Archive for 2007

More on Redwood v. Dobson

We earlier covered Judge Easterbrook’s opinion in the Redwood v. Dobson case. On Evan Schaeffer’s Illinois Trial Practice Blog I commented:

A censure for instructing a witness not to answer seems strict, considering the practicality that most parties would prefer that result to cutting off the deposition, and one unfortunately cannot be assured of a federal district judge who is as familiar with the current rendition of Rule 30 as Judge Easterbrook is. (Indeed, the district court judge in Redwood erroneously applied Rule 30 according to the appellate opinion.)

If one were to walk the tightrope that Redwood presents us, I would recommend objecting as follows: “We find that question objectionable. I would prefer not to suspend the deposition here to seek a protective order, but Rule 30 offers me no other alternative. Can we agree that you will postpone this question until the end of the deposition, and we’ll seek the protective order then?” By doing this, one demonstrates good faith and places the burden on the questioner of choosing to end the deposition early over this question. That’s not complete protection by any means: the questioner can stand her ground, and then still seek sanctions for the costs of a second day of deposition if the protective order is denied. It’s an elaborate game of chicken, to be sure, and I’ve been on both sides of intimidating junior attorneys and having senior attorneys try to intimidate me in that game.

Now, in the American Lawyer, Northwestern Professor Steven Lubet stakes a similar position (via Civ Pro Prof Blog):

The Seventh Circuit might have thought the Redwood decision would “defuse . . . the heated feelings” at depositions, but it may well have the reverse effect of making litigation more contentious, potentially turning every deposition into a high-stakes confrontation. Lawyers already play enough chicken, and now they’re going to have to learn a new game-truth or dare.

Lubet complains that Redwood leaves attorneys with only the nuclear option of the expense of seeking a protective order; this isn’t quite the case, as my February comment above shows. But Lubet is correct that there is a problem in treating the victim the same as the originally misbehaving attorney.

Of course, the problem is less with the Seventh Circuit decision as much as with the very clear instruction of Fed. R. Civ. Proc. 30(d)(1) combined with the unwillingness of courts to enforce sanctions or provide adequate protective orders for over-aggressive discovery. If district courts were doing their jobs, that Seventh Circuit opinion wouldn’t look so frightening to practitioners, because attorneys would be behaving in the first place.

The $65 million pants: Judge Roy Pearson update

(Earlier.) Commenter Becky points us to this Sherman Joyce letter in the Examiner, to which we have added hyperlinks:

Dear Judge Butler and Commissioners Rigsby, Levine and Wilner:

On behalf of the American Tort Reform Association, which works to combat lawsuit abuse, I urge you to carefully reconsider the reappointment of Administrative Law Judge Roy Pearson Jr. to a 10-year term, scheduled to commence in three days on May 2.

As you are almost surely aware by now, thanks to extensive local and national media coverage, Judge Pearson has chosen to exploit the District’s well-intentioned but loosely worded Consumer Protection and Procedures Act in suing a family-owned D.C. dry cleaner for more than $65 million — over a lost pair of suit pants.

Though the pants have long since been found and made available to him, Judge Pearson has stubbornly continued to waste precious Superior Court resources in a clearly misguided effort to extort a hardworking family that provides a service to its community and tax revenue to the District government.

In a letter to the editor in today’s Washington Post, former National Labors Relations Board chief administrative law judge Melvin Welles urged “any bar to which Mr. Pearson belongs to immediately disbar him and the District to remove him from his position as an administrative law judge.”

To those of us who carefully study the litigation industry’s growing abuse of consumer protection laws around the country (see ATRA general counsel Victor Schwartz’s recent article from Executive Counsel magazine, “Consumer Protection Acts Are a Springboard for Lawsuit Abuse,” enclosed) and to everyday D.C. taxpayers who collectively provide Pearson with a considerable salary, his persistence in this lawsuit raises serious question about his capacity to serve the city as a “fair, impartial, effective, and efficient” judge, as required by the Office of Administrative Hearings Establishment Act.

If Pearson goes ahead with his lawsuit, any party who comes before him in future administrative hearings could understandably lack confidence in his judgment and judicial temperament. Furthermore, this case will become fodder for late-night comics, various members of Congress and other assorted critics of D.C. government if this case, scheduled for trial June 11, remains in the headlines.

Judicial temperament is a critical characteristic of an outstanding jurist. Any individual who chooses to pursue a case such as Pearson’s, at a minimum, calls into question his or her’s. As you consider his reappointment, we strongly urge you to examine closely his judicial temperament and decide whether it is sufficient to serve the people of the District of Columbia properly as an administrative law judge.

Pearson has a litigation history; commenter Monica points us to this reported opinion stemming from his divorce.

Update, May 2, from ABC News:

[The Chungs] have spent thousands of dollars defending themselves against Pearson’s lawsuit.

“It’s not humorous, not funny and nobody would have thought that something like this would have happened,” Soo Chung told ABC News through an interpreter.

Her husband agreed.

“It’s affecting us first of all financially, because of all the lawyers’ fees,” Jin Chung said. “For two years, we’ve been paying lawyer fees… we’ve gotten bad credit as well, and secondly, it’s been difficult mentally and physically because of the level of stress.”

Arizona regulators vs. Zillow.com, cont’d

As we noted Apr. 16, the Arizona State Board of Appraisal has sent a letter to Zillow.com demanding that it cease and desist from offering its free online estimates of property values in the state, on the grounds that Arizona law prohibits the unlicensed offering of real estate appraisals. Eugene Volokh (Apr. 30) believes that as interpreted by the regulatory board, at least, the Arizona statute is probably “constitutionally overbroad”. Notes commenter Duffy Pratt: “I don’t think Zillow is doing an ‘appraisal’ anymore than I am practicing law by saying this statute is hooey.” Legislation is moving forward in the Arizona legislature that would provide clearer authorization for services like Zillow to operate (John Cook’s Venture Blog (Seattle Post-Intelligencer), Apr. 30; “Arizona House passes bill impacting ‘Zestimates'” Inman News, May 1). More: Greg Swann, BloodhoundBlog, Apr. 29 and other posts; Jonathan Lansner, “Arizona has a Zillow problem”, Orange County Register, Apr. 18.

May 1 roundup

  • Jack Thompson, call your office: FBI search turns up no evidence Virginia Tech killer owned or played videogames [Monsters and Critics]

  • How many zeroes was that? Bank of America threatens ABN Amro with $220 billion suit if it reneges on deal to sell Chicago’s LaSalle Bank [Times (U.K.), Consumerist]

  • Chuck Colson will be disappointed, but the rule of law wins: Supreme Court declines to intervene in Miller-Jenkins (Vermont-Virginia lesbian custody) dispute [AP; see Mar. 2 and many earlier posts]

  • Oklahoma legislature passes, but governor vetoes, comprehensive liability-reform bill [Point of Law first, second, third posts]

  • Good primer on California’s much-abused Prop 65 right-to-know toxics law [CalBizLit via Ted @ PoL]

  • “Defensive psychiatry” and the pressure to hospitalize persons who talk of suicide [Intueri]

  • Among the many other reasons not to admire RFK Jr., there’s his wind-farm hypocrisy [Mac Johnson, Energy Tribune]

  • “Screed-O-Matic” simulates nastygrams dashed off by busy Hollywood lawyer Martin Singer [Portfolio]

  • “Liability, health issues” cited as Carmel, Ind. officials plan to eject companion dogs from special-needs program, though no parents have complained [Indpls. Star; similar 1999 story from Ohio]

  • First glimmerings of Sen. John Edwards’s national ambitions [five years ago on Overlawyered]
(Edited Tues. a.m. to cut an entry which was inadvertently repeated after appearing in an earlier roundup)

Tierney, blogosphere on Dr. William Hurwitz verdict

John Tierney does some good reporting on the compromise federal jury verdict that criminally convicted William Hurwitz on sixteen counts of drug-dealing: “Lapses in medical judgment – or even just differences in medical judgment – have been criminalized. A doctor can be suddenly redefined as a non-doctor. All it takes is a second opinion from a jury.” Also: Kirkendall, Sullum, Kevin MD, Szalavitz, Balko, Satel (2004), Cato (2004), Hurwitz web site. Related on Overlawyered: Jan. 19, 2006, Jun. 15-17, 2001.

Canada: “Crook wins damages for injury during theft”

“A Canadian man who admitted shoplifting C$106 in razor blades has been awarded C$12,000 ($10,645) for injuries he suffered when he was tackled by store security guards. … [Daniel] Baines, who represented himself, said employees of the supermarket in a Vancouver suburb used unreasonable force when he struggled during his capture.” (Reuters, Apr. 20). Which suggests once again that Canada has still not “Americanized” its litigation system in any thoroughgoing way: how unlikely is it that a suit in a large American city by an injured-while-struggling thief, if successful, would result in an award as modest as $10,645? More: compare Jun. 13, 2006 (Rochester, N.Y. case).

Penny for your thoughts

A common complaint about abusive class action litigation is that the lawyers rake in the big bucks while the class members walk away with pennies. Still, Overlawyered repeat offender Lakin Law Firm (many entries) may be taking it to a whole new level. The Madison Record reports:

Mark Brown of the Lakin Law Firm bargained a class action lawsuit down to a penny at a hearing before Madison County Circuit Judge Dave Hylla.

The suit alleges that in 1999, Old Kent Mortgage charged three borrowers $100 for a credit report, paid less than that for the report, and improperly retained the difference.

The problem with this theory at the hearing was that apparently Lakin didn’t have any idea how much the bank paid for the reports, couldn’t identify any fraudulent statements made by the bank, and couldn’t produce a contract that was breached. Other than that, the lawsuit seems fine, and I’m sure that each class member will be happy with his penny.

In all seriousness, given that just to bring the suit Lakin had to dig up as its client — the Stevens family — someone who had taken out a mortgage four years earlier (the mortgage was taken out in 1999, and Lakin did not bring the suit until 2003), I suspect that there won’t be a whole lot of other class members making claims anyway. What’s a little odd is that this suit was reportedly filed four years ago and apparently nothing has happened on the case yet.

Incidentally, the Stevens family seems to have very bad luck with banks and mortgages; they and the Lakin Law Firm filed another class action lawsuit against the bank over mortgage closing costs in 2004.

Willie Gary asks for moon, gets 1/4 moon

As David noted the other day, Florida attorney Willie Gary, whose doings are often mentioned on this site, had asked that a court award fees of $11,000 an hour for his work in a trade secrets suit against Motorola. Readers may be interested in the sequel: Circuit Judge Leroy Moe awarded Gary and other lawyers only around a quarter of their request, amounting to $23 million of the asked-for $96 million in fees and costs. The judge also passed over a request that Motorola be hit with $100 millions in sanctions and restitution, though Gary might be able to obtain further consideration of that request. (Adrian Sainz, “Motorola ordered to pay $22.9 million”, AP/Miami Herald, Apr. 20)(via Ashby Jones, WSJ Law Blog).