Gone Fishin'

Dear lord.

Law students, please, if when you become lawyers you are ever dragged before a judge on a Rule 11 sanctions hearing, do not say "let's have an evidentiary hearing" over and over. You can't file garbage fire pleadings and then say "now give me discovery". https://t.co/Wxh4MrDuXH

— Bradley P. Moss (@BradMossEsq) July 12, 2021

In court, a "fishing expedition" is usually a derisive term of argument, a way of saying one of the parties is just seeking a cause of action (a reason to be in court.  Basic law:  you can't go to court just because you want to.  You need a "cause of action," facts which support that you have an injury remediable by the court.  The court can't mend your broken heart, for example.).  No cause of action, you don't get in the courthouse door; so to speak.  I've never actually seen it be so blatantly true as in this sanctions hearing.  I mean, there's usually some kind of "well, yes, but..." to the situation.  Here, that isn't true.  Here there is no justification for these affidavits.  Here there was no effort whatsoever to review them for validity.  They were either taken as true (probably; Woods and Powell are as deluded as Trump and Giuliani), or their counsel's position is the right one:  they just wanted to get in the courthouse door.

Lawyers have an obligation not to go on "fishing expeditions."  That's the whole basis of Rule 11 of the Federal Rules of Civil Procedure.  Think of it as "THOU SHALT NOT WASTE THE COURT'S TIME."  Which is exactly what Powell and Woods were doing, according to their lawyers:  they filed affidavits hoping to just get in the courthouse door, from whence they could conduct discovery and see if anything in those affidavits was true.  That's what their lawyers, in this sanctions hearing, are still asking for.  You know the old chestnut about murdering your parents and then pleading mercy because you're an orphan?  This is so much worse than that!

I still remember working on court filings and making sure we had the facts to support whatever legal claims we were making.  The client might insist "A" was true, and led inexorably to "B," but we knew better.  We knew we had to be convinced "A" was true first, or we wouldn't put it before the court.  Not only is it malpractice not to be sure your client has grounds for a case/defense, it's sanctionable.  And then there's your reputation.  Let's just say Perry Mason never went to court without being sure of his facts, especially when they seemed to blow up in his face (always a moment of drama before the final act and the third commercial break!).  Going to court on evidence you can't support, and hoping you can use it to find evidence you can support, is the cardinal sin of trial law.  There is simply no excuse for it, no way to justify it.  Which is why Powell and Wood's lawyers keep asking for an evidentiary hearing, to try to erase the mortal sin of not having any evidence to go to court on.  It doesn't work that way, but it's the only defense they've got.

Which is to say they have no defense at all.  Powell and Woods are so screwed it's a pity the judge can't revoke their law licenses.  This should be enough to get that process started (this is what Giuliani went through in NYS and D.C.), but whether the state bars in Georgia and Texas will do that sua sponte, remains to be seen.