Archive for the ‘Intriguing Legal Theories’ Category

It is unwise to anger Judge Sam Sparks

Law is a conservative profession, in that it is rarely given to huge leaps of fancy or whimsy. English common law has given us a system based on precedent, where the challenges and disputes of the present are resolved using the solutions of the past. Innovation comes slowly, and the writing tends to be both precise and ponderous. No one reads legal briefs or law journals for the lulz.

Every so often, though, a judge comes along who challenges the notion of a staid, unflappable jurist. Today, I take a moment to salute the Honorable Sam Sparks, U.S. District Judge for the Western District of Texas, Austin Division. (Full disclosure: I am licensed to practice in the Western District of Texas, I think, but I do not have any cases in Judge Sparks’ court and do not intend to file any. Therefore, there is really no need for full disclosure. Never mind.)

Lawyers who practice in federal court in Austin generally know that Judge Sparks does not abide tomfoolery in his courtroom. Despite conventional wisdom, every so often lawyers who should really know better decide to bring questionable motions in his court, and his responses and resulting orders ought to be forever recorded in the annals of legal history.

Above the Law, as with so many stories, has a good overview of some Sparks gems. In 2004 he compared bickering lawyers to kindergarteners, and in 2007 he issued an order in rhyming couplets, complete with this conclusion:

There will be a hearing with pablum to eat

And a very cool cell where you can meet

AND WORK OUT YOUR INFANTILE PROBLEM WITH THE DEPOSITION.

My personal favorite story out of his courtroom comes from recent news and involves litigation over Texas’ new ultrasound-before-abortion law. The Center for Reproductive Rights filed a lawsuit in federal court in June seeking to block the new law from taking effect (read the original complaint). The defendants in the case are the individuals and agencies that will be charged with enforcing the new law: David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board; and David Escamilla, County Attorney for Travis County. Seems pretty straightforward–group opposes a new law, so sues the state officials in charge of enacting it–and uncontroversial, at least procedurally, right?

Oh, silly, silly reader(s)….

Have you forgotten that this is Texas?

Not content to allow this lawsuit to proceed in the same fashion as any other lawsuit filed in America, the two sponsors of the bill, Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville, asked leave of the court to file amicus briefs supporting the law. On August 9, 2011, Judge Sparks said no (PDF):

Both parties in this case are well-represented by competent and diligent counsel, and neither they nor this Court needs assistance from Senator Patrick or Representative Miller–particularly when much of their “assistance” is nothing more than thinly-veiled rhetoric. This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion. The Court is confident counsel in this case can protect their clients’ interests all by themselves.

Judge Sparks did not even have to make that rhyme to make it sting. A mere three days later, on August 12, he similarly rejected an attempt by other Texas legislators to intervene in the case (PDF):

[C]ounsel for the parties are more than capable of advocating for their clients’ positions without outside input. This is especially true where, as here, that input comes in the form of, among other things, commentary by legislators on “the clear legislative intent of H.B. 15′s severability clause.”

If the severability clause is as clear as the Representatives indicate, their interpretive assistance will not be required. And if it is not, it would be unhelpful, if not improper, for the Court to look to statements made by a subset of the Legislature, in a document prepared for the purposes of litigation, to determine legislative intent. (Citations omitted)

Thankfully, that put an end to the chicanery, and the case has been able to proceed according to normal court procedures. Just kidding! San Antonio attorney Allan Parker, president of the Justice Foundation (I’m not linking to them) also requested leave to intervene in the case, and he decided to do a little show and tell with his motion (specifically a picture of a “first-trimester aborted child” according to his own list of exhibits.) On August 23, Judge Sparks took his polite gloves off and went right to it (PDF, of course):

The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus. As any competent attorney could have predicted, the Court declines the latest invitation as well.

However, the Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did these things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilties, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

Not pictured: the actual holding cell at the federal courthouse (photo by Jascha Hoste)

I have no involvement in this case at all, and yet my stomach did a few lurches reading that part of the order because I can imagine the horror of having a federal judge that mad at me, and the possible implications of that. Yes, Judge Sparks called the man incompetent, and he did it a lot. Moral of the story: if you come into Judge Sparks’ courtroom with weak arguments that he has already dismissed, you will not leave with your dignity. You might not leave with your bar card. You might not leave as financially whole as when you arrived. You might not leave at all.

Okay, that last part was an exaggeration. You’ll get to leave eventually.

This week, we have a different case (h/t Mike Johnson), involving two attorneys who may have just done something really dumb, or may have had the misfortune of doing something kind of dumb with a judge fresh off of his Allan Parker-fueled disdain for shenanigans in his courtroom. Either way, the hammer dropped on attorneys Jonathan L. Woods and Travis Barton, who have been invited ordered to attend Judge Sparks’ “kindergarten party” on September 1 in his courtroom, covering topics such as how to properly plan and schedule depositions and how not to waste a federal court’s time for being “unable to practice law at the level of a first-year law student.”

Courts have a pretty specific purpose, and they have limited resources to achieve that purpose. The purpose is to resolve disputes, and to do so as efficiently as possible. Many Austin lawyers have horror stories about Judge Sparks (and no, I’m not telling any here),  but I applaud the effort to keep idiocy out of the courtroom, and to do it with some flair. I salute Judge Sparks and his brand of don’t-*******-with-me-in-my-courtroom jurisprudence.

That said, I know full well that if I ever argued a case in his courtroom, he would eat me for breakfast and use my bones for toothpicks at lunch. And I’m okay with that.

Did the astronauts of Apollo 17 take this photo, or was it Photoshopped using 1972-era technology? (Hint: the first option is correct.)

From the annals of silly lawsuit history comes the case of Bill Kaysing versus Jim Lovell, circa 1997. A handy timeline of the case is here.

You may Know Jim Lovell as the commander of the 1970 Apollo 13 mission, who was later played by Tom Hanks in the movie of the same name.

Bill Kaysing was a purveyor of moon hoax theories, and is often credited as starting the moon landing conspiracy movement. He was the author of books like We Never Went to the Moon: America’s Thirty Billion Dollar Swindle.

In 1996, after an encounter with Kaysing and some correspondence, Lovell was quoted in an article by Rafer Guzmán in Metro, a weekly Silicon Valley-area newspaper:

Speaking from his office in Illinois, Lovell said of Kaysing: “The guy is wacky. His position makes me feel angry. We spent a lot of time getting ready to go to the moon. We spent a lot of money, we took great risks, and it’s something everybody in this country should be proud of. His problem is, he saw that movie Capricorn One and now he thinks that’s really the way it goes.”

Eager to defend his legacy of bravely standing up to mountains of peer-reviewed scientific evidence, sued Lovell for libel on August 29, 1996, specifically for calling him “wacky.”

Keep in mind that truth is a defense to defamation.

Kaysing, who wrote a book called We Never Went to the Moon, filed what amounts to a nuisance suit against the astronaut last year following a Metro article in which Lovell called the writer “wacky.” Legal experts who were contacted agree that calling someone “wacky” does not a successful libel suit make. If anything, Kaysing’s wild accusation that Lovell is a liar who participated in a government conspiracy to fool the public is more harsh than being called wacky. (Source)

I don’t see how one can argue that calling a person “wacky” is anything other than a statement of opinion. I also don’t see how it is any worse than what Kaysing said about Lovell in the same article:

Kaysing considers Lovell almost a comedian. “He’s essentially a sort of comic Manchurian Candidate,” he says. “He’s been either brainwashed, hypnotized, programmed or whatever to present this spurious story of having gone to the moon.”

Is it defamatory to say someone has been brainwashed? Not particularly. Nor is it defamatory to call someone “wacky.” Fortunately a judge agreed and dismissed the suit on September 25, 1997.

It makes for a fun example of the limits of using the courts to fix your public image. If someone says you are wacky, demonstrate how they are wrong (if you can), or determine if you really are wacky and try to fix it. If you are a conspiracy theorist, public opprobrium from an establishment figure like an astronaut ought to boost your image among the conspiracy-minded. Unless someone has said something blatantly and demonstrably false that has harmed you, don’t ask the courts to fix it for you. Even then, it’s a tough row to hoe.

Bill Kaysing passed away in 2005. Since a deceased person has no cause of action for defamation, let me just say this: the guy was wacky. Wacky, wacky, wacky. He was also absurd, bugged out, crazy, daft, deranged, dotty, foolish, harebrained, idiotic, loony, nutty, odd, and silly. (Yes, I borrowed Eric Turkewitz’s thesaurus).

Liam Gallagher is suing Noel Gallagher for libel. The two brothers were in Oasis, a band that was big in the ’90s, but I can’t remember which brother did what in the band. I never thought that much of the band. I honestly felt like listening to them made me simultaneously dumber and a bigger d-bag. Many, many people loved them for whatever reason, though. Anyway, they broke up, one or more members started new projects or solo careers, blah blah blah. Then one mouthed off about the other to reporters in July:

While the London press conference was set up for [Noel] Gallagher to talk about his solo career, it did not take long for reporters to ask about the state of his relationship with Liam.

The pair fell out two years ago just before a gig in Paris and have not spoken since.

“I had a sweepstake on how long it would take,” Gallagher laughs, when the first question was put to him just two minutes into the event.

The guitarist explains how the brothers’ row escalated after Liam cancelled their V Festival slot “because he had a hangover”, although the official reason given at the time was that he was suffering with laryngitis.

Oh, snap! A rock star was hungover before a show? That’s hardly implausible, but who knows what actually happened that specific morning? Anyway, fast-forward one month, and a lawsuit ensues:

Former Oasis frontman Liam Gallagher is suing his brother Noel over his claims the band once cancelled a gig because the singer was hungover.

Noel Gallagher told journalists at a press conference in July that it was the real reason why the band pulled out of the V Festival in 2009.

The official explanation at the time was that Liam Gallagher had laryngitis.

In a statement, he said he had “tried to resolve this amicably but have been left with no choice but legal action”.

“All I want is an apology,” he added.

I’m no expert on UK law, but I have to wonder if it is wise to involve the courts in a demand for an apology a mere two months into a dispute. Also, if your brother refuses to apologize to the point that you feel you have to sue, do you really think an apology will ever be forthcoming? These two don’t seem to have ever been a portrait of brotherly harmony.

Remember that generational clash among lawyers? It’s here. The front line combatant in this conflict is Gregory Berry, a New York attorney who until recently worked as an associate at Kasowitz Benson Torres & Friedman. Apparently he made a few whistleblower-type complaints and engaged in some self-aggrandizement within the firm, and now is no longer employed there, according to Reuters and a lawsuit Berry filed:

Gregory Berry, a former first-year associate at Kasowitz Benson Torres & Friedman, accused the firm of unethical behavior and lying about its work culture in a lawsuit filed on Monday in Manhattan state Supreme Court.

Two partners are also named as defendants in the suit. Berry accuses them of interfering with his job, inflicting emotional distress and trying to thwart his career prospects.

Berry claims he “immediately began doing superlative work” when he started working at Kasowitz last September after attending law school at the University of Pennsylvania.

But he ran into trouble after a few months when he e-mailed partners asking for more responsibility, he said in the lawsuit.

“It has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing and a superior legal mind to most I have met,” his email said, according to his complaint.

He was informed by a partner at the firm that his email had “burned bridges” in the office, and he was fired a few days later, according to the lawsuit.

“There’s simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to find that out the hard way,” Berry told Reuters.

In the lawsuit, he also said he was fired for comments he made about “possibly fraudulent” billing practices at the firm.

Is Berry out of his “superior legal mind”? Perhaps. Law school produces many innovative and creative legal minds. Big law firms, with their strict business models and general aversion to risk, stifle such innovation and creativity most of the time. I had never heard of Kasowitz before this morning, but a cursory review of the interwebz suggests they have a reputation as a “benevolent dictatorship.” Maybe Berry was fired for threatening to expose dirty secrets, maybe he was fired for having an ego, or maybe it was something else entirely. The truth may or may not come out in his lawsuit. The point is that we have a brand-new lawyer butting heads with his firm’s culture and getting the boot for one reason or another. Bring your own popcorn.

My attempt at creating a fair use graphic

Now that he is free of the corporate yoke of BigLaw, he did what every young attorney who is too smart for the strictures of old-school legal culture should do: he started his own practice. And he did it with a bit of flair: his website states that:

[Berry] graduated from the University of Pennsylvania School of Law and began his legal career at the “big-law” firm of Kasowitz, Benson, Torres & Friedman, where he quickly discovered that the emphasis in “big-law” firms on generating billable hours rather than on applying creativity and intelligence to devising unorthodox and cutting-edge legal strategies left Mr. Berry wasting his talents. Mr. Berry became a lawyer to fight for justice and to use his powers for good. He started this law firm to lend his abilities to clients who need the highest legal talent possible.

Here is a screengrab of that page, in case he has to edit any statements contained therein. I look forward to seeing what “unorthodox and cutting-edge legal strategies” Berry develops in his new position. Just watch out for those pesky ethics rules–they’ll come at you from all over.

I for one welcome this opportunity for NewLaw (I now claim credit for coining that term, even if someone else has the website) to put itself up against BigLaw. The new versus the old.The small versus the big.  The innovative versus the time-tested. Let the battle royale begin.

Classy legal argument of the week: a female employee of a real estate firm claiming sexual harassment could not have been harassed, because she is ugly (h/t Trippe Fried):

A 23-year-old lesbian says the Brooklyn real estate office she once worked in is a den of deviants where raunchy sexcapades were the norm.

But the bosses she’s suing say she’s too ugly to harass.

Priscilla Agosto ran a gauntlet of sexual humilition – verbal and physical – in her 14 miserable months at People’s Choice Realty, her suit against its three bosses says.

No less than seven male employees made lewd advances at her – even after she complained to the bosses, she said in papers filed in Brooklyn Supreme Court.

Her male co-workers exposed themselves, rubbed up against her and even asked for oral sex, she alleges.

And they even offered $500 to watch her have sex with her girlfriend, she said.

“I hope and pray that by sharing my story, anyone who finds themselves in a similar situation will have the courage to speak up,” said Agosto.

Odelia Berlianshik, the owner of the Williamsburg firm, denied the charges – and launched a shocking attack on Agosto’s appearance.

“Who would touch her? She’s an ugly girl anyway,” she said of the former secretary. “She made up a story because she didn’t want to work.”

I'll see your ugly and raise you Sam (Photo by Stephen Pierzchala, used under a Creative Commons license)

Here are a few bits of news on the defamation lawsuit beat:

1. Thomas Cooley Law School, who sued two lawyers and some anonymous bloggers over comments made online about the school, has been sued by those same lawyers for alleged fraud in the reporting of graduate employment statistics:

Cooley filed a lawsuit (PDF) against Kurzon Strauss last month in response to solicitations the firms posted on Craigslist and JD Underground that included a draft of a purported class action complaint contending that Cooley incorrectly reported its graduates’ job placements. David Anziska told the ABA Journal at the time that the firm intended to countersue Cooley as well as the school’s lawyers at Miller Canfield.

Cooley has also been in the news for a creative re-imagining of law school rankings and for planning an expansion to a new campus in Florida.

2. Proving that the defamation Streisand effect extends beyond the legal profession, a doctor in Minnesota is appealing a court ruling that says comments posted online that are critical of his bedside manner do not constitute defamation:

Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn’t posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that “there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com.” So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I’m sure that will go over well…

3. Finally, the story of a Philadelphia attorney who, after seeing a 2007 article about himself on the internet in 2009, sued quite a few people for defamation and various other claims. The lawsuit was dismissed as untimely, but the lawyer kept on suing, adding as defendants the lawyers who got the case originally dismissed. It is an interesting case.

Justice isn't always pretty. (Photo by Ralf Peter Reimann. Used under a Creative Commons license.)

Obviously defamation law is of interest to me, as is the notion that it can be used to bully people into silence on the internet. I can honestly say that I do not know all the facts in any of these cases, since I only have access to what is on the internet. That’s the thing, though–if no one is allowed to comment on a matter of public interest until they have all the facts, then there would be no public discussion of any kind, ever. I strongly believe that, in almost all circumstances, the proper response to allegedly defamatory speech is more speech. As Justice Brandeis wrote in his concurrence in Whitney v. California:

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

All Constitutional issues aside, there is a more immediate point to this, that Justice Brandeis could not have understood: lawyers cannot control the internet. Scott Greenfiled nails it:

Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will.  I know, it’s hard to fathom that the world doesn’t shake when we threaten or act, but the internet is a different animal from anything we’ve ever before known.

As lawyers, it’s time to come to grips with some hard realities that now exist and appear likely to be the norm going forward.  First, we are subject to ridicule online just like Babs Streisand.  Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.

Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there’s a darn good chance that if there’s a flaw, any flaw, even the slightest, it’s going to be magnified beyond your wildest imagination and become a testament to your incompetence.

And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks.  If the former don’t get you, the latter will.

Soooooooo…..interesting news on Above the Law this week. I’m not entirely sure why I feel compelled to comment on this. I do like a little controversy now and then, though, so here goes. Seems there have been two–yes, two–legal matters recently relating to men surreptitiously making, uh, DNA deposits intended for consumption by unwitting women. Two hardly makes for a national trend, but still, ew.

If you are easily offended or have recently eaten, you should probably just stop reading now.

Also, this is a family-friendly blog (okay, not really), so I reserve the right to redact quotes and use euphemisms instead of medically-correct terms.

In a California case, an employee of Northwestern Mutual Investment Services complained of  Michael Kevin Lallana after she inadvertently ingested his, uh, you know, which he intentionally put into her water bottle at work. He was charged with and convicted of two counts of misdemeanor battery. Why two counts? Because he did it twice. She figured out what was amiss the second time, and the story of how she did that goes on another blog.

The judge ordered him to pay restitution for “for loss of wages, therapy and medical expenses, including the money she paid to have the tainted water tested” to the tune of $27,410.80. It begs the question of why he did it. For starters, he pleaded not guilty and claimed he did not know such behavior would be frowned upon by his employer or by the law. His statement, in what may be the greatest evidence of the sexual dysfunction of our society, was that “her lips had touched it…It was the closest I could ever get to someone as good looking as that without tampering with my marriage or hurting anyone.” Again, ew.

Setting aside the implicit insult to his wife, his lack of understanding of what it means to “hurt” someone, and any particular opinion of the good-lookingness of his victim, it’s worth noting that, at $13,705.40 per “contribution,” he could have found a less expensive way to find an attractive woman (but then he probably knows that that would be illegal, and might hurt someone.)

If you’re too grossed out to continue, here is an escape route to Nyan Cat.

I will now continue writing this post with the Nyan Cat song playing in the background. I can’t guarantee my sanity.

Moving on to New York, a woman has sued Planet Sushi for “physiological and psychological injuries” after eating some sushi with, uh, you know where this is going.

The case just survived a motion to dismiss filed by the restaurant’s attorneys, arguing spoliation of evidence (apparently the incident occurred in 2008, lab testing to confirm, uh, you know, was inconclusive, and the samples were not retained.)

This case may be more difficult than the California case, particularly without clear lab results and no remaining samples. The question will come up as to what formed the basis for plaintiff’s suspicions, and that question will lead to all sorts of sophomoric places (i.e. how did she know what she was tasting so quickly?) There is also no specific tortfeasor here, and no specific motive like the ridiculous creepy one offered by the guy in California. This will not be a proud moment in American jurisprudence. Entertaining, perhaps, but definitely not proud.

I’m not sure if I will post on this again. I’m also not sure I’ll ever eat sushi again.

The Nyan Cat song was playing for 27 minutes, 18 seconds as I wrote this. I’m off to wash my ears now.

Two defendants in a certain lawsuit I have mentioned (in which I am also a defendant) have settled with the plaintiff for $5,000. From Eric Turkewitz’s blog:

Joseph Rakofsky, who sued 81 people and entities for defamation (including me), has settled his suit against two of them. The University of St. Thomas School of Law and one of its staffers, Deborah Hackerson, have paid Rakofsky $5,000.

A copy of the stipulation and release, obtained from the County Clerk’s office, is here: St.ThomasLawSettlement

University of St. Thomas School of Law, from newyorkpersonalinjuryattorneyblog.com

Scott Greenfield noted:

Rakofsky graciously offered to settle the case with all of the defendants for the “nominal” amount of $5,000.  One would have thought that all the defendants laughed.  Obviously, not all.

It was silly, an extortion attempt by a child.  And they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can’t, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

Mark Bennett wrote:

By settling with Rakofsky, the law school and Hackerson have painted a great big target on themselves for anyone else who wants to file a frivolous lawsuit. (Hear that, disgruntled unemployed St. Thomas grads? File that lawsuit; they’ll settle for nuisance value!)

Most of the defendants are fighting Rakofsky. They’ve joined together in several groups to share resources and hire counsel—not just because they can win the suit, but also because fighting is a matter of principle: they are fighting for free expression, and for the First Amendment. Because if you give one schmuck like Rakofsky money instead of utter humiliation in court, every schmuck whose feelings you hurt is going to file a lawsuit against you, and you’re going to have to either a) join the happysphere and stop speaking the truth; or b) spend your life settling vacuous defamation suits.

I can’t really add anything to that. I hadn’t been expecting any news about this case for a while. The plaintiff’s attorney has withdrawn and the next hearing isn’t until September 15, when the court will hear Marc Randazza’s motion for admission pro hac vice. I also had not planned on commenting much on the case. It’s just not any fun anymore. Still, this news is disappointing.

Here’s a humdinger of a case (big h/t to Scott Greenfield and William A. Jacobson). Somewhat irritatingly, it has me agreeing with conservative legal writers who normally tend to annoy me. It’s best to try to lay out a timeline/summary as best I can:

• Law professor teaching criminal law uses hypotheticals involving the murder of the dean (a not-uncommon occurrence among law professors). Professor and dean are of different racial backgrounds.
• Students take offense. Students complain to the administration, citing various racial and sexual discrimination claims.
• Law professor is suspended and defends himself against the charges in an e-mail to the student body.
• Law school clears professor of discrimination charges, but holds him liable for retaliation because of his defense of himself.
• Law professor sues dean and students for defamation (yes, you heard me right).
• Dean requests psychiatric evaluation of professor.
• Blawgosphere lights up with indignation.

I was not in any of this professor’s classes, obviously. I know that hypotheticals in law school classes can get pretty absurd by design, and hypotheticals involving the murder of a well-known person (like a dean) are not at all out of the ordinary. When I was in law school we did a whole play about it. I even had a large supporting role.

The controversy at Widener even seems pretty mild compared to controversies at my law school.

What troubles me is the seeming dominance of “political correctness” here, because law is perhaps one of the least politically correct professions in the world. Students who feel compelled to report to the administration when they are offended by a professor’s remarks on a specific case (where race was a major issue) are going to be in for a rude shock when they try to practice law in the real world. It’s a big old mess of gender and racial stereotypes, and as much as you may want to do everything you can to make the world a more harmonious place for people of all colors, creeds, and gender configurations, a lawyer’s first responsibility is to their client. I’d like to think that the law is getting more fair to everybody, but it is happening slowly, and under no circumstances is it intended to not offend those who might seek fairness. I see a steep learning curve ahead for today’s teacup law students.

Thanks to Haley Odom for bringing this to my attention. Two men in Ohio who heroically rescued a woman from a burning car wreck are now suing her for their physical and emotional injuries.

For real.

According to the Marion County Clerk of Courts website, the suit was filed back on March 10, 2011, but I suspect the defendant was not served until recently. I was initially rendered speechless reading about this. I was sure that there was something the news wasn’t covering, some detail of the victim/defendant’s conduct that might give the rescuers/plaintiffs cause to complain. So far, I haven’t found anything. Good Samaritan laws generally protect rescuers from liability to the people they rescue, but I had not thought much about the liability of the rescued to the rescuer.

Clearly this was a pretty serious crash and rescue (Photo from The Columbus Dispatch)

Here’s the thing: hopefully the defendant has insurance and hopefully some sort of coverage is available for this sort of case. At least one of the plaintiffs appears to have some serious health problems resulting from smoke inhalation during the rescue. I haven’t found any definitive reporting on the cause of the crash, but some reports suggest it might have been a suicide attempt (in that the driver/defendant reported to “authorities she had argued with someone the day of the crash and wanted to end her life.”) Whether it was an accident or not, reports are clear that she wanted help getting out of the vehicle. It is also true that, legally, civilians are not obligated to risk their own lives to save someone in that sort of situation.

A professor at Capital University Law School says this is no “man bites dog” story, that rescuers sue those they helped more often than people think.

“The precedent is clear: danger invites rescue … and if you’ve acted recklessly or negligently and someone gets hurt rescuing you, you could be in trouble,” said Stan Darling, who teaches tort law and civil procedure at Capital.

Every state, including Ohio, has a “Good Samaritan” law that is intended to absolve rescuers from liability when they, in good faith, attempt to save someone. But when it comes to the protection of the people being aided, judges and lawyers look to a federally recognized tort law known as “the Rescue Doctrine,” Darling said.

It essentially says that, if the people being helped were negligent or reckless when they created real danger, there could be a chance to recover damages if the rescuers acted reasonably and can prove their injuries. (Source)

So, can rescuers hold a rescuee liable for injuries sustained in a rescue that was purely voluntary? Did the driver act negligently or recklessly? I can see arguments in either direction, but the one things that is absolutely clear is that this will be a disaster for the plaintiffs in the court of public opinion. I’m such a lawyer that I can’t bring myself to state a definitive opinion on the assumption that there are facts I don’t know that would affect legal analysis of the case.

This could be a good precedent for would-be-rescuers, if (a) people could feel assured that they will be covered if they are injured in the course of rescuing of someone, and (b) people understand the added risk of liability to a rescuer if they behave recklessly. Of course, no one makes these sorts of calculations at a moment of emergency, but it makes for a good legal hypothetical.