Seventh Circuit Recounts Saga of Lawyer Who Asked to Withdraw from Case Right Before Closing Argument

In Black v. Wrigley, No. 20-2656 (7th Cir. May 10, 2021), the Seventh Circuit affirms a defense jury verdict in a defamation case in which plaintiff’s counsel tried to withdraw at the close of a jury trial due to an apparent  conflict with his client.

On Friday, “the day of closing arguments, when [plaintiff]’s trial counsel [Homyk] informed the court that he had just ‘been advised by [plaintiff] that she elects to present her own closing argument.’” The district court denied the request because plaintiff was represented by counsel; the judge also denied plaintiff’s request for leave to fire her attorney. Plaintiff’s counsel then asked for a continuance of closing arguments until Monday, and that request too was denied.

“Homyk again asked for a continuance until Monday and said, ‘I guess set me up for malpractice. Whatever. … I really don’t care anymore, Judge.’ He said he knew he could ‘pull [it] together … by Monday’ but was ‘not emotionally ready to do this right now.’” While the plaintiff “promised the court that if the case were continued to Monday, she ‘[would] not represent [her]self,’” she indicated that she “might bring in a different lawyer, and the court responded, ‘This is why I’m not continuing the closing argument. … The request is denied. We are starting the closing arguments in ten minutes.’”

Plaintiff’s counsel then put on the record that he was too ill to continue: “I’m physically unable to continue with the closing argument today. … I’ll tell you, Judge. Hold me in contempt. I’m physically ill right now. I am. I’m sorry. I hate to say that in front of a courtroom full of people. I can’t do it right now. I will for sure be able to do it on Monday.” The judge finally adjourned court to resume on Monday. Counsel gave closing arguments and the jury found for defendants.

The Seventh Circuit affirms. Among other trial errors, plaintiff raised the issue of her counsel’s alleged incapacity. Plaintiff claimed “that the district court erred by refusing her requests to allow her either to present closing arguments herself or to hire a new attorney after her trial counsel … suffered what [plaintiff] calls ‘an unexpected, severe collapse of cognitive function.’”

The panel notes that “ineffective assistance” of counsel in a civil case, in the form of alleged “lack of preparation and general failure to represent her effectively at trial,” is not a ground for reversal. Plaintiff argued that this case was unique because the court refused to allow her to fire counsel and “effectively ‘foisted’” unwanted counsel on her. “That’s not how we see things. Refusing to allow a troublesome litigant to terminate her retained counsel the day of closing arguments is not ‘foisting’an attorney upon her. To say otherwise assumes that litigants have unfettered freedom to hire and fire and swap and drop attorneys at will in the middle of a trial. That is plainly not so; courts have wide discretion to manage the withdrawal and appearance of attorneys during proceedings.”

“The bulk of Katherine’s argument, however, focuses not on Homyk’s mistakes, as such, but on his alleged ‘incapacity.’ And we grant that Homyk suffered some sort of breakdown on Friday and flatly refused to give a closing argument on pain of contempt. But his request for a continuance was granted, and he capably gave his argument on Monday. So it’s not quite clear to us how Homyk’s temporary ‘incapacity’ on Friday had any effect on his performance over the four preceding days or the next week.” In any event, plaintiff was represented by two counsel at trial. Plaintiff “shrug[ged] off her second attorney as a ‘de facto paralegal’ because she primarily handled exhibits and served as second chair,” but the panel found that the second-chair attorney had been actively involved at trial and “[n]either [plaintiff] nor Homyk ever proposed that the other lawyer conduct the closing argument.”

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