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

• Author: Tom Donlon
• Pages: 13-18

Appellate Practice

Winter 2020, Vol. 39 No. 2

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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 hazard—a 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 824–25.