Hello and warm welcome to all 3 people who follow this page. Peace be with you.
I’ve moved off Twitter (FU Elon), and my first non-Xitter post wasn’t really about the Clayton Echard case. I promised I would say more when I could, so let’s do that.
A lot happened today, so let me explain — earlier today, Clayton’s lawyer filed a motion asking to WITHDRAW a Motion for Sanctions he filed on January 3, 2024.
Here is what he filed.
OK, what does that mean? How does that affect the case? Does that mean Clayton lost? What’s going on?
True answer – it actually does not matter that much….but let me explain.
The timeline of this is important, so let’s recap. My client, Laura, filed this paternity case on August 1, 2023. Clayton filed what is known as a “response” on August 21, 2023. His response basically said: “No, I’m not the dad. Let’s get a test and confirm I’m not the dad, and then this will all go away.” That is standard stuff.
In late September or early October 2023, Laura and Clayton submitted samples for early testing. Those samples came back “inconclusive”. Laura claims she had bleeding in mid-November 2023, and she went to a OB/GYN for care. They confirmed the pregnancy ended around that time. Yes, Clayton says this whole thing was a sham, but that’s another issue.
OK, cool. We all know that timeline. Let’s move on.
The next thing that happened was in early December 2023, court administration said they would dismiss the case for “lack of prosecution”. That is normal. It happens in any case when the case appears to be inactive. Court administration will just drop the case, although it can be refiled later (maybe).
If Clayton had done nothing, the case would have been administratively dismissed. He could have called that a win, and gone home. But he didn’t.
In mid-December 2023, Clayton hired a lawyer to appear in the paternity case. That lawyer, Gregg Woodnick, filed a bunch of things, basically asking the court to find that Laura lied, and asking the court to say the whole case was BS. He pushed back, HARD. Fair enough (maybe).
This is where it gets tricky.
When Woodnick first appeared in the case, Laura did not have a lawyer. Wisely, she quickly hired a lawyer and on December 28, 2023, that lawyer filed a motion telling the court Laura was no longer pregnant, and the case should be dismissed as moot. Makes sense.
In fairness to Clayton, the motion to dismiss filed by Laura’s first lawyer was technically wrong. Although the miscarriage mooted most of the case, Clayton DID ask for sanctions in his response, and that issue was not moot despite the miscarriage. Based on this, I agree (as the court later ruled) the whole thing could not be dismissed as moot. This isn’t a huge deal. It just means that even if Laura was no longer pregnant, Clayton still had a score to settle. I agree that’s not a problem. His position was fair.
Here is where the problem happened – after Laura’s lawyer moved to dismiss on December 28, 2023, on January 3, 2024 Clayton’s lawyer (Woodnick) filed a very specific type of motion for sanctions. This motion used something called “Rule 26” which is basically a rule that says you can’t file bullshit cases which have no basis. Clayton said it was a bullshit case, and therefore he was entitled to Rule 26 sanctions.
But Clayton’s lawyer made a mistake. A BIG mistake.
Rule 26 has something called a “safe harbor”. I won’t bore you with the details, but it works like this — courts are busy, and they are used to seeing EVERYONE say the other party is lying, etc. That happens in most, if not all, cases. Yawn. You have to feel bad for court staff. How do they know who to believe?
Rather than hearing EVERY petty dispute over he said/she said, the courts have created this funky system where a party can ask for sanctions (meaning monetary penalties) if someone files a bullshit case. But there’s a catch — you can’t file the motion for sanctions unless you give a CLEAR, written warning FIRST.
That warning MUST be specific, and it must follow the letter of the rule. And once you give that warning, the party who allegedly filed the bullshit case has a safe way out — they have an absolute right to drop the case within a fixed time period (currently 10 working days after the notice is given). If the bad guy takes this “safe harbor”, they get to drop the case, and they get immunity from sanctions for doing the right thing. This saves the court staff from having to deal with all these nasty disputes. It’s a good thing, even if is means some people who filed bullshit cases get to walk away.
This is where Clayton screwed up. He filed a motion for sanctions, but he forgot to give the 10 day written warning. OOPS. You still think his team is rock solid, Dave Neal?
His lawyer just filed the motion without following the proper steps. A first year law student can tell you what that mistake means — if you didn’t follow the rule, you CANNOT get sanctions. YOU ARE DONE. Literally 100,000 cases say this, with no exceptions. In fact, if you file a motion for sanctions without following the rule, you open yourself up for getting sanctioned for filing a bullshit motion yourself.
Got all that? That is exactly what happened here. To fix this, I tried to talk to Clayton’s lawyer, but he snubbed me. I understand why. When you make a mistake, it is hard to admit it. That’s fair, and that’s life, but it is BAAAD behavior as a lawyer. We are supposed to be bigger and better than that. If you fuck up, the FIRST thing you do is admit it, fix it, and apologize. Move on. Own it.
After Clayton’s lawyer refused to withdraw his bullshit sanctions motion, I did what the rule requires — I gave him a written notice that I was going to seek sanctions against him, and I gave him a chance to fix this. He was entitled to the same safe harbor he forgot to give my client. Initially he refused, but I explained to him that was incredibly dumb because it put him at risk of paying ALL Laura’s legal fees ($35K+). There was no question he did not follow the rule, so there is no question his sanctions motion was fatally defective.
He was going to lose, no question (in my mind).
In addition to threating to file my own sanctions motion (which would have been appropriate), I also drafted a separate motion that asked the judge to toss Clayton’s sanction motion based on his failure to follow the rules. This is called a motion for judgment on the pleadings. Under our local requirements, I could NOT just run out and file that request. I had to talk to Clayton’s lawyer about this, and I had to give him a fair chance to fix this problem before I took it to the judge.
I asked Clayton’s lawyer to speak to me about this on Saturday, March 30th. No response was received. I asked again the next day (Easter Sunday). Again, no response. I finally sent an email today (April 3, 2024) telling Clayton’s lawyer that if he did not respond, I was going to file my motion with the court, asking the court to rule that Clayton’s sanctions motion was defective as a matter of law. Clayton’s lawyer did not respond to my email, so I called the guy and he wouldn’t take my call. I finally left a message saying if he wouldn’t speak to me by 4 PM, I was going to file my motion and tell the judge he was refusing to speak with me (as required by the rules). That would have looked REALLY bad (on his part).
A few minutes later, I got an email saying Clayton’s lawyer caved. He agreed to withdraw the motion for sanctions that he filed way back in January. This means that issue is off the table. OOPS.
Here is the withdrawal request Clayton’s lawyer filed, and here is the draft motion I threatened to file if he didn’t withdraw that pleading.
You can reach your own conclusions, but reading between the lines, I think what happened is obvious – Clayton’s lawyer jumped the gun, filed a motion too soon that did not comply with the rules, and he forced both sides to spend a lot of money battling over this issue. After I was hired, I went back and checked for any mistakes made by any of the lawyers (like I always do), and I immediately noticed this BIG one. To do my job as an advocate, I tried to ask Clayton’s lawyer to fix the problem (by withdrawing his motion), and at first he refused to do the right thing. I then pushed forward by drafting a motion asking the court to rule in our favor on this issue. At the last minute, rather that defending his mistake, Clayton’s lawyer caved and admitted defeat.
THIS IS NOT A BAD THING.
I actually have respect for Clayton’s lawyer doing the right thing here. That is exactly what he should have done, and if he had refused, I would have called him to the carpet on that mistake, and he would have lost. HARD. He could have faced serious financial sanctions for failing to follow the rule. I am glad he changed his mind. It was the right thing to do.
Does that mean Clayton’s lawyer is incompetent? NO. Absolutely not. Over the last 20+ years, I have seen a lot of lawyers make the same mistake. It typically happens when the lawyer gets too emotionally involved and they lose their objective professionalism. I am not saying that is what happened here, and honestly I don’t care. I DO care that Clayton’s lawyer eventually followed what the rules required him to do, and I give him credit for that choice. It was the right move. Hard to do, but glad it happened.
Does that end the case? NO, absolutely not (which is why I did not understand Clayton’s initial refusal to withdraw this silly motion). There are like 3-4 other ways to ask for sanctions, and those other ways don’t have the same strict requirements as the one rule cited in the now-withdrawn sanctions motion. What this means is simple – Clayton is still asking for sanctions against Laura, and if the court rules in his favor at trial, he can still ask for some (but probably not all) of his attorney’s fees to be paid by Laura. I have explained that to her, and she fully understands.
So for now, onward we march. Absent a last minute settlement (which is probably the most likely outcome), we will have a trial in June, and the judge will decide who is lying and who is telling the truth. The only issue NOT up for debate that day is the bullshit motion for sanctions that Clayton filed in January and which he has now withdrawn. And that is a good thing.
~DSG