From Atty Candice Schwager–Blessings for a good Judge

From Candice:

Mary Lou Robinson (Age 82) is a name I will never forget, for she showed me more JUSTICE in one day than I have seen in a lifetime. I was literally HIGH on JUSTICE for 3 weeks before I could get my head out of the clouds back to earth as a result of this amazing woman. She restored my faith that judges still exist who are so righteous I have no words to describe them and yet, she had the perfect balance of mercy that caused her to withhold harsh actions she could have taken against a man who took my friend’s money and made the biggest mess I have ever seen by a lawyer. Clearly, Raul wasn’t a special education lawyer and had no idea what he was doing, but he also appears to have hardly cared. I firmly believe he was impaired and the Bar thought so as well.

You could look at the file from Houston to Amarillo and see “something is terribly amiss” with the attorney. In return for $25,000 and a contingent fee in the outcome, Raul agreed to handle my radio co-host’s case Tim. Tim was awesome and now advocates for special needs kids. He was hilarious on the radio. It was 2010, Thanksgiving, and while I prepared for a long relaxing break, Tim called and said, “would you mind taking a look at my case. I think something is terribly wrong. My lawyer won’t call me back and it’s almost time for trial.” I did. My response, “sit down.–”

I don’t know how to tell you this, but you are getting what’s called the ‘death penalty’, the worst of all sanctions. Your pleadings will be struck because your lawyer failed to amend them as the Judge ordered. You will be prohibited from introducing any evidence because your attorney failed to produce discovery, file an exhibit list, witness list or disclosures. And the School District is seeking $50,000 in sanctions against you for filing a frivolous lawsuit to teach you a lesson not unlike the lesson they teach other parents: this is what you get for asking us to provide an education to your child. And, trial is in 11 days. Your statute of limitations runs in 10 days on the Title 9 claim your lawyer should have pled, but didn’t. There are 5 motions to dismiss on file and your attorney has not answered any of them. After a long pause, I said, let’s do it. Fire your lawyer and go pro se. I will help you but it’s an emergency, so let me get busy.  

There goes thanksgiving, but what the heck?  I had never in my life even contemplated what I ultimately did in federal court, no less. I am still bewildered that I did this, and even more so that it worked!  Most people know how formal and strict federal judges are. The walls are even higher than state court, making you feel that much smaller. After reading the Judge ordered Raul to amend the pleadings and spoon fed him the amendments, which HAD TO BE MADE in order to cure the fatal defects in the way he sued the principal and school–their official capacity. That made them immune from suit, one basis for dismissal.

Instead of just following her generous instructions (federal judges do not tell you how to plead your case), he said, “oh, it’s no big deal. she won’t care.” Touche! Yikes! A federal judge can throw you in jail for next to nothing and Raul says “no big deal.” After reading that Raul asked for $2 billion in damages for various claims, stating that though he wasn’t suing for defamation per se (automatic damages presumed), he would like the same kind of presumed damages automatically–wouldn’t we all? I truly believed this man was on the moon, he was so impaired. The lawsuit was filed for illegal retaliation and discrimination against Tim’s autistic daughter for extreme retaliatory acts the district took against him for simply requesting a due process hearing to challenge the utterly pathetic education the district offered his daughter. That caused the first false APS report alleging Tim abused his daughter. Tim was cleared immediately.

Brandy suffered unbelievable acts of retaliation and neglect including a sexual assault by another developmentally disabled student and being assaulted with a goose egg size bump on the head courtesy of her instructor. The abuse was so severe, she suffered flashbacks for years thereafter, causing her to dig her fingernails into her mother’s arm and draw blood. Tim suffered three false APS reports and though he was cleared of wrongdoing in all, he and his wife were so scared of his school district and the lengths they would go to not provide federally mandated services, he abruptly got up and moved in the middle of the night, leaving his home and not looking back. He knew what it was like to be a Whistle blower because he blew the whistle before calling the EPA. He understood being a target.

I took one look at the file and knew that if God didn’t part the Red Sea and give me a miracle, he was done. So I stayed up all night drafting emergency motions for new trial, discovery, to amend the complaint late, for leave of court to late file designations of witnesses and exhibits, disclosures, and for an entirely new scheduling order with new dates for everything. As my opposing counsel whined, “she wants a ‘do-over’.” He was right, but it just sounds so crazy to ask a federal judge for a “do-over” 10 days before trial. Desperate people do desperate things. I suppose I expected many things, but not the “smart alike” TAPS motion the opposing counsel filed, stating that I failed to file a brief to support my request pursuant to Rule 7.1(h).

Anger surged through me and I said to myself, “I’ll give you a damn brief.” Writing has always been my passion and I’ve been told I am the equivalent of a sniper when it comes to hitting my target. I had little time with the hearing the following morning, given it was 8pm. But I was not going to let anything stop me from responding to that jerk. The attached brief is my response to his TAPS brief, mocking the fact that my friend was going down in flames and it was time for the funeral. THAT made me so angry, I could hardly see straight. But, I think it was the single biggest mistake the district’s attorney made because it made me angry enough to write one of the funniest briefs I have written in my life (Tim laughed 4 days straight with his wife and I wondered how he could laugh at all). I decided to use the defendant’s military style theme and the only case he cited, which supported Tim in every respect and rip him to shreds, while inciting the passions of the Judge in my approach. I first nearly vomited all of the disgusting facts into section 1, detailing the horrific abuse Brandy suffered and the retaliation Tim endured for doing nothing but enforcing his rights.

Then, I told the judge what a complete callous jerk their lawyer was to call his brief “TAPS” to signify “get ready for your funeral!” I truly could not believe this jerk was mocking my friend’s suffering. Section 2 takes the defendant’s only cited case and rips him to shred with it because every prong of the 4 part test supported us. Section 3 includes citation to Rules 15 (manifest injustice) and 16 (good cause) and while the defendant argued we lacked good cause, I invoked the sacred concept of manifest injustice as the harm Tim would suffer if our motions were denied. Ultimately, I showed the reverence and respect which I believe a Judge like Mary Lou merits 100 times over. I called Tim at 6am and said, “check your email. Fax this to that jerk and go file it now!  Hearing in 3 hours”. It wasn’t an hour before the district’s lawyer called Tim, begging forgiveness for his tasteless comment, but it was too late for that. The Judge’s emotions were seething just as I had hoped. In a display that was truly for the movies or a novel, the Judge ignored the sloppy drunk as if he weren’t there and went for the jerk’s jugular.

The rules stated that the Judge had no discretion to deny the 5 motions to dismiss, but he just totally pissed off the judge like nothing I have ever seen and she agreed with me–this was MANIFEST INJUSTICE! So, she called the district’s lawyer to the bench and intending to dismiss every motion to dismiss, she made him assert each one first so she could scream in his face “DENIED!!!” About that time, one of the very best special education lawyers in Texas walked in the door–and everyone must have fainted because it was a game changer. Marty Cirkiel did not enter an appearance, but notified the Judge he was there to take over for Tim. So, the question of what Tim was going to do was already resolved thanks to my ability to grovel and beg–and get him to Amarillo in 10 hours with almost no notice. I was riding on a prayer.

Tim asked me beforehand, “what do I do if she asks me who wrote this? she is going to know I didn’t.” I said, “you don’t ever lie to a federal judge. But don’t give me up unless she asks for my name.” Due to the emergency of having to file in 48 hours, I did not have time to get admitted to the ND Texas Federal Court, which was only a matter of paperwork easily done if we had time. Tim was summoned to the bench and asked, “So, I guess you had a little help?” Yes, Your honor. “and I am guessing an attorney helped you?” Yes, your honor. And that was that. Whew! Apparently that brief had everyone in Amarillo giggling. The result was unimaginable. I am still shocked, but we got a “do over.” And the district was not paid fees, even though Raul did waste their time. Hours before that statute ran on the Title 9 sexual harassment claim, Marty emailed the amended complaint to me, including Title 9, as well as everything else that should have been pled, but was not. I have never cried reading a petition, but that day, I bawled.

The Judge issued a lengthy ORDER and even sent a message to me, the Lone Ranger who rode in and out without detection like a ghost. The ORDER said clearly “all attorneys not admitted to the Northern district of Texas MUST do so immediately.” Enjoy the brief as you are thinking “she filed this in federal court?” I still ask myself the same question, wondering how in the world I got a “do-over” in federal court based upon JUSTICE ALONE. This case and other less dramatic cases keep me going, believing there is justice in our Courts. I will never forget this Judge! What a firecracker!

She was 82 when she heard Tim’s case. I honestly felt that God parted the Red Sea that day because I asked the Judge for something I am willing to bet has never been asked–a “do over.” A review of the record almost seemed like she knew Raul had “gone fishing” and was praying someone would come along and rescue Tim from his impaired lawyer. There is hardly a good explanation for her decision to not dismiss the case long before I came along. Divine Intervention? Absolutely!

The American Board of Trial Advocates (ABOTA) named MARY LOU ROBINSON “Jurist of the Year 2016” and this Judge is absolutely one Judge I will never forget as long as I live. I only wish I could have met her. She is beyond honorable and a true hero who elevated JUSTICE over legalism and rigid rules. To date, this is the only scenario in which I have ever pled FRCP 15, MANIFEST INJUSTICE. The Honorable Mary Lou Robinson of Amarillo, Texas, served as a judge for more than 60 years, beginning in 1955 – before women were allowed to serve on juries! Judge Robinson first served as a trial court judge in state courts, then as a justice on the Amarillo Court of Appeals, and for the last 37 years as a United States District Judge. Judge Robinson has exemplified fairness, impartiality and an intense commitment to the U.S. and Texas constitutional rights to jury trial in the American system of justice. Among her many notable cases, she was the presiding judge in the “Oprah Trial” in Amarillo, Texas.

honorable-mention-2

From Joanne:

Actually, the rules are in Federal Court that an attorney can ghost write pleadings for a pro se client, but the client must let the court know they had an attorney draft the pleadings.

In Illinois, there is no duty to report ghost writing pleadings in state court.

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