Posts Tagged ‘Legal fees’

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.”

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.

“R v. I” is just my shorthand for Rakofsky v. the Internet, in case you were wondering. As I’ve said before, others have addressed this case with much greater wisdom than I, but a few notable events have appeared on my radar.

1. “Rakofsky Effect” has made it into Urban Dictionary:

Infinite pleading amendments as the unintended consequence of suing to censor your critics.

This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.

This lemur has nothing to do with the case I am discussing. He's just cute.

There’s also a Twitter account I hadn’t noticed before.

2. This may be completely unrelated, it may be completed related, or it may be some strange meta-narrative on the whole strange saga of young Rakofsky. On June 30, an ad appeared on New York Craigslist looking for a lawyer to handle a large defamation case, offering $200/week plus $150 per court appearance (this has since been changed to “Compensation to be negotiated”). First, Joe DePaola tweeted about it, and Ryan at Absurd Results blogged about it. Then my fellow defendant George M. Wallace made note of it in his weekly update on the case.

The ad is a bit long to quote at length, so I have a couple of screenshots for your enjoyment.

The ad does not identify the person(s) seeking an attorney. It could be you-know-who, or it could be another New York litigant suing a large group of defendants for defamation. One thing is clear, though: this seems a singularly poor method of finding an attorney. Fellow defendant Scott Greenfield said it best:

As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser.

Who is this mysterious seeker of legal services? We may never know for sure, but his/her case seems to parallel one that is familiar to me. I will say this: we have a lot of lawyers in America right now. Some are quite good, some are not quite so good, and all of them probably need more than $200 per week to really focus attention on a case.

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.

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.

UPDATED: Here.