Wednesday, December 29, 2010

11th Circuit Thinks Bill Amlong Should Have Used X-Ray Glasses!

The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.

Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?

Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:
The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses  who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.

When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.
It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!

Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony?  Also, that the plaintiff speaks Creole and the deposition required an interpreter?  Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed?  Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?

I admit this case presents a close call, on difficult facts.  But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.

And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing  § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.

Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.

In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:
The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.

Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.
See kids?

Bad facts make bad law.


Anonymous said...

you are quite wrong on this one SFL. I know of NO respectable lawyer who would try and submit an 868-change errata sheet to change a "no" into a "yes." and the interpreter was present at the deposition!! if you read amlong I you will see how frivolous these actions were. NOT a close call. Since this case the Amlongs have avoided fed ct. Thank god for those of us who do practice there.

Anonymous said...

Read the dissent. The errata was never submitted.

South Florida Lawyers said...

11:31, thanks for your comment.

I'm not condoning the fact pattern.

Indeed, although I don't do these types of cases, and speaking only for myself, I'd have dropped any plaintiff that appears this flaky long before it reached the point of a sanctions hearing.

But there's something about the tone of Judge Carnes' opinion that rubs me the wrong way, and I'm worried about the potential expansion of 1927 motions in district courts that may flow from some of the dicta.

Anonymous said...

I personally like the district court's concurrance, declining to join in the part of Judge Carnes's opinion ripping into Judge Tjoflat's dissent. Probably a smart move on the part of the district judge.

Ron Miller said...

I think the key is their failure to put her up for deposition again. Maybe it was a translation problem (boy, a big one tho). But when you refuse to put her back up for deposition, that may tell you something.

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