Posner dissent criticizes penalties for 'harmless procedural bobbles' by lawyers
A dissent by Judge Richard Posner is questioning whether it does any good to punish litigants for “harmless procedural bobbles” by their lawyers.
Posner dissented in a decision (PDF) last week by the Chicago-based 7th U.S. Circuit Court of Appeals, which tossed a suit seeking enforcement of a settlement agreement. As a result of the dismissal, the plaintiff is unable to collect $925,000 in remaining payments in a $1.225 million settlement resolving litigation over a failed casino in Greece.
The majority said the plaintiff’s pleadings were inadequate; Posner said the case shouldn’t have been dismissed at such an early stage. How Appealing and Above the Law note Posner’s dissent.
“The only argument in favor of such summary justice that I can imagine,” Posner wrote, “is that by punishing parties for their lawyers’ mistake we improve the quality of the bar; the lawyers who disserve their clients attract fewer new clients and eventually perhaps are forced to leave the practice–an example of the positive effect of competition on the quality of goods and services that a market provides. But while this is plausible in theory, I have to say that in more than 33 years as a federal court of appeals judge I have not noted any improvement in the average quality of the lawyers who appear before us. I find it difficult to believe that punishing [the plaintiff] and his lawyer by in effect a ‘fine’ of $925,000 will promote the quality of legal representation in the courts of this circuit.”
Posner said the suit should not have been dismissed with prejudice given the “abundance of factual issues” that couldn’t have been resolved without further proceedings that the judge “impatiently cut off.” Among the issues were whether the plaintiff had done all he could to live up to his side of the agreement, which required him to dismiss pending litigation in Greece where the legal system is inquisitorial and Greek authorities have no obligation to dismiss a plaintiff’s suit upon request.
The majority upheld dismissal of the suit to enforce the agreement, citing two grounds.
First, the plaintiff did not assert in his pleadings that he made an actual request to withdraw the complaint, but merely that he believed that he had done so. That failed to satisfy the standard under Illinois law that requires a party suing for breach of contract to allege substantial compliance with all the material terms of the agreement. As a result, the majority said, he did not satisfy pleading requirements.
Though the first ground sufficed for dismissal, the 7th Circuit also said that the plaintiff did not substantially perform the agreement before the settlement deadline. The plaintiff had written to Greek authorities about the suit, but the letter didn’t mention withdrawal. The plaintiff later filed a “belated declaration” with the court advising that he had written a second letter requesting termination of the Greek investigation, but that letter was sent too late to satisfy the settlement agreement, the court said.
