Sanctions — Refusal to Accept That You’ve Lost

From CFTC v. Lake Shore Asset Management Ltd., 2008 U.S. Dist. LEXIS 26502 (N.D. Ill. April 1, 2008):

• “The problems in this case fall into two categories: (1) overly aggressive advocacy; and (2) the failure to acknowledge prior adverse rulings when allegedly raising these previously-rejected arguments to preserve the record.”

• “A lawyer is an officer of the court and is supposed to present the facts and analyze the applicable law in the light most favorable to his client. This is not a mandate to engage in blatant gamesmanship or revisionist history. Instead, ‘[t]rue facts must be the foundation for any just result.’”

• “One of the most chronic examples of the unfortunate situation confronting the court was the seemingly constant repetition of previously rejected arguments and counsel's apparent insouciance in connection with the court's orders. Management of pending cases requires the court to set schedules and structure the progress of a case in a logical fashion. The constant repetition of rejected arguments hinders that process, as it keeps the case in a stagnant posture. This is what happened here -- the court ruled, and then was back at square one when it received the next filing which contained the same arguments with no acknowledgment of the court's prior adverse ruling.”

• "‘Half of all litigants (the losing half) may believe that the decision is incorrect, but it is essential to the operation of any legal system that unsuccessful litigants abide by the judgment unless they can persuade a higher court to set it aside. [Citation omitted.] The same can be said for attorneys: they may believe that a decision is incorrect, and they are absolutely entitled to pursue all appropriate appeals and preserve the record as necessary. Nevertheless, they play with fire if they raise the same arguments over and over and fail to acknowledge prior adverse rulings.”

• “Adherence to rules is not an optional exercise in nitpickiness. Rules help cases proceed in an orderly fashion and ensure procedural fairness.... Counsel cannot comply with the rules and fairly state the facts and the governing law within the bounds of permissible advocacy only when it serves his client's interests. To do so subverts the search for justice and prevents the court from efficiently and appropriately deciding cases.”

• “The court ... stresses that although it has discussed each concern separately, in reality, counsel's actions over a period of months must be viewed as a whole. Each incident, standing alone, would not have lead to the issuance of a rule to show cause. However, cumulatively, they could not be overlooked.”

• “As noted above, the court in no way approves of the advocacy discussed in this order. Nevertheless, in an exercise of its discretion, the court finds that shining light on the litigation tactics used in this case is the most appropriate way to resolve the rule to show cause. It also finds that adding monetary or disciplinary sanctions or censuring counsel will not serve any useful purpose. The court thus declines to sanction counsel, discharges the rule to show cause, and closes out a disappointing and all too memorable chapter in the litigation of this action.”

Question of the day: Is this order appealable?

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