I’m late to the party on this one but I simply could not avoid discussing the case of Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243 (2009). If you want to read the gory details it can also be found at 2009 Cal. App. LEXIS 1659. Now, let’s begin.
Clients frequently confuse being obnoxious or angry with good lawyering. Maybe it’s TV. But clients also confuse high bills or high billing rates with good lawyering. Nonsense! This case deals with a motion for Summary Judgment in what could have been an ordinary harassment/discrimination case. But the lawyers for UAL got carried away. Apparently they decided to try and overwhelm the Plaintiff’s lawyers (from a small firm). Although it worked at the trial level, the appellate court objected calling UAL’s Motion for Summary Judgment “the most oppressive motion ever presented to a superior court.” 178 Cal. App. 303. Truly it was amazing. Probably it’s better if I just quote from the opinion:
Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material–as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1,056 pages.
Then, after Plaintiff filed his objection,
Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts. Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of”Exhibits and Evidence in Support of Defendants’ Reply.”And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous. In all, defendants filed 1,150 pages of reply.
It is axiomatic that a Motion for Summary Judgment should never cite evidence out of context but in this case UAL’s lawyers did just that and got caught:
a [Summary Judgment] motion “should never cite evidence out of context in an effort to conceal a clearly triable issue of [material] fact,” going on to cite two recent examples in that judge’s court, one in a sexual harassment case, the other in one for wrongful termination. Here, in vivid detail, is a third.”
Id. at 253.
Then they made frivolous objections to the evidence just because they thought they could get away with it:
Two illustrations should suffice. First, plaintiff testified that “[s]ome of the names [he] was called by [his] co-workers … were ‘sand nigger,’ ‘sand flea,’ ‘rag head,’ and ‘camel jockey.'” Defendants lodged four objections, two of which were lack of foundation and hearsay. No adjective is adequate to describe an objection that one who is called names lacks “foundation” to testify about them. And one does not need to be Wigmore to know that plaintiff was not introducing the names for their truth.
The Court’s sarcasm is well placed.
Overall, UAL was not well-served by such aggressive behavior of their lawyers. Presumably UAL had a story to tell about what happened. But this was not the way to tell it. To me, this looks like the lawyers had a deep-pocket client who would pay any price. So they took advantage.
No small firm would do that because we would surely get caught. No small firm would do that because we value our clients too much to treat them like that. This behavior is a disgrace to all lawyers.