When You File a Lawsuit, Be Prepared To Answer Discovery

Reporter Tom Jackson at the Sandusky Register (a legendary newspaper, more on that in a bit) reports on the dismissal of a federal lawsuit filed by a library patron who refused to answer discovery.  The story in excerpt:

"A federal judge in Toledo has thrown out a lawsuit filed by a library patronangry over being ejected from the Sandusky Library.

James E. Pietrangelo II sued the library, the City of Sandusky and two police officers last year in federal court in Toledo, alleging a civil rights violation, after an Oct. 28 incident in which he complained other that patrons using the computers were too noisy.  In an ensuing confrontation, he refused a request by the library staff to leave and was escorted out by the two officers.

U.S. District Judge James Carr threw out Pietrangelo's lawsuit in June, dismissing it with prejudice, meaning that it can't be refiled.  He also found Pietrangelo in contempt of court for refusing to answer questions posed to him by the library's lawyer, Cleveland attorney Margaret Koesel, even after Carr ordered Pietrangelo to answer the questions. Carr told Koesel to submit a bill to the court so that Pietrangelo can be made to pay court costs and fees.

According to Koesel, Pietrangelo refused to answer questions such as 'Are you currently employed?'  and 'Where did you go to college?'

He also did not answer questions about his mental state, despite claiming that being asked to leave the library caused him emotional distress.  The legal case isn't over yet, because Pietrangelo appealed the judge's ruling to the U.S. Sixth Circuit Court of Appeals in Cincinnati. Pietrangelo could not be reached for comment.

Pietrangelo, a former Army captain, garnered national publicity when he handcuffed himself to a fence in front of the White House in March this year. He was arrested, but charges were later dropped. Pietrangelo had been protesting the military's 'Don't Ask, Don't Tell' policy."
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The Sandusky Register formerly known as the Daily Register was a "Republican" newspaper and the first newspaper east of the Mississippi to endorse Abraham Lincoln.  After Lincoln was elected President, Lincoln's train ride to the District of Columbia for his inauguration was via a route that carried him through Sandusky and Cleveland in recognition of this historical fact. 

Depose the Pope!

Let's see it was all of June 28th that I predicted that in the wake of the Supreme Court's refusal to hear the Vatican's appeal in Doe v. Holy See that Jeff Anderson would seek to depose the Pope, over the weekend the LA Times reported that Jeff Anderson has announced that at the first opportunity he will seek to depose, Guess Who? 

Under the caption, Pope Benedict to be Deposed, the American Catholic reports:

"The most evil inspired man in the world, attorney Jeffrey Anderson, plans to 'sue the sh-t out of [the Catholic Church] everywhere'. Because the U.S. Supreme Court refused to hear an appeal from the Vatican, a court case will move forward allowing for the Vatican to be sued.


'I have known for 25 years that all roads lead to Rome,' said Jeff Anderson, the Minnesota attorney who represents the plaintiff. 'This is the beginning for us of a new journey, a uniquely difficult odyssey.'Anderson, who has represented hundreds of abuse victims and has tried for years to sue the Vatican, said he hoped to persuade a judge that he should be allowed to depose Vatican officials.

Jeffrey Lena, the American attorney for the Holy See, argued the Vatican is not responsible for individual priests in dioceses, saying the existence of the priest in the case 'was unknown to the Holy See until after all the events in question.'

The original lawsuit, John V. Doe v. Holy See, was filed in 2002 by a Seattle-area man who said the Rev. Andrew Ronan repeatedly molested him in the late 1960s.

'The Holy See does not pay the salary of the priest, or benefits of the priest, or exercise day-to-day control over the priest, and any of the other factors indicating the presence of an employment relationship,' Lena said.

Saint Paul, Minnesota attorney Jeffrey Anderson also added that he will depose Pope Benedict once the opportunity presents itself."
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Shows precisely where the editors of American Catholic come down on values. It's not the sexual predators, it's an American civil lawyer who has spent the better part of his working life holding sexual predators accountable that is "the most evil inspired man in the world."  You would have thought maybe Adolph Hitler or Pol Pot would have headed the list before Jeffrey Anderson.

Jeffrey Anderson slept in my house, and borrowed some of my athletic clothes to go for a run--not once did I denote any sign of evil.  In fact the garment that he borrowed laundered up, real nice without any sign of Satanic staining. 

In all seriousness, Jeffrey Anderson is a fine lawyer and a great man.  I hope he accomplishes the goal of deposing the Pope Benedict, and that henceforth, the Church remembers that it can not without consequence enable then turn a blind eye to child sex abuse by priests. 

You're Innocent Until Proven Guilty, but Copies of the Evidence, Now That's Gonna Cost You!

The Salt Lake County DA wants you to pay her for copies of the evidence she is going to use against you.   Since you are innocent until proven guilty how is it you have to pay for copies of the evidence?  This is from Stephen Hunt's article at the Salt Lake City Tribune:

"Salt Lake County District Attorney Lohra Miller's controversial fees charged to criminal defendants for police reports, photographs, videotapes and witness interviews were struck down last week by a 3rd District Court judge.  Judge Robert Adkins ruled such 'discovery' costs must be determined by the county auditor, not by Miller. Adkins called Miller's list of charges an 'improperly adopted discovery fee schedule.'

Defense attorney Susanne Gustin had challenged the fees on behalf of her client, Steven Edward Kimball, who is charged with second-degree felony child abuse for allegedly injuring his 12-year-old stepson by putting duct tape around his head then ripping the tape off.  Gustin said Friday she may request that the judge make the Kimball decision applicable to all Salt Lake County criminal cases.  Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, said he hopes Miller will simply accept the judge's ruling in connection with other cases.

'It would be foolish of them [the District Attorney's Office] to ignore it and say it applies only to that one case,' Hart said. 'The result, if they ignore Adkins' ruling, will be to force every defense attorney who has to pay discovery fees to litigate this issue.'

Miller had no comment about the applicability of the decision to other criminal cases, according to office spokesman Mark Biljanic, who said Miller will consider whether to mount an appeal.

In any case, Biljanic insisted, the fee issue will disappear in about four months when the District Attorney's Office goes electronic and eliminates the need to make paper copies.  The fee schedule was adopted by the Salt Lake County Council last June. Miller began charging attorneys in September.  A number of defense attorneys have voiced concerns about the constitutionality of charging criminal defendants to obtain the evidence brought against them."
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Most criminal defense attorneys are pretty threadbare operators, in my experience, charging these professionals for living up to the highest ideals of our justice system with the questionable ability to obtain reimbursement sounds utterly obnoxious to me.  And as we see over and over again unless your prosecution is constitutionally appropriate society loses, the taxpayers lose.  This practice is penny wise and pound foolish.

Exonerated Gynecologsit

According to the London, Daily Mail, Bibi Giles accused her gynecologist Dr. Angus Thompson of intentional giving her two "knee buckling" orgasms.  Mrs. Giles filed a civil claim in Worcester County, England.  The trial on the matter was set to conclude, Thursday when another doctor who had previously treated Mrs. Giles came forward and revealed that he too had been subject to sexual advances by Mrs. Giles.   Dr. Thompson was exonerated, and the wealthy Giles couple agreed to pay 30,000 pounds to Dr. Thomspon for his attorney fees.   

"Perry Mason-like revelations" rarely happen in court, because of "discovery" rules.  In virtually all jurisdictions (locations) rules of civil procedure govern the initiation, service of papers on persons, investigation, and preparation as well as dismissal and judgments in lawsuits.  These local Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure (FRCP).  The section of the rules called "discovery" is intended to assist the lawyers and litigants prepare their cases, narrow the issues, and eliminate surprise.  Discovery is not a replacement for investigating the "good faith" basis for a lawsuit which the lawyer "certifies" by his or her signature when they file lawsuits and other pleadings (papers) with the court.  Nonetheless, the rules of discovery permit written questions and answers upon the parties (interrogatories), exchange of documents, computer files, pictures, recordings, videos, and depostions.  The idea is that by conducting discovery the parties can figure out in advance if the case should go to trial, be settled or dismissed.

Discovery presents many opportunities for good lawyers;  and, discovery can be used as an oppressive battering ram by assholes.   But situations like the one involving Mrs. Giles rarely occur, because the design of our system is such that these sorts of revelations which do happen all the time, happen before the matter goes to trial.

Shepard Fairey Lied

Who is Shepard Fairey? Fairey is the artist that designed the famous poster to the left. He's also the guy who created the "Andre the Giant" handbill that commands you to "Obey" and is papered all over the city light posts, bridge abutments, etc.

There is an ongoing copyright dispute between the Associated Press, its photographer, and Mr. Fairey concerning the "HOPE" Obama image which Fairey developed from an AP photo. I may or may not get into the issues relating to the intellectual property disputes underlying the copyright lawsuit between Fairey, the photographer and the AP--it is very compelling. I have followed the case. Terry Gross (one of the world's great interviewers) had the AP photographer, Shepard Fairey, as well as a copyright expert on her Fresh Air program, to air out the issues--check the NPR archives to hear it for yourself. I know less about intellectual property law than I do, even about family law (bleaaah!), but I know more than the lay person--so, let's revisit the subject at another time.

What has my attention is that yesterday Shepard Fairey admitted that during the litigation, he lied. See, link: http://www.eandppub.com/2009/10/surprising-developments-in-shepard-fairey-vs-ap-case.html. Not only does he admit that he lied, he admits he destroyed evidence and manufactured other evidence. Wow.

Generally speaking, litigant lying, perjury, spoliation of evidence is pretty heavy-shit. A local physician was up on malpractice charges. The doctor was the scion of one of our Home Town's wealthiest industrialist families--the arrogant bastard destroyed evidence of his medical malpractice and was caught out during the litigation because nursing staff kept copies of the original records. Not only did the jury hit him with a compensatory damages verdict, the punitive damages verdict for many millions of dollars was the largest verdict in local history up to that time. Moral: don't screw with the facts, the facts are the facts.

When I was a baby Bad Lawyer my closest friend was a young accountant. He, his senior partner, and their small business CPA firm were sued by the owner of a regional record retailer that had collapsed after financial irregularities surfaced that were undetected by my friend's accounting firm despite an audit. The record retailer's controller created the appearance of robust financial health by manipulating an aspect of inventory. The auditors should have visually confirmed the existence of these items but instead took the controller's/wrongdoer's verbal representation. Mistake. Malpractice.

No problem, my pal's firm had malpractice insurance, but my pal made a mistake that haunted his conscience. My friend lied during the deposition that the record retailer's attorney took in preparation for trial. My friend testified that he and his auditors had visually verified the existence of accounting items, that the company comptroller only verbally confirmed existed.

The malpractice case had not come to trial, and my pal was afraid. His senior partner, a real shit--was using my friend's mistake against him in their dealings and disaster loomed. What to do?

We looked at the procedural rules, depositions are governed by Rule 30 of Our Home State Rules of Civil Procedure. The rule permits persons to review transcripts of the the things they said under oath and change the testimony: yes to no, no to yes, add testimony, take away testimony, change anything. The caveat to this provision is that the person making the changes to his or her testimony is required set out the reason for any change, and submit to reexamination. Again this rule applies only if the attorney who took the deposition order the transcript of the discovery deposition. The record company's attorney did not order the transcript, but we amended the testimony anyway.

When my friend's case went to trial he and his firm was represented by one of Our Town's legendary civil litigators (not me, I was a spectator.) The defense was based on the idea previously explored, in the Bad Lawyer blog, that negligence requires proof of damages caused by the breach of the duty of care--consequently, the defense conceded the malpractice by my client and his firm (in effect admitting that the accountants did not visually verify inventory items that the company comptroller said existed)--but, denying that their audit mistake caused the collapse of the retailer. The defense, instead let the retailer demonstrate how out of touch he was with his business operation and employees. The jury returned a unanimous verdict for my friend, his partner and their accounting firm. Amazingly, my friend and his senior partner were able to survive this trauma, their accounting firm continued, and today, he is the sole owner, and one of Our Town's most respected accounting and financial authorities. My pal accomplished this, because he is honest and he is decent. I remain very proud of him.

Recently I successfully concluded the defense of a manufacturing company. During the discovery phase I deposed the plaintiff, and I ordered the transcript for my trial preparation and I directed it to be filed with the court. In the mail some weeks after the deposition I received a large stack of transcript "changes." In fact there were 24 separate changes to the testimony--it turns out that the Plaintiff's mother had inserted herself into the plaintiff's claim and lawsuit and she reviewed her son's testimony, sand she submitted the extensive changes over his signature. While none of the deposition changes were important, the fact that the mother involved herself so directly in her 31 year old adult son's injury claim led to a line of inquiry that resulted in developing facts that led directly to the dismissal of the lawsuit with prejudice by the court.. The mother's manipulation of the facts and evidence destroyed her son's claim, a claim valued by his attorney at $200,000 and which my client offered $40,000 to settle--now worth: $0.

Honesty in litigation is the only way the system can possibly work. Shepard Fairey has by his own admission destroyed the principle he purported to represent. By lying. Shame.