Wednesday Writs for 12/19

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Em Carpenter

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 Responses

  1. Avatar Oscar Gordon says:

    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…?Report

    • Avatar PD Shaw says:

      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.Report

      • Avatar Oscar Gordon says:

        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.Report

        • Avatar Richard Hershberger says:

          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: https://caselaw.findlaw.com/md-court-of-special-appeals/1691162.html. 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.Report

        • Avatar PD Shaw says:

          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.Report

  2. Avatar Road Scholar says:

    Good selection this week, Em. Did you see where a poacher was sentenced watch Bambi at least once a month while sitting in jail for a year? Creative sentencing in the mold of A Clockwork Orange.Report

  3. Avatar LeeEsq says:

    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.Report

    • Avatar Em Carpenter says:

      I get that, but what about a guardian ad litem? Judges routinely appoint them to children in other civil cases.Report

      • Avatar LeeEsq says:

        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.Report

        • Avatar Em Carpenter says:

          OK.
          I don’t know the first thing about immigration law. It just seems really counterintuitive to American law that any minor could be subject to any sort of judicial proceedings without any safeguards.Report

          • Avatar LeeEsq says:

            Non-immigration lawyers are often shocked at the world of immigration law. It manages to be more bureaucratic and more loose than regular law at the same time.Report

  4. Avatar Richard Hershberger says:

    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.Report

  5. Avatar Richard Hershberger says:

    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.Report

  6. L1. It took TWELVE YEARS to discipline him?Report

    • Avatar Oscar Gordon says:

      They had to make sure he really was misbehaving and that it all wasn’t just a horrible misunderstanding.Report

    • Avatar PD Shaw says:

      It was just supposed to be a three hour tour, but disciplining an attorney for excessive and unreasonable use of judicial process appears to involve a lot of excessive and unreasonable use of judicial process.Report

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