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Tuesday, July 10, 2012
Lance Armstrong gets Twiqbaled

Let me add my proceduralist take to Mike's comments on Lance Armstrong's lawsuit and its sua sponte dismissal.

The lawsuit claimed tortious interference with contract and violation of Fifth Amendment due process. The complaint was long (80 pages, 261 paragraphs) and rhetorically loaded, deriding USADA's "kangaroo court" and its belief that it is "above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules." And those are the mild parts.

In  the complaint, Judge Sparks said it is "far from short" and not "plain," buried in "excessive" rhetoric; the court was "not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants." He noted that "[c]ontrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigativej ournalism. All parties, and their lawyers, are expected to comply with the rules of this Court, and face potential sanctions if they do not." A complaint, the court said, requires facts, not a "lengthy and bitter polemic against the named defendants."

This is an absolutely extraordinary order. I have written before about pleading as press release (Elizabeth Thornburg coined the term). The district court in the Duke lacrosse lawsuits took the plaintiffs to task for ther overly long and overly overheated complaints, but that was in the course of ruling on 12(b)(6) motions and was done largely in passing and as a reminder to the lawyers going forward. I have never seen a court preemptively and unilaterally reject a complaint for overdoing the rhetoric. Especially since, while Armstrong unquestionably was speaking to the sports media and the world, I am not sure the rhetoric here is so much more excessive than in other complaints.

Perhaps this is judicial order as press release. Judge Sparks knows the world is watching this lawsuit and he is proactively seizing control over the case and making clear that they litigate for the court, not for the press.

[Update: It turns out, Judge Sparks is known as something of a loose cannon, doing some unusual/borderline things when it comes to controlling what he sees as attorney misbehavior. (H/T: Bryan Camp of Texas Tech Law)]


This is an excellent post. It may indeed be that the judge wants to trump Armstrong in terms of the "press release" with his own. Assuming this is true, it is both sad yet real. Sad that judges recognize that they are no longer isolated by the court walls and are evolving into celebrity status (e.g., Roberts, etc.). Real for the same reasons. I think this reflects the evolution of the law in the the Internet era. We can only hope that justice is blind. Well, maybe the saying should say, "Justice is blind as long as there is no internet service."....

Anonymous Anonymous -- 7/10/2012 8:31 AM  

In an earlier version, I floated that a second explanation was that the judge was playing to the crowd. I deleted it because I have too much faith in judges. But you're right that this is a possible explanation.

Blogger Howard Wasserman -- 7/11/2012 2:31 PM  

Howard, you are not alone. I used to have faith in judges, too. I remember a friend once told me, "if we can't trust judges, who can we trust?" From time to time, I think about that statement and it makes my stomach turn because I want it to be true (faith in judges). Anyway, your insights are always appreciated particularly from the procedural point of view. If I may say, your insight on USADA (the piece above this one) is correct as well. It's not a state actor and it is not an agent for the federal government. Maybe this Armstrong case will help clear things up, but this has presented all kinds of jurisdictional, substantive and procedural problems for lawyers, judges and arbitrators over the years (see the Butch Reynolds and Matt Lindland cases, for example).

Anonymous Anonymous -- 7/11/2012 2:58 PM  

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