Cherry-Picking: 7th Cir. Criticizes Lawyers' Summary-Judgment Practice


Two weeks ago, in an order given wide publicity nationally, federal District Judge Mark Bennett of the Northern District of Iowa issued sanctions in Security National Bank v. Abbott Laboratories, addressing what Judge Bennett perceived as abusive discovery conduct in a case over which he had presided. There were clearly lessons to learn from that order, including the importance of knowing and adhering to the expectations of the judge before whom you are practicing.

Last week the United States Court of Appeals for the Seventh Circuit issued a decision in Malin v. Hospira, Inc., No. 13-2433 (7th Cir. Aug. 7, 2014), that contains another important lesson for litigators.

The decision reversed a grant of summary judgment to the employer in a sexual-harassment and an FMLA employment-discrimination case. At the end of the opinion, Circuit Judge David Hamilton took the time to point out the ways in which the employer’s lawyers had misstated the record on summary judgment by selectively quoting from deposition testimony, and thereby misled the district court.

The court’s primary concern was that “Hospira repeatedly cherry-picked isolated phrases from Malin’s deposition and claimed that these ‘admissions’ doomed her case.” Slip Op. 23. In fact, Malin had not made those “admissions,” and “Hospira’s presentation of the evidence amounted to nothing more than selectively quoting language it likes and ignoring deposition language it does not like.” Id.

Judge Hamilton explained that this cherry-picking was a poor strategy on Hospira’s part: “Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record. Litigants who take this approach often (and we hope almost always) find that they have misjudged the court.” Id. It’s also a more expensive means of resolving the case. Settlement at the case’s outset would have been the better course. Id. at 24.

Judge Hamilton further “caution[ed] Hospira and other parties tempted to adopt this approach to summary judgment practice that it quickly destroys their credibility with the court.” Id. at 23. The opinion did not name the offending lawyers, nor did the court impose sanctions. But loss of credibility before three judges of the Seventh Circuit is likely sanction enough.

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