7th Circuit orders $1,000 sanction against Crawfordsville attorney accused of altering evidence

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A Crawfordsville attorney accused of altering photos submitted as evidence in a slip-and-fall case must pay a $1,000 sanction to the 7th Circuit Court of Appeals. The attorney has also self-reported the underlying incident to the Indiana Supreme Court Disciplinary Commission.

Attorney James Ayers’ troubles began while representing Linda Waldon and her husband in a suit against a Crawfordsville Walmart store. The Waldons alleged Linda slipped and fell after stepping on fallen plastic hangers, sustaining injuries to her back, neck and head. They also alleged Wal-mart Stores Inc. failed to provide a safe environment for shoppers and was therefore liable for Linda’s injuries.

After affirming the Indiana Southern District Court’s grant of summary judgment to the retailer, the 7th Circuit raised a “troubling point” in the litigation: Ayers appeared to have altered photographs from the district court record, with the appellate court noting discrepancies in the date stamps on the photos.

Ayers admitted the date stamps were deleted when the photos were reproduced in their separate appendix for the 7th Circuit, but claimed the responsibility lie with his legal assistant. He also asserted the photos were the “best evidence” of actual and constructive notice for the case and were taken on the date of Linda’s injuries, but the 7th Circuit determined that was false.

Ayers, of Wernle, Ristine & Ayers, was thus ordered in November to show cause as to why he should not be sanctioned under Rule 46 of the Federal Rules of Appellate Procedure for altering the photographs and misrepresenting the record to the court.

In his defense, Ayers continued to assert he should not be sanctioned because the responsibility for the discrepancies was that of his legal assistant. However, the 7th Circuit pointed out that Ayers’ could have taken responsibility for the alterations, “… including an assistant preparing an appendix under his supervision and submitting it to this court with a signature block bearing his name.

“He has not, and such blame-shifting only exacerbates his conduct,” an appellate panel including judges Kenneth Ripple, Ilana Rovner and Michael Brennan concluded in a Friday order. 

The panel also rejected Ayers’ argument regarding whether the dates on the photos were transmission dates, finding that “does not change that the photographs were redacted before they were reproduced in the appendix, and Attorney Ayers represented that they were taken on the day Ms. Waldon fell, when in fact they were not.”

Lastly, it found weak Ayers’ assertion that he had a good-faith basis for contending the photos were taken on the day of the accident.

“The closest Attorney Ayers comes to a valid point is when he argues that because Wal-Mart produced the photographs along with others taken the day of the fall, he could infer that the photographs at issue were also taken that day. But if Attorney Ayers represents that the photographs depicted the scene on the day of the fall, he must have a basis for such a representation, which he does not,” the order states.

The 7th Circuit thus found the alteration of the photos was “undeniable” in the case of Linda Waldon and Steve Waldon v. Wal-Mart Stores, Inc., 19-1529.

“As noted in our opinion, … Attorney Ayers represented repeatedly in his brief and during oral argument that the photographs are from the date of plaintiff’s injuries. No factual basis existed for such statements, and none of the reasons he offers in his response to the Order to Show Cause provide such a factual basis,” the order states. “…For Attorney Ayers to argue these photographs are the best evidence of notice and then repeatedly represent to this court, in writing and orally, that they depict something they do not constitutes such unbecoming conduct, which warrants sanctions.”

The court therefore concluded a monetary sanction of $1,000 was appropriate. The sanction must be paid to the 7th Circuit’s clerk of court within 30 days of the Jan. 3 order.

But the federal appellate court determined it would not forward a copy of its opinion to the Disciplinary Commission, because Ayers has already self-reported the circumstances to the commission.

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