Silly Lawyer Tricks XXII. Tales of self-inflicted wounds, colorful language and tone, and attorney misconduct.

• Author: Tom Donlon
• Pages: 7-12

Appellate Practice

Winter 2021, Vol. 40 No. 1

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December 17, 2020

Silly Lawyer Tricks XXII

Tales of self-inflicted wounds, colorful language and tone,

and attorney misconduct.

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real

lawyers in cases on appeal.

Allen-Noll v. Madison Area Tech. Coll., 969 F.3d 343 (7th

Cir. 2020)

A series of self-inflicted wounds in the district court led to a loss—and substantial

monetary sanctions for the plaintiff. Showing that counsel failed to learn from his mistakes,

the appeal resulted in another loss and more sanctions.

This case involved a claim for racial discrimination arising out of a college’s decision not to

renew the contract of a nursing instructor. Following discovery (during which the

plaintiff’s and her counsel’s conduct resulted in sanctions of over $14,000), the college

moved for summary judgment. Although the local rules required an opposing party to

answer each numbered fact proposed by the moving party, the plaintiff instead “submitted

a photocopy of those proposed findings with question marks, underlining and some

illegible handwritten notes in the margins,” while failing to file any proposed facts of her

own. On the merits, the plaintiff “responded . . . but barely,” with a brief that “contained a

single page of legal argument.” The plaintiff subsequently filed a late declaration that

“contradicted her previous sworn testimony, so the sham affidavit rule applie[d].” The

district court accepted most of the college’s facts as undisputed and held that the plaintiff

had failed to offer any admissible evidence of discrimination. Id. at 348–49.

The U.S. Court of Appeals for the Seventh Circuit agreed that the plaintiff’s counsel’s

“inscrutabl[e]” and “illegible” comments did not comply with the local rules. As for the

plaintiff’s claim of a faculty conspiracy based on “an ‘antebellum’ climate where a racist

‘cabal’ of ‘elite Caucasians’ were attempting to rid the campus of Black people,” the court of

appeals concluded that the district court had properly found there was “no evidence.” Id.

Addressing the college’s motion for sanctions, the Seventh Circuit noted that “[g]etting [the

plaintiff’s] appeal filed in this Court was a challenge, as four iterations were stricken as

procedurally deficient.” The brief finally accepted had major mistakes, including no