Litigation Defenders

From the resurgence of hot pink to a billion-dollar grossing movie, 2023 has been the year of Barbie. She's everywhere – on the moon, on the big screen and even in courtrooms.

So, now seems like a good opportunity to discuss one of the most interesting lessons that Barbie played a role in teaching me: How to avoid Fed. R. Civ. P. 11 Sanctions (“Rule 11 Sanctions) and the significance of civility in the practice of law.

Most lawyers will have come across Christian v Mattel, Inc, 286 F.3d 1118 (9th Cir. 2002) in their civil procedure courses in law school, but I find it easier to remember it as “Cool Blue” Barbie versus the lawyer who simply did not keep his cool.

Rule 11 essentially prohibits attorneys from presenting frivolous pleadings, written motions or other papers to the court.

Long story short. A copyright suit arose out of the plaintiff’s claim that Mattel’s “Cool Blue” Barbie line infringed on a collegiate cheerleader doll that his daughter created and marketed. Mattel ultimately filed a Motion for Rule 11 sanctions which argued that the plaintiff’s attorney signed and filed a frivolous complaint with no legal merit. However, the attorney refused to withdraw the complaint and proceeded with litigation.

The plaintiff’s attorney also engaged in egregious conduct during the proceedings, including, but not limited to:

• Tossing Barbie dolls off a table during the early meeting of counsel; and
• Interrupting his client during a deposition when his client made a damaging admission, and “lambast[ing] his client in plain view of Mattel’s attorneys and the video camera.”

In awarding Mattel $501,565 in attorneys’ fees, the district court found that the plaintiff’s lawyer filed a frivolous complaint in addition to “behav[ing] boorishly, misrepresent[ing] the facts and misstat[ing] the law.” As you can imagine, plaintiff’s counsel went on to challenge that award.

In its review, the U.S. Court of Appeals for the Ninth Circuit agreed that plaintiff counsel’s “failure to investigate [the legal and factual background of the case] fell below the requisite standard established by Rule 11.” However, the kicker is that Rule 11 focuses on “paper[s]” that are signed by an attorney in violation of the rule.

Because Rule 11 does not authorize sanctions for discovery abuses, misstatements or “boorish behavior,” the appellate court vacated the district court’s Rule 11 orders where the lower court’s decision “impermissibl[y] intertwin[ed] its conclusion about the complaint’s frivolity with the [Plaintiff counsel’s] misconduct.”

Regardless, clients, attorneys and observers alike should be aware that diligently conducting reasonable inquiry into potential lawsuits and keeping one’s cool during all stages of proceedings are both important. While the plaintiff’s attorney in Christian avoided sanctions due to “intertwining,” egregious misconduct and uncivility generally violates the rules of professional conduct.

On Dec. 16, 2020, the Michigan Supreme Court entered Administrative Order (AO) No. 2020-23 Regarding Professionalism Principles for Lawyers and Judges. The AO set forth 12 principles of professionalism which, in part, emphasize civility and proper conduct compatible with court rules during hearings, conferences, depositions and other legal proceedings.

By way of example, some of the 12 principles of professionalism espoused by the Michigan Supreme Court include:

• We do not disparage or attack people involved in the justice system, or employ gratuitously hostile or demeaning words in our written and oral legal communications and pleadings.
• We seek to exemplify the best of our profession in our interactions with people who are not involved in the justice system.
• We do not engage in, or tolerate, conduct that may be viewed as rude, threatening or obstructive toward people involved in the justice system.
• We act in good faith to advance only those positions in our legal arguments that are reasonable and just under the circumstances.

The U.S. District Court for the Eastern District of Michigan also sets forth Local Rule 83.22(b) which states that the Rules of Professional Conduct adopted by the Michigan Supreme Court apply to practice in the federal court (as permitted by Local Rule 83.20) such that a violation of those rules is ground for discipline. The U.S. District Court for the Western District of Michigan similarly references and recognizes the same in its Local Civil Rule 83.1(j).

Thus, even in a fast-paced, high-stakes civil litigation arena, where attorneys on both sides of “v.” can find themselves in a pressure cooker, the most aggressive, explosive approaches can have serious consequences.

While I can only speak for myself, when tensions run high, I think back to “Cool Blue” Barbie.