Lowering the Bar

"Bulletproof" Attorney Jailed After "Obscene Gesture" in Court

Okay, if you had to vote right now, would you vote to sanction this guy?

"For what?" -- does it matter?

Okay, what if I told you he is an attorney -- wait, I'm not finished -- who is actually registered with the Texas State Bar under the nickname "Bulletproof"?

You are one tough customer.  Okay, how about this:  What if I also told you that during a recent court appearance he made "simulated masturbatory gestures" in response to an objection by opposing counsel "while making eye contact with the Court"?

Now how much would you make him pay?

This is Adam "Bulletproof" Reposa, who spent the night in jail a couple of weeks ago after gesturing in the aforementioned manner in the presence of Travis County Judge Jan Breland.  (Judge Breland wrote at the bottom of the order, "No bond without my approval," but approved a $1,000 bond the next morning.)  Reposa was representing a client on a DWI charge at the time.  He apparently made the gesture while looking at the judge and simultaneously rolling his eyes, in the internationally recognized symbol for "I strongly disagree with what my opponent is saying and in fact find it so lacking in merit that I think you will agree it is unworthy of response."

According to a reporter for KEYE-TV who tried to reach Reposa for comment, "the person answering said she was instructed by Reposa to tell the media a vulgarity, which won't be printed here."

You can actually find Mr. Reposa's contact information by searching for the term "Bulletproof" on the Texas State Bar's website.

Link: KEYEtv.com (Austin)
Link: Austin-American Statesman

Florida Attorney Sanctioned for Insulting Court with "Children's Picture Book"

On Friday, March 7, Bonnie Goldstein of Slate.com wrote about a furious battle going on between a Florida attorney on one side and the Florida Bar and Florida Supreme Court on the other.

Any bets on how this one comes out?

The attorney is Jack Thompson, who has a long history of trying to police violent and sexual content in the media.  You can reasonably take the position that at least some examples of that are a problem, but Thompson's thinking has evolved way beyond reasonable positions.

According to the Wikipedia article on Thompson, which is heavily documented (132 footnotes), Thompson has been involved in decency crusades since the 1980s, pushing for boycotts of, among others, 2 Live Crew, N.W.A., and Madonna.  Eventually, he took on video games, claiming for example that vibrating PlayStation 2 controllers are designed to encourage violence because the "pleasurable buzz [delivered] with each kill" is a form of behavior-modification conditioning.

Last April, he claimed the Virginia Tech killer had been driven to kill, and trained to do so, by playing the game "Counter-Strike."  "[T]his is not rocket science," Thompson said.  "When a kid who has never killed anyone in his life goes on a rampage . . . he's a video gamer."  That does seem pretty conclusive, although the official report on the Virginia Tech shooting found that none of the games the shooter played "were war games or had violent themes," although he did play "Sonic the Hedgehog."

There is no evidence that any rocket scientists contributed to that report, however.

Thompson has also taken on the Florida Bar, saying that ethics complaints against him are frivolous.  Some of the complaints involve attacks Thompson has made on other attorneys and judges in Florida, and that's what got Thompson in trouble recently.  In what he said was an effort to prove that an opposing attorney's website contains links to pornographic images, Thompson filed pleadings in federal court that included the same images he said he was complaining about.  The court was not amused.

In February, the Florida Supreme Court issued an order to show cause why Thompson should not be sanctioned.  That was prompted by a pleading Thompson filed that he described as a "children's picture book for adults," which he said was necessary because the court couldn't seem to understand his arguments without pictures.  The pictures included swastikas, cartoon squirrels, a judge with the head of a donkey, and an album cover used to argue that the validity of Thompson's position "should now be so clear with this filing that even could see it."

On March 20 -- after Thompson filed a response that called the order "bizarre" and "idiotic" and asking the court to "make [his] day" -- the court sanctioned him.  As a result, Thompson cannot file any more pleadings unless they are "signed by a member in good standing of The Florida Bar other than himself."  Further insulting pleadings, which are almost certainly forthcoming, may lead to contempt charges.

Link: Slate Magazine
Link: Wikipedia article on Thompson

How Client-9 Was Caught

NPR had an interesting segment this morning (March 12) as to how Client-9, formerly known as Eliot Spitzer, was found out.  As you might expect, our old friend the USA Patriot Act had a part to play, helping fulfill its mission of keeping America safe from the emperors' clubs that threaten our way of life.  But there is more to that story.

You probably know that cash transactions of more than $10,000 have to be reported, but if, like me, you thought your many cash transactions totaling $9,999 were off the radar, think again.  NPR interviewed bank officials who said that bank software scrutinizes every transaction -- that's every transaction, whether you're withdrawing money you're going to use to rent "Kristen" or buying a croissant with your debit card -- and flags any transaction that is part of a pattern that the software deems "suspicious."  Client-9's frequent cash transfers -- each less than $10,000 but possibly adding up to as much as $80,000 -- were flagged by this software and this triggered a money-laundering investigation.  As it turned out, something probably needed to be laundered, but it wasn't money.

As NPR reports, part of this system was put in place by the USA Patriot Act.  Number of terrorists caught plotting (to date): [classified].  Number of governors caught cheating (to date): one.  Further proof that the USA Patriot Act is [classified].

But the irony lies in the source of another part of that same tracking system, which, it turns out, was put in place as a result of investigations into corporate financial practices by a certain zealous former New York attorney general.  Who is also, as of this morning, a former New York governor.  The Law of Unintended Consequences strikes again.

Andy Borowitz foreshadowed today's announcement with his post yesterday about Spitzer's tearful resignation from the Emperor's Club.

Link: NPR.org (audio)
Link: Get Yourself a Client-9 T-Shirt

Deponent and Counsel Jointly Sanctioned $367 Per F-Bomb

"Few depositions warrant sanctions more than this one," wrote Judge Eduardo Robreno (E.D. Pa.), in this opinion dated February 29, before embarking on an "extended discussion" of the conduct to show why.  The story and a PDF of the opinion were posted on the Wall Street Journal's Law Blog.

Generally speaking, the deponent, Aaron Wider of HTFC Corp., was taken to task for:

          1.  engaging in hostile, uncivil, and vulgar conduct;
          2.  impeding, delaying, and frustrating fair examination; and
          3.  failing to answer and providing intentionally evasive answers to deposition questions.

To be more specific, the court noted that, during his two-day deposition in this breach-of-contract case, Wider used the F-word "and variants thereof" 73 times (9.86/hour, or about one every six minutes), while using the word "contract" just 14 times.  And the F-word and its variants were by no means the only expletives being used, which gives you some sense of what the deposition was like.

The court concluded that the abusive language could only have been chosen "to intimidate and demean opposing counsel."  Apart from the obvious, the court noted that Wider repeatedly referred to opposing counsel as a "clown," and suggested that a later reference to "clown" verged on a physical threat:

Q.  My question is where are you currently employed?
A.  I'm not.  I just told you I work for free.
Q.  Okay.  You're not employed by HTFC Corporation?
A.  No, I own HTFC Corporation.  Be specific.
Q.  Okay.  And what do the initials HTFC mean?
A.  Hit That [Expletive] Clown.  That's what it means.  It's an acronym.

Maybe it does actually stand for that -- the details aren't provided on the company's website.  I notice that there is a state agency in New York called the "Housing Trust Fund Corporation," but this isn't it.  Wider's company, "HTFC Corp." (the Housing Trust Fund Corporation Corporation?), is a sub-prime mortgage lender, so the similarity to the state agency's name is surely just a remarkable coincidence.

The court also found that Wider "proudly expressed his intent to frustrate his examination," made his own legal objections, and usually provided intentionally unhelpful answers when he did answer, all of which was frequently delivered with "a gleeful smirk" at the camera.  (Personally, I think smirking alone should be actionable, let alone doing it gleefully.)

Wider's counsel took a shot at defending this conduct.  Among other things, counsel argued that it was justified because Wider was just reacting to "provocative and accusatory" questions.  "This argument is simply astonishing," said the judge, pointing to this exchange as an example:

Q.  This is your loan file.  What do Mr. and Mrs. Fitzgerald do for a living?
A.  I don't know.  Open it up and find it.
Q.  Look at your loan file and tell me.
A.  Open it up and find it.  I'm not your [expletive] [expletive]. . . . [S]hut the [expletive] up. . . You want me to look at something, you get the document out.  Earn your [expletive] money [expletive].  Isn't the law wonderful?  Better get used to it.  You'll retire when I'm done.

The court also criticized the attorney who represented Wider at the deposition, for failing to intervene or suggest an adjournment, and for actually tending to endorse Wider's conduct by "chuckling" at it and daring opposing counsel to file a motion to compel.

Which he did, of course.  Wider and the attorney were sanctioned and ordered to pay $29,322.61, for which they are jointly and severally liable.  As the WSJ calculated, that is approximately $367 per F-word or variant thereof.

Link: Law Blog - WSJ.com

"Heavy Hitter" On the Ropes

The Nevada Bar Association said earlier this month that it had received a complaint against personal-injury lawyer Glen Lerner, and that it was investigating.  Lerner is extremely well-known in Nevada, largely because of his ridiculous TV commercials, which have shown him (among other things) spinning like the Tasmanian Devil and dropping a giant phone on litigation opponents.

He was featured here some time ago after the state bar told him to stop calling himself "The Heavy Hitter," saying it implied a guarantee of success, and he threatened to sue.

The bar seems to have backed off on that one -- the Nevada Supreme Court changed the state rules last year, saying that the First Amendment precluded rules against "bad taste" -- but Lerner may have a bigger problem with this complaint, which involves his failure to show up for a client's trial date.  Lerner was scheduled to represent his pool cleaner, Mario Lino, in a trial that was supposed to start on January 22.  Lerner did not show up, saying he was out of state on "sabbatical."

Lino is charged with murder.

Lerner had told the prosecutor that he would not be returning for the trial, and said "if the judge wants to sanction me, she can sanction me."  (She does in fact want to sanction him.)  Lerner told a reporter he had tried to work out a deal with the prosecutor, or at least a continuance, but did not get either.  Solution: don't show up.  "The judge is probably fuming," he admitted.  "But what could I do?"  Well, "you get on a plane and you fly back," suggested the judge (in Lerner's absence), but could only re-assign the case to the public defender.  Lino (right), who faces life in prison for murder, plus a possible concurrent sentence for that haircut, said that no one from Lerner's office would return his phone calls.

Lerner told the reporter that he's been on "sabbatical" for several months, during which he has been writing a book and "re-examining" his life.  "I've been living the life of a rock star for so long," he said, that it was time to unwind and think about things a bit.  That's why he had not had time to prepare for the murder case.  He claimed that by not appearing for the trial, he was acting in his client's best interests.  That is probably a true statement, but not the way he meant it.

This Nevada law blog (which has a separate category devoted to Lerner), has a clip of his most recent ad, which depicted a young Glen Lerner representing the victim of a bully in a schoolyard dispute.  In the "dramatization," the young Lerner forced the bully to hand over his shirt and bike as compensation for a bloody nose.  In real life, of course, the adult Lerner did not show up for his client's murder trial.

Link: Las Vegas Review-Journal (Feb. 6 story on the bar complaint)
Link: LVRJ (Feb. 11 story on the Super Bowl ad)

Practice Tip: Probably Okay to End Deposition Early if Other Side Brings a Gun

On February 12, an attorney representing a man suing NFL running back Reggie Bush said he and his client chose to end a deposition early after noticing that the other side was armed.

"I knew they weren't going to like what they were going to hear, but I never thought they'd bring a gun," said Brian Watkins, an attorney for sports marketer Lloyd Lake.  Lake is apparently suing to recover $300,000 in payments and gifts that he gave Bush while Bush was at USC.  (The fact that these gifts were illegal may be a bit of an obstacle to recovering them.)

The report did not say who was being deposed, but it wasn't Bush, who is scheduled for February 25.  But it wasn't the deponent who had the gun anyway -- it was the bodyguard for Bush's attorney.  The attorney, David Cornwell, claimed later that he felt he needed a guard because Lake, who has a criminal background, has allegedly threatened him and Bush before.  Cornwell said the bodyguard had a permit to carry a concealed weapon, but Watkins said he didn't keep it concealed.

"He made sure we saw it," Watkins said.  Watkins' client said the bodyguard flashed the gun at him in the lobby, and that he opened his jacket later during the deposition.  When Watkins objected, Cornwell agreed to have the bodyguard sit outside the deposition room.  "So then," Watkins said, "he was sitting eight to 10 feet away from Lloyd, outside a glass door with his arms folded, staring in at my client."

Outrageous, Watkins called it twice.  "It's outrageous that he shows up strapped for a deposition," he said.  "That's outrageous conduct in the lawyer world.  Come on, we're lawyers.  I don't threaten people [with guns], I sue them."  Watkins suggested that the handgun was evidence that Bush has a weak case.  "They know the day of reckoning is coming," he said.  "They are panicking."

Cornwell, who has represented many other sports figures including dog lover Michael Vick, did not sound panicky.  Given Lake's background and the alleged threats, he said, "we were advised to take appropriate security precautions when in Lake's presence."  He dismissed the intimidation claims as unprofessional.  "This lawsuit stuff is for grown folks.  Obviously, this crew ain't ready."

The deposition was held at the San Diego office of grown folks Pillsbury Winthrop Shaw Pittman, though Pillsbury said none of its crew was present (it was just hosting).  In a statement, the firm also emphasized that it has a "zero-tolerance" policy for firearms at a deposition.

Link:  AP via NBC Sports
Link:  USA Today

Overaggressive Handshake Lands Attorney in Jail

"It all stems from a handshake," said Gwendolyn Tuggle, who is defending attorney Kathy Brewer-Rentas against charges that she assaulted a federal prosecutor.

"It was definitely more than a handshake," said court security officer Gilberto Pay, who witnessed the shake between Brewer-Rentas and Assistant U.S. Attorney Jennifer Keene.  That is more consistent with the U.S. Marshall's arrest report, which describes a handshake plus a little extra:

Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance.  With Keene in hand [or, Keene's hand in hand], Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground.

Unless Keene's balance is really bad, that does seem to be more than a handshake.  In fact it was enough, the marshall wrote, to snap Keene's head forward and then back sharply; Pay apparently told investigators that it looked like Brewer-Rentas was trying to pull Keene's arm out of its socket.

This took place after a hearing on February 7 involving Brewer-Rentas's husband, who had apparently violated the terms of his federal probation for distributing cocaine.  The judge ordered Mr. Rentas to be put under house arrest for 90 days, which doesn't seem that bad under the circumstances, but didn't make Mrs. Rentas very happy.

According to court officials, Brewer-Rentas "insisted on shaking hands" with Keene, who seems to have refused.  Brewer-Rentas continued to insist, following Keene down the hall, and apparently at some point decided to go for the unilateral megashake.

The extent of the injury to Keene was not clear from the report, although she did miss work on Friday.  Brewer-Rentas spent the night in jail and has been ordered to get an evaluation for possible anger- or handshake-management training.  This may not be based solely on the handshake -- Anthony Rentas was charged last October with domestic abuse, but that charge was dropped, possibly due in part to Brewer-Rentas's testimony that during the incident, she was "never in fear for her life," but rather "it was [her husband] who should have been in fear for his safety from her."

Maybe Anthony ought to rethink his decision to plead in order to get house arrest.

Link: South Florida Sun-Sentinel

Shark to Be Installed In Lawyer's Office

Specifically, a blacktip reef shark, which is one of two sharks that Christopher Gillette says will be living in the 1,000-gallon aquarium that was installed December 31 in his office in Bozeman, Montana.

The aquarium, which is eight feet long, four feet wide and four feet tall, will weigh about eight tons when it's full of water and sharks.  Gillette's office is on the second story, so the floor had to be specially reinforced to hold it and the four other fish tanks that Gillette plans to install.

Although Gillette said that the idea started out as a joke (apparently some compare lawyers to sharks -- first I've heard of that), he also said that the fish tanks will also play an important role in his family-law practice.  His clients are often dealing with stressful situations, so he "wanted to create an atmosphere where people would feel relaxed and be comfortable discussing very personal issues," he said.  "People seem to be comfortable with fish."

Sounds good to me.  What better way to relax than to be surrounded by sharks in a lawyer's office?

Link: CBS News

Lawyer Files Complaint Wearing Scuba Gear

Gilberto Lozano, a criminal defense attorney in Bogota, Colombia, wore scuba gear over his business suit as he filed a complaint on Tuesday to protest the government's treatment of his client.  Lozano's client is Carlos Jimenez, also known as "Macaco," a right-wing paramilitary leader and accused drug lord who has been arrested and is awaiting extradition.  (A "macaco" is a species of monkey, so it seems that Sr. Jimenez goes by the terrifying name of "The Lemur."  I guess it's probably scarier if he's killing you.)  Jimenez was recently transferred to the brig of a Colombian Navy ship that is at sea, which Lozano says makes it fairly difficult for him to meet with his client.  Hence the scuba gear.

Lozano wore swim fins, an oxygen tank, and a diving mask over a brown suit as he filed a complaint with the national prison authority.  "In no part of Colombia's prison code does it say it is permitted to put a person in such a place," he said, lifting his diving mask to talk to reporters.  "If I am going to see my client, I guess I'll have to swim," Lozano continued, thus explaining his pretty obvious point.  "It's a good thing I'm from the coast myself."

The Lemur is expected to be extradited soon to the United States, which raises the possibility that he might testify against someone or other.  According to the government, anyway, he was put on the ship in the first place in order to keep other paramilitary leaders from killing him.  So, possibly, if he did have a chance to meet with his lawyer, he would tell Lozano to just cut it out.

Link: Reuters

Lawyers Attack Riot Police "With Furled Umbrellas"

From a New Yorker article in July about protests in Islamabad after the Chief Justice of Pakistan was suspended:

The largest crowd by far was made up of lawyers in starched collars, white shirts, and black suits.  They marched in orderly ranks, three abreast, like emperor penguins in a nature film.  Some held up very British-looking umbrellas, on which markedly un-catchy slogans, such as "Long Live Lawyers Unity," had been carefully daubed in white paint.

In earlier demonstrations, the lawyers had clashed with riot police, and the country's most senior barristers, silk ties flying, had responded with surprising vigor, hurling back tear-gas cannisters at staff-wielding policemen and jabbing at them with furled umbrellas.

Link: William Dalrymple, "Days of Rage," The New Yorker, July 23, 2007 at p. 26.

UPDATED AGAIN: Lawyer Has Client Tasered; Says He "Had No Choice"

A legal team in Southern California trying to create a defense exhibit has come under fire for what some might call "thinking outside the box," but others have suggested might be "illegal human experimentation."

George Engman is on trial in West Valley Superior Court for trespassing, public intoxication and resisting arrest after an incident at the Ontario Mills mall in 2006.  Engman claims that the police used excessive force when they detained him, and specifically that they shocked him 10 to 14 times with a Taser-style stun gun.  (It's not clear to me how this helps the defense -- it's still trespassing even if you get beaten up for doing it -- but the argument may be that he could not have resisted arrest because he was preoccupied with the 50,000 volts he'd been introduced to.)  The police say he was only shocked three times.  Thus the defense effort to conduct an experiment that would demonstrate the effects of repeated shocks on their client.

And what better way to demonstrate the effect of repeated shocks on your client than by inflicting repeated shocks on your client?  Engman's lawyer hired a consultant to do the tasering (possibly realizing it might not look good for counsel to zap the client himself).  The consultant shocked Engman "several times" with a stun gun and videotaped the proceedings.  To give credit where credit is due, the lawyer did not let his client face the tasering alone.  He also had himself tasered, as well as his brother (who is also his law partner).  The videotape, which reportedly "showed Engman writhing," was shown at a hearing last Wednesday, after which a few questions were raised.  ("Can I try that" was likely not among them.)

Specifically, the district attorney raised the question of whether the testing might have violated the "Protection of Human Subjects in Medical Experimentation Act."  See Cal. Health & Safety Code sec. 24170 et seq.  That law establishes an "experimental subject's bill of rights," basically constituting the subject's right to have the experiment fully explained, and requires informed consent.  It defines "medical experiment" to include "the use of a drug or device [or] electromagnetic radiation . . . in or upon a human subject in the practice or research of medicine" if that does not "directly benefit[] the subject."  It is unclear whether the client provided his consent in writing (though it seems clear he consented), and according to reports, the consultant admitted he was not certified to use a Taser.

But the defense argues that the test did (or was intended to) directly benefit the subject because it is part of a legal defense; maybe so, although a better argument might be that they were not "practicing medicine." And I would also argue that a prosecution for doing this might be barred by California's "litigation privilege" as well as by various constitutional provisions that protect the right of an accused to present a defense.  (I should make clear to my own clients that I'm not planning on experimenting on them any time soon, just thinking out loud.)  Engman's attorney said that the test was necessary to gather evidence because neither the DA nor the stun-gun manufacturer would provide studies explaining the kinds of wounds or marks that can be made by the device.  "We had no other choice," he said.  "We did it because our backs were up against the wall.  It was for the greater good."

The district attorney's office said last week that it was still to early to decide whether the shocker and/or any of the shockees would be prosecuted, but it seems unlikely.  A legal expert contacted by ABC News said the claim that the team was engaged in "research" sounded "laughable," although ABC did not report whether he himself actually laughed.

The TASER company's website provides a lot of research studies, and links to others, though I did not see any studies of the kind the defense was referring to.  But there is a lot of fairly comprehensive information on the site that could prove useful to everyone from scientists ("Effect of Varying Dart Separation along the Cardiac Axis on Ventricular Arrhythmia Induction during TASER Application") to the recently unthawed ("To many people, electricity sounds dangerous. Indeed, it can be").

Link: Orange County Register
Link: ABA Journal
Link: ABC News
Link: Research Studies Made Available on TASER.com

Indiana Man Attacks Lawyer in Courthouse; Another Lawyer Sort of Helps

On Tuesday, prosecutors filed charges against a man who assaulted a lawyer in the Tippecanoe County (Indiana) Courthouse, and allegedly tried to push her over a fourth-floor railing.  According to the report, Russell Timmons attacked Linda Polley after a hearing in a personal-injury case in which Timmons and his wife are plaintiffs and Polley represents an insurer.  The dispute was apparently over a binding mediation agreement that resulted in the couple getting $42,000.  Not happy with that, they tried to back out of the mediation agreement.  A judge enforced the agreement and also ordered them to pay $4200 in attorney fees.  Not happy with that, Timmons tried to throw Polley over a railing.

Under the common law, of course, one way to signal intent to appeal a court ruling was to throw your opponent off a cliff or to project him or her from another sufficiently high place.  Once lawyers were invented, throwing the lawyer sufficed.  But this has not been the law anywhere in the United States since at least 1978, so that Timmons' action was both unnecessary and legally ineffective.

Much more importantly, it would have resulted in a four-story drop and at least very serious injuries for Ms. Polley, so luckily others were nearby to help fend off the attack.  That sort of included attorney Theodore Hammond, who was walking along with Polley when Timmons came up behind them.  The report says that Hammond was "attempting to pull Timmons off Polley," and he was -- but as the security video shows, he did it with just one hand, never letting go of the files he was holding under his other arm during the entire incident.

Now that's true attorney heroism -- save a life with one hand, keep your files in good order with the other.  You don't want to have to re-collate those.

Oddly enough, most of the comments to this story on the Journal-Courier's website are relatively supportive of Timmons, or at least aren't sure from the video whether he should really be charged with attempted murder.  Here's a fairly representative example (posted under the heading "All be damned"):

If the prosecuters really think thats attempted murder. Where the heck was that charge when it's just a regular taxed person?  Whom got drug 3/4 mile or longer. Oh it's an attorney that's where they all stick together an kiss each others a$$. Like in my case i had many folk's see me getting drug underneath that pickup truck. But that doesn't consitute that harsh of a feloney. I'd bet the lady that got drug from the tavern. Would like to see that charge given to the a$$hole that done that to her. I tried like crazy to push that charge. I guess next time i'll video tape it. From all angles. That way everyone else can be a judge,jury and prosecuter. That my other two cents worth. And i'm running out. Anyone got a dime?

Evidently regular taxed people are gettin' drug thisaway and thataway in Tippecanoe County and the legal system treats these cases somewhat inconsistently.  More to come on that, I'm sure, but only one commenter made the point I'm interested in: "Drop the folder Hammond. . . . [W]as the folder handcuffed to you?"

Link: Lafayette (Indiana) Journal-Courier
Link: Breitbart.com (another link to the security video)

Order Directs Counsel Not to Mudsling, Fingerpoint

On Tuesday, Judge Davis of the Northern District of Florida entered an order that suggested a slight frustration with discovery disputes that may result merely from a lack of civility between counsel.  Put another way, he is %@#*ing sick of the "now all too common, but absolutely intolerable, take-no-prisoners, scorched earth arrogance exhibited by many present day self-styled 'litigators.'"

Somewhere, there is a partner backing slowly and quietly out of a courtroom, just out of visual range of an associate still standing at counsel table.

In the judge's opinion, "truly justiciable" good-faith discovery disputes are very rare.  Given his suspicion that this was not one of those, but rather the garden-variety type, he established some very specific procedures to govern its resolution.  Sadly, this did not include a rock-paper-scissors match between counsel, as a judge in the Middle District ordered last year, but lead counsel do have to meet personally if necessary according to a specific schedule, and the non-prevailing attorney will likely be the one to pay any costs if the court is actually forced to rule on the dispute.

Finally, the judge concluded with a list of things to cut out:

[C]ounsel are advised that in my thirty-three years as a civil trial lawyer and judge I have seen it all and have heard it all. . . . Consequently, I will not consider half-baked arguments, lame excuses, delays caused by the client, mud slinging, passing the buck, pointing fingers, blaming support staff, or particularly, lack of time.

Also no fishing expeditions, unlimited document requests, usual boilerplate, totally unsupported claims, or arguments that a "common English word is 'vague' or 'overbroad.'"

Boy, if that became common practice, it would probably leave a bunch of lawyers standing around wondering what to do.  I think we actually have billing codes for most of those categories.

Link:  Design-Build Concepts, Inc. v. Jenkins Brick Co. (N.D. Fla. June 26, 2007)

Two (2) Ticket Disputes Rip Apart Lawyer Friendships

Two stories recently of lawyer friendships destroyed by battles over season tickets, battles that as you might expect are being fought out in court in full lawyer mode.

1.  Prima Donna v. The Tailgater

First, on June 11 the Chicago Tribune reported that Donald Ramsell sued his longtime and now former friend Douglas Warlick over a pair of season tickets to Chicago Bears games.  Warlick has owned seat licenses since 1985, and the two attorneys seem to have frequently attended games together over the years.  In 2002, Warlick invited Ramsell to split the $10,000 application fee for four new seat licenses at the renovated Soldier Field, in exchange for the right to buy half the tickets from him.  The report says that both men agree that this took place, but apparently do not agree on the details, and that "the two experienced litigators had nothing more than an oral agreement."

That was fine until the friendship began to unravel.  The first sign of trouble: tailgating disagreements.  Warlick likes it, Ramsell does not.  "Call me a prima donna," Ramsell said, "but we have club seats, and I don't want to stand in a cement parking garage, drinking beer out of somebody's trunk. I've paid a huge amount of money, and I'd rather have my rum and Coke and have somebody serve me."  (Okay, you're a prima donna.)  Also at issue: the allegedly unequitable distribution of transportation arrangements.  "You have expected me to pick you up at your house and drop you off at your house for every game, as if I am some sort of limo service," Ramsell said to Warlick in a pre-suit letter. "If you are unable to drive when it should be your turn, then I suggest that you purchase [an actual] limousine service to drive for you."  Ramsell demanded that Warlick (1) transfer two tickets into Ramsell's name, (2) sell all four tickets and buy new ones on the open market, or (3) put the four tickets into a legal partnership that the two would share.

Warlick responded with a letter suggesting that Ramsell, to use a legal term, go pound sand.  "Don, I regret the apparent loss of friendship associated with your certified letter," he wrote, "but I am a 'diehard' Bears fan.  I will never sell my precious Bears Season Tickets."  Overcapitalization is often a signal that an attorney has written something, and Warlick followed up with another common practice, not being able to use numbers correctly.  "I have paid for season tickets for (21) years," he said, inexplicably placing the numeral in parentheses as he explained the greater ticket entitlement he had earned as a long-suffering fan: "I always had (4) seats and parking passes. I went to every game in any weather condition, and I endured two [2] decades of lean years while I waited for a championship after 1985.  On the other hand, in just (4) years, you have been fortunate enough to attend as many Bears games as you desired as well as attend an NFC Championship game. Consider yourself lucky, and don't be greedy."

Result -- lawsuit, filed on May 30 in DuPage County Circuit Court.  Ramsell seeks an injunction preventing Warlick from transferring or selling the two tickets that Ramsell says he has typically bought over the last four years.  "He's a lawyer.  I'm a lawyer," the lawyer said.  "The courthouse is where you go when you have a dispute [and you're a lawyer]."  This is actually Ramsell's second ticket-related lawsuit -- in 2001 he filed a class action after failing to receive a full refund for four (4) tickets to a rained-out Doobie Brothers concert.

2.  The College World Series Dispute

Meanwhile, two Omaha attorneys joined battle in Douglas County District Court over tickets to College World Series tickets that the two have shared since 1977.  Jerry Slusky sued his childhood friend, Howard Hahn, after the latter allegedly refused to turn over four of the eight tickets.  (The two  apparently had a previous disagreement over a legal-fee split in a real-estate deal.)  It seems that Hahn offered four different tickets this time around, but Slusky wants the same four he's always had, seats that he described as "exquisite."  "I don’t want four other tickets," Slusky said, "I want my four tickets.  I said [to Hahn], 'You don’t want me to sue.'  He said, 'I don’t intimidate easily.'"  The tickets to the exquisite seats were not provided.

In fact, Hahn said, he has an arrow in his quiver (actually, a stack of paper on his desk) that Slusky should know will be an obstacle to his claim.  "Put it this way," he said.  "I've got a small stack of papers on my credenza that he's aware of."  The mysterious Credenza Stack, whatever it might be, did not deter Slusky from suing.

Slusky says he, at least, is not angry.  If the judge were to split the tickets between them, he said, "I'd be happy to sit next to Howard."  The report did not say how Howard was likely to feel about that, though.  And it appears that he did not share the sentiment, since reports this week were that the two reached a settlement just before a scheduled hearing on the matter.  Under the agreement, each man will get four (4) of the tickets, but Slusky's set will be exchanged by the CWS for four (4) tickets in a neighboring, and presumably similarly exquisite, section.

Link: "Friends bear a grudge over hot season tickets," Chicago Tribune (June 11, 2007)
Link: "Pals get in legal dust-up over CWS tickets," Omaha World-Herald, June 10, 2007)
Link: "Lawyers feuding over CWS tickets reach a deal," Sioux City Journal (June 22, 2007)

Law Student Claims Discrimination Against Unskilled Typists

I've been meaning to post this for a while -- it's not new, but worth having in the Hall of Pleading Shame.  Late last year, Adrian Zachariasewycz (or, as his complaint states in paragraph 1, "hereinafter Adrian Zack"), after not being hired by the law firm where he had been a summer associate, sued that firm, his law school (Michigan), and a bunch of employees of both entities, alleging that they had all conspired to deny him employment.

Not surprisingly, the conspiracy allegations are especially vague.  Plaintiff does allege that he "believe[s] there is some nexus between the actions" of everybody that is named or not named in the complaint (see para. 33), which I think means among other things that all of you reading this now, and everyone you know or don't know, are alleged to be participants in the Conspiracy Against Adrian Zack.

The heart of the complaint, however, is Zack's allegation that Michigan Law School implemented, as part of the conspiracy, a "system of course examination and grading [that] disadvantaged students that could not type at a sufficient speed to produce the volume of text required to produce competitive examination responses."  This diabolical scheme resulted, in certain exams, in "borderline failing grades by virtue of the low volume of prose Mr. Zack could type in the time allotted as compared with other students."

I make a lot of suggestions in my legal writing seminars, but "try to generate a higher volume of prose" is not one of them.

It is not clear whether Zack is claiming to have an actual disability, but he does charge the law school with failing to make an accommodation for bad typists "that would allow them to complete on a level playing field with their manually more dextrous peers with better-developed keyboarding skills."  Among the relief sought in the complaint in addition to money, is an injunction preventing defendants from (among other things) "voluntarily disclosing the existence of this action," which of course Zack had already done himself by filing the complaint (not under seal).

Ironically, Zack's complaint has been typed reasonably well, by a person or persons unknown.  Perhaps he tapped it out one painful stroke at a time, during the two-and-a-half years that he has been trying unsuccessfully to find a job.

Link: Zachariasewycz v. Morris, Nichols, Arsht & Tunnell, LLP., et al. (complaint filed Nov. 28, 2006).

Bar Association: Lawyer-Administered Beatings May Be Unethical

In India on Wednesday, the Agra Bar Association said it would be looking into the details of an attack by several lawyers on a litigant there.  According to reports, the lawyers claim that the man refused to marry the niece of one of the lawyers, a dispute that (for reasons that were not clear to me) ended up in court.  Actually, I guess it ended up out of court, because when the man arrived to discuss settlement, the lawyers instead grabbed him, tied him to a tree, tore off his shirt and cut various bald patches into his hair.

For a closing argument, they also beat him up.

Indian TV channels have been running video of the lawyer gang's assault on the stubborn bachelor, and a local official says he has ordered police to file a case.  According to the report, the local bar association has said it is also "investigating the attack."  This tells me that a spokesperson for a bar association, presented with video of lawyers actually abducting a litigant, tying him to a tree, embaldening him and beating him up, refused to make a call as to whether this was unprofessional conduct or not.  But he did promise they will "look into it."

I look forward to the report of the committee of experts they convene for that investigation.

Link: Reuters

Note to Self: Saying "With Respect" Just Before Insulting Judge Does Not Confer Immunity

"Legal tabloid" Above the Law reports today on an unfortunate comment made to a federal bankruptcy judge by a partner in a Chicago law firm.  The issue seems to have been a disagreement over whether a particular transaction was likely to close -- the judge thought it would and Mr. Smith strongly believed it would not.  Finally, evidently frustrated, he told the court, "I suggest to you with respect, Your Honor, that you're a few French fries short of a Happy Meal in terms of what's likely to take place."

The delivery of this insult "with respect" does not seem to have helped, since Judge Isicoff responded with a frosty "Proceed, counsel,' and later that day with an even frostier Order to Show Cause, with transcript attached, and a copy sent to all court personnel.

Likely to result in a supersized apology, probably.

Link: Abovethelaw.com
Link: Law.com (May 31, 2007)

Further Details Emerge on $65-Million-Pants Lawsuit

We learned more this week about the lawsuit by a D.C. administrative law judge against his diabolical neighborhood dry cleaners, who allegedly lost or stole or set fire to or irradiated or otherwise acted tortiously towards a pair of pants that he dropped off for cleaning four years ago.

WARNING: these people
want your pants

You'll recall that the bulk of the damages were calculated in a very straightforward manner under the D.C. consumer-protection statute.  Applying the simple equation

X=1500D*V*W
(where X=1500 x [number of Days violation persisted] x [number of Violations] x [(number of Wrongdoers])

yields a total of $64,800,000.  It is not clear yet how the judge derived 12 violations from one pair of pants, so assuming he is just a bit optimistic there, a more reasonable lost-pants valuation would seem to be $5.4 million.

A new detail is that an additional $15,000 was claimed in order to compensate the plaintiff, who obviously can no longer use this neighborhood cleaners, for the cost of having to rent a car each weekend for a ten-year period in order to go to another one.  Based on rough calculations, that comes out to just $15.64 per day, which again is a very reasonable value for car rental.

The remaining $647,500 claimed by the judge appears to be a combination of litigation expenses and time, and his "mental suffering, inconvenience and discomfort."  At least some of the "discomfort," however, may be due to the alternative cause of the judge's pants having become "uncomfortably tight" in the first place, damages that he could have mitigated.

Finally, the publicity over the lawsuit has led some of these unscrupulous Internet people to dig up the opinion from Judge Pearson's divorce proceedings a few years ago, in which he was demanding support from his wife.  Consistent with his current tactics, he sought sanctions at least twice, demanded the judge recuse himself, filed multiple motions to compel his wife to respond to his 248 requests for admission, and, according to the trial judge, "in good part [was] responsible for driving up" everyone's legal costs, "including threatening both the wife and her lawyer with disbarment" which created "unnecessary litigation."

No news yet on whether Judge Pearson, who is up this week for another ten-year term as an administrative law judge, will be reappointed.

Link: CNN.com
Link: Pearson v. Vanlowe (Va. Ct. App. 2005) (on FindLaw.com)

Lawyer Seeking $65 Million for Pants-Related Fraud

Marc Fisher wrote in the Washington Post on Thursday about a titanic legal dispute that is unfolding in our nation's capitol, where an attorney (who I will refer to here only as "Attorney" for various reasons) has been battling with a local cleaners ("Cleaners") for years now over some pants ("Pants").

It seems that in 2002, Attorney asked Cleaners to clean Pants.  Cleaners lost Pants, later admitting its error and compensating Attorney with a check for $150.  (Apparently these were high-quality Attorney Pants.)  But the dispute seems to have been acrimonious, because Cleaners told Attorney he was no longer welcome there, although this was resolved in some fashion that caused Attorney to continue to use Cleaners.

But the Pants Dispute was almost certainly still in Attorney's mind when the next Pants issue arose in 2005.  Attorney had a new job that required him to wear suits every day, so that he needed five times as many Attorney Pants ready to wear.  Attorney also found that his existing Attorney Pants had somehow become "uncomfortably tight."  Attorney returned to Cleaners with Pants on May 3, 2007 (it is unclear whether these were the same Pants, so I will refer to these as "Second Pants"), and asked Cleaners to let the waist of Second Pants out two or three inches so that he could wear them on May 6.  But Second Pants were not ready that morning.  Indeed, said pants were nowhere to be found.  Anger followed.

Have you seen these pants?

One week later, Cleaners found a pair of pants that it believed to be Second Pants.  But Attorney said Second Pants had pinstripes, whereas these ("Third Pants") were gray.  Anger increasing, Attorney pointed to representations that Cleaners made in signs posted on the premises, including "Satisfaction Guaranteed," and "Same Day Service."  Eventually, he sued, claiming the broken sign promises constituted fraud.

This has been going on for two years now, and Attorney's settlement demands have continued to escalate, along with Cleaners' attorney fees.  Originally, he demanded $1,150 for a new suit.  This was apparently rejected, but as legal bills continued to mount, Cleaners offered $3,000, then $4,600, and eventually $12,000, enough for ten new suits even at Attorney prices.  But this is no longer enough for Attorney.

Attorney now seeks damages including litigation costs, the value of the time he has had to spend on the litigation, the value of "mental suffering, inconvenience and discomfort," and the costs of leasing a car each weekend for the last ten years (the report did not explain that one).  Also, because Attorney is suing under the District's handy Consumer Protection Act, he also claims damages under that law's provision that imposes damages of $1,500 per violation (Attorney claims 12 "violations"), per defendant (three members of the family who run Cleaners), per day (1,200 -- probably the limitations period of the CPA).  Total damages claimed?  $65,462,500.

Oh, also some new pants.

And that's just for Attorney's own claim.  Although the case is somehow going to trial in June, a D.C. judge did at least reject Attorney's attempt to turn the case into an action on behalf of the general public (all D.C. residents).  This is a common feature of consumer-protection statutes, and while it may be beneficial in some cases it also is susceptible to abuse, which is why you get someone claiming with a straight face to be representing all members of the public in a case that is based on a pair of pants.  In rejecting that claim, the judge said that "the breathtaking magnitude of the expansion" Attorney sought had caused the court "significant concerns that the plaintiff is acting in bad faith."  "Significant concerns" -- really?  Let's not rush to judgment, your Honor.

Meanwhile, it is entirely possible that the whole dispute, which you will recall began over the alleged loss of Second Pants, is completely unnecessary.  Cleaners' attorney told the Post that he has a perfectly good pair of gray wool pants hanging in his closet, bearing a tag that he says matches Attorney's receipt.  "We believe the pants are his," he said.  Whether the mysterious pants are in fact Attorney's pants will apparently be fought out in the arena of D.C. Superior Court sometime this summer.

Link: Washingtonpost.com
Link: Video report from local news

Bar Complaint Charges Judge and Prosecutor With Repeated "Ethical Lapses," If You Know What I Mean

The article did not mention the phrase "conflict of interest," but it probably is one if a judge is having an affair with a prosecutor, especially if she also appears before that judge with her clothes on.

A judge in Douglas County, Colorado, has resigned after being accused of having an affair with a prosecutor that seems to have lasted about six months and included numerous in camera hearings.  (Veteran readers will know where to put the air quotes in that sentence.  One has also filed a motion asking me to create a joke using the word "debriefing," and I have taken that under advisement.)  The prosecutor also prosecuted at least two cases before the same judge without disclosing the relationship.  It was later disclosed, likely with a vengeance, by the judge's wife when she learned about the matter in December.

The disciplinary complaint could result in punishment up to and including disbarment, for, as the complaint puts it, "degrad[ing] the sanctity of the courtroom" on numerous occasions.

Link: Rocky Mountain News

Jackass Testifies

The AP reported on Wednesday that the first witness called in a lawsuit between two Dallas neighbors "walked to the bench and stared at the jury."  This is not normally something you would encourage a witness to do, but in this case it was exactly what the party wanted.

The witness was Buddy, a donkey that belongs to attorney Gregory Shamoun.  Shamoun was involved in a dispute with his neighbor, John Cantrell, who complained about a storage shed Shamoun was building in his backyard.  Cantrell alleged that Shamoun then retaliated by bringing Buddy from his ranch and putting him in the backyard, to irritate Cantrell.  "They bray a lot any time day or night," Cantrell said.  "You never know when they're going to cut loose."

Shamoun decided on the risky tactic of actually bringing Buddy to court and letting the jurors hear, or not hear, from him directly.  (Not since O.J. tried on the bloody glove has such a daring courtroom tactic been employed.)  And Shamoun got away with it, apparently, since Buddy (who was more likely an "exhibit" than a "witness") was described as "the picture of a gentle, well-mannered creature and not the loud, aggressive animal he had been accused of being."

Buddy prepares for his dramatic testimony.
(Note patriotic American-flag bandanna.)

Nor did Exhibit A leave any Exhibit Bs behind on the courtroom floor, which probably also helped.

Shamoun's claim was that Buddy was at his home not to irritate Cantrell, but to serve as a surrogate mother for a calf that needed to be bottle-fed.  The article did not explain why the calf was there in the first place.

It is unclear whether Buddy's courtroom demeanor carried the day, because the case settled while the jury was still deliberating.  Shamoun agreed to buy some of Cantrell's land, and Cantrell dropped his complaint.

Link: Yahoo! News

OJ Suing Goldmans to Stop Them From Profiting on His Book on How He Would Have Killed Their Son, If He Did

More on this later, but just contemplate the idea for a second.

Pretty soon now, O.J. and his legal team may reach a critical mass of insane evilness and implode into a wormhole that, hopefully, will suck into it only O.J. and his legal team and not the entire universe.

Just after calling Fred Goldman a "greedy pig," O.J. attorney Yale Galanter uttered the words, "Am I the only sane person in this mess?"  Um, no.

Link: ABC News

Cross-Dressing Lawyer Held in Contempt, Quits Practicing Law, Then Changes Mind

Last year I reported on Dr. Rob Moodie's heroic struggle against the "male-dominated corruption" that allegedly dominates the New Zealand judicial system, a struggle he has carried out in part by dressing as a woman in court to show his distrust of the controlling male ethos.  "I will now, as a lawyer, be wearing women's clothing," he said then.  "The deeper the coverup, the prettier the frocks."  He also said that he would prefer to be called "Miss Alice" in court.

Here we see him turning heads at the High Court in Wellington last July.  Dr. Moodie was appearing then to answer contempt charges, not based on the dress code but rather on his unauthorized publication of confidential documents.  Dr. Moodie believes the documents prove his claim that the army, not his clients, was responsible for a mysterious 1994 bridge collapse that killed a beekeeper.

The coverup had apparently become much deeper by January 30 of this year, when Dr. Moodie again appeared at the High Court, this time in full Alice-in-Wonderland mode.  According the Boston Globe's report, by this time Dr. Moodie had officially changed his name to "Miss Alice," but the reports from New Zealand did not mention a legal name change.

Last week, the High Court found Dr. Moodie in contempt of court for circulating the documents.  It suspended him for three months and fined him $5000.  After the ruling was announced, Dr. Moodie declared that he would no longer practice law at all, nor would he continue to wear dresses, because he no longer needed to appear "in a 19th-century Alice-in-Wonderland environment that allows pomp, self-importance and deference to the court to eclipse the truth."

After talking that over with his wife, though, he changed his mind.  "Sue made it clear yesterday that she wants me to carry on," he said.  His clients, Keith and Margaret Berryman, said they were not concerned, either, and were still "very positive."  Their case will continue later this year after Dr. Moodie's three-month suspension is up.  He says he will continue to wear dresses, but probably not the Alice outfit.  "I am hoping I'm past Wonderland," he told reporters.  To be honest, I'm hoping he's not.

Link: Boston Globe
Link: New Zealand Dominion Post

New York Attorney Will Fight Nunchaku Intolerance (Updated)

Jim Maloney, an attorney in Port Washington, New York, says he will appeal a federal judge's ruling dismissing his claims that his arrest for possession of nunchaku was illegal and unconstitutional.  Nunchaku are . . . you know, those stick things that you've seen in action movies, where some guy jumps into the frame and then spends about 60 seconds showing off by spinning them around all over the place, just before getting shot by an American who is totally fed up with that crap?

Yeah, those.

Well, Mr. Maloney is very devoted to them.  He said in an interview (and in his complaint) that he has been involved with martial arts since 1975 and was introduced to nunchaku by friends in New Jersey (a storehouse of all such ancient and mystical knowledge).  He has even developed his own style of nunchakuing, which he calls "Shafan Ha-Lavan," Hebrew for "white rabbit."  Maloney says he used the nunchaku only to "hone his dexterity and coordination," never for evil.

But the things are illegal in New York, under Penal Law section 265.01, which also bans switchblades, brass knuckles, sword canes (my personal favorite), and throwing stars, in case you need to go check your inventory.  Maloney was arrested for possession of nunchaku in 2000, after a worker near his home called police and claimed that Maloney had pointed a rifle at him.  Maloney denies that, and says he was merely observing the man through a telescope.  But a 12-hour standoff followed.  Maloney says he was eventually tricked into leaving his home and was arrested without a warrant.  According to the report, police didn't find a rifle, but did find a couple of unregistered handguns and the nunchaku.  Maloney pleaded guilty to disorderly conduct, but then declared war on the anti-nunchaku law.

Striking like a snake, Maloney hands his
declaratory judgment complaint
to the clerk, and pays his filing fee,
before fading back into the night.

Maloney, representing himself, sued for a declaratory judgment that the blanket ban on nunchaku is unconstitutional.  He also challenged the legality of his arrest in a suit against the county and a whole bunch of other people.  That suit is still pending, but the first one was dismissed in early February by Judge Spatt of the Eastern District.  The judge rejected Maloney's claim of a First Amendment right to express himself with nunchaku, a Second Amendment right to bear nunchaku, and a Ninth Amendment right to do whatever it is that the Ninth Amendment lets you do.

Undaunted, Maloney told reporters he would continue his fight against "nunchaku intolerance," saying that "[a] law that punishes a person . . . for the peaceful possession in his or her home of two sticks connected by a cord is nothing less than draconian, and should embarrass us all."  Personally I'm still not over being embarrassed by Abu Ghraib, but I will add this to the list of embarrassments.

The depth of Mr. Maloney's commitment to the issue can be gauged at his websites, www.nunchakulaw.com, where you can read all the documents from the case that you might like to read, and the site of the National Alliance for Relief from Nunchaku Intolerance in America, or "NARNIA," devoted to the repeal of "the draconian laws banning nunchaku possession, particularly in New York and California."  If you want to join NARNIA now, "[t]here is no cost for membership at this time."

Link: Law.com
Link: Maloney v. Cuomo docs at www.nunchakulaw.com
Link: National Alliance for Relief from Nunchaku Intolerance in America

Lawyers Show Their Tats to the ABA

I read the ABA Journal's eReport (that's a Report that goes out eLectronically) every Friday, and was a little surprised to see this under "Answers of the Week":  "Last week we asked what inspired you to get tattooed."

That was also a little puzzling to me because I assumed that, like me, all attorneys had Title 28 of the U.S. Code tattooed onto them for easy reference, but upon review of the article it appears not.

Being attorneys, many of the respondents seem to have written with great sincerity, erudition, and ponderosity in order to demonstr