January 8th, 2019

Judges to U.S. on Shutdown: ‘Pound Sand’

What, you may wonder, happens to suits against the federal government when the money spigot closes? And if you have a suit against the U.S. — say a Federal Tort Claims Act action — what should you do?

Good questions. Glad you asked.

Many courts have simply issued stays of all civil cases. Civil ones aren’t as urgent as criminal cases, as no one has their liberty in jeopardy.

But you know what? At least two judges in civil actions have now told the Department of Justice to go pound sand. One in West Virginia and one in Puerto Rico.

In the Puerto Rican case, a judge called the government request for a stay “laughable.” As per the Bloomberg article:

In a ruling denying the government request, U.S. District Judge William G. Young said lapses in federal appropriations, like the current one triggered by President Donald Trump’s demand for funding for a border wall with Mexico, aren’t a government “policy” that could theoretically justify staying such a lawsuit.

“Let us talk plain — they are simply an abdication by the president and the Congress (which could override a presidential veto) of the duty to govern responsibly to the end that all the laws may be faithfully executed,” Young said in the Jan. 2 ruling in San Juan. “Nor does such a lapse in any way excuse this court from exercising its own constitutional functions.”

Young…sarcastically compared the situation to a major corporation that “for whatever reason” decided not to pay its attorneys involved in pending litigation and instructed them not to interact with the court.

“Then the corporation says to the court, ‘We greatly regret any disruptions caused to the court and to other litigants, but please stay all proceedings until we get our act together.’ This does not constitute ‘good cause’ for any stay,” Young wrote. “In fact, it is laughable.”

Lawyers hate it when the judge calls your arguments “laughable.” There was no justification, in Judge Young’s view, for treating a plaintiff and defendant differently when it comes to moving a case forward. An excuse that doesn’t work for the plaintiff won’t work for a defendant.

In the West Virginia action, one judge issued an order granting a stay for all civil cases affected by the shutdown. But another judge said, nope, no way, not in my courtroom.

U.S. District Judge Joseph Goodwin issued a general order Jan. 2 exempting civil cases assigned to him from the federal shutdown.

So what happens if you have an action against the federal government? We’re not talking about immigration cases or police department consent orders or the census. We’re talking nuts and bolts basic cases of the type that don’t find their way into the news.

My suggestion? If a case is ready for suit, file that suit. Push the case forward. Take advantage of the fact that the defendant might not have a lawyer right now due to its own malfeasance.

Can you imagine starting a suit and the government failing to answer? A default. An automatic win for the plaintiff. Move straight forward to an assessment of damages.

Will a judge allow the default to go forward? It seems like it will depend on the judge. Some have clearly told the government to pound sand while others are cutting it slack.

But the argument by both Judges Goodwin and Young is compelling: The plaintiff in a civil suit against the U.S. would not get the benefit of a stay because the lawyers ran out of money, so the U.S. shouldn’t either.

 

December 20th, 2018

Trump and the Presidential Veto

Photo credit Evan Vucci / AP

[Cross-posted from Above the Law]

On Thursday morning Donald Trump threatened to veto all legislation over his wall. No such Trump veto will happen. Ever. On any bill.

I don’t get into the realm of political punditry often as it’s not what I do — I usually confine political comments to those issues that deal with tort “reform” — but today we make an exception because this goes, in essence, to all bills sent to the president.

We start this short analysis with the observation that Trump hasn’t vetoed a single bill. He’s the first president since James Garfield to act that way, and Garfield was only in office six and a half months before being shot dead.

Before that was Millard Fillmore who left office in 1853, who also served a partial term as he took office upon the death of Zachary Taylor. Taylor didn’t veto anything, but was in office only 16 months. Before that was William Henry Harrison, who died a month into office.

The last president to go a full term without a veto? John Quincy Adams, our sixth president who left office in 1829.

And a few more simple observations: First, Trump loves signing things and makes a big show of displaying his signature, even for executive orders.

Second, he campaigned as a “deal maker.” It matters not one whit if you agree or not, or think he’s good or not. This is the persona he wants the world to believe.

And now, with the House of Representative turning to Democratic control, any bill that passes both the House and Senate that is in any way contentious will be the result of bipartisan compromise. A deal.

So if Congress passes a bill — even one that’s a complete anathema to his other policies — he will sign it and claim “credit.” Even if he had nothing to do with its negotiation.

Envision, for a moment, a bipartisan compromise bill on immigration. Imagine it chock full of things Trump claims to hate and campaigned against.

Will he sign it? No, the contents of the bill don’t matter. Because more important than the contents is that he would be able to claim “credit” for something, even if he campaigned against it. ‘Look at me, the deal maker.’

Will Trump supporters have a feeling of betrayal — one of the most powerful human emotions? Possibly. But that’s a column for another day. Trump’s first instinct has always been to look inward as to what was good for him today.

Why write about this now? Because every so often you will see Republican Senators claim that they won’t pass a bill because the president won’t sign it. Don’t believe it. It’s a diversion.

Trump will sign anything.

 

December 18th, 2018

A Lawyer Falls on His Sword

Photo by Saul Loeb – Pool/Getty Images)

You don’t see me writing about criminal law here for good reason — it’s not what I do. But something happened during the sentencing hearing for General Michael Flynn today that deserves mention.

As many know, he was showing up to be sentenced for lying to the FBI about his contacts with Russians and with regard to statements he made about his involvement as an agent for Turkey. Given that he was Trump’s National Security Advisor, and he was compromised, this was obviously a big thing.

But during the sentencing, press reports were that Judge Emmet G. Sullivan was, shall, we say, a bit irritated. To say the least. He called Flynn’s conduct “a very serious offense” and said he was not hiding his “disgust” at what Mr. Flynn had done. At one point he asked prosecutors if they had considered charging him with treason.

A small part of that anger may have been due to the fact that, prior to the sentence, Flynn’s lawyers suggested he might  have been set up, or duped, by the FBI.

And this is the reason that I write on this subject — because it has nothing to do with criminal law but about the relationship between attorneys and clients in general:

At the hearing, Judge Sullivan brought the subject up, making sure that Flynn distanced himself from the comments of his lawyers and fully acknowledged that he knew he wasn’t supposed to be lying to the FBI, even if they didn’t tell him he was the subject of an investigation.

Who’s idea was it to vacillate a bit on the reason Flynn got busted? to suggest that, perhaps, he was somehow entrapped? Lawyer or client? Beats me. But at the hearing it didn’t matter to the lawyer.

At the hearing, to spare his client, Flynn attorney Rob Kelner said his client shouldn’t be punished for the conduct of his attorneys. He fell on his sword; he threw himself under the bus; he bit the bullet. No matter the metaphor you choose, the lawyer owned the problem and told the court the bucks stops with him.

Because that’s what a good lawyer is supposed to do.

 

July 2nd, 2018

July 2nd: A Day to Celebrate Juries and Independence

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.Each year I have used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  It was signed two days later, and the date of signing is memorialized on our Declaration of Independence.

Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write  posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence) 

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
————
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

January 12th, 2018

Phony Lawyer Awards

Last week Mockingbird Marketing made an announcement: That Lucy Davis had become a Lawyer of Distinction. Hey! I’ve received those offers too!

The problem? Lucy isn’t a lawyer. Lucy is a dog. The four-legged woof-woof kind.

Mockingbird (which builds websites for lawyers) put up its satirical posting to show the worthlessness of many  lawyer “awards” — they put in an application for their dog and it was accepted.

To practicing attorneys, this comes as no surprise. We are besieged by such companies doling out awards like fun-sized Halloween candy, with of course, a nice fancy plaque to hang in your office. Or maybe a crystal “trophy.” No, they aren’t free.

And that’s pretty much how it’s easy to figure out the difference between a phony award and a real one: Did the lawyer pay for the “honor?”

To my knowledge, these are all private companies that are unaffiliated with any recognized bar association.

I wrote about one such company a few years ago, marketing the Million Dollar Advocates Forum. I wasn’t particularly nice about it.

So, below are some of the groups/companies that have “invited” me in the past couple years aside from Lawyers of Distinction, as I tossed their literature marketing materials into a pile in a corner of my office. And no, I will not give them links — you can demonstrate your own Google-fu by researching if you like:

First up, simply because it’s on top of the pile, is America’s Top 100 High Stakes Litigators. The annual membership is $300. Nice badge they give you, huh?

Next up is the American Institute of Personal Injury Attorneys  — “10 Best Attorney” for New York. It’s $295 for 2018, as per its website. And I love the disclaimer on their About Us page regarding warranties of merchantability and fitness for a particular purpose. Nice plaque.

Then there is Corporate Vision, which “selected” me for its 2017 Legal Excellence Awards as “Best Law Firm 2017.” This comes with a pitch to be in Corporate Vision, whatever that is, along with profiles, interviews, a nice crystal trophy, digital logos, etc. The price wasn’t in the pitch, but this sure as hell didn’t look like a non-profit.

I was also “selected” as of one of AI Magazine‘s “One to Watch in Law.” Woo-hoo. It comes with a “bespoke crystal trophy” and digital winner’s logo. Never mind that my practice has nothing to do with artificial intelligence. All for just £185. You read that right. That is British pounds. No, I’m not admitted to practice law in Great Britain.

Next up, the American Society of Legal Advocates. Sounds impressive! And I was selected as eligible for the Top 100 Litigation lawyers in New York!  (What, no top 10?). It comes with a plaque and an electronic badge. All for just $200 each year.

Rue Rawlings’ Best Attorneys of America — Limited to the Top 100 attorneys in New York. The dues are $1,000.

National Association of Distinguished Counsel — Top One Percent. Annual membership is $300.

Trial Lawyers Board of Regents Litigator Awards — The fee is $1,500 if they “certify” you for inclusion. I confess to being a bit uneasy putting this company on the same list, as its marketing materials are very impressive and they ask for certification of certain verdicts and settlements. Nevertheless, if there is a fee to join, that makes it a club with a name, and not (to me) an actual award. Awards don’t have strings attached.

Some folks may ask about SuperLawyers, which I’ve written about before. I remain unclear how valuable that honor is, and while it isn’t a non-profit for sure (sold to Thomson West in 2010)  they’ve never demanded a fee to be listed.

Finally, there is the never-ending solicitations from plaque companies, looking to assist you in making your award look nice and fancy on your ego wall. (For what it’s worth, my office wall is mostly family pics.)

Bottom line for the consumer: There are a lot of companies out there hustling “awards” designed to make lawyers look good to potential clients with fancy badges, plaques and crystal trophies.

Don’t be razzle-dazzled. You’ve been warned.