by Richard W. Millar, Jr.

We have all heard the phrase “making a federal case out of it.” It means, of course, to take something relatively trivial and blow it up all out of proportion. While the origin of the phrase is obscure, it became popular after the fictional Judge Weaver said, “Let’s not make a Federal Case out of this,” in the movie “Anatomy of a Murder.” It has been in our lexicon ever since, and I have probably said it a few times myself. (I won’t say to whom, as there is a limit to my columnar admissions.)

The other day I was wondering, as is often the case when my deadline approaches, about how you make a federal case out of something which is already a federal case. While it is a conundrum that might have fascinated the late George Carlin, you can actually make a federal case out of . . . a federal case.

And one lawyer did.

And was sanctioned accordingly.

You can often tell how a judge feels about a case by the first sentences of the opinion:

This is an odometer rollback case that landed in federal court due to a little known federal statute that federalized the crime of manipulating a car’s odometer in order to protect purchasers from potentially shady practices by used car sellers. This small Federal Odometer Act case began in April of 2016 and burgeoned into an 18-month battle between defense counsel, Joel Brodsky, and Plaintiff’s counsel over the purchase of a $35,000 used SUV . . . .

The fact that defense counsel is named and plaintiff’s counsel is not is a harbinger of things to come.

The court inquired about the ability to resolve what the court perceived to be a finite and discrete case with few issues and Plaintiff’s attorney informed the court that he would be seeking punitive damages . . . in an amount much greater than the value of the car. Brodsky responded in kind that Plaintiff’s attorney is essentially in the business of extorting clients . . . and that he just files these lawsuits over and over when there is no basis for doing so. And so the battle began.

The court, observing that it had a duty not only to protect the legal process, but also the represented clients, “immediately clipped the wings of the lawyers by refocusing them on the reality of their dispute.”

Well the wings just as immediately grew back, and the next hearing involved noticing depositions while a lawyer was on vacation and requests for admissions causing the court to admonish the lawyers to act professionally and reasonably toward each other.

“Unfortunately, that first shot across the bow from the court had little effect on Brodsky nor did his vacation in Italy.” Mr. Brodsky filed a motion for a protective order seeking to prevent subpoenas, and striking interrogatories, requests for production, and requests for admissions because the other side considers a lawsuit “to be a profit-making, fee-generating, enterprise for attorneys.”

At the eighteenth month mark, the docket had over 200 entries, “nearly three quarters of them attributable to disputes regarding Brodsky’s behavior . . . .”

The proverbial straw that broke the camel’s back was Mr. Brodsky’s attack on one Donald Szczesniak, an expert witness retained by the plaintiff to testify about odometer fixing. Mr. Brodsky accused Mr. Szczesniak of a variety of things including damaging someone’s fence and moved for an order of “indirect criminal contempt” and asked the court for a referral to the United States Attorney for criminal investigation. He filed a motion for sanctions against the expert and against the attorney for hiring him. The plaintiff filed opposition affidavits, including one from the expert’s son Luke, all testifying that the expert was home sick at the time the unrelated person’s fence was damaged. In reply, Mr. Brodsky called the expert a liar who filed a perjurious declaration and went so far as to allege that LexisNexis public records showed that the expert did not have a son named Luke, and that Luke was fabricated.

Mr. Szczesniak appeared with his own lawyer and sought leave to file a response to the accusations against him, which Mr. Brodsky opposed, claiming this was “not the first case in which Szczesniak has fabricated persons and events . . . .” Of course, it turned out that the expert did indeed have a son named Luke.

According to the opinion, Mr. Brodsky was “warned numerous times to curb his vitriolic conduct,” but instead “increased his acerbic behavior, culminating in his unhinged attack against Szczesniak.”

The sanctions against Mr. Brodsky included a fine of $50,000 payable to the court, required attendance at an ethics course and an anger management course, as well as a referral to the Executive Committee for consideration of being barred or suspended from practice in the Northern District of Illinois.

The case settled. I can’t help but note that the sanctions alone were $15,000 more than the purchase price of the used SUV, proving you can make a federal case out of a federal case.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.