Category Archives: Stupid Lawyer Tricks

Civ Pro Gone Evil

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This week I’m being Carrie’s associate.  She gave me a fascinating topic to research:  Can the doctor who involuntarily sterilized her client, a woman with developmental disabilities, argue that the statute he violated is unconstitutional because it infringes the privacy rights of … women with developmental disabilities.  I believe this is covered by the con law doctrine of chutzpah.

Anyway, in researching this, I have had more WTF moments than in most projects.   For example, I came across these two stunning examples of Civ Pro Gone Evil and thought I’d share.  (Squibs are from Westlaw; don’t blame me for the retro language.)

Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000): Mentally retarded woman’s Pennsylvania claims challenging allegedly nonconsensual sterilization accrued under Pennsylvania’s two-year statute of limitations for personal injury suits when she was sterilized in 1977, notwithstanding that she was 16 years old and mentally retarded when sterilization occurred, and that any suit that could have been brought at that time would have been brought by her father and step-mother, who had arranged for sterilization to be performed.

Stump v. Sparkman, 435 U.S. 349 (1978): Woman, who had been sterilized by order of Indiana circuit court when she was 15 years old, and her husband brought civil rights action against her mother, her mother’s attorney, the medical practitioners who performed the sterilization and judge who ordered it. … The Supreme Court, Mr. Justice White, held that: … (2) neither the procedural errors the judge may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages, and (3) because the judge who performed the type of act normally performed only by judges and because he did so in his capacity as a circuit court judge, the informality with which he proceeded did not render his action “nonjudicial” for purposes of depriving him of his absolute immunity.

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Update:  Susan Greene’s excellent column about the case here.

Stupid Lawyer Tricks – Episode One: Defensive Much?

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Lawyers get a lot of shit.  Plaintiffs’ lawyers get even more shit.  We’re litigious. We’re greedy.  We bring frivolous cases — piping hot cup of McDonald’s coffee anyone?*   We prolong our cases to run up the fees.  Etc. Etc.  Defense counsel on one of our cases once told me he hated that settlements were “annuities for plaintiffs’ lawyers.”  But this same guy has dragged the case into its 8th year — long after we got a partial judgment in our favor — making the same arguments he’s lost before and happily billing his client by the hour along the way.   Eventually, his greed will be our annuity!

The truth is, plaintiffs’ lawyers work on contingency.  We have to select meritorious cases; otherwise, we’d starve.  And we have every incentive to litigate them quickly and efficiently, or we’d run out of money.  Defense lawyers get paid win or lose.  And they get paid by the hour, so they earn more the longer the case goes on and the more motions they file.  Now who has the incentive to raise frivolous defenses and file unnecessary motions?

So I thought I’d take this space from time to time to post examples of the silliness we encounter in some of our cases.  Not facts or law I disagree with — that’s what the profession is all about.  Two sides have a dispute and their lawyers craft legal and factual arguments to help the judge or jury decide who’s right.  No, what I’m talking about is the sort of baloney that gives lawyers a bad name.  Well, for example:

The defendants in one of our cases filed a motion to strike one of our exhibits for lack of authenticity, forgetting that it was authenticated by their own expert.  Even better, the exhibit is a 42-page report from the Department of Justice detailing their expert’s constitutional violations, so we get to use our opposition brief to rehash this guy’s, um, more stellar qualities as an expert.

The same defendants filed a motion to strike our expert for lack of qualification, and submitted to the court a version of her report that omitted her qualifications.

Same guys again.  We discovered a clerical error in one of the exhibits to our brief — we had accidentally**  attached the wrong photos.  Before filing the substitute exhibit, we made a courtesy call to the defendant’s attorney.  In 20 years of practice I have never objected to or received an objection to something so routine.   She objected.  And today we got her . . . wait for it  . . . motion for a two-week extension to draft their brief in opposition to our request to correct a clerical error.  She needs two more weeks?  To write a brief?  To oppose the submission of the correct photos.  Photos taken by the defendant and provided to us.

Maybe all this is too law-nerdy, but honestly that’s like composing a 30 minute oration on why the person with only a loaf of bread should not be permitted to cut in the grocery line.

Too law-nerdy, but, as always, very therapeutic to write.  Thanks for listening!!

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* For a total debunking of this canard, click here.

**  Things got a bit, ah, hectic around the filing of this particular brief, leading to this Facebook update the day after:  Things I heard the day the brief was due: (1) I thought you were drafting that section (noon); (2) My computer won’t save any of my edits (7:30 pm); (3) Hold on, I just puked in my keyboard (10:30 pm).