John Steele at Legal Ethics Forum finds much to unpack in a lawyer’s statement defending his zealous advocacy in a California discovery dispute.
Posts Tagged ‘overzealous advocacy’
Some wellsprings of high indignation
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
“It’s part of the vernacular of being a lawyer.”
To “neutralize”, “eliminate”, “destroy” or “kill” a hostile witness. [NYLJ, Gothamist] More on Robert Simels trial: NY Post, NYDN, Greenfield.
“Litigation as feud”
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]
“Judge Who Scoffed at Dispute Between Former Law Partners Is Reversed”
“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).
Flax v. Chrysler, one more thought
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.
July 3 roundup
- 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]
Why a law-firm partner should be careful about to whom he grants signature authority
(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.)
Judges to doctors’ rescue?
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).
“My client is being framed”, cont’d
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.