Here’s a free risk management tip: it’s a bad idea to file an unfinished draft of an important document in a court case.
It’s even worse if the document contains the embarrassing acknowledgement – in all caps, no less – that one of your own arguments is “PROBABLY NOT WORTH ARGUING?”
Just ask the lawyers representing Kansas Secretary of State Kris Kobach in a lawsuit brought by the American Civil Liberties Union. At issue was a Kansas law requiring proof of citizenship for people registering to vote. Kobach claimed the law was needed in light of alleged widespread voter fraud.
Following a trial in March, U.S. District Judge Julie Robinson asked both sides to submit proposed findings and conclusions before she made her ruling.
The defense presented a 72-page document. In a section addressing the lack of plaintiffs’ standing was the “PROBABLY NOT WORTH ARGUING” comment. The next section was entirely blank.
And a third section made the erroneous assertion that “it has been illegal in Kansas to register to vote for years,” which was apparently the result of a typographical error.
“It appears that a member of the legal team originally filed a draft copy instead of the final version of the document,” a spokesperson for Kobach told the press.
The defense filed a corrected version but refused “additional comment on the draft that was mistakenly filed.”
A Series of Problems
This was but the latest twist in a case marked by “daily confrontations and colorful references to a bazooka, red herring, icebergs, Gmail usage and the type of sandwich that can be used as fertilizer,” according to the Kansas City Star.
Other missteps: the defense was admonished for trying to introduce new evidence at 10:45 pm the night before the trial started, attempting to submit evidence through testimony and failing to provide underlying proof of data on a spreadsheet.
In addition, reports the Star: “Judge Robinson held Kobach in civil contempt of court for failing to follow court orders after she barred enforcement of the proof of citizenship law. Robinson said Kobach didn’t send required notices to would-be voters who were unable to supply citizenship proof when registering at drivers’ license facilities.”
- Proofread all documents before filing.
- Especially key documents in a big case.
- Even more especially when that case is being covered by the international press.
- Proofread the documents again.
- Then proofread them again.
- Fish v. Kobach https://law.justia.com/cases/federal/appellate-courts/ca10/16-3147/16-3147-2016-10-19.html
- Defendant’s Proposed Findings of Fact and Conclusions of Law http://www.abajournal.com/images/main_images/NotWorthArguing.compressedKOBACH.pdf
- ABA Journal http://www.abajournal.com/news/article/oops_kobach_lawyer_files_document_with_all_caps_notation_probably_not_worth/?icn=most_read
- Topeka Capital-Journal http://www.cjonline.com/news/20180424/probably-not-worth-arguing-kobach-legal-team-mistakenly-files-draft-with-note
- Kansas City Star http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article209709579.htm
- Topeka Capital-Journal www.cjonline.com/news/20180311/incredible-and-offensive-retired-attorney-feels-sorry-for-kobach-team-in-voter-fraud-trial
Jay Reeves practiced law in North Carolina and South Carolina. During the course of his 35- year career, he has been a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms succeed through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations (www.yourlawlife.com). Contact firstname.lastname@example.org or 919-619-2441 to learn how Jay can help your practice.