morning everyone and happy valentine's day before we began josh callahan and i would like to once again welcome and thank judge murphy from the eastern district of michigan who's sitting with us this week welcome and thank argument is air force versus alameda contra costa traffic history well counsel for appellant please approach and  about whether it made sense to spend this day arguing about eight hundred and seven dollars and i've come to the answer many times after thinking about this that i absolutely have to be here to discuss this because of the nature of this case in the reasons for the sanctions at the end of the day what i'll be asking the court to do is not only make it take a position as it relates to the bench and the role and the person sitting in the role on the bench and what their responsibilities are to attorneys that appear in a courtroom but also for turners to be clear as to whether their conduct rises to the level of being sanctioned over what at best should be seen as uninformed or in the skin excuse inexcusable neglect in this particular situation the core issue is that the court issued a c m c a case management conference months after a case had been electronically that are interested or should be interested in the matter so that's correct then you would notice intellect tropically that's correct and so that means that you elected not to open the e mail or how what happened after that that's a great question so there were several e c f notifications that are being issued after the case that actually been tried and judgment had been entered in all of those you see as notifications related to the proceedings related to the post judgment proceedings in each of those notifications it's a warning case closed i think it even has a language terminated in it and when you look at that matter you understand it that case is closed you're not participating in those proceedings you have no expectation if you're going to be called to appear in those proceedings you haven't appeared before this court since the last day of trial so yes there are notifications the come in before calendar for calendaring purposes our office did not see that below further down below where say a warning case closed so you're saying you're on if you're opposite get the notice you don't read the content we typically read the content for active matters i think that's our standard for a matter that has been closed for months and for which we are no longer participating anything going on in that courtroom we would notice that e c f notification came in but there was no practiced of continuing to scroll down to the bottom of the e c f to see what the notification was because we were already told the case was closed we had no dealings in that courtroom we had no activity in that courtroom and so there would be nothing to calendar well you never filed a formal motion to withdraw correct that's correct all right and i i'm just going to sort of cut to it from the standpoint that and it appears that you and the judge might have issues with each other i think that's probably fairly started from looking at you work together previously just sort of so i can see an element here of will the judge apparently didn't find your explanation credible that's cruel and perhaps that's because of past dealings that the two of you have had or any number of things but so it seems like we've got a couple of people here are really digging in their heels and there this could have been you know you could have said ok i didn't file a motion to withdraw but my client i filed you filed the notice of appeal i guess and then your understanding of it was hey i represent you came in it sir towards the end did the did the trial not totally unreasonable that the judge would have thought well you're having some you know that that this person didn't know about you know that they were going for you know costs in attorney's fees or fees against him and so i mean you can sort of look at it and say hey these guys don't really like each other you're standing on the fact like hey i'm done the client knows that i'm done that's his problem or whatever but you you know but your office is getting notices disregard of it in the sense that it was set and we were taking the position you can order us to come into court we just didn't know and it wasn't until after the court then contacted our office and said you need to be in court force i think you maybe had opposing counsel to do it then we said well what c m c looked it up saw that it had been set and then said no problem we'll be in court and we'll address these issues and that's essentially what we did is we said your honor we didn't know about it here we are what can we do to answer the court's questions here's why we are here today and instead of it being an understanding that we have been notified the case has been closed we haven't been in this courtroom for months we are not part of any of these proceedings we simply didn't know we apologize because i started the attorneys that m court dates and active matters and that's not the rim of the to sanction him for eight hundred and seven dollars in this case it's not an act of matter and we didn't know so we acknowledge that what your honor just pointed out is the reason why we were because it sanctions he this judge would be the one that would be appropriate to determine whether it was in bad faith or not do you think you have a chance to not be in bad faith i know with certainty that based on the bath a standard and based on what we've been discussing here today there's simply no evidence of bad faith so whether judge follow the law i would like to think so but can i say with certainty how the judge would deal with it i can't and i want to offer an opinion on that but i can say that there's certainly no evidence to support a finding a ut faith when the facts show that we've been in every court room we've been in every court date we have never been late we we simply didn't know we were asked to come back to court several months after the case reasons that we just discussed in terms of the facts that led to the understanding that we were supposed to be in court had no knowledge i mean zero knowledge there wasn't a that the mistake here is not seeing the e c f notice c has been set willful has to have some degree of awareness and then you can be mistaken in the choice you make but there has to be some degree of mens rea as it relates to the activity here there was absolutely no knowledge of the need to be in court and we express that and then we'll pay if the court simply said mr benjamin i think you're a terrible lawyer and there's no way you should have failed to know that but i can't prove that you colleagues of i think analyze a case very well and you seem like a honest person and a good advocate and i know you lawyers tend to work hard and be aggressive and judges can gets stressed out but  i in the future you know if people cool down file a notice of withdrawal you know might be able to avoid having you to come on a eight hundred dollars case in front of the th circuit and is did the judge ok there's no question the judge to make any find it a bad faith before leaving the same ssion quote i've got your daughter here in front of you but the question is doesn't the judge have to say to mr benjamin you know either i'm finding bad faith or if he he inches issue in order willy nilly under one thousand nine hundred and twenty seven and the inherent powers  actually the judge did cite every single act of misconduct that he found and under finck you don't have to use the words you acted in bad faith the court can look to the totality and determined that a specific finding a bad faith before issuing sanctions sanctions under its terror hour i don't see that it will actually and think i believe we cited that in our brief and it says i also believe that finck says the court must make a finding of bad faith a finding of circumstances to help him to mount to bad faith so i didn't interpret that as to say that the court has to say you acted in bad faith but looking at the court's order to sanctioning order he lists these are the things that he listed appellant failed to follow court orders mr benjamin he failed to keep his client adequately informed of post trial proceedings he did not respond to the motion to garnish his client's wages he does so obeyed court order for him and his client to appear at the c m c he failed to tell his your client that he needed to its lawyer that's all past behavior prior to the feeling to file a motion withdraw ninety seven dollars which says a court must make an explicit five is quote the court must make an explicit finding the council's conduct constituted or was tantamount to bad faith citing were way express which is  and then x and then he summed it up by saying that mr benjamin's explanation was not credible and i just need to if i got how would he know that i would the judge know that well st of all because mr his client was present mr edwards was present at the o s c hearing and told him i never heard anything about the garnishment proceedings he never told me anything like wait a minute post failure to withdraw correct my understanding was the client nor the counsel showed up he ordered hearing neither one showed up there was a beat let me just backtrack a little bit so how would how would the judge  that they had a hearing without further findings questioning evidentiary matters that mr benjamin was not credible because well let me backtrack when in fact i'd like to if i could backtrack to the initial document that mr benjamin is relying on where he says he got the electronic notification as did my office saying the case was closed on the same page in that same notification just two lines below there's in full caps it says bill of costs and it says it sets the deadlines for objections to the bill of costs so obviously there are two dollars communications in the same document one is that the substantive case is called is closed and basically and the date that the case was closed was the date the judgment was entered and then i notifies that there are still other proceedings happening which is usually what happens after judgment is entered that's when the costs are dealt with they never are dealt with before judgment and so he's already on notice the costs are go filed and he doesn't respond he doesn't a book it's for my experience that particularly in criminal cases it's not it's not unheard of that boyer's will that is not that's something that's not unheard of to me but but you argue i think in your brief that the evidence of the district  irrelevant to our review of the sanctions orders and why would that be well because i mean they don't think they clearly it it's not like watching to stallions fighting it out or whatever and that they clearly don't i don't know what that they both work to get i don't know there's thirst there's past dealings he tried to disqualify the judge previously and that was denied judges aren't supposed to take that personally that well st of all i think if he thought that there was bias involved in the substantive portion of the case through trial he filed a notice of appeal on behalf of the same client mr edwards and he could have taken it up then that was the time to take up any problems with bias and then the case did close he filed a notice of appeal he didn't pursue it but then there were still the pros but are you saying you know just because you represent someone at trial you have to represent them on appeal you don't it's a separate but yes whatever your agreement yes you don't have to but mr benjamin did he filed a notice of appeal filing a notice of appeal what i am saying is not uncommon in practice and then tell people go get a wire to handle the appeal yes i would i would agree typically except not only did he file a notice of appeal he was still pursuing a state court action with the same client with the same my law firm was involved and still was involved and so the assumption was because they were still having contact was he still representing mr edward v i i in a room briefly i think you're an excellent appellate lawyer i don't know much about your practice but i think you're very persuasive here today what i don't understand is why your client has a position in this this seems to be something that's entirely between mr benjamin his client and the district court and why the elevated transit county transit agency has a strong position in this is beyond me this behavior all occurred after the case was over the judgment was lodged the appeal was taken i don't i don't quite why are you so intent on defending the judge and what does that really have to do with your client you want right you got your you got your fees and why do you care i wish we didn't have to respond we felt that because there was an appeal made that we had to respond to it and that we couldn't just ignore it but it was it's not appeal of your face right no no it's just appeal it's between whether he should be sanctioned or the sanctions will go to you the amount will go correct and yes it was for it was for the time that we spent for the extra hearing but the the one of the point i wanted to make was and that has never been explained by mr benjamin is that in addition to all the electronic filings that he received that he felt he didn't have to respond to he also got an e mail from my former colleague ms brown who said to him and this was in july of two thousand and eighteen she said you know we knew that he hadn't contested the costs the costs were significant they were over seventeen thousand dollars and she sent an e mail to mr benjamin saying we want to know if mr edwards would like to work out some sort of a payment schedule before we have to go judge didn't mention any of this in his order no but what actions but i'm saying this because it could have avoided all of the garnishment proceedings that could have this in fact did multiply proceedings more than it had to be because he didn't tell mr edwards that we made an offer but the judge didn't make a finding of any of that and that's a lot of the difficulty he lit just listing all of these things to me and i'm i'm not speaking for anyone else without saying that this as a result on finding that it was willful or that there was bad faith to mean that it's left hanging with about the conclusion of what these acts he said that he didn't advise him he failed to respond to the monish the motion to garnish his because the client didn't know and the client said when he was he and mr benjamin were ordered to come to the o s c hearing he told the court he said i didn't know anything about him what if if you look at all those things and you say yeah he should have done all of those things but the the reason that he didn't do all of those things has to be that he will fully or he did or it was a bad fa contact not that he is negligent incompetent or would you agree under the sanction well i think at a certain point your incompetence becomes inexcusable and it is bad faith when you judge  perhaps but he did it there are people that are actually really incompetent that don't have a bad faith bone in their body that doesn't really justify being confidence but the problem with anything like sanctions contempt or whatever they're very specific and sometimes they're and they're very exacting and sometimes when people really don't like each other they don't make the finding that they need to make  do you think it would be fruitful at all for us to say in this case to our mediators from i don't think it's worth spending further time on it but we've spent some time here yes we have and if i could just say one more thing and we actually spent some time before we came here we need all of your brave some preparing and we have a law yeah a lot of time has gone into this already i agree and frankly i think it would have been easier for mr benjamin just to you know pay the sanction and all but that's that's i understand how he's a moment to an attorney because here when people play guilty or take responsibility for their actions too but there's a lot of trials for people don't do that there are consequences to that for for instance if you were ever to want to become a federal judge that would be a mark against him if that he's been sanctioned so it's a serious matter for an attorney to have sanctions imposed i understand and i don't mean to make light of it but i do want to say that the court the district court did cite both section nine hundred and twenty seven which doesn't have as stringent a standard as the inherent power which does require finding something require i mean there should be some regardless of whether it's the inherent power or nine hundred and twenty seven dollars there should be some indication of willfulness or bad faith or some kind of indication of the conclusion that the court has to reach regarding the manner in which these activities were undertaken well the reason that i think that the e mail which is not an electronic filing but it was from one attorney to another saying we have we'd sanctions on attorneys who one intentionally commit misconduct two or reckless or three act in bad faith and the order assessing the eight hundred and five dollars didn't have any to ignore electronic filing the judge has said that it would be an easier case i thank you very briefly i just want to make clear for the record you know our relationship with mr edwardes would be substantially frayed if we had failed to submit to inform him of what was going on we would not still be his lawyers in this matter we are still his lawyers in separate state let me represent to the court that he didn't know what was going on i think that in answering a question presented to him as it related to the opportunity to have cost wave in lieu in exchange for dismissing a appeal he said he was wasn't present and didn't have a voice and i just let that happen so i say here i just want to be clear for the record we did not fail to execute our duties to inform mr edwards of what was going on but we couldn't get into it in court there of course because there's attorney client privilege and it will not you know we don't know that haven't have an entry here in here but i think you may be with this judge again and i think instead of doubling down on or i think it might be you know made a mistake i'm sorry and i think that's know where i'm at right back where you started you're still in front of the same judge you still have his inclination to sanction you and so what do you imagine will happen there because it's you're back to square one that's the best you can get here here's what i hope happens because i can tell you what i imagine but here's what i hope and i'll quote from what these course of said both the th circuit nd circuit etc his briefs on upwards pages twenty four and twenty five a troublesome aspect of a trial court's power to factfinder in sentencing judge not subject to restrictions of any procedural cold and at times not limited by any rule of law governing the severity of sanctions that may be imposed the absence of limitations and procedures can lead to unfairness and abuse all right you don't have to be a rocket scientist either to realize that if a judge tells you you need to look at these things in the future and you still continue to take this position you know that you know a lot of it sort of like the person that that argues with the officer when they might have gotten a warning and they continue to stand on their rights and i did nothing wrong