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Given your desire to drive frivolity out of our courts, a worthy and necessary goal, I thought you may actually prefer to read the details of the lawsuit described in your Nov. 15 post ("Lawyer sues 'Law & Order' over fictional attorney") and then come to your considered judgment, and make whatever changes on your site you feel justified. Those details can be found here (PDF). -- Ravi Batra, New York, N.Y.
Doubtless you are aware of the impressive reforms in civil procedure which were enacted in Texas not long ago. Those reforms included several new provisions as to class actions, one of which, I believe, is potentially of national impact.
Texas has now mandated the "lodestar" (enhanced hourly fee) principle, as opposed to share-of-recovery contingency fees, for awards of attorney fees in Texas class actions. Nonetheless, as I type this and as you read it, we may be certain that somewhere, in a class action in another state, some attorney is representing hundreds or thousands of Texans, and is requesting in the name of his Texas clients a huge contingency fee. In the national class action setting, of course, most of the"clients" become clients only through an order of court. In accepting such an appointment, however -- in representing citizens of one state by order of the court of another -- does an attorney not become an officer of the courts of both states?
It seems to me that the jurisdiction of the State of Texas properly extends to the regulation of attorneys who represent Texans, by appointment only, in lawsuits in other states. In ordinary litigation there is an agreement actually negotiated between attorney and cllient, which generally obviates concerns about fidelity and fairness. In class actions there is no such safeguard; and a reasonable remedy would be to make the class attorney, the attorney-by-appointment, accountable in Texas, to his Texas clients. I think that Texas may have done this already, if only implicitly.
Moreover, a law that Texas enacts, or might enact, numerous other states should be able to replicate. State statutes of this type would test the theoretical foundations of class litigation at a very vulnerable point -- the frequent corruption of the attorney-client relation.
I am curious whether you think that this approach might offer a logical and fruitful next step toward turning class action suits back into genuine litigation, in which attorneys have clients to whom they must justify their fees. I am curious also whether, among all the information which comes your way, you might have seen evidence of a similar approach. -- Scott Rutledge, Richardson, TX
I have never heard of this approach being tried. Reader comments are welcomed. -- W.O.
The Virginia Postrel column you quote in your Nov. 11 item ("Accommodations in the Emergency Room") contains the following quote: "'You're disabled or you're not,' says Stephen Tollafield, an attorney with Disability Rights Advocates in Oakland, Calif."
Actually, no. Many disabilities fall on a continuum. Some people are very dyslexic, some less so. At whatever point you set the cut-off for the level of disability that justifies special accommodations, you are disadvantaging people that don't quite make the cut-off.
Not to mention that, if dyslexic medical students get accommodations for the medical school entrance exam, they will demand them for the finals too, and for their internship and medical licensing exams. Being treated by an emergency room physician who needed all these accommodations seems a little too severe a punishment even for Tollafield. -- Mark Moss
On your "Innocents Behind Bars" (Nov. 16), you might mention that a noticeable number of such cases (though quite apparently not the one you linked) are cases where a new trial is granted based on a technicality, but the original witnesses are dead or can't be found, etc, and so the charges are dropped. This is especially true of death row "innocents" -- several have sued the state for damages, but they have been thrown out. As one judge said (paraphrase) -- "Inability to re-prosecute you now doesn't mean you didn't do it." Or something like that.-- David Allen, Amarillo, Tex.