Dread Pirate #BrettKimberlin v. The Rules, Part Deux


As I’ve mentioned before, The Dread Pirate Kimberlin’s court filings are so chocked full of stuff and nonsense as to be a marvelously target-rich environment for fisking and mockery. Here’s yet another gem from Defendant Kimberlin’s Response to Plaintiff’s Motion for Sanctions in the Virginia Walker v. Kimberlin, et al. civil suit:

<fisking>

Defendant is a pro se litigant and cannot be held to the stringent standards expected of attorneys. Pro se litigant’s court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers.

And he goes on to cite a bunch of federal case law to that effect. TDPK thus runs aground on the shoals separating the federal courts from those of the several states. The standard he cites does not apply in state matters in Virginia. Indeed, in a recent opinion, the Attorney General of Virginia wrote:

Section 8.01-271.1 provides that the signature of an attorney or party on a pleading constitutes a certification that

(i) he has read the pleading, motion or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading is signed in violation of these provisions, a court is authorized to impose “an appropriate sanction.”

To the extent that a party, an attorney or a pro se litigant engages in conduct worthy of contempt in the presence of the court, the court may sanction such conduct.

The net of all that is that if a pro se litigant signs a court filing in Virginia, the Virginia judiciary is supposed to hold him just as responsible a licensed lawyer for the correctness of the filing.</fisking>

Judge Potter has been patient with TDPK’s pro se shenanigans. He has bent over backwards to give him and the et al. defendants (First Mate Neal Rauhauser and Crew Member Ron Brynaert) second chances to meet their obligations.

<mockery>It’s one thing for a non-lawyer to make a few technical errors and expect a judge to cut him some slack. It’s something quite different to repeatedly file nonsensical motions and responses and such that have no basis in either the facts or the law and still expect patience from the bench.</mockery>

popcorn4bkTomorrow, we will see how Judge Potter rules when he has the evidence before him. I plan on being in the courtroom for the multi-motions hearing and to blog the results as they become available.

Stay tuned.

Tick, tock, tick, tock, …

UPDATE–As I write this update, the post is less 45 minutes old, and Mr. Down-Twinkles has already expressed his disapproval of comparing TDPK’s understanding of the law with that of the Commonwealth Attorney General.

11 thoughts on “Dread Pirate #BrettKimberlin v. The Rules, Part Deux

  1. A question: If TDPK were a “normal” defendant in that he hired a lawyer to defend himself, but kept some facts from his lawyer, and the lawyer made statements in pleadings and in court that TDPK knew to be false (but the lawyer didn’t since he was unaware of withheld facts), then neither the lawyer nor TDPK would be in any danger of perjury (unless TDPK took the stand).

    Since TDPK is acting pro se, could he be tried for perjury for false or misleading statements he makes while acting as an attorney in pleadings or in court, since he obviously must be aware of all of the facts he might not have told an actual attorney?

    • IANAL, but I do know that he can be sanctioned by the court and that those sanctions can be severe. As to a charge of perjury, I invite a response from a lawyer licensed in Virginia.

      • If he hired a lawyer Kimberlin could not pursue a strategy of driving up litigation costs. And, his lawyer would be ethically barred from engaging in such a course of conduct.

    • There’s a concept called “reasonable investigation” for lawyers (I am one). Under the Rules of Professional Conduct and the Civil Procedure rules one must make a “reasonable investigation” or “reasonable inquiry” into the facts of the case. The fact that a client withheld information from the lawyer is not a bar to sanctions against both the client AND the lawyer, if the lawyer by “reasonable investigation” would have known that the client wasn’t giving him the whole story.

      Could TDPK be tried for perjury for his filings? Sure. He’s signing them under the color that they are not false or misleading, and that they at minimum represent an arguable statement of the law in question. He is required to present all the facts that he is aware of, not merely the facts he wants the court to consider.

  2. “The net of all that is that if a pro se litigant signs a court filing in Virginia, the Virginia judiciary is supposed to hold him just as responsible a licensed lawyer for the correctness of the filing”

    Technically correct, but a lawyer has a higher obligation than a pro se litigant, because the lawyer has an ethical obligation to know the law and is presumed to know it. The pro se litigant doesn’t need to know the law, and therefore isn’t presumed to know it.

    What counts as “to the best of his knowledge” for a pro se litigant is different than “to the best of his knowledge” for a lawyer.

    Not written to defend TDPK, because he’s well short of even the lesser standard, which is a pretty low hurdle.

    • Of course, the due diligence expected of a non-lawyer isn’t required to be performed with same level of expertise expected of a member of the bar. However, the repeated filing of frivolous and vexatious court papers is sanctionable. Indeed, the AG’s opinion I cite is specifically related to the case of a vexatious pro se litigant.

      Furthermore, pro se status is not a license to misrepresent the facts. What TDPK hopes to gain by telling the judge that his order doesn’t say what it says escapes me.

      • You’re entirely correct. Just pointing out that TDPK is held to a lower standard than a member of the bar. Not that it saves him.

        I know more than a few judges that would have some choice words with TDPK at tomorrow’s hearing.

  3. “Your honor. I would point out to the court that defendant Kimberlin pleaded with this court to seal the discovery document so as not to be tried on the internet. Defendant immediately began leaking sealed discovery documents for the purpose of trying Plantiff on the internet. Defendant is now pleading with this court for forbearance as a pro se defendant. A moral seventh grader could deduce the universal principle that if it is unfair to be tried on the internet it would be unfair to try someone else on the internet. What defendant is asking the court for is forbearance on being a hypocrite.

    • Legal question: can a plaintiff request additional civil financial damages if he/she is further damaged during the pretrial process by actions committed by the opposing party or counsel?

      Bonus question: can the judge collect damages for having to tolerate someone as insufferable as Kimberlin? If so, who should pay? The losing party or the offending party?

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