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Posts Tagged ‘lawsuit’

Something’s rotten in the state of legal academia (or how law school is like a penis-enlargement supplement)

Via Andy Mergendahl at Lawyerist, we have this gem of a quote from a law school admissions officer:

I used to be amazed by how little research students did before deciding to go to law school. Thousands of hours and thousands of dollars are invested based on a school’s marketing materials, US News ranking, and a hunch. But there is a wealth of useful, and underused, data available online from sources other than law schools.

'Danger School Traffic Signal' by Jorc Navarro on stock.xchngTo provide a bit of context, solo attorney David Anziska has filed (so far) fourteen lawsuits against law schools related to inflated and otherwise-exaggerated employment statistics provided to prospective students. I’m not holding my breath that these lawsuits will get the plaintiffs any significant relief, but I think they may help put law school on notice that we are on to them. Since I have already commented on various shenanigans of Thomas M. Cooley Law School, let’s take a look at the complaint filed against them (PDF file).

Filed as a class action in the U.S. District Court for the Western District of Michigan, MacDonald, et al v. Thomas M. Cooley Law School “seeks to remedy a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.” Cooley allegedly pumps out up to one thousand new J.D. recipients every year, with four thousand total students at any one time on four campuses. The school’s marketing materials allegedly claim that seventy-six to eighty-two percent of its graduates find employment within nine months of graduation. The rub, according to the complaint, is that the school strongly implies that this number refers to full-time legal employment, when it actually refers to employment of any kind. At the same time, the school reported average starting salaries based on a small subset of employed graduates. Therefore, according to the plaintiffs, graduates whose sole employment one year after graduation is as a part-time dog sitter get counted as “employed,” but their salary might not be included in the statistics. All told, this is not information that would allow a prospective law student to make an informed decision.

The complaint goes on to discuss the non-intervention of the American Bar Association and various other miscreants in legal education. The plaintiffs, by and large, are Cooley graduates who couldn’t find a job and had massive student loan bills. They say they relied to their detriment on the promises made by Cooley’s admissions materials. They assert three causes of action: violation of the Michigan Consumer Protection Act, fraud, and negligent misrepresentation.

Let’s go back to the statement of the law school admissions official above. Mr. Mergendahl has a good analysis of it, but I think this sentence really cuts to the heart of these cases. Time and again, law school officials seem to invoke caveat emptor (buyer beware) in response to allegations of misrepresentation or outright fraud in employment and salary statistics. In other words, law schools are chastising law students for not figuring out that the law schools were lying to them.

To my knowledge, no court has ruled on any of these cases yet, so let’s say allegedly lying.

It’s actually a fair point, to a degree. There is a wealth of data available to prospective law students now (far more than was available even to me when I applied to law schools in the ancient days of 1999.) Any prospective law school who isn’t blinded by either a desperate search for a new path in life or giddy anticipation of the riches a law degree will bring can find this information. Anyone applying to law school from this point forward should be on notice: DO NOT TRUST EMPLOYMENT STATISTICS FROM LAW SCHOOLS!!!

That covers all present and future law school applicants. What of the people who were taken in by the promises of the moon and the stars in years past, only to find themselves left to fend for themselves when the bottom fell out of the law business? Perhaps they should have known better than to trust the marketing materials of a law school. Should that let a law school off the hook for essentially committing fraud?

By way of comparison, first consider tobacco. Anyone picking up a cigarette for the first time in 2012 anywhere in the United States has a wealth of information available to them regarding the health risks inherent in taking on that habit. Should they try to sue a tobacco company years down the road after they develop lung cancer, there is a good chance that a judge would laugh them straight out of the courthouse and into the street to get hit by a bus. This is because they would be making a decision to take up smoking in the face of extensive evidence of how doing so will kill you.

For people who took up smoking years ago, when information on tobacco’s tendency to turn you into a wheezing phlegm factory was less widely available, the answer is less clear. At any rate, judges and juries have concluded that tobacco companies are liable to people killed by their products, based at least in part on their tendency to understate the product’s deadliness. Misrepresenting or withholding key information has its consequences.

In the tobacco cases, misrepresentation or withholding of information had fatal consequences. Law school, generally speaking, does not kill people. It just saps their finances and leaves them riddled with debt. The debt is voluntary, but arguably obtained under false pretenses. For a less dire, much sillier analogy, consider Enzyte.

Anyone who watched television after 10:00 p.m. between roughly 2002 and 2010 remembers the obnoxious commercials with Bob, the middle-aged guy with the enormous penis. Or enormous grin, since the commercials couldn’t actually say that Enzyte would make your junk get bigger. They couldn’t say that partly because of FCC standards, and partly because they knew that would be pushing the bullshit too far. Of course Enzyte didn’t work. It’s easy to look back and think that only an idiot would think that it would work. That didn’t stop the Federal Trade Commission from prosecuting the company for mail fraud, sending several executives to jail and the company into bankruptcy. Even with completely asinine claims about their product, they still got into major trouble with the law. At least they didn’t kill anybody.

How is law school like a cigarette or a fake dick-embiggening pill? False or misleading claims induce a person who probably should have known better to invest resources into a product or service. That person suffers injury (e.g. death from lung cancer, personal embarrassment, or mountains of student loan debt). Legal liability ensues. The remaining population is wiser.

That said, people still smoke cigarettes, Enzyte is still on the market, and people are still applying to law school in droves while that admissions officer implicitly calls them fools. One thing I learned doing family law, which applies here, is that you often cannot save people from themselves.

Photo credit: ‘Danger School Traffic Signal’ by Jorc Navarro on stock.xchng.

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Lactation is not a medical condition related to pregnancy, says Houston federal judge

Manual Breast Pump 2005 SeanMcCleanTexas once again distinguishes itself in the legal field. I sure do wish Texas would stop doing that.

U.S. District Judge Lynn N. Hughes of the Southern District of Texas recently granted summary judgment to a defendant in an employment discrimination suit brought by the Equal Employment Opportunity Commission on behalf of  Donnicia Venters. In a nutshell, Venters had worked at Houston Funding for about two years when she took maternity leave on December 1, 2008. While on leave, she says that she communicated regularly with her direct supervisor, asking if she would be allowed to use a back room of the office to use a breast pump while on breaks. She specifically wanted to use a back room that afforded privacy. She claims that the vice president in charge of such a decision reacted rather negatively, and that she learned she had been laid off when she attempted to go back to work in February 2009.

The EEOC filed suit against Houston Funding on her behalf, claiming that the company fired her in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment based on a number of grounds including gender. Discriminating against an employee due to pregnancy or a related condition is considered a form of gender discrimination prohibited by Title VII.

Houston Funding countered that it fired Venters because she “abandoned” her job. The company claimed that she did not stay in contact with the relevant supervisors, and that after several months, a meeting was held and the decision was made to fire her. She learned of this on or about February 17 when she tried to return to work.

Judge Hughes, in granting summary judgment to Houston Funding, seemed to agree with their account of events. Nevertheless, the judge ruled that Houston Funding’s actions would not constitute discrimination whether they actually occurred or not. The statute only covers discrimination based on “pregnancy, childbirth, or a related medical condition,” he wrote in his opinion. A “related medical condition” could include “cramping, dizziness, and nausea while pregnant” (emphasis added). Since Venters “gave birth on December 11, 2009 [sic]…she was no longer pregnant and her pregnancy-related conditions ended.”

This is a rather strict reading of the statute. He seems to think that “or related medical conditions” only applies to “pregnancy” and not “childbirth,” which seems overly restrictive. My federal civil procedure is rusty, but it seems like there is a genuine issue of fact as to why the company fired her. He skips right over that and makes a blanket ruling that lactation is not a “medical condition” “related to” pregnancy or childbirth. I have a distinct feeling that many, many people who have directly experienced both pregnancy and childbirth will take issue with this characterization.

Of course, in a world where a significant number of lawmakers seem to think a medically-unnecessary invasive procedure that has put the word “transvaginal” into the national lexicon is hunky-dory, maybe I should not be surprised that a judge thinks he can redefine the medical processes of pregnancy.

Photo credit: SeanMack at the English language Wikipedia [GFDL], from Wikimedia Commons

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Here’s a birther who doesn’t even pretend not to be racist

Meet Gordon Warren Epperly of Juneau, Alaska. He has found a novel way to challenge Obama’s place on the 2012 presidential ballot. Considering the absolute and utter smackdown that birther lawsuits took in Georgia recently, it would seem a new set of tactics is necessary (giving up and admitting it’s not only a lost cause, but also completely psychotic, is clearly out of the question) (for an excellent summary of the bloodening that the birthers endured in Georgia, check out BadFiction’s blog). How is Mr. Epperly presenting his case? Well, obviously, Barack Obama is ineligible for the office of President of the United States of America because he is black, or to use Epperson’s words, “Mulatto.” Don’t believe me? Good, that means you’re not insane.

Let’s hear Epperson tell it, shall we? (A full PDF of the complaint to the Alaska Division of Elections is here.)

[F]or an Individual to be a candidate for the office of president of the United States, the candidate must meet the qualifications set forth in the United States Constitution and one of those qualifications is that the Candidate shall be a “natural born citizen” of the United States. As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the United States Constitution.

DredScottThere’s more, but it is worth pointing out that at this point he cites the Dred Scott decision, the 1857 Supreme Court case that held that slaves, and descendants of slaves, were ineligible for citizenship. He claims that the case “has never been distinguished (overturned).” Moving on:

As the Fourteenth Amendment is only a grant of  “Civil Rights” and not a grant of  “Political Rights,” Barack Hussein Obama II does not have any “Political Rights” under any provision of the United States Constitution to hold any Public Office of the United States government. Furthermore, there is considerable debate within the enclosed supporting documents that shows Barack Hussein Obama II was not born on the soil of the United States and that he was not subject to the jurisdiction of the United States at the time of his birth. If this is true, it would appear that Barack Hussein Obama II may not only be in want of having the status of being a “natural born Citizen,” but he may not even be a “citizen of the United States.” Being absent of proper status of Citizenship, Barack Hussein Obama II, nor his Delegates, have the qualifications to appear on the Election Ballots for the State of Alaska. (Emphasis in original)

A few observations at this point. First, he hedges quite a bit in his language, more than one might expect in a petition to a government agency. “There is considerable debate…” and “If this is true…” Not exactly the sort of forceful language one might expect in an original pleading. It is also common to use a shorthand when a name is repeated, e.g. “Barack Hussein Obama II (hereinafter “Obama”)” or something like that. I suspect he just couldn’t resist the opportunity to remind us at every turn that the president’s middle name is Hussein. At least he managed to stay away from the caps lock key.

Others have done an excellent job of putting Mr. Epperly’s arguments out of their misery, so I don’t need to waste too much ammo. If I am correctly reading his complaint (and my ability to read legal documents written in batshit can be a bit rusty), he is arguing that the Fourteenth Amendment did not actually overturn Dred Scott, and that therefore Barack Obama, and presumably anyone else of black, African-American, African, Caribbean, etc. ancestry is not a United States citizen, even if they were born here.

My legal analysis in brief: that’s crap.

Aside from that, he is rehashing many familiar tropes of the birther movement. President Obama is not “natural born” because his father was not a U.S. citizen, or because he was secretly born in Kenya, blah blah blah. This argument would have the intriguing effect of stripping U.S. citizenship from thousands of people born to citizens of other countries, despite the fact that “natural born” has been construed to mean “born on U.S. soil” for decades and longer.

In fact, any excessive amount of scrutiny of what it means to be “natural born” as it pertains to the presidency really didn’t come up at all until a black guy with a funny-sounding name got elected president. Don’t insult yourself, America, or humanity by trying to claim that racism is not a factor in all of this. Gordon Warren Epperly at least has the courtesy, and the courage, to be honest about it.

Photo credit: By Louis Schultze [Public domain], via Wikimedia Commons

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Not Every Lawyer Can Bill 3,000 Hours in a Year. Most Lawyers Shouldn’t

A lawyer who got axed from his firm for allegedly failing to make his billable hour requirements has filed suit against his former firm, claiming they essentially required him to commit billing fraud:

A California lawyer who says he was fired from his law firm because he couldn’t meet a quota requiring 3,000 billable hours a year has filed an employment bias suit over his ouster.

The former associate, Richard Unitan, claims the unrealistic requirement forced lawyers to lie about their hours, the Los Angeles Daily Journal reports. Unitan, a Riverside litigator, claims he was essentially fired for not committing billing fraud.

A 3,000 hour billable requirement would require working about eight hours a day, every day of the year. Most firms require no more than 2,100 billable hours a year.

They say that for every hour a lawyer works, they can only bill 30-45 minutes of that time. To bill 3,000 hours would therefore require spending 4,000-6,000 in the office every year, or 11-16 hours per day. (I’m not sure who “they” are, but they talk a lot.)

Some lawyers can probably take to that lifestyle with gusto. Other lawyers might enjoy exercise, the arts, food, or having a family. Some lawyers might aspire to be an interesting human being outside of the context of their periodic review with the managing partner of their firm. Some lawyers might aspire to spending some of the waking hours of their day not tracking their time in 6- or 15-minute increments.

But then, most lawyers don’t get to work at the big fancy law firms anyway.

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Not All Opinions are Created Equal: Martha Sperry, Frivolous Lawsuits, and the Impossibility of Arguing with Some People

“Why are people hating me for having my own opinion?”

Spend any significant amount of time engaging in discussions (arguments) on the internet and you will hear this. This is different from a situation with two people reaching an impasse between two opposing viewpoints. This refers to a person who basically refuses to defend their position, preferring to demand respect for an opinion because dammit, it’s their opinion.

I have yet to encounter a situation where it is not a craven attempt by someone who cannot defend their position to cast the attention back on the person who is kicking their butt. “No, I can’t defend what I am saying but you’re being mean!!!1!!!” is mostly how it goes.

I signed up for a Disqus account last week, and my third comment left on a blog thread garnered this response. I think this must be a record, but I do not expect any sort of prize.

It bothers me as an attorney (albeit an infrequently-practicing one), a blogger, a writer, and one who just enjoys a good argument now and then. It bothers me because it’s dishonest. No one hates you for having your own opinion, so don’t be so damn dramatic.

It bothers me because it is lazy. The argument is not going your way, so you are going to punt back to the other side.

Most of all, it bothers me for reasons that go beyond dishonesty. Trying to end an argument by appealing to some equitable notion that “everyone is entitled to their opinion” does not even deserve to be called “wrong,” because (and I cannot say this adamantly enough) not all opinions are created equal, and opinions are not worthy of respect or consideration if the opinion holder cannot or will not make an effort to defend them rationally and objectively.

This is why there can be no “honest” differences of opinion over the scientific theory of evolution versus ideas like creationism or its bastard stepchild, intelligent design, because their proponents are either ignorant of, or choose to ignore, highly relevant facts.

Let me be clear: people are free, thanks to the First Amendment, to state nearly any opinion they want, however crazy or groundless it may be. They are not free from challenge or criticism. In fact, challenge and criticism are essential to anyone learning anything, ever. Should those critics be polite? Sure, but honesty and integrity are much more important.

In a certain lawsuit brought against me and a number of media companies, lawyers, and bloggers by a certain young lawyer who Shall Not Be Named, news of a new settlement has surfaced. Back in December, an apology of sorts appeared on the blog of one Martha Sperry, along with some none-too-subtle swipes at people who would dare to use their blogs to call things as they see them and fight against frivolous lawsuits (an earlier almost-retraction appeared in October 2011). Other legal bloggers have addressed this quite admirably–I would direct you to Crime and Federalism‘s take-down of her apology for some excellent commentary.

Sperry’s blog post, aside from demonstrating a remarkable unwillingness to stand up for herself, also includes commentary from a few of my co-defendants taking her to task. Her responses invariably return to “I have my opinion and you have yours, so can’t we all just have ice cream?” I’m paraphrasing. Here’s a bit of what she actually said:

At this point, the matter seems more about tearing things down rather than building things up. And I fail to see the point of that.

You are certainly entitled to your opinion and I honor that.

I don’t know Martha Sperry, and I am sure she has her reasons for curling up in a ball and whimpering in response to a frivolous, meritless, groundless, jurisdictionless lawsuit, whatever those reasons may be. Her most recent comments to her blog post suggest that she remains a defendant in the lawsuit by He Who Shall Not Be Named (which makes her post all the more puzzling). At the end of the day, I don’t care if she settles with the plaintiff, or if she sells off all the assets of her business, moves to the South Pole, and tries to live as a penguin. I only care to the extent that it makes fighting for my own First Amendment rights (and by extension, hers) more difficult.

I also only care to the extent that pretending that an acknowledgment that “different people have different points of view” counts as an argument. It is actually laziness of the highest order. I disagree with every fiber of my being that we should always focus on “building things up.” We should, however, always focus on truth. When our opinions do not help us come to a greater understanding of the truth, then they are worthless.

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Lawsuit of the Millenium, Starring Mountain Dew

It’s hard to keep up with soft drinks these days. When they’re not reinforcing incoherent and possibly archaic gender roles, they’re busy dissolving mice. Or not dissolving mice, depending on whose story you believe. But I get ahead of myself.

Now then, I love Mountain Dew as much as the next guy. Assuming, of course, that “the next guy” permanently associates Mountain Dew with collegiate all-nighters and acute gastric distress (sometimes simultaneous). When there’s no crab juice available, it will do, I suppose.

For Ronald Ball of Wood River, Illinois, however, a swig of Mountain Dew turned deadly. If by “deadly” you just mean “really gross” and not actually deadly. I just liked the way that sounded. Anyway, Ball claims that he found a dead mouse in his Mountain Dew, after much vomiting. Unlike his forebears, Doug and Bob McKenzie, Ball did not use the incident as a means of obtaining a free case of Mountain Dew.

Okay, I’m all out of pop culture references related to Mountain Dew. Moving on to the legal stuff…

Ball filed a lawsuit in Madison County District Court against Pepsico, the store where he bought the drink, and the store’s manager. Read all about Ball’s lawsuit at the Madison County Record. Not only does he allege breach of warranty and various other consumer claims, but he also accuses Pepsico of spoliation of evidence. He apparently sent the mouse carcass, along with the remaining beverage, to Pepsico in a mason jar. He claims he never got it back. Lawyers everywhere are overwhelmed by their lack of surprise at this claim.

The case has been bouncing around since mid-2009, but it seems to be moving finally towards trial. The defense argument put forth by Pepsico is what gives this case the Lawsuit of the Millenium title (what I hope will be the first of many awarded by this blog!)

The company argues it has scientific evidence that the mouse was not in the can when the case was sealed in August 2008 and that a veterinary pathologist examined the mouse, finding that it could not have been in the can that long because its body would have disintegrated due to the acid in the soda.

Pepsi argues that for the mouse to have been in the Mountain Dew that long, the body would have transformed into a “‘jelly-like’ substance.”

So if Pepsi loses this case, Mountain Dew may lose its reputation as nerd fuel and instead become known as mouse juice, or some other less-stupid nickname.

If Pepsi wins the case, it is marketing a product that can turn organic material to jelly.

Yes, I realize that we’re talking about far longer periods of time than Mountain Dew would actually remain in the human digestive system in the form in which it goes to market, so there is little to no analogy between dissolving a mouse and causing me to have stomach aches. It’s still hardly good PR to be able to say that Mountain Dew is the official drink of land luging and mouse dissolving.

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Celebrating a Year of Censorship and Attempted Censorship!

This monkey wonders why people are such asshats to one another...The always-intriguing and entertaining Popehat has put out his nominees for the “Censorious Asshat of the Year,” and the field is indeed proud. I am of course reblogging this for reas0ns, but I invite my reader(s) to take a look at the whole list and marvel at the human capacity for inanity.

To those who would use our hallowed legal system to try to quiet the voices of  those who would dare to hurt their fee-fees, intentionally or not, I simply have this to say:

Photo credit: The Thinker… by law_keven on Flickr.

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The American judiciary is not an event-planning service

Caveat emptor. Just look it up.

Seriously, though, few things in life are probably as important as good wedding photos. Possibly food, and maybe oxygen, but wedding photos are a very close third.

So it should come as no surprise that, in the face of sub-par wedding photos, a groom would seek legal redress.

[O]ne groom, disappointed with his wedding photos, decided to sue. The photographers had missed the last dance and the bouquet toss, the groom, Todd J. Remis of Manhattan, said.

Actually, yes, it does come as a bit of a surprise, and here’s why:

[W]hat is striking, said the studio that took the pictures, is that Mr. Remis’s wedding took place in 2003 and he waited six years to sue. And not only has Mr. Remis demanded to be repaid the $4,100 cost of the photography, he also wants $48,000 to recreate the entire wedding and fly the principals to New York so the celebration can be re-shot by another photographer.

If that were all, this might be an amusing footnote to the history of human weirdness. But of course that’s not all.

Re-enacting the wedding may pose a particular challenge, the studio pointed out, because the couple divorced and the bride is believed to have moved back to her native Latvia.

In case you are wondering, Latvia is outside of the subpoena power of any New York state judge. I think it’s in Europe somewhere. A judge has already dismissed most of the claims, but will allow the breach of contract claim to continue. The photographer therefore likely has little risk of actually having to re-stage the wedding. Who could say what the damages would be for a breach of contract here, though? How does one put a price tag on an 8 year-old wedding that led to a divorce three years ago, with the wife moving to the other side of the planet?

History will decide. In the meantime, if you are looking to recapture memories of yore, bring your own camera and leave the courts out of it. Sheesh.

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“Bad mothering” can lead to even worse lawsuits

The world is full of bad parents. Some parents give their daughters a new car that’s the wrong color. Others lock them in the basement and father multiple children by them over decades. There is obviously a vast, yawning gulf between those two examples, but I think it is fair to say that the legal system only needs to intervene in cases closer to that utter waste of genetic code from Austria.

Others may disagree with me.

Others like Steven A. Miner II and Kathryn R. Miner, feeling dissatisfied with a childhood free of basement imprisonment but also devoid of clever birthday cards, may decide to sue their mother, Kimberly A. Garrity, for the emotional distress caused by  such omissions (h/t Geri Dreiling).

What horrible acts gave rise to their claim? The Chicago Bar Tender blog reported at the time the suit was filed:

- Garrity will invite one child to an event without inviting the other.

- Garrity would purchase things for Kathryn without purchasing anything for Steven.

- Garrity offered to provide college financial assistence to Steven and not Kathryn.

- Garrity did not provide Christmas or birthday gifts to Steven from 1996 through 2005 or Kathryn in 2007.

- When Steven took back a popsicle jewelry box he made Garrity, she called the police because she asserted there was a diamond necklace in it.

- Garrity told Steven that if he didn’t wear his seatbelt, she would drive to a local police station and tell the cops.

- Garrity smacked Steven on the head for no reason in 1994.

- Garrity did not provide “so much as a care package to Steven while he was away at college, while other parents send their children items and packages on a continuous basis.”

- Garrity “refused to assist Kathryn with the purchase of a dress but, provided Kathryn with the use of an automobile for homecoming; and then proceeded to contact her at midnight while she was with her friends and made her return the automobile.”

Photo by Scott Liddell

I picture the Miners' childhood being exactly not like this (photo by Scott Liddell)

I read the complaint, and while it sounds like there was certainly a strained relationship between the children and their mother, nothing sounds too different from the thousands (if not millions) of other children of divorced parents around America. Some of the allegations relate to payment of child support and reimbursement of medical expenses, claims usually made by the other parent or the state (but maybe Illinois is different). Lest you wonder where their father has been through all of this, don’t worry. He’s one of the kids’ lawyers.

Maybe their childhood really was pretty awful. I know for a fact that it is hard to view one’s own childhood through a perfectly objective lens. We tend to remember our childhood with a child’s mind, not a rational adult mind, no matter how old we are. Still, once you are an adult, you are supposed to be able to deal with life on life’s terms, or to seek help from those qualified to offer it. A crappy childhood is not an excuse for misbehavior as an adult (except in some pretty extreme circumstances). The plaintiffs in this case are adults–barely adults, but adults nonetheless. They don’t need a lawyer to confront their maternal abandonment issues. They clearly need better therapists. However bad their childhood may have been, this is not the way to deal with it.

This is really, I suspect, just a case of a post-divorce parenting plan that did not work out very well. Happens all the time. It doesn’t sound like Garrity would have ever won any mothering awards, but that’s not exactly actionable. They allege some abuse by the mother but never really delve into it. Is this some contorted way of confronting real childhood demons, or a couple of teacup children acting out? I guess we’ll never know.

And what the H-E-double-hockey-sticks was their dad doing helping with this???

The case was dismissed, and the plaintiffs appealed. No, really.

An appellate court dismissed the appeal this week, renewing some semblance of my faith in our judicial system.

“Such alleged actions are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress,” said Judge Kathy Flanagan in a court statement, adding that ruling in favor of the children ”could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”

Garrity’s lawyer had some choice words as well:

In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”

“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”

On very rare occasions, “loser pays” doesn’t sound like such a bad idea.

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In praise of Austin’s cleverly snarky jurists

The Honorable Sam Sparks

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.

House of detention, photo by Jascha Hoste

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.

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