Monday, February 28, 2011

Do You Dare Enter . . . The Judgment Zone?


Zorn v. Smith, 2011 VT 10

What most people fail to realize is that litigation is a protracted series of skirmishes that, in the right case, can be prolonged almost indefinitely.  Our image of court, from popular culture, is the series of quick scenes leading, in rapid succession, from the beginning of the lawsuit to the parties’ day in court to the winner emerging on the steps in complete victory.  The game simply is not played that way.  Litigation is a series of steps that are both small and non-linear.  Process circles back on itself.  Victories are always partial.  Even great progress is accompanied by setbacks. 

No greater disappointment exists for a plaintiff than to win but be unable to collect judgment from the defendant.  Woe to the lawyer who fails to explain the nature of judgments to the client or pursues, at great cost, a judgment-proof defendant.  As a public service let me be clear about this quirk that few clients appear to understand.  When you win a civil case and are given a monetary award, there is no guarantee or mechanism to make the defendant pay automatically.  If the Defendant does not pay, you will have to pursue additional remedies such as trustee process or attachment, or even filing a judgment lien, just to secure payment.  You cannot, as some clients wish, call the sheriff and make the [explicative deleted] pay.  Even if you pursue the defendant with these tools, there is no guarantee that there will be anything to attach or seize.  You may just have a piece of paper that would probably be serving you better if it was lining the bottom of your parakeet’s cage. 


All this is prologue to introduce the protagonist of the present case, Robert Zorn.  In 2000 Zorn went after Attorney Scott Smith on a claim of legal malpractice.  Apparently, Attorney Smith promised to represent Zorn in a defective automobile case and never did, thereby allowing the statute of limitations to elapse and the claim to expire.  Zorn, who was represented by an attorney, won his case and was awarded $26,108.00, plus interest. 

In the movie, this is where the credits role and Zorn walks away redeemed and compensated for his troubles.  In real life, Zorn just walked away and sought payment from Smith who did not pay. 

In 2002, Zorn as a pro-ser, filed an action in trial court for trustee process and attachment to make Smith pay.  Smith did not show up to court for a January appearance.  The trial court, dismayed at Smith, rescheduled for April.  When Smith did not appear again, the court issued a warrant for Smith’s arrest.  Shortly thereafter, Smith appeared before the court and explained that he had never received notice of the hearings and nothing from Zorn.  The court vacated the warrant, and Smith agreed that within 30 days, he would either start payment or comply with the financial interrogatories served by Zorn.

At this point, nothing happens in the case for the next four years.  In 2006, Zorn obtains a writ of execution on the judgment and serves it on Smith who gives him $50 lowering the outstanding amount due to $ 43,448.22. 

Let’s take a moment to ponder what Zorn’s mental state might have been.  After six years and three decisions in his favor, Zorn had $50 to show for his troubles.  The endless and confusing delays and process were no doubt taking their toll on Zorn who appears to have snapped or at least began following a different legal muse for the rest of the case.

In March 2008, Zorn renews his motion for contempt and files a motion for renewal of judgment and an “ancillary amended complaint” naming the trial judge as a defendant.  In May 2008, Zorn files what the SCOV characterizes as an “incomprehensible” motion for summary judgment that shows Zorn’s trajectory from discrete legal reasoning to all-encompassing anger and conspiracy with the judiciary.  Smith, in Zorn’s worldview, is no longer just a bad lawyer and a deadbeat; he is a conspirator, racketeer, and part of organized crime.  To make it worse, the trial court is in on it.

While the trial court struggled to make sense of the filings and extract some reason out of them, Zorn continued into September filing more motions and documents.  The SCOV is not clear what these latter filings were, but given the tone of the decision, we can presume that they were akin to other frivolous motions filed by similarly frustrated parties.  Now, Zorn began alleging that the trial court’s “actions were unconstitutional, conspiratorial, and treasonous.”  To cap off the banner year, Zorn ended 2008 with another filing entitled, “Motion to compel summary judgment by violation of the State of Vermont and or officials as judges to violate higher Court orders and Supreme Court orders.” 

In January 2009, the trial court issued two decisions in which it denied Zorn’s outstanding motions and directed him on the process that he should follow to refresh his judgment and to refocus his pursuit of Smith.  This is not what Zorn wanted to hear.  Smith by the way, spent 2008 doing any number of things, but he did not spend the year litigating this case, as he sat on the sidelines, letting Zorn’s briefing speak for itself.

In January, the trial court also ordered Zorn to show cause, an invitation Zorn accepted but took to mean file something lengthy and rambling that repeats your various gripes and grievances from the last three motions. 

Having less of a sense of humor or patience with this, the trial court sanctioned Zorn under Rule 11 for failing to comply with the court’s directions and for filing repetitive, desultory motions that repeated the same, unsupported allegations.  In crafting a sanction, the trial court was guided by Rule 11, which requires a sanction to be “limited to what is sufficient to deter repetition of such conduct.”  The trial court ordered the clerks to refuse to accept for filing any future pleading, petition, complaint, motion, letter, or other document from Mr. Zorn unless signed by an attorney licensed to practice in the State of Vermont in accord with Rule 11.  Appeal followed soon afterwards.

On appeal, the SCOV is essentially looking to enforce the same standard as the trial court—that is the least onerous sanction that will deter repetition of bad conduct.  On further analysis, however, the SCOV splits. 

For the majority, there is a sense that sanctions, like findings, are the province of the trial court, which deals on a regular basis with the parties and who is in the best position to judge not only the nature of the party’s infractions of Rule 11’s code of conduct but the sanction that is most likely to deter future repetition.  The majority modifies the sanction in two minor, but important ways.  First, SCOV limited the ban to only the present litigation, noting that Zorn had been or was a party to may other cases where none of this behavior occurred and where he was successful.  Second, SCOV required the trial court to revisit the sanction if Zorn demonstrated a financial inability to pay the lawyers required by sanction order. 

Beyond these changes, the majority believes that the trial court got it right and is loathe to interfere with the trial court’s judgment.  The sanction was reasonable and limited, therefore, it survives. 

Justice Dooley, however, will have no quarter with this reasoning.  For Dooley, joined by Justice Johnson, the sanction is a sledgehammer where a scalpel was needed.  He argues articulately and at some length that the sanction imposed by the trial court is a violation of Zorn’s right to access justice.  The reasoning is that the sanction cuts off Zorn’s ability to file by tying his ability to file to the whim and caprice of lawyers admitted to the bar, a motley and capricious assortment of characters.  Only if Zorn can persuade an attorney to file on his behalf will he enjoy the same rights that all of us enjoy, namely the right to file or defend a lawsuit. 

Dooley argues that a combination of pre-hearing review by the court staff and substantial fines for offensive filings would address the problem without creating a mechanism that disenfranchised Zorn from his normal judicial rights.  Furthermore, Dooley argues that fines, bonds, or initial review would all be less onerous sanctions, something the majority pooh-poohs.

Nevertheless, it is important to keep in mind that both the majority and the dissent agree that Zorn violated the rules of civil procedure and should be given sanctions.  The only debate is what the sanction should be. 

As fascinating as the debate is, it is all bad news if you are Zorn.  With each day, the chances that he will recover against Smith grow smaller.  At the same time, the case since 2008 has followed a death spiral as Zorn has circled his own motions in ever-tightening patterns, which abandon reasoning for rambling. 

Cue Rod Serling: Zorn departs this summary, a man chasten by the forces of the judiciary and the shape of the law.  He is a changed man, but one with more time on his hands and in need of a good lawyer, here in the Judicical Zone.  

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