Silly Lawyer Tricks XIX. Will they never learn? When in a hole, stop digging!

AuthorTom Donlon
Appellate Practice
Winter 2020, Vol. 39 No. 2
© 2019 by the American Bar Association. Reproduced with permission. All rig hts reserved. This information or any portion thereof may not be
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March 05, 2020
Silly Lawyer Tricks XIX
Will they never learn? When in a hole, stop digging!
By Tom Donlon
This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases
on appeal.
Waldon v. Wal-Mart Stores, Inc., 943 F.3d 818 (7th Cir. 2019)
Most of the cases discussed in this column have concerned mistakes by lawyers. This one
definitely deals with misdeeds.
The case arose out of a simple slip and fall in a Walmart. The issue was whether Walmart
had notice of the hazarda plastic hanger on the floor. In support of summary judgment,
the store offered an employee’s affidavit that she had visually inspected the area five to 10
minutes earlier and saw no hangers on the floor. In opposition, the plaintiff submitted two
photographs showing debris on the floor. One photo was undated, and the other showed a
date stamp 11 days after the accident. The trial court rejected this evidence because the
plaintiff failed to demonstrate that the photos depicted the same conditions that existed at
the time of the accident. Id. at 821.
On appeal, the plaintiff again relied upon the photographs. At oral argument, the court
questioned the attorney on “a troubling point: Waldon’s counsel appeared to have altered
photographs from the district court record. . . .” Id. at 824. In a court-ordered surreply,
counsel admitted that the date stamps were deleted when the photos were reproduced in
the appendix but blamed a copying mistake by a legal assistant. Id.
The court noted that attorneys are ethically responsible for their assistants. Further, not
only were the photos cropped to cut off the date stamps, but they were the only pages out
of a 248-page appendix with handwritten numbers, leaving the court to conclude that the
“explanation offered by Waldon’s counsel for the alterations of the photos lacked
credibility.” Id. “Even more distressing,” in the court’s view, was the fact that counsel’s brief
repeatedly stated that the photos were from the date of the injuries, and “at least twice at
oral argument Waldon’s counsel misrepresented that the photographs were taken the day
of the incident.” Id. at 82425.

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