Archive for May, 2011
A few weeks ago I wrote about a case in Texas involving a cheerleader, a sexual assault case, and a First Amendment claim. I have since come across the actual court opinion from the Fifth Circuit (PDF), and it is worth a read. However horrifying the facts of the case may be, I have to agree that nothing constituted a First Amendment violation. This story seems to have mostly passed out of public awareness, but it seemed worth a brief follow-up. Since I last wrote about it, the “loser pays” bill in Texas has been the talk of the town. I hope this girl can find some other path to justice.
Remember the Rule Against Perpetuities? If you’ve never been to law school, then hopefully the answer to that question is no. (WARNING: this post is likely to be one giant lawyer inside joke.)
[t]he common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created.
If you did not find that definition helpful, you are not alone. The Rule Against Perpetuities has been the bane of first-year property classes throughout the ages. I learned it well enough to get a B in my property class and then promptly forgot it.
I was therefore quite surprised to learn that the Rule was recently applied in a real estate dispute that has stretched over almost a century:
Remember the rule against perpetuities? It played out in real life concerning a cantankerous Michigan lumber baron’s will, finally putting an end to a $100 million waiting game for his heirs.
Not allowed to collect their share of Wellington Burt’s fortune until 21 years after the death of his youngest grandchild in existence when the patriarch cashed in his chips, the 12 great-, great-great- and great-great-great-grandchildren among Burt’s surviving descendants are expected to see his trust open by the end of the month, the Associated Press reported. The heirs range in age from 19 to 94 years old.
Burt died in 1919.
It’s good to know that those weeks spent learning the Rule weren’t completely for naught. It provided us with hours of hair-pulling madness, and now, no matter how difficult a legal question may be, at least it’s not as bad as the Rule Against Perpetuities.
Plus, it led to at least one awesome parody:
From the Lucky Dog Rescue Blog:
I rescue dogs. I fight for them. I dedicate my life to them.
I rarely put myself first. I never put them last. I always try to do right by them.
Sometimes, I sob. I hurt so much… but I cry because they hurt more than I ever could. The helplessness drives me to say, “I can’t…”
Then, a foster dog’s kiss says, “You can…”
So, I get out of bed. I brush off the despair. I vow to make a difference.
I do make a difference.
I never give up. I fight for change each day. I pray for relief from the pain… not for me, but for them.
I rescue dogs. In turn, dogs rescue me. Everything in between… is so worth it.
I organized a group of lawyers to volunteer at Town Lake Animal Center this past Saturday. I’ll just say this: everyone should go to their nearest animal shelter, even if you don’t want or have the ability to care for a new pet, and at least spend some time interacting with the animals there. It’s great for the dogs and cats, and it’s great for the people as well. Who knows–you might leave with a new best friend.
Casey and Tyra are wonderful dogs and could be a great addition to someone’s family. A particular place in my heart, however, was stolen by Doodle, who has to be seen in action to be believed.
Adopt a pet today!
Texas cheerleading is something of a religion unto itself. It also has a peculiar history of scandal and other legal oddities (I’m looking at you, Wanda Holloway). The latest news, involving a cheerleader known only as H.S. (or M.S., depending on where you look), should not be lumped into the strange history of Texas cheerleading, though, as it involves some thorny questions that still have my head spinning.
In short, in 2008 a cheerleader was sexually assaulted by a basketball player, who plead guilty to misdemeanor assault but never went to jail. A few months later, she refused to cheer for him during a free throw, and was expelled from the cheerleading squad. Her family then sued the school, alleging violation of her First Amendment rights. The courts disagreed, and the Supreme Court has declined to hear the appeal. She is now stuck with a $45,000 tab for the school’s legal fees.
I can’t possibly go into an in-depth analysis of this with the little information that I have. I was initially content to tweet a few links about it yesterday, but a response that I received to a tweet got me thinking about the situation:
Truth be told, at the time I wasn’t sure why I retweeted the story–it just seemed important. Upon reflection, I think it is all of the reasons stated in the reply. It is (I certainly hope) impossible not to feel sympathy for H.S. in this case. The sympathy is certainly pouring out all over the internet, as well as outrage. Not knowing all of the facts makes it especially frustrating–how did it get to a point that she was apparently forced to decide at court side whether or not to cheer for this guy? There appears to be no question that he is guilty. On the one hand, why would she want to put herself in the position of having to maybe cheer for him, but on the other, much bigger hand, why would the burden be on her in the first place??? I don’t know why he isn’t in jail, and I won’t speculate. I also don’t know why, a few months after pleading guilty to assault, he was still playing basketball. That may be a discussion for another day.
Bottom line, it seems wrong that this situation even happened. How did these two people end up back in these same roles after what happened between them? It is very easy to feel the greatest sympathy for her, for making a seemingly simple and rational decision and being punished for it.
Then we come to the lawsuit itself, and my sympathy becomes, uh, conflicted. I just don’t see any sort of First Amendment claim here. The courts concluded, to put it briefly, that in her role as cheerleader she was a spokesperson for the school, and her job was to perform or say what the school wanted. That makes sense (in the absence of the emotion of this particular case). At least in theory she had other options besides a federal constitutional lawsuit.
That brings us to the outcome–the case was dismissed, and she must pay attorney’s fees as a result of filing a frivolous claim. I cannot honestly say that the claim was not frivolous, but I cannot say that the court’s order is just. This illustrates a point that is often lost on many people, lawyers included: just because an action is legal (or not illegal) does not mean it is proper, and just because a form of relief is available, does not mean it is just.
Perhaps the cheerleader was wrong, in the context of her job as cheerleader, to refuse to cheer. Perhaps the school was justified, in the context of a cheerleader who refused to follow procedures, to kick her off the team. It seems so tidy on paper, but what on earth were they thinking?
The lawsuit, from a legal perspective, was also wrong (in that it made a claim not supported by the law). A common remedy for someone subjected to a frivolous claim is to have their opponent pick up the legal bill. But again, is that really justice in this case? I can’t say the court was wrong–they applied the law, as far as I can tell. I also can’t say the court was right. Everyone was right, and everyone was wrong in this case. And I couldn’t say that in 140 characters.
A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas. The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.
A good litigator will always look for the facts or legal principles that will best serve their clients’ interests. At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties. Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy. This is often why litigation is such a poor mechanism in many (not all) divorce matters. These are not litigants in a business dispute or opposing sides of an auto accident. These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows. When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation? While it may be unavoidable in some cases, I would say no, it is not ideal. The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:
When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose? You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat. “I’ve got it, there must be a Tort that will work,” you think. Maybe there is.
The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery. The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.
Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery. Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law. What this article brings home for me is the type of situation in which the collaborative model would not work at all.
I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:
[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.
The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse. I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.
I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.
I’m excited to note that I received a mention in the April issue of Austin Lawyer as co-chair of the People’s Law School Committee of the Austin Bar Association. The next People’s Law School will be in September, location to be determined. Look for exciting things to come!