A Trial Lawyer in Court

Image from “Mrs. Nelson’s
American Government”

Like directing a play

By James T. Carney, Attorney at Law

I was recently involved in a case that well illustrates what trial lawyers do. The case had to do with the Employee Retirement Income Security Act (ERISA) of 1974, and included a good deal of esoteric discussion about ERISA, which I won’t bore you with. The case in question boiled down to a brass and knuckles fight over whether or not a couple who divorced after having been married in a religious ceremony had subsequently reunited in a common law marriage.

Thor's Day: The Act of God defense

A lawyer's windfall

By James T. Carney

[Editor's Note: Our friend Jack Cover wrote us last week that he had had his big Christmas present early—the weeks of Christmas and New Year's Day off from the Torisel chemotherapy that had been holding in check the tumors of his renal cancer. The cancer was entering its 33rd year, but Jack and his doctor had decided against a birthday party now to wait until the cancer's 50th, when everyone could have a real blowout. Our friend James T. Carney responded to Jack's good humor in such good humor of his own, we asked him and Jack whether we could publish his response. They said we could.]

Hi Jack, have you ever considered the possibility that you're a hypochondriac, what with all these complaints about cancer? By my reckoning you should have been dead two years ago. I am glad you never entered hospice care, for the government would be suing you to collect all costs expended after the first six months.

Fish for Friday

Limerick of the Week:

Prosecutors are happiest convicting dumb saps,
Tort lawyers earn biggest bucks by suing plum chaps—
    They say "See you in court!
    Litigation's my forte"—
And defense attorneys guard their clients from raps.

The latest Grisham cup of tea

On Monday night I reached about page 284 in John Grisham's 2009 legal thriller, The Associate. If the book was a cup of tea, it still had heat to that point. But last night, as I read the last ninety pages, the heat fled, and I was let down to realize that for all the tea's comforting warmth for three-fourths of the cup, it had little flavor or body. Just not that good a tea.
    I'm left wondering, though, whether Grisham's depiction of big law firms as using the best and brightest young law school graduates to operate a sort of billing mill is accurate. Do they really set their associates to spend long hours doing research they know will likely never be used but for the purpose of billing a client for the privilege?
    Also, since the bad guy....No, I can't go there. I might spoil whatever plot enjoyment you could otherwise slurp from Grisham's latest disappointing cup. (The ending is reminiscent of the unsatisfactory, if clever, way Nelson DeMille ended his 2004 novel, Nightfall.)
    For a much fuller bodied, more savory tea, I recommend John Le Carré's latest, A Most Wanted Man. It actually gets hotter as it goes along, up to the very last delectable sip, so apt a comment on the Bushevik foreign policy it delivers a kick to the American groin.

Afterwords on "Case dismissed!"

With regard to yesterday's "Case dismissed!" (whose anecdote could well have been written as a joke), I received the following remarks from a couple of my learned friends:

When I was practicing law I can assure you that I would never have taken this case. It is this kind of garbage that helps screw up our court system. The two biggest problems with our court system are, in order: (1) clients and (2) lawyers who will take anything to court that a client is willing to pay for. Lawyers are supposedly "officers of the court," but you would never know it by the behavior of some of them.
    Everyone screams about activist judges, but then we ask them to decide everything in our society.

What if judges stated awarding fees, expenses, etc. to the aggrieved side in a frivolous lawsuit, to be paid by the idiots? Following after the British legal situation.

That has been a topic of discussion ever since I can remember. Judges in most places actually have the power to award fees to people who are hit with truly frivolous lawsuits, if the judge finds that the lawsuit was filed solely to harass someone and with the knowledge that it had no merit. They are very reluctant to find this – it almost never happens.
    The argument against the idea is that it might discourage potentially meritorious suits because people are afraid of being hit with huge legal fees for the other side if they lose, particularly if the other side has high-powered and expensive legal representation. The Brits have a schedule of legal fees that they award, so they limit the potential liability for the other side’s legal fees. I think, however, that the Brits typically award legal fees to the winning party in all civil lawsuits, even if the suit is not found to be frivolous. (I am not certain of this.)