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August 29, 2004

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Listed below are links to weblogs that reference But Make No Mistake: The So-Called Attorney Is a Real-Life, Lawsuit-Wielding, Good-for-Nothing Bully (IMHO):

» so-called defamation? from f/k/a . . . .
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» His so-called reputation from Overlawyered
Reports David Giacalone (ethicalEsq):Elderly Schenectady (NY) lawyer Romolo Versaci has filed a $100,000 defamation suit against Diane C. Richie, an unemployed social worker and widow with two children. Versaci claims -- and Richie admits -- that she c... [Read More]

Comments

Mojo

Perhaps I should trademark the phrase "So-Called Attorney". (I think that may be why ATRA trademarked "Judicial Hellholes".) You can make the meaning of your own trademarked phrase anything you want. Then I'll be protected against frivolous defamation lawsuits such as this (unless he manages to try the case in your county apparently).
On second thought, my already trademarked "Steaming Pile of Platypus Feces(TM)" should work well enough.

David Giacalone

Thanks for weighing in, Evan. Meanwhile, 13 miles does the road in Albany, we have a Police Chief who apparently wouldn't know "criminal intent" if it smacked him upside the head -- i.e., 3 parking officers wrote dozens of bogus tickets as a vendetta but "had no criminal intent," so won't face charges, only firing. [See May It Please the Court.]

Making up for Albany's lack of prosecutorial vigilance, however, remember that Schenectady's Fattest/Finest vigilantly viewed and arrested the gentleman displaying the porno video "Chocolate Foam" from his Mercedes. The accused pled guilty of displaying porno on a street, had a suspended license, and put a false name on his fingerprint card; he was given the stiff sentence of 3 weekends consecutively. Make you feel safer? (see NewsDay.

Lot's of civic pride around my adopted hometown.

Rufus

Yeah, he's a bully. But the woman he's suing is a crank who needs to be shut up. She has a business dispute with the lawyer's client, who happens to be on the city council, and she brings it to council meetings. She sues the councilman's business, the lawyer is defending the suit, and she attacks him on the Internet. They deserve each other.

David Giacalone

Rufus, shouldn't we expect a little more restraint from a veteran lawyer? Is there an "annoying gadfly" exception to the frivolous-coercive lawsuit rule? Moving this silly tussle from a website that gets maybe 90 visitors a day (don't fall for the hits number used in the complaint) to the courts and the local press is a good way to get the "so-called attorney" quote broadcast far and wide.

Rufus

Dave, of course the lawyer is a bully and the suit is frivilous and without merit; and of course he's making a mountain out of a molehill. I was simply expressing the frustration that I felt every time, without exception, that I had to deal with a pro se plaintiff. Always they would submit papers to the court personally attacking me for doing exactly what defense lawyers are suposed to do. In one case with a pro se (a legal malpractice) I was physically threatened. Was this lawyer's way of dealing with this woman misguided? Yes, absolutely. Nonetheless, I understand where he's coming from because I've been there.

David Giacalone

I hear you, Ruf. Unfortunately, "what a defense lawyer is supposed to do" is to frustrate the course of justice (e.g., keep facts from coming to light). That's frustrating to a lot of lay people and lawyers.

Evan

David: Perhaps your comment is the result of some of the "hyperbole" you spoke of last week, since I think you'd agree that no defense lawyer is "supposed to" frustrate the course of justice. In fact, they could be disciplined or prosecuted for doing so.

I'm a former defense lawyer and current plaintiffs' lawyer. As a defense lawyer, I availed myself of legal means to keep facts from coming to light that weren't legally supposed to be in the light. That's a few steps removed from, say, deep-sixing documents. As a current plaintiffs' lawyer, I can say that most defense lawyers I know don't "frustrate" the course of justice--instead, they keep the process of justice moving along while looking out for the interests of their clients.

I'm as cynical as they come, but I can think of only one instance when a defense lawyer deliberately hid a document that was supposed to be turned over. When I discovered this in post-trial depositions (a strange procedure, I admit), I got a new trial.

David Giacalone

Evan, Are you trying to be naive or am I just too darn cynical? I never said anything about defense counsel breaking the law or ethical rules to hide evidence. However, you know as well as I, that defense lawyers are expected (some would say obligated) to do everything they can -- lawfully and ethically -- to keep evidence away from the court that might hurt their client, even if they know the evidence is in fact true. That's what our adversarial system expects. When some "technicality" keeps evidence that a plaintiff knows is true from getting in front of a judge (or being considered by the trier of fact), I would say that "justice" has been frustrated.

This facet of the lawyer's role makes many non-lawyers (and judges!) dislike lawyers -- they get paid to hide facts.

Evan

David: This thread is crying out for a post of its own. But anyway . . .

You say: "defense lawyers are expected (some would say obligated) to do everything they can --lawfully and ethically -- to keep evidence away from the court that might hurt their client, even if they know the evidence is in fact true." I agree, but usually the law requires them to turn over the facts, if asked, as long as there is not some privilege that protects the disclosure. Will these facts be presented to a jury? Maybe not, but if not, there is most likely a large body of evidence law supporting the decision to keep the facts away from the jury--evidence law that has been developed over the years in support of policies that are thought to work for the benefit of all.

You also say: "lawyers get paid to hide facts." I don't really agree with this. Since lawyer X must produce those facts he's "hiding" as soon as he's asked, he can't really be said to be hiding anything. If he's asked but doesn't disclose the facts--and has no legal basis for doing so--he's taking a huge risk. Lawyers in my experience don't take such risks, although their clients often expect them to.

These are interesting issues. I definitely agree with your basic premise. Most of the public think trials are designed to discover "the truth," when that isn't what really happens at a trial. Instead, assuming the lawyers on both sides are doing their jobs, the jury bases its decision on some approximation of the truth. If the jury's verdict is appealed, those same facts--which aren't the "true" facts--are assumed to be the true facts by the appellate court. Very odd.


David Giacalone

You better not let your kids hear you say that a person "can't really be said to be hiding anything" as long if he or she is not directly asked for a particular piece of information. Only lawyers get to use that excuse.

The rules for excluding evidence that you speak of may have some general utility, but lawyers are expected to invoke them, whether or not the proffered evidence represents the truth as the lawyer knows it.

Rufus

Evan, I agree with you, this topic crys out for a full post. I have plenty to say about David's assumptions about what defense lawyers do, but I don't have the time right now to go on at length. Suffice it to say, one, plaintiffs lawyers dance around the truth and want to keep certain "true" facts from the jury just as much as defense lawyers; and two, my comment about pro se plaintiffs dealt with substantive arguments, i.e., statute of limitations defenses and proximate cause/no damages defenses (a handy and useful tool in defending legal malpractice; yeah, my client breached a duty but that breach of duty caused no damages). I can think of two cases right now where I moved for summary judgment on thos theories and the response was a personal attack for my "sharp" tactics in raising such "technicalities." I never got to the point with a pro se where I had to deal with evidentiary issues, other than objecting to what was put in an affidavit because the affiant had no personal knowledge of what was asserted. Hmm ... well, I guess I did have some time.

David Giacalone

It should scarcely be needed, but please let me clarify: lawyers for both plaintiffs and defendants are expected to do as much hiding the ball, shading the truth, and slanting the evidence as they can get away with within the rules. I referenced defendant counsel because Rufus chose to limit his remark to them in his earlier Comment.

UCL

I'm just going to come right out and say it. I think the behavior David is speaking of belongs to the generation that precedes most of us, and not present day litigation, notwithstanding the routine beating our profession gets in the court of public opinion. The rules of civil procedure in most jurisdictions, and certainly in my jurisdiction, no longer allow any room for "hiding the ball." The object of the game is no longer to hide the ball, but to take the ball as muddy and dirty and harmful to your case as it may be, clean it up as much as possible (in the open), and win the best result you possibly can with that same ball. If I, as defense counsel, have a case that is so dirty that a jury would banish us to the depths of inner hell if we went to trial, we generally will not go to trial unless the client is suicidal.

There is a smaller defense law firm in my city which has the very reputation David condemns. It is headed by a former appellate judge who has been practicing for decades. He must be 80 years old himself. No young lawyer wants to work with him, and my own firm is actually filled with associates which that smaller firm burned through in 2 years before they abandoned it for higher waters. He routinely goes to trial with ridiculous cases arguing ridiculous defenses, and gets smacked for multi-million dollar verdicts. We really don't know how he stays in business, but the truth is that he's probably not going to last long anyway, and that's not a cut at his age. Today's litigators, both defense and plaintiff, just don't act that way anymore. Yes, I encounter ridiculous, overblown, borderline unethical plaintiff's lawyers on occasion. I'm sure plaintiff's lawyer will say the same about occasional defense lawyers too. But this is simply not the majority rule, and playing this game with me (in a jurisdiction where courts actually punish discovery violations) simply will not work as it may have in 1950.

David Giacalone

You make some good points, UCL. Remember, though, that the Little Guy (average American) is most likely to engage a lawyer in circumstances where there is no significant discovery (e.g., family or divorce court, small claims, consumer or contract disputes with far less than 6-figure damages). It is such cases which are the basis for the general reputation of lawyers. My experience does not support the notion that the New Generation of lawyers would do their best in such situations to make sure all material facts get in front of the judge, even if the evidence hurts their own client's interest. To the contrary, many would argue that they have an ethical duty to utilize every appropriate, available means to thwart the opponent and make their own client look as good as possible.

Prof. Yabut

This topic does need a post or two of its own. I wonder if the article in today's National Law Journal, "Law and Religion: Will Falwell's new Christian law school make good lawyers or ideologues," is relevant. The article says:

Falwell is making no bones about the school's mission, saying that graduates of the [Liberty University Law School] "would be on the Judeo-Christian side of every issue." He denied pursuing an agenda, but said the school seeks to "train champions for Christ."

Evan

"Federalist No. 84" of the weblog Crime & Federalism did a post about the lawsuit-wielding New York lawyer titled "Why Don't You Sue Me, Tough Guy." I think it's the only time in history of weblogs that someone has used a post as a forum for agreeing to accept service of process.

Adriane

This lawsuit if you read the posting is about the women pointing out Versaci's smoking a pipe lit or not lit in small claims court in front of a captive audience and more importantly court officers. No One, and I repeat no one told him to put it away or to remove his top hat, can any one lawyer or not get away with such behavior and not be reprimanded by the court officials. He is embarrassed about her comments as he should be. The website documentation was delivered to him by his then client to incite this lawsuit.

UCL

David: My impression is that most "Little Guys" retain lawyers for criminal defense, divorce, and personal injury matters. I claim no expertise in criminal law or divorce. But with respect to personal injury, in my (admittedly) few years of defense practice so far, I have never been pressured by either a partner or a client (corporate or not) to hide any damaging fact or piece of evidence whatsoever in any case. I've had to deal with many such damaging facts, and when they come out, what usually follows is a letter to the insurance company saying, "Look at this. I suggest you settle".

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