara County took a head scratching approach. One day after filing their reply brief with the court, the attorneys announced that the ban would be lifted within a week. As a practice pointer, if you’re going to basically concede the issue, don’t waste the Court’s time by making them start working on reading your brief. To state the obvious: justices don’t appreciate that.

The second time in a week where the Court showed they were not impressed concerned the two remaining “release the Kraken” suits by Sidney Powell questioning the election results. Here, the Court didn’t even bother with a smackdown. The order simply said, without further explanation, that the petitions were denied.

This action by the Court is analogous to how you deal with a fly. You can either give it your attention and swat it or you can decide that it isn’t even worth bothering with it and simply wave your hand to make it go away.

Courts Don't Like Sloppy Pleadings

 When you practice in the Federal courts, there is a detailed and exacting set of rules for filing and pursuing a lawsuit. These are the Federal Rules of Civil Procedure. What many people don’t realize is that the individual courts have their own specific rules – called “local rules.” These rules can run dozens of pages. Since nobody can keep track of the local rules for every court, lawyers often hire “local counsel” if only to make sure that every detail is done correctly.

That brings us to the Wisconsin election lawsuit brought by Sidney Powell. Her suit managed to violate BOTH the Federal and local rules. These are a few, but not all, of the deficiencies as things currently stand. Federal rules: failing to name the correct plaintiffs, originally filing a “draft” complaint, failing to attach listed exhibits, failing to verify the complaint, failing to certify notice to the defendants (in either the original or amended complaint). Local rules: miscaptioning amended complaint, failing to ask for a modified briefing schedule, failing to request an oral hearing.

Similarly, the most recently filed Arizona suit violated local rule 7.1(a)(3) concerning proper form for issuing a summons. This is basic, basic stuff.

Many of these may seem to be minor technical issues. However, the courts take these matters of form and substance very seriously. Lawsuits may be dismissed for repeated violations and attorneys are subject to sanctions for filing frivolous pleadings. It is not unlikely that some of these will happen in the coming weeks. [Written December 2, 2020]

When Lawsuits Don't Change Anything

 I am still asked if the election lawsuits might still change the result of the election or if the US Supreme Court will get involved. The answer is no, especially after two election cases got resolved in Pennsylvania within the last two days.

Judge Patricia McCullough ordered Wednesday that the state must halt certification "to the extent that there remains any further action to perfect the certification." That order lasted exactly four days. The seven-member Pennsylvania Supreme court unanimously removed the injunction. But they went a step further and dismissed the entire complaint with prejudice. This slap down was the equivalent of saying GTFO and don’t come back. That was the state court.

In the Federal Court, the 3rd Circuit Court of Appeals eviscerated the Trump campaign appeal. They also went beyond the only question raised on appeal by restructuring some truly incoherent arguments and dismantling them as well.

One also shouldn’t be concerned about Sidney Powell’s new cases filed in Michigan and Georgia. Not only are they incoherent and riddled with typographical errors (which courts despise), they were filed way, way too late to be given serious consideration. It’s really hard to explain just how bad these lawsuits are. [Written November 29, 2020]