1

A pro se litigant in NY, who has been litigating a complex matter for over 10 years, is finding that the opposition's papers have increasing false citations and gibberish in them.

A good example is a recent appellate rebuttal which contains literally dozens of legal claims, followed by scores of cases. Sounds impressive, except that in only but a few of those citations, does the cited case have anything to do with the claim of the attorney. In other words what on the face is made to appear as a well supported argument, has in fact no support, and dozens of cases which have nothing to do with the point of the argument and would frustrate a reader researching the arguments.

This type of false buttressing of arguments has escalated, and the pro se litigant is considering countermeasures. Some may be quite ineffective. However one that has been discussed would be to make a motion to the court, for sanctions against the attorney, with the cause being something like frustration of legal process.

There are numerous examples in federal (US) courts of pro se litigants being censured for "gibberish." Probably more applicable is fraud on the court.

However, legal texts have printed little on this topic, and there are very few cases similar that come up with searches. However this quote from recent cases seems appropriate:

In a recent case, the Court of Appeals described fraud on the court as:

willful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process "so serious that it undermines ... the integrity of the proceeding" ....

What might be effective methods to reduce this frustration of legal process?

  • Is the pro-se litigant expert enough to be sure that the cases cited are not on point? If the pro-se litigant played "devil's advocate" and earnestly tried to argue the case from the other side, would they seem more on-point? Do the rebuttals contain obviously excessive numbers of citations as compared to other rebuttals or pleadings before that court? – Harper - Reinstate Monica Dec 10 '19 at 20:20
  • A small group of us have seen the rebuttal, and the consensus is pretty strong. On one page there is a point, which is off point on the appeal, and there are 9 citations, without explanation. Of the 9, 8 are way off topic. One is near, but off point. I have to give this litigant credit, as he has been fighting a large firm for a long time, and hasn't given up, or clearly lost. Then again, he has not clearly won, yet. – mongo Dec 11 '19 at 0:13
3

The simplest method is to demonstrate the falsity of the claims: this is simpler than pursuing punitive action against the opposition because in addition to demonstrate the falsity of the claims, you have to demonstrate willfulness and deceitfulness of the oppositions actions.

In reading appellate decisions, you will often encounter statement by the higher court that the losing part urges so-and-so, or that the lower court applied a law or doctrine incorrectly, and they explain why that is in error. Such snippets are an excellent model for rebutting incorrect legal claims, although they are usually just the "executive summary" of the refutation. If one side cites Bronston v. United States, 409 U.S. 352, Wickard v. Filburn, 317 U.S. 111 and Romer v. Evans, 517 U.S. 620 as case-law support for the proposition that courts should defer to the interpretation of government agencies whether the agency's answer is based on a permissible construction of the statute, so long as Congress has not spoken directly to the precise issue at question, a refutation would draw on those decisions to show that the three citations do not support the proposition (in my example, it would be unnecessary to do this because it is patently obvious that this is a wildly irrational argument, but many cases depend on a deeper reading of the case law).

Rather than focusing on accusations of gibberish, you could focus on establishing the lack of legal merits behind the opposing side's claim.

| improve this answer | |
  • I spoke with the litigant this afternoon, and my recommendation was to focus on the elements of the rebuttal which are on point for the appeal, which are few. I think the rest is in there for noise. That is what the litigant is trying to stop. Without getting into it, he has reasons for what he is thinking of. – mongo Dec 11 '19 at 0:17
  • However, the question remains regarding sanctions, even though there may be a practical alternative in this instance. Thanks. – mongo Dec 11 '19 at 13:35

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.