Legally Speaking: I Second That Motion

John G. Browning Jul. 25, 2011, 8:56am

Lawyers file motion all the time, seeking to bring what they consider to be important, vital information to the attention of the judge.

If your opponent is stonewalling you on the discovery of much-needed documents, file a motion to compel. If, on the other hand, your opponent is harassing your client with irrelevant and invasive requests of his own, file a motion for protective order.

You don't believe there is a shred of fact or law supporting the case against your client? Then file a motion for summary judgment, asking the judge to dismiss the case.

Sometimes, however, the motions filed by lawyers are somewhat more nitpicky, trivial, or even downright frivolous. I once had an opposing counsel file a motion because I was sending him correspondence and pleadings via regular mail and not certified mail.

He didn't deny that he was getting the mail—he just didn't like the fact that he wasn't signing a green card proving he had received it.

That lawyer might have picked up his problems with priorities from the attorney for 62-year-old Michael Crawford of Cumberland County, Penn. Crawford was facing charges of theft by deception and witness intimidation earlier this year.

During a break in his trial, he saw a police officer share his can of Altoids with a juror, who proceeded to share them with other jurors before returning the tin. Crawford's attorney made a motion for mistrial, arguing that by sharing breath mints with the jury, the state had somehow biased jury members in its favor.

After spending 15 minutes debating the finer points of breath mint etiquette, Judge J. Wesley Osler denied the motion for mistrial. And I'm sure he did it with minty-fresh breath.

Meanwhile, in Missouri, Springfield lawyer Richard Crites took exception with his opposing counsel's grammatical skills—or lack thereof. Crites is defending a probation officer sued civilly for allegedly harassing and humiliating a former teacher convicted of statutory rape in 2009.

Crites' client is one of two defendants but, because of opposing counsel Anissa Bluebaum's use of apostrophes and "long-winded" allegations, Crites can't tell which allegations are directed toward his client. Crites filed a motion seeking clarification, calling Bluebaum's petition "the worst example of pleading that the defendant's attorney has ever witnessed or read."

He went on to say "Defendant does not know whether plaintiff is just not familiar with the use of possessives or whether plaintiff was referring to merely one of the two defendants. Is this merely the poor usage of the English language by plaintiff's attorney? We have no earthly idea which is the case."

There's no word from Ms. Bluebaum in response—she might be out buying a book on grammar and style.

Of course, there are many things during trial that can get under an attorney's skin, one of which is skin itself—or revealing too much of it. Chicago lawyer Thomas Gooch was defending a small claims lawsuit against a car dealership, and he took exception with what he claimed was an unfair tactic on the part of his opposing counsel, Dmitry Feofanov.

Gooch filed a motion in limine objecting to the presence of Feofanov's "large breasted" companion sitting next to him at counsel's table in court. Gooch claimed that "there is no evidence whatsoever that this woman has any legal training whatsoever," and that her "sole purpose" is "to draw the attention of the jury away from the relevant proceedings before this court."

He asked that Cook County Circuit Judge Anita Rivkin-Carothers order the buxom woman to sit in the gallery with other spectators. Gooch said that his motion was purely because of his objection to "somebody I don't think is a qualified paralegal sitting at the counsel table . . . dressed in such a fashion as to call attention to herself," noting that "Personally, I like large breasts."

Unfortunately for Gooch, the dispute took a twist when plaintiff's counsel Feofanov responded that his well-endowed (and considerably younger) paralegal Daniella Atencia was also his wife.

With the judge admonishing both sides for exchanging pretrial motions that were nothing more than "personal attacks sprinkled with anecdotal commentaries," Gooch announced plans to withdraw his motion. And with that, for the moment, this tempest in a D-cup is over.

Insensitivity to women may be a trend here. In a 2010 Florida case, one of the attorneys took exception with another lawyer's wife and her apparent failure to arrange giving birth around her husband's deposition schedule. Attorney Joe Klock filed a Plaintiff's Emergency Motion for Protective Order over some depositions that were supposed to be taken on July 13, 2010, including the deposition of one witness who was supposed to be deposed by attorney Juan Carlos Antorcha.

Unfortunately, the motion noted, prior to the deposition "Mr. Antorcha's wife went into labor and subsequently delivered her baby." Klock's motion noted that he "had specifically asked Mrs. Antorcha . . . to arrange the delivery for Friday evening July 16, after 6:00 p.m., but Ms. Carolina Antorcha, with whom counsel was unable to converse, apparently was unwilling to accommodate the request."

The nerve of that baby—selfishly insisting on coming into the world in the midst of a well-thought out and painstakingly scheduled set of depositions! I haven't seen any ruling on Mr. Klock's (presumably) tongue-in-cheek motion, so I assume that everyone worked things out, the creation of new life notwithstanding.

Finally, we come to one of the greatest motions I've seen in a long time, a motion for summary judgment that ranks as a truly awesome "in your face." In 2010, Dallas Maverick's majority owner Mark Cuban was sued by Ross Perot Jr.'s Hillwood Investment Properties III Ltd., owner of a 5 percent stake in the NBA franchise.

Among other accusations, the lawsuit claimed that Cuban was "careless and reckless" in his business and personnel decisions regarding the team, allegedly resulting in loss of "substantial investment value" for Hillwood.

Hillwood/Perot Jr. even insisted that the Mavericks were "insolvent and/or in imminent danger of insolvency," and they wanted the court to remove control of the team from Cuban and put it in the hands of a court-appointed receiver.

My friend and colleague Tom Melsheimer is Mark Cuban's lawyer. He must have truly enjoyed drafting the response he filed against Hillwood and Perot Jr. shortly after the World Champion Dallas Mavericks defeated the Miami Heat in the NBA Finals on June 12.

The response pointed out that, far from being mismanaged, the Mavericks "have become one of the league's most successful teams and are now NBA champions."

As evidence, Tom—clearly a believer in the concept that a picture is worth a thousand words—incorporated a photo in the brief of the Dallas Mavericks proudly hoisting the NBA championship trophy aloft in one of many victory celebrations that took place.

Based on this clear evidence that the Mavericks were anything but "mismanaged," the defendants asked the court to grant summary judgment in their favor and throw the case out.

You just have to love a "How do you like me now?" motion like that—go Mavs!

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