Aficionados of appellate law are familiar with the Seventh Circuit’s reputation for procedural punctiliousness. The court has a track record of benchslapping lawyers who fail to follow rules, lawyers who seek to deviate from rules without justification, lawyers who engage in substandard advocacy, and lawyers who are “menace[s]” to their clients.
Lately the Seventh Circuit has been laying down its pimp hand. Last Friday, for example, Chief Judge Frank Easterbrook declared one Bridget Boyle-Saxton, who allegedly blew deadlines and ignored multiple orders to show cause, “unfit to practice law in this court.” Ouch.
Now, snobs might think, “Sure, Boyle-Saxton might be a well-known Milwaukee lawyer — but she works at a small law firm, apparently with two relatives of hers. What can you expect from such an outfit? This is why people hire the large white-shoe law firms. You pay through the nose, but you expect (and receive) perfection.”
If that’s your attitude, think again. Biglaw just got a big benchslap — from none other than Chief Judge Easterbrook.
Which firm incurred His Honor’s wrath, and for what alleged infraction?
(By the way, this isn’t the first time a major law firm has felt the wrath of the Seventh Circuit. Back in 2010, for example, Judge Posner benchslapped what is arguably Chicago’s top law firm, Kirkland & Ellis. At least he was nice enough to describe K&E as “one of the nation’s premier law firms.”)
Northrop [as appellee] contends that the appeal is frivolous — which it is — and asks for sanctions. The request is in Northrop’s appellate brief. But Fed. R. App. P. 38 provides that a litigant seeking sanctions must request them in a “separately filed motion”. And this court is not inclined to award sanctions in favor of a party that cannot be bothered to follow the rules itself. Morgan, Lewis & Bockius, LLP, which represents Northrop, should be able to tell the difference between residence and domicile, and should not have any difficulty complying with Rule 38.
The Ninth Circuit is vindicating gay rights, while the Seventh Circuit is just smacking that ass. Over at Workplace Prof Blog, Professor Richard Bales describes MLB’s purported errors as “a couple of rookie mistakes.”
Morgan Lewis tried to fix the situation, but Judge Easterbrook was not impressed:
Two weeks after oral argument, on the same day it filed its amended notice of removal, Northrop filed a separate motion for sanctions. This comes too late. If we were seriously considering sanctions, we could have initiated the process ourselves promptly after oral argument (if not before). There is little point to requesting sanctions twice, once in a brief and again by motion, and the duplication can cause both confusion and extra work for everyone. Rule 38 permits a court of appeals to award sanctions, after giving notice and an opportunity to respond, whether or not a litigant files a separate motion. Our Practitioner’s Handbook for Appeals 45 (2003 ed.) tells counsel that the court may elect to issue such a notice if a brief requests sanctions. See also Greviskies v. Universities Research Association, Inc., 417 F.3d 752, 760–61 (7th Cir. 2005); In re Bero, 110 F.3d 462 (7th Cir. 1997). Unless the court gives notice, however, an adverse litigant is free to ignore a request made in a brief. Likewise an adverse litigant can safely ignore a post-argument motion for sanctions, unless the court calls for a response.
Practice pointer: if you want to move for (or oppose) sanctions in the Seventh Circuit, know (and follow) the rules. The court has an unusually robust body of precedent pertaining to its own internal procedures, so there’s no excuse for screw-ups.
But hey, things could have been worse. As Howard Bashman notes, “[l]ooking on the bright side… Morgan Lewis’s client did nevertheless win the appeal.”
So Morgan Lewis is #winning — even if it might not be pretty.
P.S. Speaking of Morgan Lewis, we’ve received sporadic reports of bonus news from various MLB offices, but not quite enough to do a story just yet. We need additional information. If you can help us out, please email us, subject line “Morgan Lewis Bonuses,” or text us, at 646-820-8477 (646-820-TIPS). Please be clear about which office you’re in. Thanks!
P.P.S. And speaking of Morgan Lewis compensation matters, partner Ted Cruz — a superstar of the appellate bar, and a Republican candidate for the U.S. Senate in Texas — is making bank at MLB. He had adjusted gross income in 2010 of over $2 million, most of it from his firm partnership income. His complete tax records are available here.
Attorney discipline, Seventh Circuit style [How Appealing]
7th Circuit disbars well-known Milwaukee lawyer Bridget Boyle [Proof & Hearsay / Milwaukee Journal-Sentinel]
The latest target of the Seventh Circuit’s ire [How Appealing]
How Not to Plead Diversity Jurisdiction [Workplace Prof Blog]
Heinen v. Northrop Grumman Corp. [U.S. Court of Appeals for the Seventh Circuit via How Appealing]
In re Bridget Boyle-Saxton [U.S. Court of Appeals for the Seventh Circuit via How Appealing]
Earlier: A Bonus Benchslap from Judge Posner
Benchslap of the Day: A Billy Madison Style Rambling, Incoherent Complaint
Quote of the Day: Judge Posner Is Not a Kindergarten Teacher
Quote(s) of the Day: Oh, professionalism is overrated.
Quote of the Day: The Best Brief Is a Brief Brief
A Benchslap for Kirkland & Ellis, from Judge Posner and the Seventh Circuit