Archive for the ‘pleading’ Category

Douglas E. Abrams, “Plagiarism in Lawyers’ Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice”

July 23, 2012

Douglas E. Abrams (University of Missouri School of Law) has posted “Plagiarism in Lawyers’ Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice“, Wake Forest Law Review, Forthcoming/University of Missouri School of Law Legal Studies Research Paper No. 2012-22. Here is the abstract:

In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”

The courts have found or intimated that counsel’s plagiarized submission violated Rule 8.4(c) of the ABA Model Rules of Professional Conduct, which states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Perhaps because Model Rule 8.4(c)’s four proscriptions normally seem such natural fits, courts finding plagiarism have not yet explored application of Model Rule 8.4(d), which reaches lawyers who “engage in conduct that is prejudicial to the administration of justice.” Grounding professional discipline in both provisions would not be redundant because under the ABA Standards for Imposing Lawyer Sanctions, a single act may violate more than one ethical duty and multiple violations would be relevant to the sanction imposed.

Lawyers’ plagiarism in briefs and other filings violates Model Rule 8.4(d) as conduct prejudicial to the administration of justice because this plagiarism creates a risk that the court’s written opinion itself will inadvertently plagiarize. A lawyer’s plagiarism can also distort the meaning and import of parties’ adversary argument by inducing the court to mistake the copied passages as products of the lawyer’s own thought processes, rather than as an uncompensated non-party’s analysis presumably helpful to the proponent.

A pdf copy of the paper may be downloaded via SSRN here.

 

 

 

Zen and the Art of Blawging Maintenance

November 7, 2011
Everything Zen

Norm Pattis wrote a post a few months ago entitled: Updated: Rakofsky: Is Internet Mobbing A Tort? charitably offering up to the Plaintiff in the Rakofsky v. Internet litigation the makings of a new nominate tort: (more…)

Joe S. Cecil et al., “”Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules”

July 20, 2011

Joe S. Cecil (Federal Judicial Center), George W. Cort, Margaret S. Williams (Federal Judicial Center) and Jared J. Bataillon have posted “Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules”. Here is the abstract:

This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. The study compared motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.

After excluding cases filed by prisoners and pro se parties, and after controlling for differences in motion activity across federal district courts and across types of cases and for the presence of an amended complaint, we found the following: There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A); In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1); Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then; There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).

A .pdf copy of the article is available for download from SSRN here.

Henry S. Noyes, “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience”

June 9, 2011

Henry S. Noyes (Chapman University – School of Law) has posted  “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience”, Villanova Law Review, Forthcoming/ Chapman University Law Research Paper No. 11-20. The abstract reads:

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief…will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation.

A copy of the article is available for download at SSRN here.

Dustin B. Benham, “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”

May 5, 2011
West face of the United States Supreme Court b...

Image via Wikipedia

Dustin B. Benham (Texas Tech University School of Law) has published “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”, SMU Law Rev., Vol. 64, 2011.

The abstract reads:

The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.

This article proceeds in five parts. Part II examines the origins and history of modern post-judgment relief before and after the adoption of Rule 60. Next, Part III explores the distinction between intrinsic and extrinsic fraud in the context of independent actions. Part IV of this article addresses the rise of plausibility pleading in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. In these cases, the Supreme Court overruled Conley v. Gibson, announcing a new pleading paradigm that applies to all civil actions filed in federal court, including a judgment-relief action. In a move away from notice-pleading, the Court held that a civil complaint must plausibly allege a cause of action. Finally, Part V of this article contends that this increased pleading scrutiny serves as a better screening mechanism for post-judgment fraud claims than the distinction between intrinsic and extrinsic fraud does. By screening fraud claims individually, a court can better assess whether the claim could have been raised in the original litigation. Screening cases for this trait results in a better balance between the often-competing values of judgments that reflect truth and judgments that are final.

(Number of Pages in PDF File: 59)

The article may be downloaded via SSRN here.



Follow

Get every new post delivered to your Inbox.

Join 1,833 other followers

%d bloggers like this: