Sidney Powell Avoids Disbarment As Judge Refuses To Consider Misnumbered Exhibits... Seriously.
The 'numerous defects' cited in the opinion dismissing the case against Sidney Powell are underwhelming.
(Photo by Drew Angerer/Getty Images)
The lede in most media coverage about this case is that Judge Andrea Bouressa dismissed the Texas state bar case against Kraken Queen Sidney Powell based on “numerous defects” in the Commission’s papers.
That certainly sounds like an exoneration for Powell, whose antics filing dubious lawsuits across the country already earned her some benchslaps. The Texas state bar came for her license and failed, earning Powell a rare notch in the win column.
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But what does the phrase “numerous defects” really mean? Well, it’s interesting, because Judge Bouressa’s opinion is… curious.
To say the very least.
And speaking of the very least, that also describes the amount of effort apparently devoted to considering the matter. Here is how she begins to describe the “numerous defects” involved:
Page two of the Commission’s second amended response lists six documents purportedly included in its appendix, Exhibits A through F. The actual documents attached to the response were marked Exhibits A through H, and did not match the documents described in the brief.
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That’s sloppy lawyering to be sure, though pointedly not as sloppy as filing multiple lawsuits based on facially false affidavits. While the citations don’t match up, the evidence is there at least.
By the way, this is why you should have a Type A paralegal on everything.
The judge continues, noting references to “Exhibit F” when it was listed as “Exhibit D” and “Exhibit E” which appears to be “Exhibit G,” before ultimately concluding:
For clarity of the summary judgment record, in light of the numerous defects in the Commission’s exhibits, the Court did not consider any document identified by the Commission that the Commission failed to cite or attach. Similarly, the Court did not consider any document attached by the Commission that the Commission failed to cite or identify. In short, the only exhibits considered by the Court were the two documents cited as summary judgment evidence and attached by the Commission: the documents marked Exhibits F and G.
It’s shockingly easy for a defendant to win summary judgment when the judge refuses to look at most of the record.
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How does the judge address the exhibits that she does look at? Well…
Powell’s objection that the Commission’s Exhibit D—the document marked and attached as Exhibit F—is not competent summary judgment evidence is SUSTAINED IN PART. While pleadings are not evidence of the matters stated therein, the document marked and attached as Exhibit F is competent evidence ‘of the fact that such pleading was filed by Powell and others, and was considered for that limited purpose.
Unless the judge’s writing is exceptionally unclear, she’s saying that Exhibit F — one of the frivolous pleadings that Powell filed — can only be considered for the fact that it was filed and not for whether or not it’s true. When the whole theory of the case is “she filed a false complaint,” deciding that the court cannot weigh in on the truth or falsity of a complaint presents a significant wrinkle. We know from Powell’s prior ethical proceedings that evidence exists that casts doubt on the complaint, but I guess if those exhibits were mistakenly labeled Exhibit A when they should’ve been Exhibit H, they don’t play into this equation.
For the other exhibit considered:
Powell’s objection that the Commission’s Exhibit E—the document marked and attached as Exhibit G—is not competent summary judgment evidence is well-taken and SUSTAINED.
This is where most summary judgment opinions might include some reasoning, but the sum total of the summary judgment opinion is 3-and-a-half pages — and that includes the caption — so details beyond listing which page numbers were wrong are at a premium. It’s almost as if the judge is going out of the way to leave a sparse paper trail!
With the Commission’s sole competent summary judgment evidence being
Exhibit F, considered solely for its limited purpose—evidence of a pleading filed by Powell and others—the Commission has failed to meet its burden on the challenged elements of the Commission’s claims under Rules 3.03(a)(1), 3.03(a)(5), and 8.04(a)(3). Accordingly, the motion is granted as to those claims.
It’s possible that the state bar made such a mess of this matter that a judge could look at everything and toss the case. But in any ethical case where an attorney’s professional judgment is on the line — much less a high-profile instance — a written ruling must be more thorough. In fact, the court has an obligation to the defendant in a disciplinary matter to leave a detailed record for future clients who are going to wonder why a lawyer almost got disbarred and they’re going to want to see something beyond “the Commission’s bad organizational skills.”
But Judge Bouressa should get a lot of credit for one thing. She threw the phrase “numerous defects” into that opinion and managed to get a lot of outlets to uncritically parrot it as though there really wasn’t any evidence in the record. That’s pretty savvy.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
