Is Civil Litigation a Level Playing Field?

Click on the link here to watch a Yahoo Finance reporter suggest that the employee lawsuit filed against Wells Fargo for enforcing unrealistic sales goals necessitating unethical conduct is likely bogus because "It was filed by a one-man law firm."  If the rules of civil litigation made a level playing field, then this would not be relevant.  If courts were really the great levellor where any person can take on a powerful party and have a real chance at justice, this would not be relevant.

Since it is apparently relevant, then maybe those other things are not true.

In the movie clip below from "The Rainmaker," sole practitioner Rudy Baylor tries to take a corporate deposition of the defendant insurance company represented by a "big" law firm.

One Case, Three Law Lessons

Sexual assaults on college campuses are a matter of great concern. Changes in the way that colleges and universities handle campus disciplinary proceedings based on allegations of sexual assault have changed radically in the last few years.  Those teaching law in universities are likely well aware of the panoply of legal issues raised by lowering the evidentiary standards for proof of guilt, barring cross examination or witness confrontation and other issues. (Click here to read an article on the topic by ALSB member, Audrey Wolfson LaTourette.)

Brown student, John Doe, had been found "responsible" for sexual misconduct by a University tribunal and was suspended.  The case hinged on a factual dispute regarding consent. At the time of the incident, the University had no clearly defined definition of consent, although one was later adopted.  Doe was suspended based on the retroactive application of the definition.  Also, he was barred from presenting evidence in his defense.

Doe challenged the faulty procedure in federal court. Because Brown is a private university, Doe did not have a due process claim.  He filed suit for breach of contract. Recently, Chief Judge William E. Smith of the U.S. District Court for the District of Rhode Island, ruled in Doe's favor and ordered his reinstatement at Brown.

Lesson 1: Disputes must be resolved by a fair procedure of which both parties have had prior notice.

Sexual assaults on college campuses trigger deep emotions.  Victims deserve sympathy, support, validation and ultimately, justice. But the accused must also not be denied the legitimate opportunity to defend against the claims. The criminal justice system, with its Constitutional protections for the accused has been developed and fine tuned over the last two centuries. Finding and developing a completely different private adjudicatory system in colleges and universities that gives adequate consideration to the legitimate interests of victims and accused alike is a minefield of litigation.

Lesson 2: Federal judges cannot be lobbied like legislators.  They are appointed for life specifically to be less influenced by public opinion and passions.  The same principles may or may not apply to elected state court judges.

Judge Smith had been the target of a substantial e-mail lobbying campaign intended to affect his ruling.  In blasting the effort, Judge Smith explained: 

[T]he court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After the preliminary injunction, this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court.

Before the court was only the issue of the procedural propriety of the tribunal - not the issue of guilt or innocence.

Lesson 3: The law is not just a set of predetermined rules that are mechanically applied to achieve justice. There is a lot of trial and error and experimentation and evolution. And in that process, real people's lives are affected.

Cases are not just academic thought exercises. They are the legal outcomes of real, often tragic, events affecting real people. Courts do not have the advantage of legislators who can pass a law and send it out into society to  see what happens.  Judicial rulings apply immediately to affect the lives of the litigants in often profound ways.

It is Dangerous to Ignore Legal Papers

The video below documents a story illustrating why it is important to pay attention to legal papers.  A family sued over a neighbor's alleged emotional distress caused by the family's barking dog thought it was a joke and ignored the summons.  Now, with a default judgment against them, they are facing losing their home.

Students should understand the power of the law and its process.

Question of Law or Fact?

Here is an interesting juxtaposition of articles.  In a trial in Michigan challenging the constitutionality of Michigan's state constitutional amendment barring same sex marriage, expert testimony has been elicited that same sex couples can be competent parents:

David Brodzinsky, an expert in adoption and foster care and a former Rutgers University professor, said there are no "discernible differences" in children who are raised by same-sex couples and youth raised by heterosexuals.

"It's not the gender of the parents that's the key. It's the quality of the parenting," said Brodzinsky, based in Oakland,Calif.

At about the same time, in a brief filed in the 10th Circuit Court of Appeals in a case where a US District Court judge struck down Oklahoma's same sex marriage ban, a legal argument was advanced claiming that same sex marriage is bad for children. 

"Marriage encourages mothers and fathers to remain together and care for the children born of their union," the group's 93-page filing said. Severing the link, it said, "would powerfully convey that marriage exists to advance adult desires rather than serving children's needs."

Citing a court opinion from 1888 — 19 years beforeOklahoma's statehood — Alliance said marriage "is the foundation of thefamily and of society, without which there would be neither civilization norprogress," and cited a 1978 ruling that said traditional marriage was"fundamental to the very existence and survival of the (human) race."

So, is the effect of same sex marriage on children a question of fact or of law? 

Michigan case:

Oklahoma case:

Giving New Meaning to "Bank Foreclosure"

Bank of America attempted to foreclose on a house on which it had no mortgage. The homeowners countersued and the bank was ordered to pay the homeowner's legal fees. After waiting months for payment, the homeowner's lawyer sent the deputy sheriffs to the local Bank of America branch to execute the judgment.  They arrived with moving vans prepared to haul out the office furniture if necessary. After some initial panic, the bank manager was able to cut a check.  The bank's excuse?  They didn't know that their lawyer had gone out of business!

Yeah, and the dog ate your mortgage note.

Video news report:

Litigation Procedure in Two and a Half Minutes

From breach of contract to settlement on the courthouse steps, all recited in a concise video package:

Clever Process Server

Process server: "You've been served!"

Defendant: "I don't need that."

Statute of Limitations or Statue of Limitations?

The clip below from the Seinfeld TV show is funny, even if it only makes a point that can be made in class in 5 seconds by explaining the difference between the words statute and statue.

But here is a link to a helpful web site listing civil and criminal statutes of limitations for all the states.




A "sculpture of limitations?"
source: http://www.overstock.com/Home-Garden/Large-Aluminum-Children-Peeking-over-Fence-Sculpture/3999544/product.html

No One Likes to Get Served With Legal Papers

No one likes to get served with legal papers. I don't think process servers get enough credit and have raised these issue in the past:  here, here and here.

Consider the article that runs under this headline: "Police" Sword Wielding Man Chased State Marshal"

Process servers face assaults, hostile law enforcement officers, lax regulation . . . etc.   Watch:

Discovery Dispute

Erin Andrews, an ESPN reporter, was previously the victim of a breach of privacy when a miscreant videotaped her through the peep hole of her hotel room.  The expected lawsuit followed. Now we see a public battle over discovery as her attorneys try to block attempts by the defense to obtain employment and payroll records and doctors' records. 

Student often think that litigation is easy. You file a lawsuit and in a few months you get a bunch of money. After all, on TV everything is over in a one-hour time slot. Students have little opportunity to consider the battle that goes on discovery and the nature of collecting the evidence necessary to prove a case. I see that as an important part of our job - shining a light on the true nature of litigation.

We Owe a Lot to Lindsay Lohan

There are a few important contributors to the law who seem to pop up  as examples or exemplars in my Legal Environment course on more than a few occasions during the semester. If I give it some thought, I can readily name a few that come to mind; Justices Oliver Wendell Holmes, Benjamin Cardozo and Antonin Scalia, Presidents John Adams, Woodrow Wilson and Abraham Lincoln, Economic Philosopher Adam Smith, and commentators Bill O'Reilly and Stephen Colbert and, of course, Lindsay Lohan.

With the addition of the case described below, the actress and celebrity accounts for three separate examples of legal principles applied to real facts.  First, there was the lawsuit for civil assault brought against her by the passenger in a car that she apparently chased at high speeds through the streets of LA in 2007; an incident that also resulted in her arrest.  It allows for explanation of all the elements of civil assault - apprehension or fear of imminent bodily harm without the element of physical contact.

Then, there was the $10M lawsuit against e-trade that was the subject of this post.

And now we have a federal court ruling in a lawsuit that Ms. Lohan brought against musical artist "Pit Bull" for the use of her name in the lyrics of his song, Give Me Everything.

This is insane: the way the name growin'

Money keep flowin'

Hustlers move aside

So, I'm tiptoein', to keep flowin'

I got it locked up like Lindsay Lohan

According to the complaint, the use of Ms. Lohan's name in the above quoted lyrics constituted an alleged violation of NY State Civil Rights law, and gave rise to claims for unjust enrichment and intentional infliction of emotional distress. Not surprisingly, the Defendant's 12(b)(6) motion was granted. Judge Hurley's decision may be read here. The lyrics are protected from the Civil Rights claim as artistic expression and fall well below the liability threshold of "extreme and outrageous conduct."

Although he rejected the imposition of sanctions under Rule 11 for filing a frivolous claim, the judge did not let plaintiff's counsel off the hook. His order imposes a $750 fine for alleged misrepresentations in a letter to the court and an additional $750 for filing an Opposition Brief with content plagiarized from websites and  prior filings and missing legal citation.

So, my thanks goes out to Lindsay Lohan.  Her contributions to the law allow my students to see past the stuffy and stayed reputation of the law as the province of dead rich white guys.

Give Me Everything by Pit Bull and friends:

Woman Fakes Mental Illness to Get Out of Jury Duty

A Colorado woman apparently went through rather elaborate machinations to claim to be a PTSD victim in order to avoid jury duty.

"Her makeup looked like something you would wear during a theater performance," court reporter Kelli Wessels told investigators at the time, according to the Denver Post. "When the judge asked the entire panel if anyone had a mental illness, [Cole] stated she had difficulties getting ready in the morning, which was apparent to me by the way she was dressed."

She was lucky to be dismissed from duty that day, but her luck ran out when she boasted about her charade on a radio call in program - a program to which the judge was listening. She was prosecuted for perjury and received a sentence of probation after a guilty plea.  I guess she didn't want to put her fate in the hands of a jury made up of people who actually were executing the civic duty that she disrespected.

Chevron Plays Dirty Trying to Squirm Out of Pollution Judgment

An Ecuadorian court has ordered Chevron to pay $19 Billion for years of intentional toxic dumping by its Texaco affiliate. According to reports, Texaco conducted its operations without regard for even the most minimal pollution controls, dumping toxins directly into the water supply. The resulting pollution covered an area the size of Rhode Island and caused cancers, stillbirths, birth defects and disease to uncountable humans living in the area.  See the video here. But this is only a part of the story.

The lawsuit began in the US in 1993.  For a decade, Chevron fought the US courts claiming that the suit belonged in Ecuador.  After Chevron agreed to submit to jurisdiction in Ecuador and to be bound by any judgment there, the US court relented.  The trial that resulted in the judgment took 8 years. Now, Chevron refuses to pay claiming that the process was tainted by corruption. In the meantime, Chevron has removed most of its assets from Ecuador causing plaintiffs to chase Chevron's assets in other nations. But this is still only part of the story.

Chevron has been using legal process to subpoena the content of the private e-mail accounts and IP addresses of bloggers, activists and reporters who have reported negatively on Chevron's conduct.  The report here at Counterspin (advance the audio to the 18:00 mark of the show) is a shocking tale of corporate arrogance and abuse of the legal system to harass and terrorize those who dare speak their minds. This intentional manipulation of the legal system is in form and intent more despicable than a SLAPP suit in that the target is not even named as a party, but rather receives notice only from his or her internet provider. Then under short deadlines, must scramble to take defensive legal action.

On the merits of the case, each side has its own story to tell ( see videos below).  But on the intentional abuse of process and assault on the privacy of private persons, Chevron has no legal or moral defense.

For those at Chevron who have the job of monitoring blog posts, my e-mail is blawprof@gmail.com.  I hope that everyone who reads this takes a moment to tweet about it or write it in their own blogs or in comments on others - so that Chevron can wear itself out chasing everyone's e-mail addresses.

Chevron's story on the underlying claim:



The other story:

Process Serving - It's Not for Everyone

In a prior post we considered the business of process serving. Below are a couple of videos that illustrate some of the difficulties that a process server may encounter.  I can't recall the name of my first year Civil Procedure professor. But I do recall the story he told about a NY process server who, in order to complete "personal" service, practiced for weeks before successfully tossing a sheaf of legal papers across an alleyway and through the open window of an apartment into a bowl of potatoes being peeled by the defendant. I think that Byran (below) would consider that job easy money.

Depositions Can Tell You Alot About a Witness

Depositions are an effective way to gather information.  But they also serve the important function of allowing the lawyers to evaluate a witness' demeanor and presentation - important elements affecting a jury's impressions of credibility. The deposition clips below may be considered revealing about the potential value of these witnesses in the courtroom.

"Discovery is Very, Very Important."

Sometimes I feel that no matter what I say or how many times I say it, students can too easily tune me out.  That is why I sometimes assign videos that simply reinforce what I say in class.  Or, just play the videos in class to introduce, supplement or replace lecture on the topic.  In my experience, it is an opportunity to break the monotony of lecture; to have students look up from their laptops (I require that laptops be closed when a video is being shown) and increase the possibility of engagement.

The video below is not particularly interesting or exciting in and of itself, but it accomplishes the desired break in lecture - and the mountains are nice to look at.

What is a "Statute of Limitations?'

Sometimes, a straightforward video explaining a straightforward concept, can replace a class lecture explanation and support textual material.

Service of Process - You Can't Get Civil Justice Unless the Papers are Served

Below are a couple of videos that I use in class to describe what I consider to be an often overlooked yet crucial element of the judicial system - serving process. Our concept of "due process" includes, at a minimum, notice of a pending claim and an opportunity to be heard in your own defense.  That grand concept, a cornerstone of a just society, is entrusted to the folks who are in the business of serving legal papers.  In some states and in certain instances service is conducted by government employees from a public safety agency or legal system.  But in many states and in certain instances, process servers - much like lawyers, accountants, financial planners, etc. - are business people providing a service to a customer (plaintiff) for a fee. This link will take you to a site for the Process Server Institute, described as being "dedicated to the study and teaching of the art and business of process serving."

"We are 100% committed to the service of process business."


This is how it is done (in Seattle, WA):