“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.

• Texas probate and estate lawyers seldom prosecuted when they steal funds, clients told they should just sue to get it back [Austin American-Statesman investigation]
• About a third of the way down the center strip, then just a bit to the right, you’ll find us on this much-linked map of the campaign season’s most influential websites [Presidential Watch '08]
• Given the enormous liability exposure, would a doctor rationally want a major celebrity as a client? [Scalpel or Sword via KevinMD]
• The loser-pays difference: Canadian franchisees pursue failed class-action claim against sandwich shop Quiznos, judge orders them to pay costs of more than C$200,000 [BizOp via ClassActionBlawg]
• Annals of extreme incivility: judge condemns “heartless attack” at deposition on opposing lawyer’s pin honoring son killed in Iraq [Fulton County Daily Report]
• You keep an open wi-fi connection at home and your neighbor uses it to download music improperly. Are you an infringer too? [Doctorow via Coleman]
• As you’ve probably heard if you read blogs (but maybe not otherwise), one Canadian “human rights” tribunal has dropped action against Mark Steyn and Maclean’s; another still pursuing case [SteynOnline]
• Prison-overcrowding lawsuit could lead to early release of 27,000 California inmates [TalkLeft]
• “He absolutely would’ve gotten this DOJ job but for the anti-liberal bias … and he can’t land any other jobs?” [commenter KenVee on lawsuit over politicized Department of Justice Honors/Intern programs, Kerr @ Volokh, background]

(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.)

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).

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.

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).

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.

• Hush up with those jokes, now: Lerach Coughlin lawyer hailed as hero after jumping from his BMW to save pregnant woman attacked by pit bulls [ABA Journal]
• The “murky area between zealous advocacy and improper conduct”: Judge Preska sanctions Cleary Gottlieb for litigation abuse [WSJ Law Blog, Lat]
• Out-nannying them all? Edwards says his health plan will legally oblige everyone to go in for checkups with the doc [AP; MagicStats, Howard, Althouse]
• Apparently we missed out on the Aug. 31 celebration of Love Lawyers Day [Giacalone]
• To settle lawsuit by psychiatrist’s family, Augusten Burroughs agrees to call “Running with Scissors” a “book” rather than “memoir” [Althouse]
• Will contest over Maryland judge’s estate has dragged on for fourteen years [Washington Post]
• Recap of Flea fiasco (doc liveblogging his own trial); we get randomly mentioned [American Medical News; earlier]
• “Viacom charges man with violating his own copyright, after he YouTubed their program that used his video.” [Reynolds](but see: Evan Brown via Coleman]
• Is your lawyer a “chicken catcher” or a “chicken plucker”? [KevinMD]
• When if ever should “best interest” custody standard override parent’s right to free exercise of opinion, religion, cultural affiliation, etc.? [series of Eugene Volokh posts]
• Don’t forget to join our new Facebook group with distinctive content [if you're a member]
• New at Point of Law: Texas judge’s son withdraws from odometer class action; what do environmentalist litigators have against whales?; N.Y. Times’s born-yesterday Vioxx coverage (and this from Ted, which is pretty devastating); Dickie Scruggs takes down an insurance commissioner; sexual assault foreseeable when fraternity left in possession of unsupervised motel room? Marshall, Texas dignitaries rally to save their special court; and much more.

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).

• In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
• Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
• Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
• What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
• Entertaining doctor victory in medmal case. [Musings of a Dinosaur via Kevin MD]
• Dahlia Lithwick gets something right; if only it was on an issue more important than a suit advertisement. [Slate]
• Leftover from Thanksgiving: lawyers acting like turkeys. [Ambrogi]
• Ninth Circuit grants potential standing to monkeys over Kozinski dissent. Earlier: Oct. 21, 2004. [Bashman roundup of links]
• Gloria Allred joins the Borat pile-on. [LATimes]
• Speaking of, here’s the future case of Allred v. Kramer. More Allred: Oct. 16. [Evanier]
• Speaking of Allred nostalgia, and of primates, whatever happened to chimpanzee victim St. James Davis? (Mar. 17, 2005; Mar. 8, 2005) [Inside Edition; "The Original Musings"; CNN Pipeline ($)]
• More Allred nostalgia: is Veronica Mars‘ Francis Capra the next Hunter Tylo? Discuss. [Prettier than Napoleon]

Dignity of the profession dept.: this YouTube video of the famed Texas lawyer and UT benefactor in action is making the rounds (warning: offensive everything). It’s discussed by BrainWidth, Froomkin, Childs, Hurt, Kirkendall, Caron, Metafilter, etc. One of those present The man in the chair is named Edward Carstarphen. [note: a commenter says we erred in initially reporting that Carstarphen was the witness being deposed; see also David Stone, Apr. 11]. For more on Mr. Jamail’s record as a paladin of civility, see Apr. 19, 2000 (”gag a maggot off a meat wagon”). Update: link changed to working YouTube location, see Jan. 9, 2007.

In a rancorous fourteen-month divorce trial, John Ofori-Tenkorang disputed the existence of his marriage to Jacqueline Anom, claiming marriage photos had been falsified; claimed to have routinely thrown away bank records, failing to disclose what the judge concluded were assets exceeding $1.7 million; and “wouldn’t stipulate that he wasn’t a close relative of his wife’s, or under the care of a conservator — two grounds for invalidating a marriage, forcing those issues to be proven in court.” Judge Kevin Tierney compared Ofori-Tenkorang’s tenacious assertion of legal issues to the 1942 battle deep inside Russia: “German troops surrounded the Soviet city of Stalingrad on the Volga River. They used aerial attacks, artillery bombardment and intensive panzer assaults. The city was reduced to rubble. Virtually no building stood.” (Thomas B. Scheffey, “‘Stalingrad’ Defense Tactics Prove Costly in Divorce Case”, Connecticut Law Tribune, Mar. 28).

More: reader (and historian) John Steele Gordon (his site) writes:

It sounds like the judge is a better jurist than a historian. Stalingrad, backed by the Volga River, wasn’t surrounded. That’s how the Russians were able to resupply their troops and hold the city. Then, with Zhukov’s offensive, in November, 1942, it was the Germans who were surrounded and trapped in the Stalingrad pocket.

Another example of how personal injury attorneys and the “Center for Auto Safety” actually care very little about auto safety: In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives, a number that will almost certainly be reduced, but the entire verdict is inappropriate. “It is unfairly punishing DaimlerChrysler for a reasonable engineering decision that resulted in a product that met all federal standards,” DaimlerChrysler spokesman Jason Vines said. (Rob Johnson, “Jury awards $105.5 M in baby’s death”, The Tennesseean, Nov. 24; Matt Gouras, AP, Nov. 24; “DaimlerChrysler Is Told to Pay $98 Mln in Van Crash”, Bloomberg, Nov. 23; Sheila Burke, “Chrysler being sued over baby’s van death”, The Tennesseean, Nov. 4). More coverage: Dec. 21.

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“The Walt Disney Company prevailed on Monday in a 13-year legal dispute over royalties related to its Winnie the Pooh franchise when a judge dismissed the case, contending the plaintiff altered confidential memorandums and covered up the theft of documents obtained by a private investigator who sifted through the company’s trash. Judge Charles W. McCoy of Los Angeles Superior Court wrote in his decision that the misconduct of the Slesinger family, which sued Disney in 1991 after contending the company cheated it out of royalty fees, was ’so egregious that no remedy short of terminating sanctions’ would adequately protect Disney and the justice system from further abuse.” The family is vowing to appeal (Laura Holson, “After 13 Years, Judge Dismisses Case on Pooh Bear Royalties”, New York Times, Mar. 30). Earlier in the case, Disney had drawn sanctions “for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems’”; see “The Document-Shredding Facility at Pooh Corner”, Aug. 24-26, 2001. For more on the propensity of some investigators retained in litigation to rifle adversaries’ garbage and commit other invasions of privacy, see Nov. 11, 2003 (FBI probe of Hollywood lawyers); Jul. 28-30, 2000 (Terry Lenzner, Oracle). More: Southern California Law Blog has followed the case.