July 2023 Millar’s JurisDiction - Talking Out Loud

by Richard W. Millar, Jr.

I don’t know about you (and sometimes I don’t know about me either) but I will often “draft” motions in my dreams. Given the imaginary context, they are quite good, perhaps even spectacular. By morning, however, they are gone—unable to survive in the crucible of dawn’s early light.

Which is a good thing.

Also, we have all been around certain people whose immediate thoughts go straight to their tongues without any processing through a thought filter. To paraphrase the late Art Linkletter, “adults can say the darndest things.”

I learned early on by my mother’s constant admonition, that it was better that someone think you were stupid than to open your mouth and prove it. Much later, law school emphasized caution, a sort of a “look before you leap” approach to written or oral presentations.

Some of us, however, never learn.

Which is why the Honorable Steven C. Seeger of the United States District Court for the Northern District of Illinois gave lawyer Calvita Frederick a chance to redo her motion. It was, unfortunately, a lifeline not grabbed.

As a backdrop, an earlier judge had dismissed an amended complaint Ms. Frederick had filed on behalf of her client. She subsequently filed a motion to alter or amend the judgment which landed in Judge Seeger’s courtroom upon reassignment. He took a look at her motion and issued a Memorandum Opinion and Order giving her the opportunity “to reread the draft, with the benefit of the passage of time, and maybe a good night’s sleep. And more specifically, the Court invites counsel to have a moment of quiet reflection, and revisit the tone of the filing.” The Order gave her a week to file an amended motion.

But, she didn’t.

The Memorandum Opinion started off: “Most of us say things in our heads that we wouldn’t say out loud. And most of us say things out loud that we wouldn’t say in a court filing. But not everyone is blessed with the same filter, or with the same willingness to use the brake pedal.”

The Court observed that the motion’s “opening salvo was ominous, and portended trouble to come . . .” and while Ms. Frederick stressed that neither she nor her client had any animosity toward the Court, the judge noted that “this disclaimer didn’t age well” because “before the paragraph was over, Plaintiff’s counsel got up close and personal . . . [claiming] that the Court ‘was mistaken and/or deliberately chose to disregard the evidence in the record.’”

She then suggested that the judge may not have read but only signed the prior order, which may have been written by others. That served as a transition that it may have been authored by a clerk.

“She then offered a public service announcement that this Court’s clerk made errors right and left. ‘Therefore, to the extent that this very busy Court might have relied on a clerk to write the order . . . plaintiff . . . notifies the Court that the Order is saturated with manifest errors of fact and law will may well [sic] be reversed on appeal.’”

The Court found that the “rest of the motion is littered—and yes, this Court itself selected that verb—with other unnecessary potshots and hyperbole.” The Court gave several examples, some preceded with “very respectfully” which in one example headed a sentence which alleged “that this Court did not even recognize the need for IT to do adequate research on the topic before issuing a ruling.”

Another sentence by Ms. Frederick started “With all due and maximum respect,” which the Court acerbically noted was “a point that counsel underlined, lest it be lost.”

Other comments by the Court included: “Searching for over-the-top sentences in the motion is like shooting fish in a barrel” and, my personal favorite, “The Court could go on. Counsel did. After 28 pages, counsel finally ran out of gas.”

In closing the Memorandum, the Court harked back to its earlier admonition: “In the meantime, a few words come to mind when this Court thinks about the filing. But the Court will keep all of those words to itself.”

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.