January 28th, 2007

More on the need for civility in court…

Howard Bashman (How Appealing) comments today in a nice article at Law.com (Decorum on Appeal: When Judges Are Under Attack) on the recent Utah Supreme Court decision to sanction a law professor $17,000 for the disrespect he showed to the appellate court below. I wrote about this on Friday, with a link back to the ABA article on the subject.

Bashman’s treatment of the subject is good reading for anyone that intends to litigate anything.

What was also interesting about the decision is that the court didn’t decide the merits of the appeal. I suppose, theoretically, there is a legal malpractice case there as a result of the client losing his case like that. But in order to prevail, the plaintiff must ultimately end out back in the Utah Supreme Court and get a reversal of the lower appellate court ruling.

That sounds like a long, miserable experience, and judicial economy doesn’t seem to be served here without a decision on the merits when it first appeared before the court.

January 26th, 2007

Attorney Sanctioned For Disrespect

Sometimes emotions get in the way of legal argument. Which apparently happened here. From the ABA Journal comes this cautionary tale of a law professor that became “terribly angry” when he lost in the Court of Appeals because of factual errors and appealed to the Utah Supreme Court.

Sanctioned for ‘Disrespect’
Utah high court tosses case because of inappropriate appeals brief

Anger may cost a Utah law professor some $17,000 in attorney fees, and he believes the punishment is just.

Yet Boyd Kimball Dyer of Salt Lake City also thinks the Utah Court of Appeals was wrong and his case should be reheard.

A unanimous Utah Supreme Court says it won’t consider Dyer’s arguments because his briefs included “a substantial amount of material that is offensive, inappropriate and disrespectful” of the appeals court. In a Jan. 12 decision, the supreme court struck Dyer’s briefs, affirmed the appellate ruling against his client and assessed attorney fees. Peters v. Pine Meadow Ranch Home Association, No. 20050806.

…

In briefs filed with the Utah Supreme Court, the University of Utah S.J. Quinney College of Law professor wrote that “good judges never fabricate evidence,” and that the appellate court opinion was “no innocent mistake.”

“So, if a court fabricates evidence, whether intentionally, negligently or through innocent mistake, it destroys the moral premise of the legal system,” Dyer wrote. “A judge who fabricates evidence, even from a sincere motive to do justice in a particular case, has no moral standing whatsoever.”

The Utah Supreme Court cited those statements when it denied Dyer’s petition in the consolidated appeal — on the basis of his behavior rather than on the merits.

There’s more at the link, including the Utah Supreme Court’s comments.

January 22nd, 2007

Paralegal Poses As Attorney at New York White-Shoe Firm

From today’s New York Times (reg. req.):

STAMFORD, Conn., Jan. 21 — During the past two years, when Brian T. Valery was representing a Stamford drug company in connection with product liability lawsuits involving the painkiller OxyContin, William E. McGrath Jr., a lawyer for one of the plaintiffs, found Mr. Valery “unduly aggressive” but never questioned his abilities.

In another case, Steven Maass, who hired Mr. Valery’s former law firm, Anderson Kill & Olick, after Mr. Maass‘s electronic trading business was destroyed in the Sept. 11 terrorist attack, thought Mr. Valery unimpressive but chalked it up to inexperience.
…
But it turned out that Mr. Valery, who billed roughly $300 an hour as he deposed insurance executives and coordinated the testimony of two expert witnesses from Harvard Law School, had never actually been admitted to the bar. Or, for that matter, attended law school, something that eluded his colleagues at Anderson Kill, one of Manhattan’s white-shoe law firms, not to mention the editors of journals for which he co-wrote articles on environmental law and property insurance.

…
Mr. Valery has not explained himself publicly and has been referring questions to a criminal lawyer, Joseph R. Conway, who declined to comment about the case but was quick to reassure a reporter about his own credentials. “You can check me,” he said. “I’m a real lawyer.”

The first interesting thing to note is that legal credentials in New York can be checked on the web in a matter of seconds at this link to the Office of Court Administration.

And the second interesting thing is that, in New York, impersonating an attorney is only a misdemeanor. Now that’s a criminal statute that could use some updating.

January 11th, 2007

State Farm to Pay Punitive Damages. Again.

State Farm has done it again. Some years back they made quite a bit of law in a case called State Farm v. Campbell that went up to the U.S. Supreme Court on the issue of punitive damages that they had to pay for their conduct.

Now they got smacked again by a jury, this time for $2.5M in a case they offered to settle for $20K. This time, it was people victimized once by Katrina, before State Farm got to them for a second go-round:

Jan. 11 (Bloomberg) — State Farm Mutual Automobile Insurance Co. must pay a Mississippi couple $2.7 million for the loss of their property, a judge and jury ruled in a test case over how much Hurricane Katrina damage is covered by insurance.

The judge, deciding actual damages without the jury, awarded $223,000 for the home and belongings of Norman and Genevieve Broussard of Biloxi, Mississippi. The jury awarded punitive damages of $2.5 million for State Farm’s improper conduct in processing the claim…

The Broussards argued their house had been destroyed by wind or a tornado, a type of damage covered by insurance. State Farm, which is owned by policy holders, argued at trial that the loss stemmed from flooding, which the company’s policy didn’t cover.
…

[U.S. District Judge L.T. ] Senter called the company’s handling of the claim “impermissible,” saying it offered the couple no choice except to sue over their claim.

“I find the defendant did not have any legal or arguable reason for refusing to pay,” Senter said today in federal court.
…

Senter ruled today that Bloomington, Illinois-based State Farm, the largest U.S. auto and home insurer, failed to present enough evidence for the jury to be able to find that the policy terms didn’t cover the damage.
…

The Broussards‘ attorney Bill Walker told the jury that his clients had been needlessly wronged by State Farm.

“Did they act like a good neighbor?” he asked, referring to the company’s famous slogan. “No, they acted like a cheat. They acted like a chiseler.”

December 26th, 2006

Stable May Be Liable for Negligent Assignment of Horse

In an unusual personal injury case out of New Jersey, an appeals court rules on whether a stable can be held liable for negligence in assigning a “green” horse to a rider. The 5 1/2 year old horse had been broken to saddle just a few months earlier:

A horse farm owner who fails to carefully match a rider with a mount can be held liable if the rider is thrown, despite a New Jersey statute that generally affords immunity to equine facilities, an appeals court ruled last week.

In a case of first impression, the judges said giving a guest rider a green horse with a propensity to lurch could constitute conduct for which the Equine Activities Act…gives no protection.

The appeals court partially reversed summary judgment and remanded the case…for trial on the issue of negligent assignment.

The suit was lodged by Barbara Stoffels, who in April 2003 e-mailed a reply to an advertisement by Barbara Cammeyer, owner of Freehold, N.J.’s Harmony Hill Farm, inviting the public to ride for free to give her horses exercise. Stoffels, then 62, retired and arthritic, said she had 30 years of riding experience.

…After a half hour of riding without incident, Stoffels was attempting to turn left around a stump at the bottom of a ravine when the horse suddenly bucked three times, causing her to fall off and suffer injuries that required surgery.

Stoffels‘ suit charged that Cammeyer was negligent by providing her an untrained horse, not advising the horse was green and failing to inquire adequately about her riding experience in order to choose a suitable mount.

…

Appellate Judges Mary Catherine Cuff, Jose Fuentes and Carmen Messano agreed with the motion judge that Cammeyer was justified in believing that Stoffels was not a novice rider and affirmed dismissal of the claim Cammeyer failed to take experience into account.

However, the panel found issues on which a jury could find liability. For one, Cammeyer was not completely forthcoming about the training history of Glory, even after Stoffels expressed concerns about the horse’s size. For another, Stoffels‘ expert witness proffered testimony that Glory was a young horse and had demonstrated a propensity to lurch before Cammeyer bought it and that Cammeyer had a limited opportunity to assess the horse before assigning it to Stoffels.

…

One exception [in the Act] is for failure to “make reasonable and prudent efforts to determine the participant’s ability to safely manage the particular equine animal, based on the participant’s representation of his ability.” Another is for “[a]n act or omission … that constitutes negligent disregard for the participant’s safety, which act or omission causes the injury.”

Cuff wrote that the failure to take reasonable measures to match the rider to a suitable mount could lead a jury to find conduct fitting those exceptions. “Here, we are not satisfied that defendant’s conduct in assigning Glory to plaintiff is so one-sided that a reasonable jury would not find her negligent,” Cuff concluded.