“Litigation is coercive”

Many commentators over the years have compared litigation to extortion. In Texas, it turns out that there’s at least some line between the two. Last week, San Antonio attorney Ted Roberts was convicted on three of five counts of theft for his role in a blackmail scheme. The scheme — previously discussed on Overlawyered in Jun. 2004 , Sep. 2005, and Feb. 2007 — involved having his wife, Mary, pick up married men on the internet, have sex with them, and then threaten to sue them (and reveal their sexual activities) for ruining his marriage unless they paid him big sums of money.

If you think that’s low, consider that Roberts falsely told his victims that the money they paid would go to a charity; he instead spent almost all of the money on a new $635,000 home. It was that fact that apparently convinced the jury, which didn’t have much sympathy for the adulterous men, to vote to convict.

It might sound unconscionable to normal people, but Roberts had found someone to defend him:

Support for the accused Ted H. Roberts and for his creative response to his wife Mary’s adultery came from an accomplished fellow attorney with more than 44 years’ experience, including a term as president of the State Bar of Texas.

Testifying for the defense, Broadus A. Spivey voiced no qualms about the way Roberts extracted $155,000 from four of his wife’s lovers by threatening to file litigation that would embarrass them and alert their wives and employers to their infidelities.

“Litigation is coercive,” Spivey explained to jurors. “That’s part of the nature of the beast.”

The seasoned lawyer offered a voice of experience, and the defense took care to note for jurors his multiple board certifications, awards and various distinctions.

Spivey might not quite be an impartial witness, though; he represents the Roberts duo in their civil lawsuit against the newspaper that first reported their scheme.

Still to come: the trial of Roberts’ wife on the same charges.

Frivolous suits and inadequate sanctions, redux

A frolic and detour over at Bizarro-Overlawyered led me to this post over at The Tortellini, which parrots the common trial lawyer argument that there’s no need for tort reform because courts currently have the power to sanction frivolous lawsuits. But the example cited actually demonstrates exactly the opposite: current procedures are insufficient for preventing frivolous litigation.

In 2004, an Ohio resident named Thomas Starks arrived at an Econo Lodge in Tennessee at 4:40 AM. He spent a few hours relaxing, and then went to sleep at 7:30 AM. A few hours later the hotel called to wake him up, saying that he had missed the 11:00 AM checkout time. I guess he was cranky from lack of sleep, because he insisted that he hadn’t stayed for a full day and therefore shouldn’t have to pay the full day’s room rental rate of $46. Eventually, he paid up and left.

The horrible treatment by the hotel in forcing him to actually pay for his room led, as you can probably guess, to a lawsuit (filed pro se) against Econo Lodge and Choice Hotels — but, for some reason, not the operators of the Econo Lodge franchise in question. Starks demanded a $46 refund, $750,000 in damages, and a lifetime pass to stay free at Econo Lodge (I’m not making this up. If you can figure out why someone with $750,000 would stay at an Econo Lodge, let me know.)

The lawsuit was ultimately dismissed; for the many reasons explained by the court (PDF of opinion):

But Starks proceeded to sue the wrong people, in the wrong place, for a wrong wrong: (1) it wasn’t a wrong, (2) Hamilton County, Ohio, was not the right place, and (3) and even if there were a wrong, it wasn’t committed by these defendants.

Indeed, the court found this suit so flagrantly frivolous that it assessed sanctions of $2,500 against Mr. Starks. So what’s the problem? Well, perhaps it might be clearer if I point out that the above quote is actually from the appellate court. That’s right: Mr. Starks filed this suit, had it dismissed, and then had the nerve to appeal the trial court’s ruling. Only at that latter stage of the case were these sanctions — which almost certainly do not come close to compensating the defendants for their legal fees — imposed. (The court left the door open to possibly increasing the sanctions if the attorneys filed additional paperwork, but did not guarantee it; in any case, the judges were skeptical that the defendants would ever be able to collect.) And even so, one of the judges felt the need to apologize for the sanctions: “While the court system must remain open for the redress of a citizen’s perceived injustices, there is a point at which even the most liberal interpretation of personal rights fails in the light of common sense. This is one such case.”

Read On…

Grand jury looking at Ky. fen-phen scandal

A grand jury is expected to hear testimony this week about the role of three Lexington lawyers in the now-infamous Kentucky fen-phen settlement (Feb. 14, etc.). “Frank Bentley IV, a lawyer representing [Cincinnati’s Stanley] Chesley, said he is not a target of the criminal investigation.” (Andrew Wolfson, “Grand jury to look at diet-drug attorneys”, Louisville Courier-Journal, Mar. 15). Last month one of the lawyers caught up in the scandal, William Gallion, said “that he did nothing wrong and that a lawsuit filed against him and others in the case is simply the result of ‘a cottage industry of lawyers who attack class-action settlements.'” (Andrew Wolfson, “Attorney denies wrongdoing”, Courier-Journal, Feb. 11).

Update: Neuborne fee fracas

A federal judge in Brooklyn has recommended that the NYU lawprof be given about $3 million, or $1 million less than what he asked, for representing Holocaust-assets claimants. Some clients say they understood Neuborne to have said he was working pro bono (Jones/WSJ law blog, Mar. 16; Tom Perrotta, “$3 Million Fee Suggested for Neuborne for Work on Holocaust Survivor Issues”, New York Law Journal, Mar. 16). Earlier: Oct. 6, etc.

“Sperm donor kids win estate”

Most memorable detail: the kids used “tweezers to pluck his eyebrows for DNA testing as he lay dead in a hospital morgue.” The fact pattern in this Australian case was not exactly typical, however: the donor had had a previous romantic relationship with the children’s mother, who subsequently used his donations to conceive three times without informing her lawful husband that the kids were not his. (Janet Fife-Yeomans, AAP/PerthNow, Mar. 16).

Update: Some people got it and make it pay…

…which may not necessarily mean that some people can’t even give it away:

A federal judge ruled Friday that a former escort service owner cannot sell phone records and other documents that could be used to publicly identify thousands of her clients…. [Deborah Jeane] Palfrey’s civil attorney, Montgomery Blair Sibley, said Friday he does not believe the judge’s order bars him from distributing copies of the phone records for free. In any event, Sibley said it’s a moot point because he has already given copies of the records to an undisclosed news organization.

(“Judge Blocks Former D.C. Madame From Selling Client List”, AP/FoxNews.com, Mar. 16; SF Chronicle; WTOP). Background: Mar. 13.

Great moments in public employee tenure

“Early in his career, officials found that Lieutenant [William] White had planted white powder on a suspect in a drug arrest, which cost him his job — though he won it back with the help of the police union.” White, who has headed the narcotics squad in the New Haven, Ct. police force, is now at the center of a widening corruption scandal. (Jennifer Medina, “For Connecticut Officer Charged With Theft, a Career of Ups and Downs”, New York Times, Mar. 15; “Bail set at $2 million for New Haven officer caught in sting”, AP/WTNH, Mar. 14; Mary E. O’Leary, “Ortiz: More arrests likely” (bail bonds angle), New Haven Register, Mar. 15).