July 7, 2014

Intakes, Lawsuits and Regrets

I was reading about a very silly lawsuit filed the other day in New York's Bronx Supreme Court and it made me think about intakes and new cases. This may seem like a bit of a tangent, but stay with me here. I wrote not all that long ago about lawyers needing to know how to shut up, and more recently about negotiations as a critical skill. But, if I could impart just one pearl of wisdom to young lawyers, it would be this: be really careful when you're deciding whether to sign up a case.

Taking on a client simply because you don't have a lot of clients is a bad idea. Repeat after me: bad cases are not better than no cases.

That is because bad cases will suck up tremendous amounts of time, particularly if you're going after a deep pocket that can afford to drag you out into deeper and deeper waters. You have to commit huge blocks of uncompensated time to a case that is only ultimately going to be dismissed. That is time you will need to litigate real cases as your practice grows. If your practice doesn't grow, that is time you could spend trying to grow your practice, sleeping on your couch, or doing virtually anything other than litigating a highly contentious losing case on a contingency basis.

What about taking on a case because it might get you some press? If your name is in the papers, your phone will start ringing off the hook immediately, right? Wrong. Whoever told you that left out the part about why your name is in the papers. That part matters.

Case in point: this lawsuit was filed by one Andrew Robert Rector through his counsel, Valentine Okwara, Esq., and names ESPN, Major League Baseball, the New York Yankees, and Dan Shulman and John Kruk. The gist of the complaint is that Mr. Rector fell asleep at a Yankee game that was being aired on ESPN. The cameras caught him snoozing, and Shulman and Kruk joked about it. So Rector did what any aggrieved person would do, he filed a lawsuit demanding $10 million in damages.

I considered posting the video clip and the summons and complaint, but thought better of it. While entertaining, it detracts from my main point, which is that you cannot be seduced by the idea that your client was on television, or that you targets are well known. It's fools' gold. But if you're curious, the clip is here and the pleading is here.

I'm not going to analyze the complaint in detail. Basically, Rector is claiming he was defamed and subjected to an intentional infliction of emotional distress because the commentators poked fun at him. Based on the limited clip, the comments were pretty light. According to Rector they were exceedingly vicious, although, it isn't clear that the commentators actually said any of the things Rector alleges. So maybe they were said elsewhere, or perhaps they are just made up. Straw men are often easier targets.

The bigger point is that this lawsuit appears to be a bit of a loser. I could be wrong. Maybe ESPN, MLB, and the Yankees will cave in and offer Rector hundreds of thousands, if not millions of dollars to make this go away. But I suspect not. My educated guess is that defense counsel will go on the attack and wipe out the suit on motion. And should that that fail, bury Rector and Okwara through the sort of withering and exhausting discovery that often follows a defamation and IIED complaint. This leaves Okwara with a lawsuit that will cost him many dozens of uncompensated hours (because who pays hourly to bring this sort of action?), while scoring him loads of free publicity, albeit as a figure of public ridicule.

A civil rights corollary, in terms of seductive value, often concerns third-party complaints that land innocent people in jail. Cases where innocent people are arrested for crimes they didn't commit but where civilians identify them as the person they saw commit the crime. These are tough cases. As a general matter, the police are not going to be liable for arresting somebody identified by a eyewitness as the perpetrator, since the identification creates probable cause, or at least qualified immunity from suit.

Yet, time and again, lawyers see innocent plaintiffs who suffered, who lost their liberty, perhaps their jobs, because they were wrongly named. It's a real tragedy for the person arrested, but it's not necessarily a case. In fact, it usually is not. That is because the focus at intake should be on the police conduct, not the actual innocence of the plaintiff. Perverse as it may seem, I have done well for people who were apparently (and sometimes admittedly) guilty of the crimes they were arrested for, but have struggled mightily to recover on behalf of the truly innocent. That is because, in the former cases, the officers often engaged in misconduct and then lied to cover it up, whereas in the latter, they were following their witnesses.

This is my long winded way of saying, be careful in intake. Don't fall in love with cases just because they may get you some media attention, or because you think the case will let you go big game hunting. Certainly, don't take on a case because you are suffering through a lull in your practice. You will find little reward for your efforts.

The analysis needs to be more clinical, more detached. Ask, what are the causes of action here and do I have enough facts to plead them, how good is my evidence, how can I prove up the case. If you find yourself having to rationalize the case, or if you catch yourself editing the facts while describing it to a colleague in order to make it seem less crappy, then you have made a serious mistake and it's time to work on an exit strategy.

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