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‘Bad Writing Does Not Normally Warrant Sanctions, But We Draw The Line At Gibberish’

So concludes a vicious benchslapping from the Seventh Circuit aimed at Jordan Hoffman, an attorney brought on at the appellate stage to represent a pro se litigant claiming she was discriminated against in various ways by her former employer. The plaintiff lost at the trial level having mostly whiffed on her summary judgment response. On appeal, Hoffman signed off on a brief that… well, had some issues.

For example:

GAMESMANSHIP

Defendants have been “gaming” the system.

That is the entire section of the brief. It’s followed by a section called “The Estoppels” which is totally going to be the name of my next band, but it’s also an incoherent Black’s Law Dictionary dump where plaintiff says “Res Judicata, Collateral and Judicial Estoppel” without much sense of what those terms mean or how they would relate to the matter at hand.

Here’s another actual sentence from the brief:

McCurry experiences a change in fringe benefits; harsher scrutiny; failure to be promoted; lack of opportunities; lack of professional standing; economic sanctions; hostile work environment that led to an employee being shot on the premise, various verbal and physical assaults of African Americans by Caucasian employees of use of gun violence, vehicular assault, amongst other forms of violence, the ever looming threat that a racially motivated altercation or riot may ensue and physical damage to McCurry’s auto amongst actions/activities/conduct.

That is some Charlie Kelly bird law stuff right there.

The kicker might well be this footnote from the opinion:

He signed the brief on behalf of “plaintiff-appellant Mary Madison,” who is not a party in this case. This is yet another way in which the brief is “out of the ordinary.”

Wow.

For its part, the court determined that it had no alternative but to ask Hoffman to show cause why he shouldn’t be sanctioned. Hoffman offered this… curious defense of his brief:

Because we have a duty to “maintain public confidence in the legal profession” and “protect[] the integrity of the judicial proceeding,” Doe v. Nielsen, 883 F.3d 716, 718 (7th Cir. 2018) (quotation marks omitted), we confronted Hoffman about his brief at oral argument. He replied that he is a “solo practitioner” who tries “to get the help of … clients and whoever can provide help to [him]” and then “merge[s] that information.” Whatever that means, it in no way excuses this unprofessional conduct.

Attorneys filing gibberish should be penalized to protect the profession, but the shocking deficiencies of the appeal shouldn’t distract from the fact that the rest of this opinion is exactly why Judge Posner left the Seventh Circuit. The discrimination claims brought by the pro se plaintiff could have gotten tossed a million different ways, but the opinion treats us off the top to an explanation of how someone with no legal training failed to use the appropriate subheadings in her summary judgment response.

No kidding.

This is the sort of unnecessary bureaucratic hurdle designed to lock pro se litigants out of the legal process. Judge Posner’s complaint is that the courts are openly hostile to pro se litigants and try to frustrate them at every turn with mindless technicalities — a burgeoning crisis as fewer and fewer litigants can afford counsel these days.

At least give this litigant the dignity of giving her an unclouded, straight answer for why she’s losing. Don’t let the legalese gum up the works with “Local Rule 7.1(D)(1)(a)–(c)” citations. Just write like a human being, not a lawyer. The audience here is a pro se litigant (and potentially future pro se litigants), so drop the technical stuff and say, “You didn’t make direct answers to all these facts and that meant we took them as true and if those facts are true, then there is no way to win in court,” or something equally straightforward. Writing is only as good as its fit for the audience.

At the end of the day, the appellate brief may be gibberish, but the judges might want to — for very different reasons — take a hard look at their work product too.

(The full opinion is on the next page.)


HeadshotJoe 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.