How to NOT conduct yourself in court
- Peter Schneider
- Jun 3
- 7 min read
Updated: Jun 4
We are doing some legal research and just had to share a poignant example of how not to conduct yourself in court. The lawsuit is a telephone consumer protection act case Ewing v. Freedom Forever, (S.D. Cal). Mr. Ewing is a long time pro-se TCPA plaintiff with reputation of being difficult to work with, and to whatever extent Mr. Ewing's persona is an act to throw the defense attorney off his game and make him look equally clownish, it totally worked in this case. I won't start from the start of the mud slinging in this case, but part way through and focusing on a little detail that probably a lot of litigants don't put enough effort into - the routine email correspondence between the parties during litigation.
You should write your your litigation emails certain the the judge will view them at some point and proceed accordingly, and for better or worse you should be prepared to accept rude emails without comment, and this case illustrates why.
I'm picking up with docket 51-1, Freedom's motion for sanctions, up to and including terminating sanctions. It starts and ends with a bunch of whining.
Defendant, Freedom Forever, LLC (“Freedom Forever”), files this Renewed Motion for Sanctions, up to and Including Terminating Sanctions against Plaintiff, Anton Ewing (“Ewing”). Ewing’s rampant violations of basic norms of civility and professionalism have continued unabated since the Court denied, without prejudice, Freedom Forever’s motion for terminating sanctions (ECF 24). Unless and until Ewing is made to pay for his conduct, he will continue to make a mockery of this Court, its Local Rules on civility and professionalism, and any efforts to bring this case to a resolution.
Their motion covers a variety of alleged bad behavior but much of it happened in the email traffic between the parties.
he [Ewing] actually has increased the volume and tone of his misbehavior. In addition to the continued unprofessional, harassing, and belligerent emails and communications, Ewing has, among many other things detailed below, (1) filed a completely frivolous sanctions motion against Freedom Forever in clear violation of the Court’s admonition above that he “seek sanctions sparingly, and not to obtain a tactical advantage or for any other improper purpose”; (2) threatened to sue Freedom Forever’s lead counsel personally; (3) filed a completely baseless bar complaint against Freedom Forever’s lead counsel; and (4) threatened to have lead counsel arrested if and when he enters California.
I'm getting on Freedom's attorney in this post not because he is completely wrong, but because you'll see that he engaged in enough boorish behavior that the court gave Ewing another pass. I.e. if this is Ewing's strategy [and I'm not saying it is] then the defense counsel saw it coming and fell for it himself.
Litigants and counsel should not have put up with this blatant abuse and weaponization of the judicial system. Ewing’s M.O. is that he resorts to these kinds of shenanigans as a method of bullying defendants into settling without regard to (or in spite of) the weakness of Ewing’s case on the merits. That has not happened here because Ewing has no case “on the merits” against Freedom Forever, which has prompted him to resort to ever-increasing misbehavior and belligerence. He has been amply warned in this case and by other judges in this District in prior cases about his boorish behavior, but he simply – and almost gleefully – ignores those warnings, assuming (safely, so far) that no judge will levy a dismissal sanction or, in the alternative, the severe monetary sanction that his misconduct so richly deserves. Until that happens, responsible companies like Freedom Forever, and the counsel they employ, will be forced to unnecessarily expend resources on these sorts of collateral issues that delay the inevitable resolution of the case in their favor.
This motion is about emails that got under the defense counsel's skin:
With Ewing, there is no such thing as a calm, professional exchange of emails or communications. He also is fond of firing off unsolicited emails, frequently in the form of temper tantrums, whenever the mood strikes him – which is often. Freedom Forever detailed Ewing’s disparaging and uncivil emails at the outset of the case in its initial Motion for Terminating Sanctions and respectfully refers the Court to that filing for a full description. In short, just a few weeks into the case, Ewing: (1) made baseless threats of criminal violations regarding Freedom Forever and its counsel – a particularly bold tack from someone who, per an opinion from this District, previously sustained “a felony conviction”; (2) consistently disparaged Freedom Forever and its counsel; (3) made meritless threats to file sanctions motions against Freedom Forever; (4) sent threatening emails such as a “command” to “[c]ease and desist from emailing me further. Violating this command will have serious consequences for you.”; and (5) sent an ex parte threatening email to a Freedom Forever employee warning him, “Do not destroy any evidence in this matter. I will be taking your deposition.”
Freedom goes on with 30 pages of this, so you'd think the actual emails must be pretty roiling, but instead it is nonsense like these emails. You don't earn any points by stooping to your opponent's level when they use incendiary language in emails. The way to respond is ignore the invitations to steep to their level and use diplomatic, respectful langauge yourself. Then bid your time, they'll give you a reason to put the emails in front of the judge, and to the extent the judge will care, then you get your reward.
Court is kabuki theater and filing a motion you don't expect to win isn't always a bad move if it sets you up for a future win, but the court already saw worse behavior from Ewing and didn't hammer him, and those new emails weren't going to get Ewing sanctioned and a 30 page motion of nothingburger is just going to make you look bad.
Freedom Forever has again failed to establish the bad faith necessary for the Court to impose sanctions. The thrust of the MTS appears to reflect Freedom Forever’s frustration with Plaintiff’s tone in email correspondence and his “rampant violations of basic norms of civility and professionalism.” The Court is well aware of the Principles of Civility outlined in the Local Rules that practitioners before this Court are to abide by, S.D. Cal. CivLR 2.1(a)(1), and it acknowledges that Plaintiff’s brusque manner of litigating his case certainly pushes the envelope of said Principles. But the bad faith standard sets a high bar that Freedom Forever simply has not satisfied. Freedom Forever attached over sixty pages of email correspondence with Plaintiff to its MTS, apparently to demonstrate how irritating it has been to communicate about this matter. It complains that “Ewing sent nine emails to Freedom Forever’s counsel” on May 20, and then “sent an incredible 22 emails” the next day. But as unpleasant as extensive case management email communications might be, it is hard to see how this amounts to “heavy-handed tactics” intended to produce a desired result. Indeed, it is not apparent that there is anything unusual about the back-and-forth nature of the Parties’ posturing such that it has undermined Freedom Forever’s ability to effectively litigate its case. Nor is it apparent that the other conduct Freedom Forever complains of has impacted its ability to effectively litigate its case. Though bizarre, Plaintiff’s lone threat to sue his opposing counsel, see ECF No. 41-2 at 2 (“I will also sue you, personally, for breach of contract.”), does not necessarily demonstrate that Plaintiff was “substantially motivated by vindictiveness, obduracy, or mala fides.” In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986) (quoting Lipsig v. Nat’l Student Mktg. Corp., 663 F.2d 178, 182 (D.C. Cir. 1980)). It is also not clear how, despite the Local Rules establishing that the “[Early Neutral Evaluation (“ENE”)] will be informal, off the record, privileged, and confidential,” S.D. Cal. CivLR 16.1(c)(1)(b), that Plaintiff’s purported “rant” following the ENE violated the Rules. Moreover, Freedom Forever’s vague allegation that “Ewing is willing to break the law whenever he sees fit”—as supported by Plaintiff attempting to record court proceedings but ceasing his behavior when told it was not permitted, Mot. at 16—is little more than a petty grievance. Freedom Forever claims that Plaintiff’s misconduct results in “costs to litigants and the Court’s judicial resources,” but the irony here is that the bulk of the MTS accomplishes much the same. As stated above, the Court sympathizes with Freedom Forever’s frustration with Plaintiff’s bizarre and erratic behavior. But this case is well on its way to reaching an efficient resolution, and a glut of sanctions motions clogging the docket only impedes that progress, particularly when those sanctions motions are premised upon similar conduct as ones that have already been denied by the Court.
Because court is kabuki theater, it is important to come off looking as clean as you can. I don't know if Ewing's litigation strategy is an act as Freedom says, but it isn't a great long term strategy for pro-se plaintiffs who are expecting to take cases to trial.
Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
Commentaires