Cranky Posner opinion mocks brief, suggests sending lawyer to jail

March 13, 2014

In an interview last November with The Daily Beast, Judge Richard Posner of the 7th Circuit Court of Appeals explained why he wouldn’t want to sit on the U.S. Supreme Court. “I don’t think it’s a real court,” Posner said. “It’s a quasi-political party. President, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes.”

That idea – that judges should not shape the law by cherry-picking cases but by deciding the cases that come their way – stuck with me. Posner’s not completely ingenuous, because, as he goes on to say in the interview, he does pick which opinions he wants to write and assigns out the rest. Nevertheless, it says something profound about American justice that Posner applies his incisive intellect to a semi-random gamut of cases, matters large and small, legally interesting and run-of-the-mill.

The acerbic judge was at his worst – or best, depending on your perspective – in an opinion Wednesday that’s already become an instant classic. Posner mocked the brief filed by a car crash victim and her lawyer, who were found in civil contempt for failing to deposit $180,000 in a trust account while they fight over the money with a union healthcare fund, as “a gaunt, pathetic document” with a grand total of 118 words of argument (including citations). He said the conduct of the crash victim and her lawyer was “egregious” and “outrageous,” and directed the trial judge presiding over their dispute with the union fund to consider throwing them in jail for contempt until they’ve come up with the $180,000. Posner suggested that the Justice Department might also be interested in the case, and then, to boot, scolded the trial judge, U.S. District Judge Joan Lefkow of Chicago, for permitting the case to drag on as “the stench rose.” Would Posner get to write such a masterpiece if he were on the Supreme Court? I think not.

The case stemmed from simple facts. Beverly Lewis was injured in a 2009 car crash. After the accident, the Central States, Southeast and Southwest Areas Health and Welfare Fund paid about $180,000 of Lewis’s medical bills. Her lawyer, David Lashgari of Lashgari & Associates, subsequently sued the driver of the car – Lewis’s son-in-law – and reached a $500,000 settlement. Lewis and Lashgari split the money, $202,000 to her, $298,000 to him and zero dollars to Central States – despite the union fund’s claim that under a subrogation lien in Lewis’s healthcare plan, it was owed reimbursement of the $180,000 it paid for her medical care. (In case you’re wondering, Posner noted that Lashgari’s 60 percent share of the $500,000 settlement seemed too high for a contingency fee but that Lashgari asserted Lewis “owed him for unspecified ‘advances’ that he had made to her.”)

Central States, represented by in-house lawyers, sued in July 2011 to recover the $180,000. In May 2012, Judge Lefkow in federal district court in Chicago ordered Lewis and Lashgari to deposit that sum in a trust account. They said they’d already spent the money and didn’t have $180,000 to put up. In April 2013, Lefkow found them in contempt. (The transcript of the contempt hearing is attached to Lewis’s brief to the 7th Circuit.) Lefkow faulted Lewis for failing to provide any documentation on the house and car she and her husband bought with their share of the $500,000 settlement, but the judge was much more disturbed about Lashgari, who was squirrelly about disclosing where the settlement money went. “I cannot understand an attorney having the cavalier attitude toward contempt of court that he has demonstrated,” Lefkow said.

Lewis and Lashgari, represented by The Law Offices of Arnold H. Landis, filed an interlocutory appeal to the 7th Circuit. The statement of facts in their brief – which, as Posner said, makes up almost the entire filing – suggests that Lashgari believed Central States wasn’t due the money it wanted because the settlement with Lewis’s son-in-law wasn’t for her medical injuries but for the son-in-law’s refusal to let Lewis see her daughter and grandchild once she hired a lawyer. But the only legal position Lewis and Lashgari advanced in the brief’s 118-word argument section was that they should not be held in contempt for failing to post money they did not have.

Posner called that position “ridiculous” at oral arguments in the case on Feb. 19. “Where in your brief do you…show they had a right to take this money ahead of Central States?” he demanded of Bryan Thompson of the Landis firm, who argued for Lewis and Lashgari. “You can’t stiff a judgment creditor by saying I spent it all on myself.” If that were the case, the judge said, no creditor would ever pay what it owed: “Because it’s too easy. That’s too easy,” he said. (Thompson, whom Posner kept calling Landis, actually did quite a credible job, considering the frailty of his side’s appellate argument and Posner’s hostile questions.)

The judge gives a decent amount of analysis in Wednesday’s opinion to Lewis and Lashgari’s arguments, much more than their own appellate brief. Posner seems to have gone back to the record in the trial court to fill in the gaps left by the “gaunt and pathetic” brief they filed, to assure himself that Lashgari’s conduct was as contemptuous as it seemed. In the process, Posner found reason to criticize Judge Lefkow for permitting the circus to continue for more than two years.

“As soon as the defenses were pleaded – that the settlement was not of Lewis’s personal injury claim arising from the accident, that the plan didn’t have standing to sue under ERISA, and (another frivolous contention) that Lewis hadn’t been properly served – the court should have smelled a rat,” he wrote. “And the stench rose when the defendants ignored or defied discovery requests (causing the court to grant a motion to compel) and disobeyed orders to prepare for a settlement conference, thus forcing its cancellation; and when Lashgari’s lawyer withdrew in June 2012 over ‘differences in material litigation strategy with’ Lashgari and when Lewis’s lawyers followed suit in September.”

Lefkow, according to the opinion, should have ordered Lewis and Lashgari to turn over financial records before holding a contempt hearing, and should have gone herself to the Georgia bar with a report of Lashgari’s “shenanigans.” Posner stopped just short of instructing the trial judge to send case records to the Justice Department but recommended that she “give serious consideration” to doing so.

I called everyone tarred by Posner’s opinion: Lashgari, Landis and Lefkow. Through her chambers, the judge declined comment. Lashgari and Landis didn’t return my calls. I also left a message with Central States counsel Rebecca McMahon but didn’t hear back.

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