11th Circuit slaps attorneys for pursuing rape victim's claims
Two decades ago, John Green was a regular customer at a Denny's restaurant in Miami, Florida. He saw manager Asif Jawaid treat one of the employees, Floride Norelus, “as a slave.” On December 28, 2010, the 11th Circuit issued an opinion affirming a $387,738 sanction against Norelus' attorneys, Karen and Bill Amlong. The 74-page opinion and 24-page dissent, offer an opportunity to see how our courts respond to slavery today. The case is Norelus v. Denny's, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010).
Norelus is an undocumented immigrant from Haiti. In 1994, her brothers took her to see attorney Debra Valladares. Valladares interviewed Norelus (with translating help from her brothers), Green and others. She recognized that this case required a Title VII specialist, and she referred the case to the Amlongs. Norelus then made a police report of how Jawaid and his roommate raped her repeatedly. The prosecutor took no action. The Amlongs sued.
Karen Amlong attended Norelus' first deposition in 1995. It lasted six hours. Amlong received a 30-day extension for Norelus to review the transcript. She did this at the court reporter's office, with her brother (she could not afford either a professional translator or a copy of the transcript). She noted corrections to 4 of the 153 pages of the transcript and signed it.
The Amlongs filed amended complaints naming Jawaid and others as defendants. The new defendants took their own deposition of Norelus in 1996. It lasted for eight days over five weeks. When the Amlongs' associate reviewed the transcript with Norelus, she identified 868 errors in an errata sheet 63 pages long. Karen Amlong did not file it with the court reporter, but did disclose the errata sheet to opposing counsel. Amlong also had Norelus submit to a polygraph (which she passed) and a mental health examination (finding PTSD). Defense counsel won a continuance of trial and a reopening of the deposition at Norelus' expense. When Norelus could not pay for the third deposition, the court dismissed her case. The court also slapped the Amlongs with the sanction for continuing this case after submitting the 868 errata.
The majority's opinion is not quite long enough to cite Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978), where the Supreme Court found a Congressional concern for the vigorous enforcement of civil rights and the role of plaintiffs in achieving its enforcement. Sanctions should be permitted “not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” Id. Whereas Christiansburg evokes a somber tone on the prospect of sanctioning an advocate who undertakes a cause in furtherance of civil rights, the 11th Circuit now projects a gleeful tone over the opportunity to affirm such sanctions. The court rejects Norelus' “story” as “inconceivable,” and Norelus herself as “emotional,” “erratic” and “an illegal immigrant.” It turns out, and I did not know this before, that there is a numerical limit on how many “innocent misstatements” a party can make before the attorney can be sanctioned. One, two, “maybe even three or four” would be allowed in the 11th Circuit, but “not 868.” The court shows no sensitivity to the communication issues inherent with immigrant slaves, nor to the ordeal of the 2nd through the 9th days of deposition. Since Norelus was the sole witness to her rapes, the loss of her credibility required the Amlongs to immediately dismiss her case to avoid sanctions. The majority opinion is sarcastic (pp. 29, 34, 58). In a part disavowed by the concurrence, it compares the dissent to “arguing after Gettysburg that the warring sides had been mistaken all along about the bombardment of Fort Sumter, that it was actually nothing more than a diplomatic overture.” This is an interesting choice of metaphor. Apparently, at least one federal appellate judge for the South is reliving the Civil War. While some rejoice in today's setback for civil rights advocacy, I wonder how much further we must go before our whole government firmly renounces slavery.
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Karen Coolman Amlong and William Amlong sent me the following message:
Richard:
Thank you so much for your support. Our lawyers are preparing a motion for rehearing en banc and we believe that we have a decent shot at winning -- and if not, for being granted certiorari because of the split between circuits on the "subjective vs. objective" standard and the "fees on fees" issue. Your blog was an excellent summary of the opinion and analysis of it and we are heartened by the kind words of other civil rights advocates such as yourself.
That being said, there were at least three factual inaccuracies in the majority opinion, one of which you picked up (no blame intended).
Your blog entry makes it sound like the eight day deposition was taken by US --- and the majority opinion says that WE hired the interpreter. Neither is the case. My husband and I were called to begin a federal trial in Fort Myers (across the state) and the magistrate judge would not continue the deposition of Ms. Norelus, so we sent an associate. This was before the six hour limit and the deposition went on for eight days -- with Ms. Norelus, who was then six months pregnant, being carried out by the paramedics one day when she collapsed. The interpreter for those eight days was provided by the defendants and he made such translation errors as translating "tousjours" as "every day" when the more appropriate idiomatic translation is “all the time.” Ms. Norelus simply "shut down" and responded "I don't know" and "I don't remember" to many, many questions under the stress of the depo and only later, when reading her deposition, did she remember (or want to tell about) what happened to her. Our associate simply transcribed her changes as translated by her brother and a friend -- the good, the bad and the ugly -- and they were submitted as you reported.
The second error in the Carnes opinion is that he says that the trial court excluded our polygraph evidence. We made a motion in limine to use polygraph evidence (two separate tests that Ms. Norelus passed) in our case in chief. The Eleventh Circuit allows it to be used as rebuttal evidence after a declarant's testimony has been attacked. We had hoped that the attacks based on the errata sheet would suffice to allow our polygraph evidence to be admitted in our case in chief. The trial judge ruled it would not be admitted in our case in chief. It was NOT categorically excluded and we still would have had an opportunity to submit it in our rebuttal case.
Finally, the majority opinion suggests that the psychologist who treated Ms. Norelus could or would not attribute her PTSD to the rapes. Not so. She testified assertively that Ms. Norelus suffered from PTSD and that the cause in her opinion was the abuse she had suffered at the hands of the individual defendants. We will be submitting evidence of this from the psychologist's deposition with our motion for rehearing en banc.
We very much appreciate the support of the civil rights community and hope that at the end of the day, we will prevail on these issues that are so important to all of us.
Keep up your good work.
Karen Coolman Amlong
William R. Amlong