Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

$21 million lawsuit for negligent prosecution

In June 2004, 21-year old Vermont resident Samantha Perreault went out drinking with a couple of friends, Norman Poulin and Justin Lawrence. After three rum and cokes each, they left; Lawrence hopped on one motorcycle, and Poulin and Perreault got on another and followed him. Although they may not have been legally drunk, they had had several drinks, it was night, and they were driving 70 mph. Lawrence lost control of his motorcycle and crashed. Poulin, attempting to avoid Lawrence, also lost control and crashed. Perreault, unfortunately, was killed.

Both Poulin and Lawrence were prosecuted for criminal negligence, but Lawrence, apparently, was not also charged with driving without a motorcycle license. Feeling that Lawrence’s punishment was insufficient, Perreault’s father has now filed a $21 million lawsuit. Did he sue Poulin? No; apparently he forgave Poulin. Did he sue Lawrence? Of course not; Lawrence doesn’t have deep pockets. No; he sued the state of Vermont.

The Plainfield resident says officials in the Department of Public Safety and Office of the Attorney General showed disregard for his daughter and for the law by failing to fully prosecute a man involved with her death.

“I don’t want anybody else to go through this,” Perrault said Friday. “I think she deserved more than this.”

[…]

“By the state not doing anything, they’re saying it’s okay for you to drive without a license,” Perreault says. “I’ve gone through all the right channels, called the state police, called (the Office of the Attorney General). All I’m getting is blown off.”

In addition to seeking monetary damages, Perreault is also demanding that Lawrence be charged and prosecuted for driving without a license.

Of course, it’s hard not to feel sympathy for someone whose daughter is killed. And the lawsuit isn’t likely to succeed, as the article notes; the state is probably immune, and “failure to prosecute” isn’t a cause of action anyway. But that doesn’t alter the fact that the lawsuit reflects an all-too common mindset that picking a random big number out of a hat and filing a lawsuit against someone with deep pockets is the right approach whenever one is annoyed. (No, the case probably won’t last as long, and cost taxpayers as much, as the Roy Pearson pants lawsuit, but it certainly won’t be free, and will contribute to congestion in the courts which slows down — and thus raises the cost of — legitimate lawsuits.)

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The significance of Roy Pearson

As we’ve covered, Roy Pearson lost his $67 million lawsuit against his dry cleaners. Predictably, Bizarro-Overlawyered is trumpeting the outcome as evidence that the system works, that the “system has effective, built-in checks against such things.” I doubt many Overlawyered readers buy into that spin, but just in case, here are a few reminders about this case that, to the extent it had any merit at all, should have been a small claims suit:

  1. The Chungs offered Pearson $12,000 to drop this suit. If he had not been so greedy, they’d have been out that much money, plus a year’s worth of legal costs. The fact that our legal system enables people to extort tens of thousands of undeserved dollars from others is not evidence that there are “effective, built-in checks” on frivolous litigation.

  2. Putting aside any money issues, this lawsuit was filed on June 7, 2005; for more than two years, this case has been hanging over the Chungs’ heads. That’s two years of legal and financial uncertainty. Two years where they couldn’t make any significant business decisions because they had the possibility of an eight figure liability hanging over their heads. The fact that someone can drag out a case almost too small to have been on Judge Judy for two years is not evidence that there are “effective, built-in checks” on frivolous litigation.

  3. The Chungs “won” the case, but Pearson used the legal system to impose what was likely $100,000 in legal costs on them. Of course, there is a motion for sanctions pending against Pearson, but there are no guarantees here. Courts are very reluctant to impose sanctions, and even when they do (as the court probably will here) they very rarely impose sanctions sufficient to make the defendants whole. Note that sanctions are not automatic; the Chungs had to pay their attorney even more money to prepare a motion for sanctions. The fact that the Chungs have to endure two years of frivolous litigation and then cross their fingers and hope the judge awards them their legal fees is not evidence that there are “effective, built-in checks” on frivolous litigation.

  4. Oh, one other problem: the Examiner reported, even before the decision, that Pearson’s chances of keeping his job were slim. I think most reasonable people agree that Pearson hasn’t quite demonstrated that he’s fit to be a judge. But if he loses his job, the chances of the Chungs ever collecting any part of those sanctions drop from slim to none. (Their chances of recouping their losses are low to begin with — is it likely Pearson has $100,000 sitting around?)

  5. And let’s not forget one other party to this case, also abused by Roy Pearson: the taxpayers of the District of Columbia, who have to pay for the legal system. And they have no chance to get reimbursed.

  6. Finally, remember that the case is not necessarily over. It would be insane for Pearson to appeal, but that hasn’t proved to be a limiting factor in his actions in the past. The worst that happens is that he gets slapped with more sanctions, which he’ll never pay.

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Oops!

Perhaps one reason trial lawyers so frequently accuse reformers of manufacturing popular outrage is because such astroturfing is a common trial-lawyer tactic: Peter Lattman uncovers eight identical letters to the editor written at the behest of the Association of Trial Lawyers of America (now going by the AAJ misnomer), all on behalf of Bill Lerach’s bogus Enron suit and criticizing the Bush administration officials who dare to stand up to the attempted extortion. Similar astroturfing regularly goes on in the comments section of the Lattman blog.

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FEC v. WRTL

Yesterday’s U.S. Supreme Court decision in FEC v. Wisconsin Right to Life is of special importance to those of us in Wisconsin, since we have watched the case unfold before our eyes since its inception. As you’ve probably heard by now, the Court, in a 5-4 vote, struck down a portion of the McCain-Feingold campaign finance law which prohibited so-called “issue advocacy” by unregistered groups in a period of 60 days before a general election. Wisconsin Right to Life had run advertisements critical of Senators Russ Feingold and Herb Kohl for their perceived role in holding up judicial appointments, but these ads were deemed to be illegal under McCain-Feingold, despite not advocating for the electoral defeat of either. Yesterday’s decision upheld WRTL’s right to run the ads, as the Court determined they were not “express advocacy.”

The culture of speech restriction with regard to campaigns has been prevalent in Wisconsin for some time, and produces some fairly odd applications of the law. This was demonstrated during last November’s elections, when the Wisconsin Democracy Campaign (a pro-campaign finance reform group) actually filed a complaint to bar a Catholic diocese from urging its parishoners to support a constitutional amendment to ban gay marriage. (Church Accused of Illegal Lobbying, Madison Capital Times, Oct. 18, 2006) At the same time they were attempting to use state law to block the Catholic Church’s right to support the constitutional amendment, the WDC was actually publicly lobbying against the amendment – yet they didn’t see their own activities as “express advocacy.”

So while it is clear yesterday’s decision represented a marginal victory for free speech rights at the federal level, there are steps states can take to ensure political speech isn’t muzzled come election time. When churches break the law by teaching their beliefs, it should alert states to dangerous path campaign finance restrictions are taking us.

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Louisiana Town “Cracking” Down

When showing your crack is outlawed, then only outlaws will be showing their crack:

Cajun Town Bans Saggy Pants (NYT, June 13)

DELCAMBRE, La. (AP) — Sag your britches somewhere else, this Cajun-country town has decided. Mayor Carol Broussard said he would sign an ordinance the town council approved this week setting penalties of up to six months in jail and a $500 fine for being caught in pants that show undergarments or certain parts of the body.
…

I totally envision a Footloose-type of situation here where a spry young high schooler rolls into town and teaches all the townsfolk that butt cracks can be a perfectly beautiful and natural occurrence.

The downside of this ordinance, of course, is that it will drive all the plumbers out of town. Better get your sink fixed before it goes into effect. Oh, and as long as we’re talking about plumbers, it gives me an excuse to show you this outstanding commercial. That is all.

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A Comedian Who ACTUALLY Kills

You may have heard of condemned Texas death row inmate Patrick Knight, who has expressed his desire to tell a joke as his final statement tonight. (June 4)

From the story:

Knight acknowledges there’s nothing funny about his likely execution later this month for the fatal shooting of his neighbors, Walter and Mary Werner, almost 16 years ago outside Amarillo. But to help him come up with his final statement, Knight is accepting jokes mailed to him on Texas’ death row or e-mailed to a friend who has a Web site for him. The friend then mails him the jokes…

He said he’s already received about 250 wisecracks.

“Lawyer jokes are real popular,” he said. “Some of them are a little on the edge. I’m not going to use any profanity if I can find the one I want, or any vulgar content. It wouldn’t be bad if it was a little bit on the edge. That would be cool.”

Thank goodness he is sparing lawyers from being subjected to an off-color joke. Good thing he’s on their side – unfortunately, it’s with everyone else that he gets a little “murdery.” And I especially appreciate his concern for the feelings of the family. Here’s a valuable tip when you want to show respect for a family – try to avoid shooting them to death. I read that in an etiquette book once, I think.

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Court-Ordered Loneliness

In Ontario, Canada, a 24 year-old man has been ordered not to have a girlfriend for the next three years – due to a violent argument he had with his girlfriend. From the story:

Mr. Justice Rhys Morgan told a 24-year-old, characterized as having a dependent personality disorder, yesterday he could not have a girlfriend for the next three years.

The unusual order was added to Steven Cranley’s probation order after he pleaded guilty to six charges relating to an argument he had with his former girlfriend and a roommate Jan. 17.
…

While this may seem like an unusual punishment, some of us have already had to suffer through similar periods of not having a girfriend. For me, it was a time period commonly known as “the 1990s.” And I didn’t even need a judge to mandate it. Fortunately, I now have an in-home judge that forbids me from having girlfriends. She is often referred to as “my wife.”

There’s no doubt this guy has mental problems. But as a result, he can now look forward to three years’ worth of late nights watching Cinemax, praying to God he doesn’t recognize any of the actresses’ names in the opening credits.

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Virginia Cracks Down on Scourge of People Enjoying Things

Visitors to Rustico restaurant in Alexandria, VA may think they’re merely enjoying an innocent Beersicle (video)- but state regulators seem to think they are practicing their own vigilante brand of thirst amelioration. The new “frozen beer on a stick” offering apparently violates a state law that requires beer be sold in its original container or served immediately after it is poured.

It would seem to me that the beersicle actually serves as a deterrent to consuming large amounts of beer as fast as possible. This isn’t a good thing? Wouldn’t the cops be a little better served by making sure terrorists aren’t amassing a stockpile of bomb pops?

[Update Jul. 2008: state legislature legalizes the pops.]

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Some Pearson reactions

WSJ Law Blog has the (long) opinion and (short) judgment in the case. Professor Bainbridge notes the pertinence of the legal principle of “puffery”, under which Pearson was no more justified in demanding the literal enforcement of the Chungs’ “Satisfaction Guaranteed” sign than would other customers be justified in suing United Air Lines after a grumpy flight for not providing “friendly skies”, Exxon for not putting a genuine “tiger in your tank”, Fox News for being less than “fair and balanced”, and so forth. Amygdala observes, of the $12,000 settlement offer that Pearson spurned from the Chungs:

Which is to say, if you’re a lawyer, or just knowledgeable about legal phrasing and documents, and willing to spend a certain amount of time generating and mailing documents, you can wind up being offered $12,000 if you’re sufficiently obnoxious and persistent, no matter how feeble, frivolous, and meretricious your claim is.

That’s a well-known, old, story, to be sure, but still worthy of note now and again.

And the WSJ Law Blog has an earlier interview with the Chungs’ lawyer, Christopher Manning, including this pertinent excerpt:

How’d all the publicity start?

A local neighborhood newspaper first picked up the story. Then WJLA – the local ABC affiliate — picked up the story, with me holding the pants. After that, Marc Fisher’s [Washington Post] column ran in late April which really set it off. [The story has since been featured on Today, Nightline, Good Morning America, MSNBC, Fox News, CNN and a host of other networks.]

Gosh. You mean the pants suit didn’t become a big worldwide story, as some of our friends in the trial bar have hinted, just because those nefarious legal reformers were looking for a far-out case to publicize? Next you’ll be telling us that Stella Liebeck’s McDonald’s hot-coffee award became a huge story because it was something the press found newsworthy and the public wanted to talk about, rather than because reformers plotted deep into the night to hype it.

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More unintended consequences from IDEA

The litigation-enforced “mainstreaming” of disruptive special-education students under the Individuals with Disabilities Education Act is not only adversely affecting general-education students, but increasing teacher turnover. (John Hechinger, “‘Mainstreaming’ Trend Tests Classroom Goals”, Wall Street Journal, June 25). More: Another relevant investigative piece from the Journal: Robert Tomsho, “When Discipline Starts a Fight”, Jul. 9.

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