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BOWERS ATTORNEY MUST PAY UVA-THE C'VILLE WEEKLY, NOVEMBER 6, 2007

Posted: Tuesday November 6, 2007

Bowers’ Attorney Must Pay UVA

Sanctions sought in firing case in spite of appeal

BY DAVID MOLTZ

Dena Bowers’ $1 million lawsuit against UVA for her firing in late 2005 is now in the hands of the Fourth Circuit Court of Appeals, following a decision by a lower court judge that threw out most of Bowers’ First Amendment claims. But serious legal conflict between attorneys on both sides of the case continues at the U.S. District Court: Bowers’ attorney, Deborah Wyatt, is appealing a $4,150 sanction imposed on her by U.S. Magistrate Judge James G. Welsh, who found in October that Wyatt submitted affidavits in the case that showed “reckless disregard for accuracy” and filed a document that “demonstrates an abject failure to exercise rudimentary legal judgment.”

A magistrate judge ordered attorney Deborah Wyatt to pay $4,150 to UVA for sanctions related to the Dena Bowers lawsuit.

Bowers seeking $1 million in e-mail controversy case
The University’s attorneys continued to pursue sanctions even after the Bowers case left district court in April. Sanctions are used to punish abuse of the judicial process. UVA attorneys argued that Wyatt had submitted reams and reams of motions and evidence in bad faith, that Wyatt’s courtroom behavior was equivalent to a “legal temper tantrum,” and that UVA should be awarded legal fees of $6,250. University attorneys also wanted sanctions against Bowers, but Welsh only ruled against Wyatt, finding that certain filings “demonstrate clearly and convincingly a failure to exercise legal judgment, recklessly [sic] preparation, advancement of multiple submission and contentions made without any realistic hope of prevailing, and an apparent intent to obfuscate and to delay.”

U.S. District Court Judge Norman K. Moon directed all matters relating to the sanctions to Welsh, citing a January order that states that all “pretrial motions and issues” would be directed to Welsh for motion. In her appeal, Wyatt argues these matters cannot be considered “pretrial” since there was no trial and so Welsh has no jurisdiction for handling these “post-judgment” motions for sanctions.

“It is my belief that magistrate judges do not have authority to resolve sanctions motions,” says Neal Walters, a lawyer with the Scott Kroner law firm who served as co-counsel with Wyatt briefly until a conflict with UVA forced him to step down from the case. “As a lawyer, I don’t buy the argument when there is never a trial, everything is pretrial. Even though it may have arisen pretrial, if the case is now done it can’t possibly be pretrial at this point.”

Another part of Wyatt’s appeal is that the first sanctions hearing was held without Wyatt herself present. Due to a clerical error, the hearing was scheduled for July 19 on the court memorandum but appeared as June 19 on the official court docket. On June 19, UVA’s attorneys were present for the hearing and presented arguments for sanctions, according to UVA spokesperson Carol Wood. All record of this hearing, however, was erased when Welsh noted the scheduling contradiction and acknowledged Wyatt’s absence. Wood says that all comments made at the June 19 hearing were similar to those made at a later date when both parties were present, but Wyatt is concerned in her sanctions appeal that records of the June 19 hearing were stricken. According to Wyatt, statements made in her absence could have been derogatory of her courtroom performance and might predispose the judge to rule for sanctions.

“It seems unusual to me that a record of a hearing, even if it was determined that the hearing was held improperly, disappears quickly,” says Walters. “That anything was even said at all becomes very odd, and the fact that then the record of what was said was eliminated becomes stranger still.”

Wyatt says she disagrees with “virtually everything” that Welsh has ruled on the matter. “To my knowledge, there’s nothing that I did that was improper or violated any rule,” says Wyatt. “I felt that I played more by the rules than the other side.” UVA would not comment, according to Wood, citing its policy not to discuss ongoing legal matters.

According to Walters, there are two ways, as a lawyer, to view sanctions imposed on attorneys: “They are either a very smart way to reign in frivolous litigation, or they are a draconian tool to punish people who are challenging the establishment.”

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BOWERS ATTORNEY MUST PAY UVA-THE C'VILLE WEEKLY, NOVEMBER 6, 2007

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