All Hemmed up Over My Pants Rant

Kia Franklin

All Hemmed up Over My Pants Rant

Yesterday, Ted Frank posted a critique of my blog on the Pearson lost-pants lawsuit. Here are some responses to and thoughts on his blog:

1. He writes: “[Kia Franklin] recognizes that the anti-reform cause can’t be seen endorsing the patently-ridiculous lawsuit that is the laughingstock of the world.”

The civil justice community never did endorse this lawsuit and never risked being mistaken for doing so. No, the only risk was that tort “reformers” would wrongfully use this case to fuel public hysteria surrounding myths about the prevalence of frivolous law suits in our court system. My point was that this lawsuit is not at all normal, and that as the exception it should not define the rule—namely that a strong civil justice system is a good thing for everyone.

Also, I am not part of a so-called “anti-reform cause”— I am against the measures being pushed by the tort “reform” movement because they work to restrict the rights of ordinary individual citizens and promote the interests of big businesses. As far as reforms that would actually improve access to the court system (like making it less burdensome and complicated for pro se litigants in court) and strengthen the civil justice system, I’m all for those.

2. He also writes: “So, she dances over the issue: yes, this case is frivolous, but frivolous cases are rare, so there are no lessons to learn…”

This conclusion only makes sense if you distort my words as much as tort “reformers” distort the nature of our civil justice system. I intentionally described this lawsuit as “crazy” and “ridiculous,” and not as frivolous, in order to avoid confusion over the legal vs. colloquial meaning of the term. I did, however, write about how the media and tort “reformers” use these cases to shape public opinion about frivolous lawsuits.

3. Ted also accuses me of “distorting” statistics by referring to individuals rather than individual tort plaintiffs, a distinction I overlooked given that I was writing in the context of tort lawsuits. My apologies if that was unclear. To clarify, by “individuals” I did mean to refer to individual tort plaintiffs, as this was how the study worded it. That said, the statistics I cited are consistent with the data. Compare my words:

“A Public Citizen study showed that corporations are four times more likely to sue, and 69 percent more likely to be sanctioned for frivolousness than individuals—evidence that, if anything, we need to watch big business a little more closely.”

to Public Citizen’s words:

“[B]usinesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.”

Consistent.

4. Finally, Ted touches upon race and class, my fave: Ted suggests that Pearson, a former administrative law judge and a former clinical professor, has been targeted by the AAJ because he is a “poor African American pro-se.”

First, I do not know very many poor people with law degrees, thousand-dollar business suits, and so many pairs of pants (something like sixty pairs) that suing over one pair could be nothing but vindictive. So I have to wonder why he would choose to describe Pearson as such. Perhaps Ted is conflating race and class.

But let’s say Pearson is poor and that it was racism that motivated AAJ to condemn Pearson for this lawsuit. Ted’s concern for AAJ’s treatment of Pearson is striking. His newfound sensitivity must be the result of a recent arrival to race consciousness. Prior coverage on Overlawyered of issues pertaining to African Americans (e.g., Big Tobacco’s ethnic marketing strategies, law firm diversity efforts) has been consistently critical of anything that suggests racism is still alive and rampant and an issue to be addressed in court.

So, while Ted “encourages” me “to examine the Association of Trial Lawyers of America’s racial double-standard,” I encourage him to examine his own.

But, now that the folks at Overlawyered are concerned with racial and social justice, I invite them to spend just as much energy condemning the corporate misdeeds that disparately impact poor people and people of color, and the tort reforms that limit the ability of these wronged individuals to attain justice. This should be the center of the dialogue, anyway.

Posted at 9:58 AM, Jun 19, 2007 in Permalink | Comments (8) | TrackBack (0)

Comments

It's a fascinating Orwellianism that I write a post that says that it is inappropriate to judge attorneys by skin color, and criticizing the racism of law firms and clients who say otherwise, and Ms. Franklin links to it to attack me. Overlawyered has always been concerned with racial and social justice: it is the trial lawyers who are guilty of the greatest injustices in this country today.

She still hasn't explained the difference between the African-American Roy Pearson and the Caucasian Tab Turner, who, unlike Judge Pearson, owns a car, and why she focuses her disdain on one, and not the other. Pearson was left with an empty bank account after his divorce, was unemployed when he brought the lawsuit, and is about to be unemployed again.

But I appreciate the admission that Franklin does not think that a lawsuit she has called "ridiculous" and "crazy" and "obscene" is "frivolous." It explains why she does not think "frivolous" lawsuits are a problem, because she defines "frivolous" so narrowly that it excludes what reformers are concerned about.

Will she post this comment, or is Tort Deform going to return to its policy of preventing its readers from seeing rebuttals?

The fact that Ted describes legitimate diversity efforts as "judg[ing] attorneys by skin color," and as "the racism of law firms and clients" speaks to his lack of appreciation for the race-relations chaos we've created for ourselves in this country. This kind of statement is totally lacking in an appreciation of the historical context that created the need for these efforts.

Ted himself noted the huge publicity the Pearson suit is receiving. This is why we chose to discuss this case.

Interestingly, Ted won't acknowledge the shortsightedness involved in using this one bad case to make the logical leap to the conclusion that the civil justice system needs to be totally reshaped so that it better works for corporate interests.

TortDeform is all about two-sided, open, respectful dialogue.

Pearson followed the law written by cult criminals on the DC Council. His claim has some merit legally. It is ridiculous in everyother way. It is lawyer gotcha, a type of bad faith and land piracy. A lawyer crime.

I see little that differs between Kia and Ted. Both? Clueless cult indoctrination victims, jacking our economy, one for sleazeball parasites, the other for predatory corporations.

Ms. Franklin,

I intentionally described this lawsuit as "crazy" and "ridiculous," and not as frivolous, in order to avoid confusion over the legal vs. colloquial meaning

For those of us who are not lawyers, would you mind giving a brief description of the legal meaning of "frivolous" as it pertains to lawsuits?

As far as reforms that would actually improve access to the court system (like making it less burdensome and complicated for pro se litigants in court) and strengthen the civil justice system, I'm all for those.

Is it then your position that a major failing of the current system is that it is too difficult to bring suits such as Mr. Pearson's?

Sure--the legal understanding of what "frivolous" means rides on the question of whether the the lawsuit has any legal merit, whether there is a legally recognizable claim. So if it's a defense to a claim--is this defense legitimate and does the person raising the defense have (or can they get) the information/evidence they need to prove it? And with the claim itself, is there a cause of action, is this something for which you can actually sue?

Lawyers are bound by professional ethics standards not to take on lawsuits that they know are frivolous or not legally cognizable--so basically if you know for a fact that the person can not sue for what they are trying to sue for, you should not take the case. Pearson's lawsuit has a smidgen of merit, but the damages he's seeking are absolutely ridiculous and he should have (assuming he actually did lose his pants) just settled for the value of the pants rather than being vindictive and victimizing this family. And this kind of gets to the colloquial sense of "frivolous." Who would really think it reasonable to do that? When the person suing is held to two codes of ethics (judges have an even higher standard to live by than lawyers) it just becomes lunacy.

As to whether I think a failing of the system is that it's too difficult to bring claims like Pearson's--that's not what I mean at all. In fact, my main concern is with claims that actually make good sense but can't be heard because people take examples like this and decide to scrap the whole system, despite its historically recognized benefits. To me it boils down to an abuse of power. Individual plaintiffs don't usually have much power, and while Ted pointed out that Pearson's pockets may be shallower than the average lawyer, he's got a wealth of resources in his ability to represent himself and not hire a lawyer. The Pearson case, to me, shows what happens when a person abuses their expertise/privilege. But actually this more frequently happens on the other side of the courtroom--with defendants who can afford to litigate and write the costs off as a tax expense, until the plaintiff loses the game of chicken, or who have the law on their side when they impose adhesion contracts on their customers so that customers can't even get into the courthouse.

I just want to emphasize the importance of not running too far with this one case--not using it to make inappropriate conclusions about the efficacy of our system. Of course, I'm not naive, I know the system can be improved. But my focus is on how it can be improved for those with the least resources, those who are most vulnerable to exploitation. In this case, those people were the Chungs (and this was a result of an abuse of power). In many more cases, though, it's the consumer, so we have to keep the civil justice system working for consumers and watchful of those who attempt to abuse it.

The SC holds that civil defendants have substantive due process rights. Once one has one of those, one has all of those, including those in the Eighth Amendment.

The defendants should sue the DC Council for statute drafting malpractice. Their careless drafting permitted a constitutionally impermissible claim against them, one for $65 million for a pair of pants, lost for one week. DC is Federal territory, not subject to 11th Amendment immunity. Because the drafting negligence violates an Amendment, it is a per se tort, subject to exemplary damages. Sue DC, wrack and break them, and their supervisor, the careless Federal government, in Federal court. Make the aggregation of Hate America misfits that populate DC regret moving there, after their taxes increase 10 fold to pay for a verdict.

The only people I regret may be hurt are striving immigrants. They should move anyway.

The Chungs pretty clearly have more resources than Pearson: they own a chain of dry-cleaners, while he doesn't even have a car. That doesn't mean Pearson doesn't have the power to do them serious financial harm.

Can you name one lawyer in the history of the United States who has faced discipline--or even civil sanction--for seeking excessive damages?

Ted: I have looked. In draconian states such as New Mexico, the sole actions against lawyers for filing a frivolous motion or case were brought by a member of the criminal cult hierarchy, the judge. I have never found a complaint of frivolous claims ever enforced if filed by a an owner of the law, the citizen, in any state sampled. If someone else can find one, it proves the point by its rarity. I have never found an action against an outrageous demand for damages.

The Disciplinary Counsel system is a criminal cult operation, solely used to enforce criminal cult orthodoxy. I bet you fear your DC, and would never sue him despite the blatant and gross illegality of the entire operation. You talk big, as all lawyers do. The mention of the cult enforcer, the DC, silences the lawyer cult indoctrination victim.

The DC claims to be a prosecutor, with the discretions and immunities of such. He is an employee of the court, practices before the court, and prosecutes before his own employer, the member of the criminal cult hierarchy, the Supreme Court of the state. He has an executive function. He is a judicial employee. He enforces rules written, not by a legislatures, but the court before which he practices. Cozy. The court writes the rules, has its employee prosecute them, and decides the outcome of the complaint.

The DC salary comes from fees collected at the point of a gun from the objects of his investigation. Like the FBI salary coming from Tony Soprano fees. This violates so many constitutional provisions, and doctrines of separation of powers, I have lost count.

I want to see Ted attack the biased, rigged, jive turkey lawyer discipline system, a mass, criminal cult, intentional tort and a huge crime.