Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2007

What happens in Gaza, stays in Gaza

In July 2002, Israeli Air Force planes bombed a building in Gaza to kill a Hamas leader; fifteen people died. Whatever one thinks about the wisdom of that decision, it’s hard to figure out what this fighting between Hamas and Israel has to do with the island of Manhattan. But that didn’t stop the misnamed Center for Constitutional Rights from suing, in 2005, Israeli government official Avi Dichter in federal court in New York City,

Sensibly, the judge hearing the case, William Pauley dismissed the suit yesterday, determining that the Arab-Israeli conflict would probably not be solved by trial lawyers. But although this case was decided sensibly, it represents yet another attempt by citizens of foreign countries to conduct foreign policy in American courtrooms.

Pauley noted the U.S. government had argued in court papers that the suit, brought by the Center for Constitutional Rights, threatened to involve the courts in policing armed conflicts across the globe, exceeding the role of the courts and intruding on the executive branch’s control over foreign affairs.

If this suit were sustained, it’s hard to see what foreign war couldn’t be fought by trial lawyers in U.S. courts, given that neither the plaintiffs nor the defendant in this case had any connection to the United States.

Mom: I never authorized lawyer to sue school over football injury

Curious doings in Camden, N.J.:

Nita Lawrence, whose son Shykem was paralyzed in a scrimmage football game between Woodrow Wilson and Eastern Regional high schools on Aug. 25, said Monday she never gave a Michigan lawyer authorization to file paperwork naming both high schools in a potential $10 million lawsuit.

In fact, Lawrence said she fired [Ronald R.] Gilbert in early March after he tried to receive advance payment from Bollinger Insurance, the company that provides coverage for student athletes in the Camden School District.

“We didn’t say we were suing nobody,” Lawrence said. “All we wanted was the insurance company to pay for my son’s medical bills. That’s all we wanted.

“We don’t want no $10 million. We’re living fine. Whatever the insurance company doesn’t pay, Medicaid pays. We don’t need a lawsuit. Now, we’ve got all these people against us and it’s not fair because it’s not true.”

A $10 million notice of claim dated Mar. 20 names 18 people, including football coaches, principals and superintendents, as possible defendants. (Chuck Gormley, “Mom: No suit authorized over son’s injury”, Camden Courier-Post, May 1; “Michigan lawyer confirms he’s off Lawrence case”, May 2).

Further information on Fenton, Michigan attorney Ronald R. Gilbert can be found here. Gilbert appears to be the guiding spirit behind two seemingly philanthropic outfits, the Foundation for Spinal Cord Injury Prevention, Care & Cure and the Foundation for Aquatic Injury Prevention. Visitors to the two groups’ websites rather quickly run into discussions of liability and legal options which would seem helpful, no doubt unintentionally, to attorney Gilbert’s client intake efforts.

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Updates – May 2nd

  • Remember those lawsuits over Yankee pitcher Cory Lidle’s plane crashing into an apartment building? (Mar. 2, Apr. 4). Well, the NTSB has issued its final report on the plane crash, and came to the shocking conclusion that poor piloting was involved. But, despite the NTSB’s expertise, it wasn’t able to determine whether Lidle or his instructor, Tyler Stanger, was doing the piloting.

    Does anyone think that the NTSB’s findings, or failure to uncover this information, will affect in any way the progress of the lawsuits which depend on the answer? (Does anyone think that it will in any way prevent the litigants from finding hired gun experts to testify as to who was piloting?) It seems unlikely:

    The Lidle and Stanger families are suing the plane’s manufacturer, and their lawyer criticized the NTSB’s conclusions.

    “It’s not surprising, the Safety Board always blames the pilot in an accident,” said the lawyer, Todd Macaluso. The families fault the plane’s steering mechanism, though the NTSB found no evidence of system, structure or engine malfunction.

  • If you choose to flee from police at speeds of up to 90 miles per hour on well-traveled roads, and the police try to stop you, the Supreme Court sensibly says that you can’t sue the police for violating your constitutional rights when you get injured as a result. (Previously covered: Feb. 27)

    The Supreme Court vote was 8-1, but what was apparently the decisive evidence was that the police officer had a video of the chase (Realmedia), which the Justices were able to review for themselves. If they had been forced to rely upon the description of events by the various parties, the officer would probably have been forced to go to trial.

  • Remember that story of the New York City subway hero who sued his attorney because he claimed that the contract he signed with her to exploit his publicity was unfair? (Overlawyered, Mar. 28) Well, reader Phil Grossman points us to this update:

    The lawyer who’s getting sued for allegedly using “undue influence” to sign Subway Superman Wesley Autrey into a bad deal says she’s the victim – and now she’s suing him.

    Diane Kleiman has filed counterclaims against the selfless hero, charging him with breach of contract. She’s also seeking money for her legal fees and “damages to her reputation.”

    “They’re making me look like a shyster. I’m not a shyster,” Kleiman told The Post. “I’m not money hungry. This is not who I am.

    I’m pretty sure that being forced to publicly deny that you’re a shyster is a bad thing, reputationwise.

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Litigious clients file lawsuits

Courtesy of Judicial Reports, a cautionary tale for lawyers: be careful when you accept litigious clients. The law firm of Wallace & Minchenberg wasn’t, and it came back to bite them:

Bennett A. Cohen kept getting hurt in elevators — or so he claimed. The lawyers he hired to exact compensation from the culprits responsible for the injuries he allegedly sustained in four elevator mishaps between 1989 and 1992 must have suspected that their litigious client might eventually turn on them, as he did. When the last of the elevator tort claims collapsed, Cohen sued the law firm for malpractice for allegedly mishandling his slam-dunk tort suits.

A lower court in Brooklyn refused to dismiss Cohen’s suits, but the Appellate Division said that law firms can’t be guilty of malpractice for failing to properly prosecute cases without any merit to begin with.

I’m sure that’s of great comfort to the elevator maintenance companies who were originally sued by the law firm on behalf of Cohen.

(Too bad Cohen was representing himself pro se in his lawsuit against Wallace & Minchenberg. Otherwise he could have sued the lawyers who represented him in this lawsuit for failing to win against his former lawyers.)

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Bill padding, and lots of it

Two-thirds of lawyers queried in a new survey say they’ve seen specific instances of bill padding, a figure that hasn’t changed much since 1995. On two related questions, the numbers are actually getting worse, as Nathan Koppel notes at the WSJ Law Blog (May 1): “54.6% of the respondents (as compared with 40.3% in 1995) admitted that they had sometimes performed unnecessary tasks just to bump up their billable output”, and “the percentage of attorneys who admitted that they had double billed rose from 23% in 1996 to 34.7% in 2007. And only 51.8% regarded the practice as unethical in 2007, as compared with 64.7% in 1995,” although most ethical authorities not surprisingly frown on that practice. Ted has some further thoughts at Point of Law; the study data, gathered by Cumberland/Sanford lawprof William Ross, is here (PDF). More: Jun. 24.

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“Pregnancy brain”

That belitting phrase was uttered not by a supervisor, nor yet by a co-worker, but by a private citizen at a hearing where Amy Lee was being flayed by public commenters for her performance as assistant director of San Francisco’s Building Inspection Department. Even so, it has now resulted in a settlement in which the city has agreed to fork over $156,000 in damages and attorneys fees to resolve Lee’s charges of sexual harassment and pregnancy discrimination. Supervisor Tom Ammiano, not generally known as an enthusiast for employer’s rights, nonetheless

cast the lone vote on the board against the settlement [and] called the payout ludicrous.

The “pregnancy brain” remark was out of bounds, Ammiano said. But it was made at a public meeting, where officials take shots all the time, he said.

“You can’t control public comment,” Ammiano said.

Lee remains on the public payroll. (Phillip Matier and Andrew Ross, “Former chief of Building Inspection gets damages”, San Francisco Chronicle, Apr. 30).

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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.

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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.”

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