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Judge Denies Motion and Redlines Mistakes

By Sean T. Carnathan, Litigation News Associate Editor – November 19, 2009

U.S. District Court Judge Gregory A. Presnell of the Middle District of Florida decided a motion recently that he found “riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.”


The judge not only denied the motion in Nault v. Evangelical Lutheran [PDF] but also took time to redline [PDF] it. He then returned the edited motion to the offending attorney with an order to “re-read the Local Rules [PDF] and the Federal Rules of Civil Procedure in their entirety . . . [and] personally hand deliver a copy of this Order, together with the Court’s [edited motion] to his client.”


Lawyers may shudder at the thought, but reading the motion illuminates an important point for practitioners.


“While the court’s order of sanctions may seem harsh, other than the embarrassment factor, being required to reread the applicable rules, and telling his client about the sanctioning order, was actually fairly mild,” says D. Alan Rudlin, Richmond, VA, member of the ABA Section of Litigation’s Special Committee on Multi-District Litigation.


“Sloppiness of this sort . . . is not simply a matter of professional discourtesy, but it also tells the court that there may be a lack of careful thinking by counsel,” says Rudlin.


Not only was the motion badly written and difficult to understand, but the context also makes matters worse, some litigators opine. The sanctioned party sued the wrong defendant for alleged employment discrimination.


Although the court denied the defendant’s motion to dismiss, it stated that the plaintiff should immediately dismiss the complaint voluntarily and sue the correct party. Otherwise, the defendant would be entitled to move immediately for summary judgment and an award of attorney fees.


The court further ordered the plaintiff’s counsel to show cause why he should not be sanctioned for failing to conduct an adequate pre-suit investigation.


It was the response to the show-cause order that resulted in the court’s redlining. The gist of the filing [PDF] appears to be that the name of the incorrect defendant is quite similar to the intended defendant’s name. Multiple readings, however, are required to figure out what the plaintiff is trying to say.


“Judge Presnell’s order reminds us once again that the life of the professional is defined by the saying the ‘devil is in the details,’” says Roberta K. Flowers, St. Petersburg, FL, chair of the Professionalism Subcommittee of the Section’s Ethics and Professionalism Committee.


“A lawyer’s reputation for being a professional will be created from the simple details of his professional life, from the way he edits his own or his subordinate’s work, to the tone of voice he uses when he talks to the judge’s clerk, to the words he chooses for the email he sends to opposing counsel,” Flowers counsels.


“First impressions are powerfully important,” agrees Henry R. Chalmers, Atlanta, cochair of the Section’s Ethics and Professionalism Committee. “The first, and often only, impression that a judge gets of us is through our written submissions to the court,” Chalmers explains.


“You are placing yourself at a serious disadvantage if you don’t take the extra time to make sure your court filings are well-written and coherent,” he says.


Subsequent filings in the Nault case show that the plaintiff’s lawyer took the court’s order seriously. In his first certificate of compliance, the lawyer had to request an additional two days in which to complete the required reading due to a busy schedule. He later filed a second certificate of full compliance with the court’s order.


He secured the voluntary dismissal of the original complaint and filed an amended complaint naming, presumably, the correct defendant. The court seems to have delivered its message to counsel—a message all litigators should heed.


Keywords: Nault v. Evangelical Lutheran, unprofessional conduct, poor grammar, redlined motion, U.S. District Court Judge Gregory A. Presnell


 
Related Resource
  • » Nault v. Evangelical Lutheran Good Samaritan Found., No. 6:09-CV-1229 (M.D. Fla. Sept. 21, 2009).

 
  • December 11, 2009 – The court is right, except you do not capitalize plaintiff, defendant, motion, etc., or court

  • August 17, 2011 – I agree with the 12.11.09 comment.

 

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