WASHINGTON – A federal judge blasted lawyers this week for what he called a “seemingly growing practice” of filing statements of fact without citing sufficient evidence.
The comments by U.S. District Judge Andre Davis came as he dismissed a sexual harassment suit against Lucent Technologies Inc., saying the plaintiff filed documents that were “more akin to ‘fiction writing’ than a legitimate ‘statement of facts.'”
“I want to go on the record as expressing my strong condemnation of this seemingly growing practice,” Davis wrote, warning that it could force the district court to impose stricter rules on attorneys.
“If this resort to ‘literary license’ continues . . . the judges of this district may find it necessary to join those districts that impose such requirements,” he wrote in his Monday ruling.
Davis said statements that lack a concise explanation of the facts with supporting evidence cause an “unwarranted and inexcusable imposition on the court,” forcing judges to sift through records to find admissible evidence — an element of the summary judgment Lucent was seeking.
He said the lawyer for Lisa Bryan, the plaintiff, filed a statement of facts containing “inadmissible hearsay evidence” without proper references to affidavits or depositions.
But Bryan’s attorney, Paul Bennett, said he presented “plenty of documents,” including depositions and e-mails to support the discrimination claim.
“This is a very complicated set of facts,” Bennett said. “It went back for a long period of time. We did the best we could to lay out all the evidence.”
Gerard Martin, chairman of the Maryland State Bar Association’s Ethics Committee, could not say if the problem was growing, as Davis claimed. But, he said, the judge only wrote “what every good lawyer knows.”
“What the judge is saying is that you can’t make stuff up. You can’t use hearsay,” Martin said.
“Judge Davis is right,” he said. “Why should he have to search through the record to see if there is a plaintiff claim? The plaintiff’s lawyer should have given him a concise statement.”
But courts in Maryland do not require a concise statement like other districts. Instead, Davis said, courts here have “faith in the judgment” of lawyers to provide the necessary documents.
The case began Jan. 29, 2003, when Bryan sued Lucent for employment discrimination, alleging that a supervisor sexually harassed her in 1998 and 1999. She was transferred in 2001 to another department where she said supervisors retaliated against her and forced her to quit.
Lucent moved for summary judgment, which required Bennett to file a statement of facts so Davis could determine if the case merited a trial. But Davis said the evidence in Bennett’s statement was based on hearsay.
He granted the summary judgment for Lucent. Davis noted that besides the fact that Bryan’s case was “supported by little more than a scintilla of evidence,” she also failed to meet the 300-day deadline to file a discrimination complaint and failed to prove that supervisors retaliated against her or that there was a connection between the harassment and alleged retaliation.
Bennett said he did not know if Bryan would appeal Davis’ decision.
Lucent’s attorney, Robert Niccolini, said Davis’ warning was “long overdue.”
“I think Judge Davis is trying to send a message to the bar,” Niccolini said. “He expects members of the bar before his court to provide the court with easily digested and well-cited facts.”
-30- CNS 03-16-04