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Posner Plays With Pro Se Litigant Before Dismissing His Appeal

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By William Peacock, Esq. on October 16, 2014 6:53 PM

What do you do with a questionable appeal of a questionable case from a formerly pro se plaintiff -- one who has hired and fired two lawyers, not counting his third lawyer, who now represents him on appeal?

Many courts would dismiss his claims in a cursory unpublished opinion, one that would be lost in a stack of unread, non-precedential judgments. Fortunately, Judge Richard Posner wanted to make a point in this opinion, albeit a minor one that has very little to do with the pro se plaintiff.

But legal points can wait -- let's first take a minute to review this entertaining example of the problem with pro se plaintiffs:

His Coworkers Didn't Seem to Like Him

Judge Posner opens the opinion by recounting the plaintiff Dr. Bashir Sheikh's troubles at work. He claimed that shortly after being hired, a co-worker spat on him, accused him of taking her job, stated that he belonged to a "terrorist class of people" (the court's words) and was a danger to the hospital. Within a month, after working only 12 shifts, multiple coworkers filed complaints about his competency, patient skills, diagnoses, and ability to play nice with others. When he refused to resign, he was fired.

Sheikh filed this lawsuit, pro se, shortly thereafter.

Neither Did the District Court

Sheikh eventually hired a lawyer, but the lawyer withdrew. When the hospital filed a "heavily supported" motion for summary judgment in 2012, he hired a second lawyer, one who would only last a short time -- and may be facing a malpractice suit in the near future.

Impatient after three years, and after 147 docket entries despite having no evidentiary hearings or trial, the district court judge gave Sheikh a strict deadline of July 16, 2012, to respond to the hospital's motion for summary judgment, warning that "no further extensions will be granted for any reason."

That, right there, is one of the few actual legal takeaways from this case:

About all that can be said in the plaintiff's favor -- and it is too little to affect the judgment -- is that the judge should not have said that 'no further extensions will be granted to plaintiff for any reason' (emphasis in original). Had the submission of a complete response to the hospital's motion been prevented by something that no one could have foreseen or avoided, a refusal to grant an extension of time would have been unjustified. But the judge's impatience was understandable.

Nor Will His 2nd Lawyer

Long story short, the second lawyer filed a brief opposing summary judgment on July 16, but it didn't directly respond to the hospital's proposed findings of fact. Sheikh, while represented by counsel, filed two so-called affidavits on his own, both dated July 16, one of which was actually filed the next day.

The first affidavit? A copy of Human Resources Policies and Procedures Manual, its Medical Staff Bylaws, and the letter terminating the plaintiff -- all of which were already in the record. The second contained 166 paragraphs of facts and arguments but "isn't actually an affidavit -- it isn't notarized or otherwise witnessed." The first was irrelevant and the second was duplicative of (and conflicting with) his lawyer's submission from the day before.

Posner concludes with two points: Aside from all of the hilarious procedural errors, Dr. Sheikh still hasn't provided an excuse for why his lawyer's filing was so inadequate, which makes the judge's mistake ("for any reason") a non-issue. Second, "blame my lawyer" isn't an excuse: "[I]n civil litigation the lawyer's errors are attributed to the client; the client's only remedy is an action for malpractice. Were the principal not responsible for his agent's efforts, litigation would be even more chaotic than it is."

Chaotic indeed, especially when, as Posner noted, "he had six lawyers: himself, proceeding pro se, on three separate occasions, and in between, and afterward (on appeal), three real lawyers."

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