Lacking date stamp on picture leads seventh Circuit to threaten sanctions for lawyer’s alleged misrepresentation

Appellate Observe

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A federal appeals court docket has threatened to sanction an Indiana lawyer after his workplace left a date stamp off a photograph in an enchantment of his shopper’s slip-and-fall case towards Walmart.

In a Nov. 26 choice, the seventh U.S. Circuit Courtroom of Appeals at Chicago ordered lawyer James Ayers of Crawfordsville to indicate trigger why he shouldn’t be sanctioned. The court docket additionally stated it might ahead its opinion to Indiana ethics officers, relying on Ayers’ response.

The seventh Circuit cited “persuasive proof” that the picture was deliberately altered to take away the date and “distressing” representations by Ayers that the photographs had been taken on the date that his shopper fell.

Ayers had represented Linda Waldon, who stated she slipped on a hanger on the ground of a Walmart, inflicting accidents when she fell. She and her husband each sued. Indiana premises-liability legislation requires proof that the defendant was conscious of a situation carrying an unreasonable danger of hurt.

A Walmart worker had testified that she inspected the realm 5 to 10 minutes earlier than Waldon fell and didn’t see any hangers on the ground. Waldon had stated she confirmed an worker the hanger that prompted her to fall, and the worker grabbed the hanger and shortly left the realm, in response to an appellate transient by Ayers.

A federal choose had tossed the case due to an absence of proof that Walmart was conscious of the hanger. The seventh Circuit upheld the grant of abstract judgment to Walmart.

In its order to indicate trigger, the seventh Circuit targeted on two photographs submitted in opposition to Walmart’s movement for abstract judgment. One picture was undated, and the opposite had a date stamp of Jan. 12, 2017, which was 11 days after Waldon fell.

Walmart had produced each photographs in response to a request for inside investigation supplies with out indicating once they had been taken, in response to the corporate’s sur-reply transient.

On enchantment, the date stamp was not included when the photographs had been reproduced in an appendix. Ayers stated a authorized assistant created the appendix, and the date stamp disappeared when the colour photographs had been scanned and reproduced as black and white.

However a lawyer is answerable for the assistant’s conduct, the seventh Circuit stated within the opinion by Decide Michael Brennan, an appointee of President Donald Trump. And variations between the photographs within the appellate and district court docket document recommend that the adjustments had been intentional, the seventh Circuit stated.

The picture with the lacking time stamp was apparently cropped, the seventh Circuit stated. And the 2 pages with the photographs had been the one ones amongst a 248-page appendix that had handwritten web page and exhibit numbers, and the one ones with out the district court docket’s submitting data throughout the highest.

Much more troubling, in response to the seventh Circuit, had been Ayers’ representations in regards to the pictures. The lawyer stated in his appellate transient and in oral arguments that the photographs had been from the date of Waldon’s accidents, in response to the court docket.

In footnotes, the seventh Circuit cited, in a shorter type, these statements from Ayers’ seventh Circuit transient:

• “Even after plaintiff’s fall, the ground was littered by fallen merchandise beneath and across the adjoining racks as proven by the Walmart {photograph}. The accuracy of that picture is authenticated by plaintiff’s testimony that as she lay on the ground ready in useless for help from a Walmart worker, she noticed the ground to be littered.” The seventh Circuit footnote neglected “even after plaintiff’s fall,” in addition to the second sentence.

• “The load of these assertions of fixed consideration and clear up rely upon the credibility of the affiants, which credibility is questioned by the substantial particles identifiable in photographs of the scene on the time of plaintiff’s damage. And whereas the photographs are from January 1, 2017, the date of damage, what would the price of Walmart’s place and its witnesses be if the circumstances had been unchanged two weeks later.” The seventh Circuit quote started with “The substantial particles” and ended with “the date of damage.”

• “Constructive discover is clearly established when pictures are noticed. This mess should have collected for greater than 15 minutes earlier than her fall, and the truth that Walmart can have and produce this picture and nonetheless deny accumulating dropped bits of lingerie and plastic hangers is unbelievable.”

In one other footnote, the seventh Circuit stated that, after he was questioned in regards to the picture, Ayers stated in a sur-reply transient that the date stamps “don’t date the taking of the picture,” in response to the seventh Circuit.

The seventh Circuit neglected some extra data from the transient. It reads: “The 01/12/2017 shadow date and nook date mark are Walmart’s additions, in all probability associated to its investigative course of. They don’t date the taking of the picture.”

Ayers didn’t instantly reply to the ABA Journal’s message in search of remark.

Hat tip to Regulation360 and the Indiana Lawyer, which coated the choice.