Excerpt: In the Trenches by Norm Pattis

Civil Justice?

“Can I sue?”

I am asked the question almost daily. The answer is, of course, simple: You can always sue. The real question is, can you file a lawsuit and win. In the United States, there is little harm in trying. That’s because losers aren’t required to pay the cost of hauling a defendant into court. Neither the government nor private parties bear any risk when they take aim at someone and miss the mark.

That’s wrong.

In Great Britain, losers pay the other side’s litigation expenses. That seems just. It is expensive to wage war in the courts. Why should you be penalized for expensive legal bills if you’ve done nothing wrong?

The American Rule, as it is called, requires both sides to bear their own costs. This is a great boon for insurance companies, who can offer coverage of potential claims, and sell policies to those with the means to afford the premiums. But where’s the justice in that? The American Rule helps transform the civil justice system into a lotto. Why not take a chance at a jackpot if it costs nothing to try?

It obviously increases the odds of success to have a lawyer if you elect to go to court. Most lawyers try to avoid taking cases they believe lack merit. But there are always people angry enough to go to court for a fee. It is not uncommon on the law’s wild side for firms to take cases of questionable merit just because the client offers cash. A courtroom ought not to be a high-priced form of therapy.

If you cannot afford a lawyer, the courts are still open. Our dockets in Connecticut are now chock full of pro se (pronounced “pro say”) cases. Judges are in despair about the onslaught of such cases. The litigants strain the system because they are unfamiliar with court rules and procedures.

No one should be kept out of court because they lack fees. A mother fighting for custody of her children, or a family fighting foreclosure, needs representation. If they are indigent, and a lawyer cannot be found to take their case without a fee, they nonetheless have a case or controversy requiring resolution. Legal Aid societies do God’s work. They are a necessity for those in need.

But I am not so sure the court system should permit folks to play without paying. Court time is scarce. The judicial system is a time-intensive and scarce resource.

Abandoning the American Rule would be a good way to impose discipline not just on pro se litigants, but on lawyers, too. It could even have salutary effects on the criminal system.

If a lawyer files suit and loses, then why not require the lawyer to pay the legal fees of the losing side? The courthouse doors would still be open to any and all. But a lawyer would be required to assume the risk of failure. Lawyers could purchase insurance of their own to cover their failed risks. A lawyer with a horrible track record might find herself disciplined by a market unwilling to insure her, and then have to face the consequences of filing losing suits without coverage.

Those who cannot afford a lawyer could face a requirement that, if they lose a case, they do community service. Obviously, this will not compensate a losing side for the cost of defense. But it would still impose some economic discipline on the market for litigation. Every court clerk can tell tales of pro se litigants who file lawsuits just because they can — as a means of harassing other people, or working out some private grief at great public expense.

Imposing costs on prosecuting authorities might also be beneficial in the criminal courts. The state is never required to pay a defendant’s expenses when it loses a prosecution. While there is a provision in federal law that makes it possible for a successful federal defendant to recoup expenses, the statute is rarely used, and the threshold for recovery is so high that the government almost never pays for its mistakes. Why not make prosecutors financially accountable for what they do?

Prosecuting authorities live in a cost-free world. Their costs are fixed. Come what may, they have a staff of full-time prosecutors, police forces, investigators, crime labs — a phalanx of public employees on fixed salaries just waiting for something to do. I often wonder whether we’d have so many prosecutions if prosecutors had to sit down and reckon whether what they are doing is worth the cost. Why not require the state to pay a defendant’s legal fees for every acquittal?

There are mechanisms in place now that permit parties to seek sanctions for frivolous pleadings, and, in some instances, to bring separate and independent lawsuits to recover fees in the most egregious cases. But these rules reflect a not-so-subtle bias that court is a good thing. Do we really want to encourage people to use the courts? In a civil society, ought not litigation be the last resort, rather than a starting point, in the resolution of disputes?

Lawyers are familiar with a concept the lay public never hears about. It’s called nuisance value — the cost of a successful defense of even the least meritorious of claims. If it will cost $50,000 to defend an action, then the case’s nuisance value is just south of $50,000. In other words, a defendant “wins” economically by offering the party suing him some sum less than the cost of defense. Many claims are settled with nuisance payments just to make the cases go away — usually after the defense lawyer has billed some sum for his trouble. What a waste.

I am not suggesting that we have a means test for litigants. The courts can and should remain open for the resolution of disputes. But we don’t foster a sense of civic responsibility by making the courts a cost-free gamble for those with either money or rage to spare. Make losers pay the cost of the litigation they spawn.

There really ought not to be two standards for what is fair, just and reasonable, one for the ordinary, run of the mill case, the other for cases in which the world is watching, struck dumb with pity. But lawyers for Charla Nash think otherwise.

Ms. Nash is an entirely sympathetic figure. She is the Stamford woman who was mauled by a chimpanzee kept as a pet in 2009. The animal went berserk, attacking Ms. Nash and ravaging her face, blinding her, destroying her hands. The case went viral, the way some cases do. Ms. Nash survived the attack and lives scarred by this attack, blinded, disfigured and diminished. It is what lawyers call a high-profile case.

Her lawyers think $150 million is fair, just and reasonable compensation for her injuries.

The trouble is, most chimpanzees don’t carry insurance, and there are policy limits and exclusions on homeowner’s policies for the person who kept the chimpanzee as a pet. While Ms. Nash’s counsel has filed a multi-million claim against the estate of the now-dead owner of the chimpanzee, Sandra Herold, odds are nowhere near that amount will ever be recovered. Most folks don’t mint their own money.

But some governments do mint money, and, when they can’t, they just raise taxes incrementally on one thing or another to raise dough. Ms. Nash’s lawyers think the state of Connecticut should pay Ms. Nash.

The law generally does not permit suits against the state. A bit of medieval quackery, sovereign immunity, prevents such suits. You can only sue the state with its consent. When you want permission to pick the sovereign’s pocket, you must either get legislation passed or get permission from the Connecticut Claims Commission.

Claims Commissioner J. Paul Vance, Jr. will soon hear oral argument about whether to grant Ms. Nash permission to sue the state. I cannot think of a reason other than pure sympathy to open the state’s coffers. And if we are to offer them to this victim, then why not open them for the thousands of other people who make claims?

Does Ms. Nash get special treatment because she has been on Oprah Winfrey’s show?

Lawyers for the injured woman claim the Department of Energy and Environmental Protection is guilty of “institutional negligence.” The state knew this accident was “waiting to happen.” It should have seized the chimpanzee. The failure to do so proximately caused injury to Ms. Nash.

A law student writing such an essay on a first-year torts exam might score a few points for creative effort. But few professors would reward the answer with an A. It mocks the concept of near, or proximate cause. It confuses personal negligence with institutional policy. It’s a word salad of buzz words tossed together and thrown against the law’s wall.

Ms. Nash’s lawyers probably know this, so they have sprung for a high-priced lobbyist, paying Kevin Reynolds, legal counsel for the Democratic Party, $60,000. His job is to pitch the request for permission to sue the state to lawmakers after the Claims Commission dismisses the action. The Judiciary Committee and the General Assembly can pass a Special Act giving Ms. Nash the right to sue.

In almost any other context, folks would cry foul about buying a high-priced lobbyist to influence folks in an adjudicative proceeding. Offer an influence-peddler money to shmooze with a judge or hearing officer, and land in the slammer. But lawmakers are different, I suppose; we can purchase influence in that forum.

Ms. Nash is entirely sympathetic. Her injuries are grievous and tragic. She’s a victim of the sort of chaos we all fear. But she’s not the victim of a tort, at least not one committed by a human being. And, last I checked, you can’t sue a chimpanzee.

On Ms. Nash’s lawyer’s theory, she gets paid because the state should have known the monkey would attack her and the state should have done something. That will sound like music to the ear of every grieving family who has had a family member murdered or maimed by a defendant with a criminal history. The state “knew” in those cases, too, that there was a potential for harm. Why not let all victims sue the state?

How to draw the line between Ms. Nash and other victims? You can’t in a principled way. You can only hope sympathy and a high-priced lobbyist will help you find a pot of gold. Suing the state in this case makes a mockery, no, make that a monkey, of justice. I pity Ms. Nash, but I don’t see the justice in giving her privileged status at law.

Note: After the Claims Commission said no to Ms. Nash’s permission to sue, her lobbyists turned to the legislature for special permission to sue. Lawmakers have yet to decide the issue.

Former F.B.I. Director Louis Freeh’s report on Penn State and Jerry Sandusky reads like the not-too-original account of a honeymoon: He said all the right things, and in just the right tone. There were even pictures, in the form of exhibits. I am sure the university spent millions of dollars for the effort. But it teaches nothing we did not already know.

Penn State placed institutional concerns above the welfare of individual children. I guess that means the university is no better than the Catholic Church. Is anyone shocked?

Jerry Sandusky was a sexual predator who used his position at the university as a grooming arena for young boys. His colleagues and superiors either knew, or had ample suspicion, that something was wrong, and they did nothing. No one wanted to do anything that might harm the secular church gathering on fall Saturdays to worship the school’s college football team. The pope superintending each mass, Joe Paterno, was above reproach. Turning a blind eye to scandal served the interest of those who needed to believe that there was something good, true and beautiful in Happy Valley.

Freeh’s report could just as easily have been written about any number of Catholic dioceses in the United States, with bishops playing the role of Paterno and doing what they could to control the damage done by errant priests.

No one calls for disbanding the Catholic Church as a result of the misconduct of a few lecherous old men. Yet some suggest the football program at Penn State should be disbanded. Freeh, thankfully, doesn’t go that far. He just wants a boatload of new compliance officers, policies and procedures to make sure that the wages of any new sins are paid promptly. His report ends with hundreds of recommendations on how to make sure children are never again victimized at Penn State. Some lucky law firm will make millions on the task of implementing all this. No crisis, no sin, no crime fails to generate more billable hours for the compliance crowd.

I read all these recommendations with a sense of weariness, even wariness. Until every nook and cranny of the psyche is policed, we will never be safe enough from the beast within. Just how did the human race survive its evolution for long millennia without legions of therapists, social workers and psychic cops?

Yes, Sandusky was a bad man. Such men have always lingered in the shadows, I suspect. Today’s mad rush to make the world safe has hidden costs all its own.

There will now be many claims filed against Penn State, and all the officials named in Freeh’s report who failed to act. Anyone claiming victimization by Sandusky can argue that but for the university’s willful blindness they would not have been abused. Just how many people will now ask damages for lives undone, ruined, destroyed by Sandusky?

I’m told the university’s athletic endowment is flush, containing $1.8 billion. The university would be wise to set $100 million, or maybe even $200 million, aside to fund claims. Ten percent of the war chest the university assembled while ignoring Sandusky is hardly a huge sum, call it a tithe for today’s sin. I suspect an angry public will punish the university with eye-popping verdicts should it refuse to settle individual claims.

Freeh’s report was a priestly homily on sin, athletics and a major university. Read it from cover to cover if you like. Go ahead and weep, if you like. Just don’t expect to learn anything you already didn’t know. All that remains to be seen is how much the university, and the public who worships each Saturday at our gridiron churches, will pay to put this all behind us.

I’m not sure why the Connecticut Trial Lawyers Association turned on Irving Pinsky the other day. Pinsky filed a claim before the state’s Claim Commissioner seeking permission to sue the state for $100 million on behalf of a survivor of the Newtown shooting. After the world erupted against Pinsky in outrage, CTLA jumped on the bandwagon, issuing a press release suggesting that Pinsky’s timing was all wrong.

What’s this? CTLA as tort reformer?

Pinsky’s claim was admittedly hare-brained. I cannot imagine a conceivable cause of action that would make the state liable for what any of the survivors of the Newtown shooting endured. The school district is a municipal entity, after all. Even Attorney General George Jepsen did a weak-chinned impersonation of his predecessor, Richard Blumenthal, excoriating Pinsky, reciting the obvious — the state is not liable.

But the Town of Newtown might have a problem on its hands.

It turns out that as the massacre of 20 students and six adults was taking place at the Sandy Hook Elementary School, school officials broadcast sounds of the shootings throughout the entire school. One source tells me the justification was that only in this way would the rest of the school realize this was a real crisis, and not a drill taking place at the school.

That’s not much of a justification. It strikes me that the trauma to the surviving children was enhanced, not mitigated, by the broadcast of their classmates’ execution. A municipality can be liable if its agents engage in conduct that creates an imminent risk of harm to a foreseeable victim. An argument can be made that this horrible broadcast was both unnecessary, and damaging to all who heard it. It is not difficult to believe that some parents might file suit on behalf of their children for this grisly show and tell.

Pinsky seemed to understand this theory, even as he failed to draw a distinction between sovereign immunity and absolute immunity.

After he began to receive death threats and became the object of scorn not just to his fellow lawyers, but to just about every other American with a pulse, Pinsky withdrew the claim. He did not say whether he will bring an action in the Superior Court. One needs no permission from the Claims Commission, after all, to bring an action against a municipality.

The CTLA’s attack on Pinsky was directed not at his having chosen the wrong forum, but that he chose the fight at all. “CTLA joins with all other citizens in Connecticut in mourning the tragic loss of life in Newtown,” the group said in a prepared statement. “We believe that the timing and circumstances of this action are ill-advised.”

I wouldn’t be surprised in the months and years to come to see favored sons and daughters of CTLA raising legal claims on behalf of both victims and survivors of the Newtown massacre. The personal injury bar is drawn to human tragedy and suffering with much the same intense sense of inevitability as leads a bee to seek pollen.

I have a sneaking suspicion that CTLA targeted Pinsky because he is, well, Irving Pinsky.

The New Haven lawyer is a larger-than-life character, almost someone torn from the pages of a piece of Philip Roth fiction. You can find Pinsky many mornings on the New Haven Green; nearby, you’ll find a beat up old van of his, equipped with a floating marquee advertising his services. The white-shoed among the bar are no doubt offended by Pinsky’s mere presence in the marketplace of human suffering. But how many CTLA members are guilty of sins just like Pinksy’s? Did he write that he sought $100 million, a headline-grabbing sum, in his papers to the Claims Commission? Yes. Tell me, truly, ye CTLA titans, how many of you have never spiced up an ad damnum clause in a complaint to catch the world’s eye?

And will CTLA members foreswear any premises liabilities claims in Newtown? There are reports that despite a policy of locking all classrooms in the event of an emergency, not all teachers were trained in the policy. I wonder how many investigators are out there, funded by CTLA members, looking for an edge in this, the worst of all calamities to hit Connecticut?

Don’t get me wrong. I’m not supporting Pinsky. I’m simply noting that when those who stirred CTLA’s pot decided to call Pinsky black, they took pandering to a whole new level. And that, my friends, stinks.

© Copyrighted Material

Printed from https://www.suttonhart.com/norm-pattis/in-the-trenches/excerpt/30/