Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘overzealous advocacy’

“Why Do Lawyers Mouth Clients’ Ridiculous Alibis?”

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.

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“Lawyer installs shark tank in office”

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).

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Harris v. Mt. Sinai Medical Center: Geoffrey Fieger loses

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.

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September 4 roundup

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Annals of incivility

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.

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November 27 roundup

  • 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]

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How Joe Jamail conducts a deposition

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.

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“Stalingrad” divorce tactics

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.

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Jim Butler wins $105M verdict in Chrysler seat litigation

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.

Read On…

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