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Federal Judges Want You to Spare Them the Clever Rhetoric and Get to the Point

I spend a lot of time in the world of securities litigation and SEC enforcement. One of the best bloggers in that corner of the blawgosphere is Kevin LaCroix, the author since 2006 of an excellent blog called The D&O Diary. Today, Kevin wrote about developments in a case brought by the Federal Deposit Insurance Corp. against two former IndyMac executives that all lawyers should take note of, even those who have zero interest in the underlying case.

In the course of defending themselves against the FDIC, the IndyMac executives aggressively attacked the FDIC for its failure to preserve certain documents. In court papers seeking sanctions, counsel for the defendants accused the agency of a "stunning display of incompetence" for failing to preserve documents. "The breadth and depth of the government's document-retention failures are staggering, and violations of this magnitude rarely occur," they argued. "It is a stunning display of incompetence from an agency that is supposed to be the expert at seizing and managing banks."

On Jan. 30, Central District of California Judge Dale Fischer held a hearing on the defendants' motion seeking sanctions, dismissal of certain counts of the lawsuit and an adverse instruction to the jury based on the government's failure to preserve evidence. As reflected in this transcript of the hearing, Fischer was not all pleased with the exaggerated rhetoric employed by counsel for the IndyMac executives. The judge stated:

... I also want to tell you, I don't know why lawyers do this, and there's a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they're somewhat annoying. I don't have time for rhetoric. I'm really, really busy.

After an aside in which she wondered why anyone would even want her job of federal judge, the court further scolded defense counsel on their approach to the matter, adding

I don't know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I've ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn't he get to the point. So, please, in future pleadings, remember that.

Returning her attention again to the specific rhetoric in defendants' brief, the judge offered a reminder to counsel that "I've been around awhile both in practice and on the bench, so I suspect I've seen a few more cases than you, and really, it's not all that staggering and it's not all that great a magnitude, so when your experience and mine differ, it just takes all of the punch out of those comments."

Bottom line: After scolding counsel for a bit in the hearing, Fischer denied the defendants' motion. And as Kevin LaCroix (now an executive with OakBridge Insurance Services) observed after reading the transcript's account of the tone and temper of the parties' pleadings in the case, his "own decision years ago to walk away from the active practice of law seemed more and more like a really smart move."

Posted by Bruce Carton on February 3, 2012 at 03:02 PM | Permalink | Comments (6)


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