Overlawyered: Chronicling The High Cost Of Our Legal System

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Annals of overreaching legal fees

An appeals court in Missouri has ruled (Susan Mello v. Anita Davis and McDonnell-Douglas) that a lawyer who represented a client in an employment claim is not entitled to collect 35% of her client’s future salary and benefits by way of a claimed contingent fee. Best (if somewhat unsettling) quote from the court’s caustic opinion:

if it was Mello’s intent to have her client surrender 35 to 45% of all future earnings until the welcome hand of death freed her from this servitude, the contract needed to say as much.

(Via George Lenard, Dec. 9, who says the case “would be funny if it weren’t so sad”).

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Book review: A.N. Wilson, “After the Victorians”

In today’s New York Times Book Review I’ve got a review of After the Victorians, the new book by journalist/author A.N. Wilson surveying the history of Great Britain in the first half of the twentieth century, a period of marked geopolitical decline culminating in the dissolution of the Empire. I praise the book as cleverly organized, engagingly written and rich in content, but point out that it is utterly wrongheaded in blaming the decline of British power in the 1940s on the supposed perfidious schemes of the United States (Walter Olson, “Damn Yankees”, Dec. 11).

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Update: UK nixes “economy class syndrome” suits

Britain’s highest court, the Law Lords, “ruled that lesser courts correctly threw out an application by passengers or their families seeking to sue two airlines, British Airways and China Airlines, for death and injury from deep vein thrombosis (DVT). The action was a test case that could have thrown the air industry open to compensation claims for millions of pounds.” (Martin Hickman, The Independent, Dec. 9; Simon Calder, The Independent, Dec. 9; Joshua Rozenberg, Daily Telegraph, Dec. 9). More: see Jun. 25 (Australia), Oct. 3, 2004 (U.S.), etc.

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Update: Port Authority seeks voiding of WTC verdict

A few weeks ago (see Oct. 27, Oct. 29) a jury decided to hold the Port Authority of New York and New Jersey 68 percent to blame for the first World Trade Center bombing, and the terrorists themselves only 32 percent responsible. Now the authority has filed court papers declaring that the verdict “shocks the conscience” and urging that it be set aside. According to the motion, the outcome in the case “stemmed directly from the court’s jury instructions and verdict sheet interrogatories that violated the Port Authority’s fundamental right to a fair trial.” The authority also faults Judge Nicholas Figueroa for “banning testimony from terrorism experts called by the authority,” and for asserting that he would be justified in overturning a defense verdict should the jury return one. (Anemona Hartocollis, “Port Authority Seeks Voiding of Jury Verdict”, New York Times, Dec. 7). Andy MacCarthy has a comment at National Review Online.

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Update: feds reindict in Mississippi scandal

“The federal government has indicted three defendants in a judicial bribery case for the fourth time, adding conspiracy to the list of charges against former Biloxi lawyer Paul Minor, former Circuit Court Judge John Whitfield and former Chancery Court Judge Wes Teel.” (Biloxi Sun-Herald; AP; Jackson Clarion-Ledger). In August, a jury acquitted state Supreme Court justice Oliver Diaz Jr. of all charges in the case, acquitted Minor and Whitfield of some charges, and was unable to reach agreement on the other counts against Minor, Whitfield and Teel. For our coverage, see Sept. 18, Aug. 17, Aug. 15, Aug. 11, etc. More legal woes for Minor: Julie Goodman, “Minor may lose bond following La. arrest”, Jackson Clarion-Ledger, Nov. 5 (federal prosecutors allege violations of Minor’s bail requirements after police charge him at crash scene “with operating a vehicle while intoxicated, failure to maintain control, driving without an insurance certificate and reckless driving. …The motorist in the other car, who subsequently hired an attorney, complained of back and chest pain, he said”); “Attorney in bribery case faces new bond conditions”, AP/Biloxi Sun-Herald, Nov. 8; “Judge to consult doctor who tested Paul Minor”, AP/Sun-Herald, Nov. 25.

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Don’t take that client!

Norm Pattis at Crime and Federalism (Nov. 21) describes a temptation felt by many trial lawyers during “the periodic lull in cases of merit”: taking on the cause of a vengeful, deluded or disturbed complainant:

You know the type. The injured, angry, pissed off, ornery cuss of a client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scorching of any Earth within one thousand miles of their rubbed raw hangnail.

Will such a client find a lawyer willing to take his case? Very possibly he might:

Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs’ lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

Lawyers should turn down such clients, Pattis says, and society should add its own discouragement:

I am a plaintiff’s lawyer. I am a successful plaintiff’s lawyer. But, perhaps this is too much to assert — I am an honest plaintiff’s lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brought without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

And he follows that thought up with several other policy recommendations: “Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress”, “Expand Rule 11 type sanctions on lawyers”, and “Make it easier for lawyers to withdraw when they discover that the client’s claims lack merit”. Even if you don’t usually follow the links in our posts, do it this time and read the whole thing. Update Jan. 8: Pattis responds to colleagues’ criticism.

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Overcriminalization watch: five years for “encouraging” aliens to stay

Yesterday, on a party-line 23-to-15 vote, the Republican-led House Judiciary Committee approved legislation sponsored by its chair, Rep. James Sensenbrenner (R-Wisc.), billed as cracking down on illegal immigration. According to Jacob Sullum, reporting at Reason “Hit and Run” (Dec. 8), the bill as brought up in committee:

would impose a three-year mandatory minimum sentence on anyone who, with an expectation of financial gain, “assists, encourages, directs, or induces” two or more foreigners to illegally reside in the U.S. The penalty rises to five years if the encouragement leads to a crime punishable by more than a year in prison. Families Against Mandatory Minimums notes that “the five-year mandatory minimum will nearly always apply because the bill would also increase the maximum penalty for illegal entry to a year and a day and provides mandatory minimum penalties of one to 10 years for those who reenter the country following deportation.”

It appears from the bill’s text (PDF) that the prohibition on “encouraging” or “assisting” illegals to remain in this country is by no means meant to reach only persons who engage in organized long-distance smuggling of aliens; the requisite “expectation of financial gain” from the continued presence of an alien couple might consist (or so it appears) of reaping the benefit of employing one member of the couple in, say, a housekeeping, gardening or home-repair capacity (Judiciary press release, Washington Post).

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