One of my personal truisms is: you’re always better off having a really good lawyer on the other side. Good lawyers tend to do things that make sense, cut to the heart of issues and move things toward an efficient conclusion. People who represent themselves tend to do the opposite (you’re the exception, Mr. A.).
Sometimes, it’s not their fault, they’re struggling through
a world that can be technical, difficult and overwhelming. My own pro
se experience in adoption court was way more stressful than I expected, and
I had samples of everything I needed to file, a great judge and staff and 15
years of litigating under my belt.
Courts bend over backwards to protect people who represent themselves
and sometimes, people take advantage of that.
A frustrated Illinois Appellate Court has taken on what it calls “paper terrorism,” in
an opinion it begins as follows:
[t]his appeal of a mortgage foreclosure
case involving an empty lot is so groundless that we would normally dispose of
it with a brief summary order.
Instead, the court took the
opportunity to review a number of tactics a small number of debtors use both to delay the ultimate resolution of cases against them and to use the legal system for improper purposes.
This was quite a review.
The entire opinion spans 53 pages, about 15 of which are devoted to a
detailed recitation of the facts, mostly a case history. Why give so much ink to a case that is “so
groundless?” The court answered this
question by quoting a former, presiding Chancery Judge:
“the proper response to malicious
prosecution or careless lawyering is not to respond in-kind with slovenly
preparation or half-hearted advocacy; *** but rather to validate our
profession’s righteous outrage and indignation over such conduct with
meticulous research, careful analysis, expansive writing and aggressive advocacy.”
Capsulizing its meticulous discussion into just two
sentences, the court said:
[v]irtually every one of their arguments
is abjectly frivolous and/or presented in such a confusing manner, perhaps
deliberately so, to make it as laborious as possible to resolve them.
***
These tactics often appear in courts
hearing debt cases, generated by defendants engaging in an organized program of
filing frivolous pleadings, lawsuits, and claims in an effort to harass judges,
creditors, and even court staff.
Perhaps recognizing the value an attorney might bring to their
case, the appellants asked the court to appoint a lawyer for them. Too little, too late:
after defendants had already filed
their own brief and [the Plaintiff Bank] had also filed its brief in this
court, defendants filed a motion asking us to appoint an attorney for them, a
request which was truly bizarre since the appointed pro bono attorney would have
had the sorry task of taking on a case that defendants had already done their
level best to sabotage.
Ultimately, the court affirmed the order of foreclosure,
affirmed the award of attorney’s fees and directed the other side to submit
bills supporting an award of attorney’s fees for defending the appeal. Then it did something I’ve never seen before:
it issued a rule to show cause why the litigants should not be fined $10,000
for their conduct on appeal. In taking
these steps, the court stated:
while [The Plaintiff Bank] was, and
will be, awarded its attorney fees, the award may be merely a Pyrrhic victory
for it since defendants apparently have insufficient funds to pay them and might
discharge them through bankruptcy
***
The fine, which will not be
dischargeable in bankruptcy (see 11 U.S.C. §523(a)(7) (2006)), is high enough
that it will discourage future tactics in debt collection cases, and punish
defendants for their conduct in litigating this case in the manner they have.
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