Lawyer Fined $100 for Getting a Case Citation Wrong

Esq.
Oct 14, 2009 9:28 AM CST

That seems fair for an attorney to compensate the court for time and resources spent tracking down a cases to support a lawyer’s position.

I was actually taught that a good lawyer should always provide a courtesy copy of an unpublished opinion supporting his position to the court.

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Philip
Oct 14, 2009 12:09 PM CST

do courts have nothing better to do? First, it doesn’t sound like it really took up too much of their precious time. Second, if they couldn’t find the opinion, they should’ve just said that, and the embarrassment to the lawyer would be enough.

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Walt Fricke
Oct 14, 2009 7:39 PM CST

Seems like condign punishment to me.  $100 is less than a handicapped parking ticket, but enough to catch the notice of members of the bar.  If it had been just one misplaced number or letter, would be different.

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D. C. Toedt
Oct 16, 2009 4:31 AM CST

If you ask me, the lawyer’s sin wasn’t sloppy citation, it was misrepresentation of the holding in the case that was cited. It’s irrelevant that the court was able to find a different case that (maybe) supported the lawyer’s argument.

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Olga Boatski
Oct 16, 2009 5:17 AM CST

Lawyers should NEVER cite a case they haven’t cite checked.  With the proliferation of “copy and paste”, almost any loser can appear to be a big researcher, while the dummy has never even seen the cases cited.

I saw this happening a lot when people kept MIS-citing the same references in their motions.  (I worked in a circuit court clerk’s office).

Putting down bogus cites makes the legal profession look cheap.  In this instance, it wasn’t as bad as what I am describing.

There are 2 many lazy lawyers copying and pasting out there.  You dummies know who you are.

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Ryan Frank
Oct 16, 2009 6:19 AM CST

Re: No. 2,

Per an amendment enacted this summer, you may cite an unpublished opinion issued after the effective date of the amendment, referenced below, for its persuasive value only. As you will note, submitting a copy to the court is required by statute.

809.23(3)(a)   
(a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case, and except as provided in par. (b).

809.23(3)(b)   
(b) In addition to the purposes specified in par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.

809.23(3)(c)   
(c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.

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Bird Smack
Oct 16, 2009 6:58 AM CST

I just read a petition for leave to appeal that would have cost the lawyer about $2,000 under this ruling.

No. 3 - yes, the courts do have better things to do.  But they can’t get to them because they have to decipher your sloppiness.

No. 6 - it may be a non-story to the extent that Wisconsin courts often hand down fines for this sort of thing.  But every once in a while its good to see a judge who cares enough to say, “You’re a professional.  Get it right.”

No. 8 - “not fair”?  What is this, pee-wee football?  I don’t like them either, but it has nothing to do with fairness.  And by the way, if an unpublished opinion truly never “saw the light of day,” then we wouldn’t have the temptation to cite to them - we wouldn’t know they exist.

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Citation Master
Oct 16, 2009 7:15 AM CST

Does anyone know how to properly cite this article?

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atb
Oct 16, 2009 8:05 AM CST

Having worked as a clerk I can tell # 3, that the Court certainly has better things to do than cite-check an attorney’s work.  Then again, that’s our job (to get the law right)—just like its the attorney’s job to get the citations right in the first place.  The only difference is that a client is paying an attorney several hundred dollars an hour.

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John Buso
Oct 16, 2009 8:19 AM CST

@ #17 - Hey, if we got everything right in the briefs, clerks would have less work to do.  However, you got the fee issue right.

The only question relates to the appropriate penalty.  The $100 penalty got the attention of the Journal, but probably not the lawyer who made the mistake.  Perhaps there should be sentencing guidelines.  I suggest a requirement that the lawyer rebate his client $3,000.00 or 1% or the fee whichever is less..

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Doc S
Oct 16, 2009 9:04 AM CST

Sure the lawyer should have provided a copy of the unpublished case, but it looks like he simply put the docket instead of the citation—is this really that big of an issue that the court needs to set time aside to fine and scold him to boot?  There has to be some give and take—instead of wasting time researching it just makes more sense to call the lawyer and request a copy.  It seems to me that all this time invested by the court was about “making a point” and don’t we owe our colleagues more than this?

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Joel Steiner
Oct 16, 2009 9:07 AM CST

Remember the opponent had to try to track down the false cite too.  That cost his client money and wasted his time too.  Lawyers are expected to do their job right, not have someone else cleanup after them.  I agree, $100 is nothing compared to what this cost everyone else.
However, I do think that if it was important enough for oral argument and a written opinion the case should be formally reported and available for others to cite (correctly).  I have on a number of occasions found unreported cases which were identical to my case, while the reported decisions I was allowed to cite were not as close.  In the era of Westlaw and Lexis everything is published, even if not officially.  Time for court rules to move into the 21st century.

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Vegas
Oct 16, 2009 9:30 AM CST

Waste of judicial resources!  First, we know the “Court” (no judge) did not spend time looking this up.  More likely than not, we had a snobby law clerk instigating this problem.

As some have suggested, a simple phone call would have done the job!  This contact to the attorney’s office would be no different than a law clerk asking the attorney to correct something on their paperwork (administrative issues).

Therefore this would not be Ex Parte Communication.

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G Dennis
Oct 16, 2009 10:13 AM CST

The lawyer clearly had a duty to double / triple check his / her case citations to assure they wee correct before submitting the brief. A monetary sanction was warranted. However, at the same time the Wisconsin Court of Appeal could have simply phoned the lawyer asking him / her to E-mail the correct citation (cc opposing counsel) rather than spending time trying to figure out what the correct citation was.

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J.Lawyer
Oct 16, 2009 11:39 AM CST

I find the fine ato be rediculous.  Let the
Appellate Judge or his law get of his soft chair and do something.  Instead of wasting all the time, have the Judge have his underworked clerk call the lawyer and get the right cite.  He can also call opposing counsel and tell him of the call..

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nichelaw
Oct 16, 2009 3:49 PM CST

@15 - I would cite this article as follows: Debra Cassens Weiss, Lawyer Fined $100 for Getting a Case Citation Wrong (Oct. 16, 2009), available at http://www.abajournal.com/weekly/lawyer_fined_100_for_getting_a_case_citation_wrong.

I’m never entirely sure about citing electronic media, though, so if someone else disagrees, I’d be interesting to see how else it could be properly cited.

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Casey
Oct 16, 2009 10:50 PM CST

Recently, I read an opinion from the Texas Court of Appeals in Amarillo in which the judge cited an unpublished opinion saying it “establishes” a certain rule. I’m tempted to write a letter to him explaining that unpublished opinions do not establish anything. That’s why they’re unpublished. I can understand using an unpublished opinion at trial to suggest how the appellate court may handle an issue. But even that should not really be done. If the judges of an appellate court were confident in their opinion, they would publish it. Not publishing is a tacit admission that the court is unsure of its reasoning. Behind all of this is the deeper issue of how we are allowing the internet to affect the law. Before on-line research an unpublished opinion was just that—unpublished. It was not readily available to most lawyers, and citing to it was usually not an issue. So now with the internet are we going to let attorneys use doubtful opinions to sway trial judges into making bad rulings?
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lbradjohn
Oct 17, 2009 2:59 PM CST

Sure, a phone call could have cleared this up. And another phone call for the next bad cite, and the next one, etc., ad infinitum. It seems to me that this is an appropriate way for the court to remind everyone, not just one offending attorney, that your legal writing professor was right about getting citations correct. I’ve never met any of those “underworked” appelllate court clerks of which you speak, and I don’t think it’s the courts’ job to fix my sloppy work.

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studentloaner
Oct 19, 2009 2:35 AM CST

It seems a bit extreme to fine the attorney unless he had a long record of making similar mistakes.  As was stated above, it is still generally a good idea to include a copy of the unpublished opinion.  Even if the reporter or Westlaw number is wrong, it only takes a second to search by party name.  Believe it or not, I have actually seen errors in judicial opinions.

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jbo
Oct 19, 2009 8:29 PM CST

What’s disappointing is that this lawyer is sanctioned while high dollar lawyers from the heavyweight law firms cite the case correctly but blatantly misstate its conclusions, which never seems to merit even a verbal reprimand.from the court.

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