I'm currently preparing a merit brief in the Sixth Circuit, and I'm on the fence about how to address a few issues. The main issue I'm dancing around is the fact that counsel is at fault for losing the case. He had appeared after the plaintiff initiated the civil rights action pro se, and he ultimately was at fault for summary judgment being granted to defendants. Of the things he did or did not do, as a reasonable attorney would've or should've known in his practice area, his amended complaint was not "verified" and was in large part fatal during summary judgment, but he also allowed numerous defendants to be dismissed where he failed to allege sufficient facts (despite the plaintiff providing enough information for him to keep them in the suit), and he ultimately botched discovery, failed to attach pertinent documents and cite to them in response to summary judgment, and was grossly negligent which resulted in summary judgment being granted to the defendants.
Once it became apparent counsel was going to screw up responding to summary judgment, and where he refused to communicate with the plaintiff, the plaintiff submitted his own supplemental response to summary judgment with attachments counsel should've presented but did not. Of course, he was not entitled to hybrid representation, so the response was stricken from the record, but the district court addressed the contents of his attachments on the merits--so, can they be referenced and relied upon on appeal despite being stricken? Seems akin to the principle that procedural defaults are waived when the merits are addressed by the court.
The plaintiff filed his motion for reconsideration under Rule 59(e), and the district court denied it, yet ignored the majority of case law he cited (which was relevant), and offered a secondary observation in response to the plaintiff's thorough description of the manner in which his counsel screwed him, where counsel had the evidence/documents in his possession which would've overcome summary judgment, and the court essentially protected him by stating his response was "routinely" negligent, not "grossly" negligent. Plaintiff also submitted a grievance to the bar on the attorney.
So, do I have to convince the Sixth Circuit that counsel was grossly negligent, and if so will or can that cause a reversal of summary judgment? Or, is my best bet to avoid the issue and proceed with the arguments and what's in the district court's record (the law is mostly on my side on the issue, btw)? My fear is that the Circuit will say that what was introduced after summary judgment could've and should've been presented in response to summary judgment (which again falls on counsel). The plaintiff is no expert in these matters and didn't know what else to do but file the supplement with the documents which needed to be relied upon, but I think it speaks for itself that when counsel made it clear that he wasn't going to attach and cite to the documents needed, the layman plaintiff intervened to bring relevant documents to the court's attention to save his case.
Any input would be much appreciated. Thanks
Once it became apparent counsel was going to screw up responding to summary judgment, and where he refused to communicate with the plaintiff, the plaintiff submitted his own supplemental response to summary judgment with attachments counsel should've presented but did not. Of course, he was not entitled to hybrid representation, so the response was stricken from the record, but the district court addressed the contents of his attachments on the merits--so, can they be referenced and relied upon on appeal despite being stricken? Seems akin to the principle that procedural defaults are waived when the merits are addressed by the court.
The plaintiff filed his motion for reconsideration under Rule 59(e), and the district court denied it, yet ignored the majority of case law he cited (which was relevant), and offered a secondary observation in response to the plaintiff's thorough description of the manner in which his counsel screwed him, where counsel had the evidence/documents in his possession which would've overcome summary judgment, and the court essentially protected him by stating his response was "routinely" negligent, not "grossly" negligent. Plaintiff also submitted a grievance to the bar on the attorney.
So, do I have to convince the Sixth Circuit that counsel was grossly negligent, and if so will or can that cause a reversal of summary judgment? Or, is my best bet to avoid the issue and proceed with the arguments and what's in the district court's record (the law is mostly on my side on the issue, btw)? My fear is that the Circuit will say that what was introduced after summary judgment could've and should've been presented in response to summary judgment (which again falls on counsel). The plaintiff is no expert in these matters and didn't know what else to do but file the supplement with the documents which needed to be relied upon, but I think it speaks for itself that when counsel made it clear that he wasn't going to attach and cite to the documents needed, the layman plaintiff intervened to bring relevant documents to the court's attention to save his case.
Any input would be much appreciated. Thanks
Deprivation of Civil Rights: Seeking Advice for Merit Brief Formation for Circuit Court Appeal
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