Justinian Lane - Commentary on law, politics, and tort "reform."

Responding to some criticism of California’s Civil Gideon program

In the following WSJ article about California’s new Civil Gideon program, Ted Frank offers the following:

Ted Frank, a Washington lawyer who has written about civil Gideon for the American Enterprise Institute, a conservative think tank, said he believes the new law will result in more waste in the court system.

Parents fighting over child custody, for example, will be less inclined to work out an agreement on their own and more apt to fight in court because of access to free legal services, he said.

Mr. Frank said he believes landlords will have a harder and more expensive time carrying out legitimate evictions, which may cause rents to rise.

"What is clear is that you will never have a simple eviction because every single one of them will be litigated," Mr. Frank said. "The rest of the poor will be worse off because that."

Source: 'Civil Gideon' Trumpets Legal Discord - WSJ.com

I agree with Ted that some parents will be more likely to resort to litigation if they have free lawyers.  I also agree that landlords will have to litigate more (but not “every single one of them” evictions than before.  Ted’s unstated premise behind his “the rest of the poor will be worse off” comment is that landlords will pass these litigation costs onto renters in the form of higher rents.  He’s probably right about that, too.

Yet despite agreeing with much of what he says, I still think this program is a good thing.  Here’s why:

First, with respect to parental disputes: By ensuring that both spouses have access to a lawyer, it makes it much harder for the “breadwinner” to bully a low-earner into a one-sided agreement.  You can hear the argument now: “If you don’t agree to this settlement, I’ll hire a lawyer who will make sure you get nothing!”  A spouse with little money of his or her own will be less likely to “take the deal” if lawyers are made available.

What about the landlord scenario?  Well, one effect of this law will likely be that landlords will be less likely to abuse the eviction process.  I don’t know how many people in California are wrongfully evicted, but I presume at least some are.  I also presume that most of those evictions are against people who can’t afford a lawyer.  Wrongful evictions will likely drop.  I think we can all agree that’s a “good thing.”  But what about landlords being forced to litigate proper evictions? 

Many, if not most evictions are due to someone not paying their rent.  I don’t care if you hire the best lawyer in the world – if you can’t prove that you did in fact pay the rent, you’re going to lose your case.  All adding a tenant’s lawyer to the mix does is make sure the landlord’s lawyer has admissible evidence to prove the tenant never paid.  In the end, the landlord is going to prevail. 

Granted, during the period of litigation, the tenant probably isn’t paying the rent and the landlord is losing money.  Attorney fees are also adding up for the landlord, which will likely be passed along to other renters.  But I still see this as a worthwhile tradeoff if it prevents at least ONE wrongful eviction. 

Look, there are some advantages to just letting police send people directly to jail without the necessity of a trial.  We don’t do that, though, in part because we’re afraid that innocents will be sent to jail.  So we let even the guiltiest guy on the planet get a court-appointed lawyer and waste everyone’s time with a jury trial – even if the offense carries a maximum sentence of 1 day in jail.  It increases everyone’s costs, but it also keeps the police and district attorneys honest.  Giving lawyers to tenants will keep landlords honest.

It’s never a good sign for a defendant when…

The jury asks for a “10-digit adding machine.”

In what could be a very favorable signal to the plaintiffs who are asking for tens of millions in damages, jurors in the case on Tuesday asked for and received a 10-digit adding machine to help them through their deliberations.

Source: Jurors request 10-digit adding machine in radio contest death case - Sacramento News - Local and Breaking Sacramento News | Sacramento Bee

Proof that lying and violating discovery orders pays

For proof, look no further than the actions of the tobacco industry:

Last month, a Los Angeles jury awarded $13.8 million in punitive damages to the daughter of Betty Bullock, a smoker who had sued Philip Morris USA Inc. before she died of cancer. It was a huge loss -- for the plaintiff.

Just seven years before, a different jury in the same case had awarded a record $28 billion in punitives. Philip Morris appealed that blow, and eventually a California appellate court ordered a retrial, leading to the much diminished result of Aug. 24.

What happened between 2002 and last month? Bullock's lawyer, Los Angeles solo practitioner Michael Piuze, did not return calls seeking comment. But Charles Tauman, president of the plaintiff-friendly Tobacco Trial Lawyers' Association, said he had spoken to Piuze, who "felt that the jury that he had was of a different character than the one ... in the original Bullock case. He felt they were harsher and less willing to be sympathetic."

Lawyers on both sides of smoker cases say Piuze's experience is unique only in the magnitude of the lost award. Hard statistics on recent personal injury lawsuits against tobacco companies are difficult to come by, but the anecdotal evidence about punitive damages is growing. Jurors today are less willing to impose severe punishment than jurors just a decade ago.

Source: Law.com - The Bloom Is Off the Rose for Tobacco Claims

The tobacco companies spent decades producing witnesses who lied under oath, violating discovery orders, and fraudulently using the attorney-client privilege to shield incriminating documents.  And now that those practices are mostly over, jurors don’t care about what big tobacco did. 

Oh well.  If jurors did care and returned a huge damage award, the courts would just reduce it anyway.