Seventh Circuit criticizes attorneys

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March 9 was not a very good day to be an attorney, and have the Sev-enth Circuit rule against you.

In two opinions penned by Judge Richard A. Posner, the court issued criticism of some of the attorneys involved. In one case, the criticism was constructive; in the other, not so much.

The first case involved claims under the Federal Employers Lia-bility Act (FELA) and the Loco-motive Inspection Act (LIA) by an injured train engineer against his employer, METRA. According to the complaint, early one morning, while climbing into the driver’s cab of a train, he bumped his head against the sun visor, which was in the horizontal position, when it should have been in the vertical position.

The court began its analysis as follows: “The case is remarkable chiefly for the lack of investigation by the plaintiff’s lawyer.”

The court listed the following failings by the attorney: not determining what the visor is made of, its weight and dimensions, what the visor’s padding was made of, and how thick the padding was; not determining the distance between the visor’s edge and the seated engineer; and not determining whether the light switch was placed so that, in groping for it, the engineer would be likely to bump his head on the visor. The court noted that the attorney never requested to inspect the visor.

The court acknowledged that the facts could have given rise to liability, noting that engineers often enter cabs in the dark, and the light switch is inside the cab. Thus, there is a danger that, before he can turn on the light, he’ll collide with any object that protrudes into the cab’s interior.

However, the court concluded that the engineer’s attorney failed to fill in the “missing links” to prove such a case.

The court wrote, “The case illustrates the curious and deplorable aversion of many lawyers to visual evidence and exact measurements (feet, inches, pounds, etc.) even when vastly more informative than a verbal description. We have noted this aversion in previous cases — once remarking that some lawyers think a word is worth a thousand pictures (cites omitted).”

The court added that a photograph of the cab, or a blueprint with the dimensions indicated, would have revealed whether the visor in a horizontal position would create a significant risk of the engineer’s bumping his head while turning on the light.

So, while the opinion was highly critical of the engineer’s attorney, at least it did provide constructive criticism from which other attorneys can benefit.

The second opinion, on the other hand, was simply scathing.

Gerard and Monique Hawkins were convicted of violating the federal mail fraud statute for a scheme involving inflated real estate appraisals. The amount of loss was disputed at sentencing, but neither defendant’s attorney objected to the accuracy of the presentence report’s findings.

Instead, they raised objections that, on appeal, the Seventh Circuit found frivolous — such as that only a jury can make findings of fact that influence a sentence.

Regarding this claim, Posner wrote, “Because the Hawkinses’ trial lawyers either do not read judicial opinions or do not understand them, or cannot distinguish a majority from a dissenting opinion, or are ‘in denial,’ or are ‘Booker protesters,’ they insist that a judge cannot be allowed to base a sentence on any facts other than those determined by the jury. As a result, they failed to raise the objection now pressed on us by Gerard Hawkins’s appellate lawyer (that … the presentence investigation report is unreliable on the amount of loss). This demonstrates that a lawyer’s obsessions can harm his clients.”

Gerard’s appellate attorney, who did not represent him at trial, asked the court to permit challenge to the sentence, because Gerard did object to the amount of loss in the district court, even though on the wrong basis. But the court held the objections forfeited by trial counsel.

Like the trial attorneys, Monique’s appellate lawyer did not escape the court’s criticism: “The submission on behalf of Monique Hawkins is incompetent. In an argument section just two pages in length, the brief contends that Booker ‘specifically hold[s] that any Guideline sentence be calculated based only on facts found by a jury.’ That is the ‘holding’ of the dissenting Justices in Booker. See United States v. Booker, supra, 543 U.S. at 284-85 (Stevens, J., dissenting in part).”

As noted, this isn’t really constructive criticism. Its only purpose seems to be a warning to other attorneys that the court has no qualms about publicly humiliating an attorney in a published decision, rather than just issuing a summary affirmance, and that you definitely do not want to be the target of such opinions.

The cases are Coffey v. Northeast Illinois Regional Commuter Railroad
Corp., No. 06-2310; and U.S. v. Hawkins, Nos. 05-4311 & 05-4243.

David Ziemer can be reached by email.