Chronicling the high cost of our legal system
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According to Paul Secunda at Workplace Prof Blog, a monstrously overgrown employment discrimination dispute recently ruled on by a California appellate court helps explain “why people like Walter Olson rightly believe in some cases that litigation is just plain overlawyered“.
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John Steele at Legal Ethics Forum finds much to unpack in a lawyer’s statement defending his zealous advocacy in a California discovery dispute.
Noted by Terry Teachout in his “Almanac” feature:
“He recognized that common, much litigated type of human disagreement in which each party to it insists on reducing his opponent’s position or contention to its bare essentials–yes or no; did he, or did he not, still beat his wife?–while asserting the right to state his own position or contention with every circumstantial distinction preserved. High indignation and conflicting strong senses of righteousness resulted.”
James Gould Cozzens, Guard of Honor
The amount of money at stake is not always a good predictor of the lengths to which parties will go to make the other side unhappy [Dave Hoffman, Concurring Opinions]
“A trial judge had an obligation to hold a plenary hearing on disputed issues in a suit between two former law firm partners, even if he thought the matter petty and unworthy of the lawyers involved, an appeals court ruled last week. The panel reversed Monmouth County, N.J., Superior Court Judge Alexander Lehrer, who decided motions to enforce litigants’ rights based on conflicting certifications, after calling the dispute ‘the most ridiculous thing I’ve ever seen’ and questioning whether the amount at issue justified the cost of a hearing.” At one point the judge said, of a requested evidentiary hearing, “Let’s spend $60,000 in legal fees for me to determine whether or not one lawyer owes another lawyer $24,000.” (Mary Pat Gallagher, New Jersey Law Journal, Sept. 9).
As Michael Krauss notes, an AP story today rehashes the details of last week’s Flax v. Chrysler case, though it falsely treats Paul Sheridan as a credible witness and doesn’t acknowledge most of Chrysler’s arguments.
It’s worth noting the Jim Butler firm’s description of the case:
The evidence showed the impact was minor. Though Stockell was speeding at the time, the minivan was also moving forward and the change in velocity (Delta V) was only 17 to 20 mph.
To repeat: the plaintiffs’ attorney said that a Delta-V of 17-20 mph is “minor.” I suppose in the astronomical sense that a Delta-V of 17-20 mph wouldn’t escape earth orbit, but it seems fairly major for someone in a heavy minivan. For those of you at home who want to experience what a “minor” Delta-V collision of “only” 17-20 mph feels like, drive into a reinforced brick wall at 17-20 mph with your airbag turned off, but be sure to wear your seat-belt to reduce the chance that you go through your windshield. Another way you can have a Delta-V of 20 mph is if you are dropped about 12-15 feet onto a concrete surface. I sure hope that the trial judge didn’t let Butler lie about physics to the jury like that, but I fear I know the answer.
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(Update, June 6, 10:50 AM: According to a commenter, the “filing” is not actually a filing, but a doctored inside joke. Which is pretty funny.)
(Or, in the alternative, why you always check that you’ve printed the correct draft before you file.)
One strongly suspects the “signing” attorney in the defendants’ answer to the complaint in the Harris County, Texas case of Henry v. Maersk Line Limited did not actually authorize the tone of this filing (NSFW language). (A strong tip of the Overlawyered hat to long-time reader D.W.C., who once was a ground-breaking plaintiff of his own.)
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Well, at least some doctors are hoping to discern such a trend on the strength of two data points: the case Ted has covered in which the Ohio Supreme Court struck down a $30 million verdict because of the shenanigans of attorney Geoffrey Fieger, and a Michigan case from March in which an appeals court overturned a $500,000 verdict against a Flint doctor and ordered a new trial. In the latter case the appeals court “noted the trial judge ‘valiantly and repeatedly attempted’ to restrain Konheim [Southfield, Mich., plaintiff attorney Joseph Konheim]. ‘There is a point, however, when an attorney’s deliberate misbehavior becomes so repetitive and egregious that it necessarily impacts the jury, notwithstanding the judge’s efforts. That point was reached here,’ the unanimous opinion states. It also says that Konheim belittled witnesses on the stand and made ‘irrelevant’ and ‘disparaging’ statements that diverted the jury’s attention from the case’s merits. Konheim is asking the court to reconsider.” (Amy Lynn Sorrel, “Lawyers’ misconduct triggers new liability trials”, AMedNews (AMA), May 5).
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Our weekend post questioning defense attorney John Keker’s assertions of the innocence of client Dickie Scruggs (”prosecutors have concocted a ‘manufactured crime’ in which his client had no part”) drew a couple of comments from readers who saw Keker’s statements as no more than the zealous advocacy we should expect of a defense attorney. They’ve also been discussing the issue over at the WSJ law blog, where they quote defense attorney Benjamin Brafman’s rapidly disproved boast that his client Mel Weiss “will be fully exonerated,” as well as Monroe Freedman, the Hofstra legal ethicist and regular antipode of views expressed on this site, who
says that generally speaking, he doesn’t see problems with a lawyer making aggressive statements to the press in defense of his client. “We don’t know what the client told the lawyer when the lawyer made the statements,” he says. “We don’t know what Scruggs told his lawyer. We don’t know if Scruggs said I did it, but I want to fight it or something else entirely.”
George Sharswood’s Essay on Professional Responsibility, the standard American text on legal ethics before the modern period, contains the following assertion (pp. 99-100 of Google Books digitized version):
…no counsel can with propriety and good conscience express to court or jury his belief in the justice of his client’s cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard — it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests.
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Letter to the editor, WSJ, Mar. 22 (via YallPolitics):
It’s bad enough and sad enough to read the sorry story of the greed of tort-king “Dickie” Scruggs. The evidence and the transcripts was, of course, damning.
It was really nauseating, however, to read the absurd assertion by John Keker, his lawyer, that Mr. Scruggs was innocent and that the “prosecutors have concocted a ‘manufactured crime’ in which his client had no part” (”A Lawyer’s Trials: Tort King’s Path to Bribery Charge,” page one, March 14). So, according to Mr. Keker, the prosecutors could freely be accused of trying to frame an innocent man.
All Mr. Keker should have said was that his client had pleaded not guilty and that the matter would proceed to trial.
One assumed that when Mr. Keker made factual assertions he was accurately reporting what Mr. Scruggs had told him, since he presumably knew Mr. Scruggs’s side of the story through lengthy interviews under the protection of the attorney-client privilege.
Then we learned, a few hours later, that Mr. Scruggs was guilty all along. Either Mr. Keker knew this or he was ignorant.
Why lawyers in criminal-defense cases feel compelled to make factual assertions about their clients’ innocence, facts which they couldn’t possibly know, is beyond me.
Every day these lawyers appear on television and in the papers repeating the ridiculous alibis of their clients, not as their clients’ legal positions but as facts, only to be ultimately made foolish by a plea or a trial.
Innocent or guilty, a lawyer should retain his dignity and that of his client, if possible.
Felix M. Phillips
Attorney at Law
Minneapolis
More: Discussion continues in this Tuesday post.
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It started as a joke, but Bozeman, Mont. attorney Christopher Gillette is going through with the ambitious aquarium installation, whose saltwater inhabitants will include venomous fish as well as sharks. [Bozeman Daily Chronicle; AP/El Paso Times] In the 1980s the now well-known law firm of Bickel & Brewer adopted the snake exhibit at the Dallas Zoo. (Mark Donald, “Rambo Justice”, Dallas Observer, Mar. 19, 1998).
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We’ve been on top of this outrage of a medical malpractice case since it was in trial—Aug. 2004, Oct. 2004, Nov. 2004, May 2006, Apr. 12—but Roger Parloff has such a comprehensive post about the Ohio Supreme Court’s 5-1 (corrected:) 6-1 decision to strike down an intermediate court’s reinstatement of a bogus $30 million verdict that we defer to him. Even the dissenter would have found Fieger’s shenanigans problematic, but would have merely reduced the award to $10 million. Still, on remand for a new trial, Justice Paul Pfeifer recommended that “it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.”
NB that among the tactics condemned by the Ohio Supreme Court are the tactics that trial lawyer John Edwards used when he successfully tried a medical malpractice case—pretending to channel the baby in the womb to the jury.
Among the victorious attorneys: one of our favorite bloggers, Mark Herrmann.
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It may not quite reach Jamail-esque depths — almost nothing can survive that far down other than those curious tube worms that live on volcanic sulfide fumes — but the lawyerly unpleasantness in the case of Redwood v. Dobson (PDF) was plenty bad enough, as recounted in Judge Easterbrook’s entertaining opinion. Discussion: Evan Schaeffer’s Illinois Trial Practice, Prof. Bainbridge, Legal Ethics Forum.
It’s back on YouTube (via Prof. Childs and Nicole Black).
Point of Law Volokh