A recent decision by a federal district court judge in Illinois illustrates the importance of maintaining civility in court proceedings, particularly when making statements about expert witnesses. The court sanctioned a lawyer for making a series of unsupported accusations about an expert in a bad faith attempt to intimidate the witness.
Odometer Rollback Lawsuit
Donald Twyman bought a used SUV from S&M Auto Brokers in Illinois. When Twyman took the SUV to a dealer because of poor handling, he discovered that the SUV had been rebuilt after an accident. The dealer’s records also revealed a discrepancy between the mileage that had been recorded by the service department and the mileage shown on the odometer.
Most used cars are sold “as is,” placing the burden on purchasers to discover defects, but Twyman claimed that S&M had violated an Illinois law prohibiting deceptive practices by failing to disclose that the SUV had been in an accident. In addition, Twyman sued S&M for rolling back the vehicle’s odometer, in violation of a federal law that prohibits tampering with odometers.
The lawsuit was filed in federal court. The judge set a short discovery period to control litigation costs in light of her assumption that the case wasn’t worth very much.
Personal Attacks Leveled at Plaintiff’s Lawyer
The lawyers sniped at each other as the litigation progressed. In particular, S&M’s lawyer, Joel Brodsky, accused Twyman’s lawyer of being a “recidivist” litigator because he had filed three other lawsuits bringing the same kind of claim. Given that it is the job of plaintiffs’ lawyers to file lawsuits, it is difficult to understand why Brodsky thought his complaint had merit. The judge told Brodsky to calm down.
The court noted that the lawyers were filing motions without making a serious attempt to resolve their concerns and admonished them to talk to each other as local court rules required. Talks did not go well. Brodsky sent emails to the plaintiff’s lawyer calling him an “extortionist” and an “embarrassment to the profession.”
Brodsky later asked for a protective order against certain discovery requests because “Plaintiff does not consider a lawsuit as a way to redress a legitimate grievance by uncovering the truth and applying the law, but instead considers it to be a profit making, fee generating, enterprise for attorneys.” That lawyers earn fees by bringing lawsuits should hardly come as a surprise to anyone.
The judge clearly became frustrated with Brodsky, noting that more than 150 docket entries were attributable to Brodsky’s conduct of the litigation. The judge repeatedly admonished Brodsky to be civil, particularly when he accused the plaintiff’s lawyer of lying, extortion, and attempting to create a false record. Brodsky crossed a line, however, when he attacked the plaintiff’s expert witness.
Unfair Attacks on Expert Witness
The plaintiff’s lawyer retained Donald Szczesniak as an expert witness. Szczesniak operates an auto repair business. Brodsky asked the court to strike Szczesniak’s expert report, claiming that Szczesniak had fabricated an expert report in an unrelated matter. He later accused Szczesniak of damaging another person’s fence and pointed to a number of civil judgments entered against Szczesniak’s business.
Brodsky also accused Szczesniak of sending him an anonymous fax that included a newspaper article. Brodsky claimed that Szczesniak was trying to intimidate him to prevent further investigation of his background. Brodsky asked the court to make an immediate referral to the U.S. Attorney’s Office for a criminal investigation of Szczesniak, who Brodsky alleged had committed the crime of “indirect criminal contempt.”
Declining to act as Brodsky’s bully, the court denied those motions. Brodsky then asked the court to impose sanctions upon Szczesniak and upon plaintiff’s attorney for retaining him. None of Brodsky’s motions made reference to Daubert standards or alleged any legally justifiable reason for barring Szczesniak’s testimony or sanctioning his alleged out-of-court conduct.
Szczesniak denied all the accusations of wrongdoing and the plaintiff’s lawyer presented evidence to refute them. Brodsky responded by calling Szczesniak a liar and perjurer. Brodsky even accused Szczesniak of submitting a fabricated declaration from a nonexistent son.
The judge decided that enough was enough. She required the parties to attend the next hearing in person and discovered that Brodsky’s client would have been happy to settle the case but that Brodsky had never conveyed the plaintiff’s settlement offer to him. When the judge announced that she was considering sanctions against Brodsky, he withdrew from his representation, retained counsel, and moved to withdraw certain documents that he had filed.
Sanctions for Unwarranted Attacks on Expert
Brodsky apologized during the sanctions hearing and acknowledged that he went “too far.” The court’s decision suggests that Brodsky (who was “preoccupied” with his cellphone and sighed audibly during the sanctions hearing) was not entirely sincere or remorseful.
The court noted that Brodsky had been warned several times not to level nasty and unsupported accusations against plaintiff’s counsel or his expert witness. The court credited Szczesniak’s testimony that he was distressed by Brodsky’s accusations and was concerned that damage to his reputation would harm his credibility as an expert witness in odometer tampering cases.
The court noted that the legal system “provides ample opportunities for litigants to vociferously challenge the testimony of expert witnesses.” Rather than filing a Daubert motion, however, Brodsky “resorted to inflammatory, unsubstantiated, and false allegations against Szczesniak.”
The court found that “Brodsky’s allegations against Szczesniak were made “in bad faith, in an attempt to improperly impugn Szczesniak’s reputation before the Court, to have the Court potentially disqualify him as an expert, or at least intimidate Szczesniak to the extent he would not testify.” That conduct went beyond aggressive advocacy because it was not based on a good faith understanding of the law and the facts.
While withdrawing some of the inflammatory documents may have shielded Brodsky from Rule 11 sanctions, the court concluded that it had inherent authority to sanction Brodsky without relying on Rule 11. The court decided that leaving Brodsky unpunished for his bad faith conduct would undermine the integrity of the court’s proceedings.
The court noted that Brodsky had behaved badly in state court multiple times without being sanctioned. To put a stop to similar misconduct in federal court, Brodsky was ordered to pay a fine of $50,000. The court ordered him to attend an ethics course and an anger management course, and referred Brodsky to the Executive Committee to determine whether Brodsky should be barred from practicing in the Northern District of Illinois.
The lesson to learn is that advocacy can be aggressive but never abusive. Unsupported accusations and personal attacks upon expert witnesses are counterproductive and may lead to sanctions against attorneys who resort to those tactics.