Wednesday Writs for 12/19

Wednesday Writs for 12/19

Roy Pearson (Picture from the Washington Post)

[L1]: We hear a lot about lawsuit abuse and frivolous cases, in which some litigant appears to attempt to make a quick buck through use of the court system against a hapless defendant. While many a lawyer will tell you the stereotype is exaggerated, these cases exist. One such travesty was initiated in 2006 by, of all people, an administrative law judge, in Pearson v. Chung, our case of the week.

Our plaintiff was Roy Pearson, who suffered the tragic tort of (he alleges) a pair of pants lost by a dry cleaner. The business, run by the Chungs, contends they gave Pearson’s pants back, but he insisted they were not his. Pearson sued for the loss of the pants, and also alleged unfair trade practices; specifically, Pearson argued, the “satisfaction guaranteed” sign in the window of the business was an unconditional warranty, one which the Chungs must have had no intention of honoring since they refused to “satisfy” him regarding his supposedly lost pants. If that wasn’t enough of a reach, Pearson asked for damages for seven different violations of the Consumer Protections Procedures act for every day of the several years the business had been opened. His first demand was $1,500; settlement negotiations culminated in an offer of $12,000 from the Chungs, which Pearson rejected. He ultimately asked for $54 Million. At a bench trial, the trial court judge found for the Chungs on all counts. Pearson appealed, but the DC Court of Appeals affirmed the trial court, finding Pearson’s claims “not supported by law or reason”. Just this year, Pearson faced discipline from the DC Board on Professional Responsibility for his actions.

The Board recommended Pearson’s law license be suspended for 90 days. The Chungs went out of business.

[L2]: Millions were riveted a few years ago by the documentary series “Making a Murderer” involving the murder of Theresa Halbach and subsequent conviction of Steven Avery and his 16 year old nephew, Brandon Dassey. The series was chock-full of awful characters-including most of the lawyers involved. What struck me in the series was the abominable representation provided by Dassey’s lawyer, Len Kachinsky, including allowing his client to be interviewed without counsel present, and steadfastly ignoring Dassey’s claims of innocence. Since then, he became a municipal judge, a position from which he was suspended following stalking charges by a court clerk. He was acquitted last week, but I think we can all still agree, he’s a creep.

[L3]: The Ninth Circuit is taking up the question of whether defendant children in immigration courts have a right to counsel. Per the government, because it is a civil rather than criminal proceeding, they do not, not even a baby in a basket.

[L4]: The Chinese tech company Huawei developed a phone smart enough to drive a Porsche, but we won’t be getting it here in the US, due to the FCC’s national security concerns.

[L5]: Third Circuit judge Thomas Hardiman made the news last summer as a name on Trump’s shortlist for SCOTUS nomination. He was back in the headlines last week with his proposal to eliminate discovery in federal civil cases worth less than $500K, an idea some believe detrimental to the average litigant.

[L6]: Uber is being sued again, this time for anti-competitive behavior. They’re accused by rival Sidecar of engaging in “widespread sabotage”, including submitting phony ride requests to tie up drivers, and unfair pricing.

[L7]: The DC Circuit tackled the government’s ban on transgendered people in the military last week. One point of contention: the government insists the ban is not discriminatory because it allows an exception for transgendered people who do not have gender dysphoria- which, as Judge Robert Wilkins pointed out, is basically defined as being transgendered.

[L8]: Any lawyer who often practices in front of a particular judge will pick up cues, certain phrases that signal to an attorney where the judge’s mind may be going on an argument. Our supremes are no different. 

[L9]: Don’t do drugs and then chase zombies around the WalMart parking lot in an endloader, or you may get 15 years in prison like our dumb criminal of the week.

[L10]: The jury is still out on what may make the cut as the craziest lawsuits of 2018, but here are the winners, as it were, for last year:

Top Ten Most Ridiculous Lawsuits of 2017

Senior Editor

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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17 thoughts on “Wednesday Writs for 12/19

  1. L1: Lawyers are not, IMHO, really willing to truly discipline their own. The man drove out a small business and put those people through hell over a pair of pants. He should have lost his license and been required to pay all their losses. A 90 day suspension is a slap on the wrist.

    L2: One of the cops is suing Netflix and the makers of the show for defamation (IIRC).

    L3: If the defendant is a minor, the government should have to provide counsel. Full Stop. Ideally the government should have to provide counsel for all immigration cases, but I can kinda see the argument as to why adults should be on the hook. But minors…?


    • L1: Browsing one of the links, it looks like the defendants withdrew their motion for reimbursement of attorney fees. Something about not wanting to wrestle with a pig no more, but I wonder if they also suspected the attorney wouldn’t have the money to pay anyway.

      I have some questions about the judge’s handling of the case, but I don’t know enough from the links what happened. The attorney disciplinary committee used to be located next to my office and from the stories I heard, they were mostly focused on attorney misconduct towards their client, usually some form of theft.


      • they were mostly focused on attorney misconduct towards their client, usually some form of theft

        This is what strikes me as a problem. As I understand it, lawyers have more than just a duty to their clients, they have a duty to the law and the courts as well. The bar never really seems interested in the duty to the law or the courts. Maybe they expect judges to handle that, but judges seem reluctant to take up that cause.


        • If you want to see a case of a lawyer being disbarred even when his clients are just peachy with him, take a look at this: It is a real barn burner. It holds special interest for me, since I worked for this guy for three years. Read between the lines and the reason anyone pursued this was because he was an ass. He offended enough people that they were willing to put in the work to make this happen.


        • Yeah, lawyers have duties to the tribunal, which the tribunal has multitudes of means of addressing (e.g., subtle hints, stern dressing-down, ordering removal from the case, monetary sanctions, and reports written to the disciplinary body). Richard is probably right, the attorney is crazy, because most attorneys see their job as trying to persuade the judge. This is how they make their clients happy and make money.


  2. L3: Resident immigration lawyer. The federal government is technically right in this matter. Immigration law is civil rather than criminal, so Respondents, what the alien is called in immigration court, may hire a lawyer but they have no right to counsel. When people with a harsh stance on immigration get shocked that being in the United States illegally is only a civil violation, I routinely point out that the task of deportation would be a lot more complicated if it was a criminal violation because the aliens would have to be indicted by a Grand Jury, would have a right to a jury trial, and gain right to counsel. Things would grind to a halt.

    Most children in immigration courts are represented by not for profits rather than private bar lawyers. Not for profits do not have money to represent every child though. I suspect the reason for the suit is that to create another revenue stream for not for profits in addition to helping children in immigration court proceedings. Immigration judges would probably be relived to have the kids represented even if they are on the tough side.


      • Immigration judges are not real judges. They lawyers who work for the Justice Department’s Executive Office of Immigration Review. Judge is a courtesy title. This puts them in a real curious position. They have a lot more power than many real judges do. They decide issues fact and law. They can grant status, revoke lawful permanent residency, and order people removed from the United States. Yet, they have no power to hold people in contempt, issues enforceable subpoenas, or appoint guardian ad litem, which do not exist in regulations governing the immigration courts.

        Immigration Courts are also designed to be procedurally a lot looser than most regular courts. Nearly all evidence gets admitted into the record like it does in civil law courts in other countries. There aren’t many formal procedures governing the structure of trials. Much of the testimony is hearsay by nature.


  3. L1: I followed this case at the time. Pearson wasn’t trying to make a quick buck. You don’t sue a small business owner for $54 million in the expectation of a big payoff, much less a quick one. The underlying issue here is that Pearson went crazy. The system doesn’t deal well with plaintiffs who have both the will and the resources to pursue a matter beyond financial reason. In this particular instance, the resource was knowledge rather than cash. I assume he was pro se, and prepared to drag it out indefinitely. The more common circumstance is a plaintiff with cash to burn through lawyers’ fees in the pursuit of JVSTICE.


  4. L5: This is a terrible idea for many reasons. Personal injury is what I know. This doesn’t often go to Federal Court, and nearly everyone hates it when it does, but eliminating discovery wouldn’t help, and might make it worse. The dispute in personal injury is more often over damages than it is liability. Documentary evidence is mostly straightforward medical records, which are sent to the adjuster long before the lawsuit is ever filed. The discovery process gives both lawyers more information, if only how well the parties presented themselves in depositions. This in turn leads to both lawyers reassessing the value of the case. Since they have the same information, experienced lawyers will usually have a similar valuation. An amicable settlement naturally follows. Eliminating the stage where both lawyers end up with the same information will have the unhappy outcome of reducing the likelihood of settling.

    I also wonder what ‘no discovery’ really means. Does this mean that the plaintiff doesn’t have to turn over medical records, and that the defense lawyer is supposed to walk into the courtroom the day of trial knowing nothing about the plaintiff’s injuries? This seems improbable. A personal injury case potentially worth $500,000 (or, more to the point, $499,999) involves experts and nominally independent medical exams generating reports. Does none of that happen? Thinking about this, if a true ‘no discovery’ rule was implemented, this would vastly help the plaintiff, who could have experts lined up and ready to go, while the defense had no way to prepare a response. From this I infer that there is not a chance it will actually be implemented, and least for cases where implementing it would help the plaintiff.

    More generally, in any case where there is flexibility in the ad damnum, I see this flexibility being used to its full extent.


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