Yesterday the Court's bar association hosted a brown bag CLE luncheon that was sort of an overview of the Court of Federal Claims and its jurisdiction. Three judges spoke along with several practitioners. One of the judges, Judge Firestone, gave some comments on the importance of professionalism, including brief (legal) writing. She read the second paragraph of an opinion and order that had just recently been filed. It was a scathing review of the plaintiffs' lawyer in the case. I took it upon myself to look up this opinion and now I want to share some of the highlights with you.
The opinion and order was written by Judge Christine Miller (interestingly enough probably the only judge in America to have been appointed by both Presidents Reagan and Clinton) and is en captioned
Locke v. United States, Fed Cl. No. 06-629 (July 10, 2007). This is what you do not want to the Judge to say about your legal writing:
As an initial matter, the court is compelled to point out that the pleading and brief filed by plaintiffs' counsel were deficient in almost every respect. Some egregious errors include incorrect case citations; case names without any citations; statutes that have either been repealed or never existed; unclear and confusing facts purporting to support plaintiffs' claims; and arguments based entirely on conjecture.
Id. at 1. The court then, in agreement with the defendant and in response to plaintiffs' first argument, characterizes plaintiffs' argument as, "a 'resounding
non sequitur.'"
Id. at 9. Shortly after that, in response to plaintiffs' third argument and citation to a specific case,
Citadel Industries Inc. v. United States, 314 F. Supp. 245 (S.D.N.Y. 1970), the Court states:
It should have been apparent to plaintiffs' counsel from the case citation that the court in Citadel Industries was the United States District Court for the Southern District of New York, not the Court of Federal Claims. Second, the first line of Judge Weinfeld's opinion establishes that subject matter jurisdiction was never an issue in [the case].
Id. at 10. Two pages later: "Not to be deterred by statute, binding precedents, or logic, plaintiffs contend that . . . ." Id. at 12. Two paragraphs further: "Pride in crafting legal arguments takes a holiday when plaintiffs argue that this court may grant 'equitable and extraordinary relief . . . after the amending of the Tucker Act.' . . . . Had plaintiffs' counsel consulted the cited statutory provision, he might have noticed that it was repealed by Congress in 1996." Id. (quoting Pls.' Br. filed Apr. 5, 2007, at 16) (internal citations omitted).
I will spare you many of the other less amusing but oh so devastating pronouncements of the Court. It is sufficient to say that the opinion reads like a road map to a malpractice suit. While the Court declined to sanction plaintiffs' counsel, it did state that this dismissal should "signal the last of these actions filed by this attorney in the Court of Federal Claims." Id. at 15. I just wanted to share with you some highlights of this little opinion that brightened my day yesterday and left me scratching my head that this lawyer was still in business.
Post script: in case you are wondering, the plaintiffs in this case were attempting to recoup money from what they allege was a wrongful tax levy. They may also have been seeking to enjoin the levy, but I'm not sure. In any event, fyi, In tax matters, the United States Court of Federal Claims has jurisdiction over tax refund suits only, meaning you have to paid your taxes in full before you can bring a suit here. If you are subject to a tax levy, you have certainly not paid your taxes in full. From what I can make of the facts of the case, reading between the lines, it appears that one of the reasons that the plaintiffs were subject to the levy is because their lawyer absolutely failed to send an offer of compromise in a timely fashion to the IRS Office of Appeals.
