Declarations and Exclusions

As the Curtain Rings Down, The Sound of One Persona Posting

The elusive Jack Cliente, who is suspiciously never seen in the same room with David Giacalone, has posted a last minute addition to David's farewell at ethicalEsq?:, including this sound bit advice to me and to all my fellow toilers in the fields of the law:

Don't send e-flowers to honor ethicalEsq?, but actively work for the consumer of legal services both out in the real world, and through the power of weblogs:

(1) help make bar associations at the local and state level client-oriented, instead of guild-oriented (e.g., improving the Discipline System would be a great place to start);

(2) harness the power of the web to make the self-help-law revolution a reality, and

(3) with or without new laws or ethical rules, get more information to consumers about their rights and options -- with enough information, consumers can create their own powerful competitive forces for innovation, improved services, lower prices.

Words to live by, and a worthy goal toward which to strive.

[Cross-posted to A Fool in the Forest.]

9th Circuit Dismisses Subrogation Case on Grounds Not Raised by Any Party

In a case originating in the state of Washington, the 9th Circuit U.S. Court of Appeals has dismissed an insurer's subrogation action unilaterally, on the ground that there was no basis for federal diversity jurisdiction. None of the parties to the case had objected to jurisdiction. The Court raised the jurisdiction issue on its own initiative, as it is required to do, and concluded that the insurer could not rely on its own non-Washington residence to create jurisdiction in its dispute with a Washington-domiciled defendant.

Allstate insured a home in the Seattle area. The home burned down as a result of a subcontractor having covered a halogen light fixture with tape to mask it. When the light was turned on, the heat set fire to the tape and the fire spread to the rest of the house. Allstate paid its insureds' claim and became subrogated* to its insureds' right to sue the responsible parties for negligence. Allstate filed suit against the general contractor (who had hired the negligent subcontractor) in Allstate's own name in the U.S. District Court, basing jurisdiction on "diversity of citizenship." For purposes of jurisdiction, Allstate relied on its own status as a resident of the State of Illinois so that diversity jurisdiction would apply to its dispute with the subcontractor, a resident of Washington.

In the U.S. District Court, the contractor moved successfully for summary judgment on the ground that it was not responsible for its subcontractor's negligence -- but neither the attorneys for the contractor nor Allstate's attorneys cited a controlling Washington state court decision that would have defeated the contractor's argument. After summary judgment was granted against it, Allstate filed a motion for reconsideration, citing the controlling case law for the first time. The District Court denied reconsideration, noting that Allstate had "neglected entirely to defend its . . . liability theories." Allstate appealed to the 9th Circuit.

The 9th Circuit, after narrating the procedural history and implying that Allstate could have prevailed on the merits under Washington law, ordered the case dismissed in its entirety. The Court emphasized its "independent obligation to address . . . whether we have subject matter jurisdiction" whether the parties raised the issue or not.

Under Washington law, the Court ruled, a case must be brought in the name of the "real party in interest." The "real parties" to the claim for negligence were the one's actually damaged, Allstate's insureds. Since those insureds were themselves citizens of Washington, there was no diversity of citizenship between the parties and no basis on which the federal courts could hear the case:

Allstate was not the real party in interest and therefore was not allowed to bring this claim in federal court . . . . This action could only be brought in teh name of the real party in interest, which in Washington is the insured. Bringing an action in the name of the insured . . . , citizens of Washington, would result in the absence of diversity jurisdiction, and thus the district court would not [and did not] have subject matter jurisdiction.

The decision in Allstate Ins. Co. v. Hughes (Oct. 8, 2003), Case Nos. 02-35582 and 02-35825, can be found here.

More comment, and a note on terminology, in the extended portion of this post.

Ave Atque Vale ethicalEsq?

David Giacalone has, sadly, concluded that he must end or suspend his invaluable web journal -- he swore off the term "blog" for reasons first stated here and here -- ethicalEsq?

I could praise David as "tireless," but that would be almost exactly wrong: his reluctant retirement from the field is driven largely by Chronic Fatigue Syndrome. The ailment has, if anything, served to focus his mind and pen wonderfully, and the accumulated posts at his site (which will remain available for the foreseeable future) contain a wealth of cogent and often wry observation on his topic of choice: the need for lawyers to maintain their focus on doing right by their clients and doing so in a fundamentally honest and honorable way. This topic is especially relevant to me, as an attorney, but this world is so awash in lawyers and it is so hard to avoid us at one time or another in one's life that the subject is always timely and always an important one even (particularly?) for non-lawyers.

David represents much of what is best in this medium and in our shared profession. Go, read, browse his archive and profit from the treasures therein.

[Cross-posted to A Fool in the Forest.]

No Review for Attorney Suspended for Insulting Judges' Integrity[w/ Bonus Critique of Loose Language in the Press]

I began commenting some time ago on the Pros and Cons of Insulting Judges. Now, the attorney whose case inspired that original colloquy has had his petition for review by certiorari denied by the U.S. Supreme Court.

The tireless Howard Bashman links to this report, which adds some new history to the case:

[Indiana attorney Michael] Wilkins had drawn a 30-day suspension from the practice of law from the Indiana Supreme Court. But that was put on hold in November 2002 after the state's high court agreed to take a second look at Wilkins' case.

Later, a majority of the five-member Indiana Supreme Court voted to give Wilkins a public reprimand.

The court reduced Wilkins' punishment because he characterized the remark, made in a footnote, as "inappropriate." He also had offered to apologize to the appellate judges and has a well-established record of honesty and integrity, the court noted.

Attention Language Sticklers: For those readers who prefer precision in their reporting, please note that no matter what the Indianapolis Star may claim, the U.S. Supreme Court did not "reject Wilkins' appeal." The U.S. Supreme Court does not hear "appeals," and the continuing use by reporters of that term is laziness and inaccuracy of the highest, or most slothful, order. This is a pet peeve of Gregg Easterbrook, who explains somewhat more fully here.

Oh, Behave! No Injunction Against Lawyer-on-Lawyer Violence Absent Evidence of a Threat of Future Harm

The Court of Appeal has reversed and vacated an anti-harassment injunction issued in favor of one attorney and against another, finding that a single instance of violence, threats or harassment is insufficient to support issuance of an injunction absent a showing of a threat of future harm.

Russell and Douvan were attorneys on opposite sides of a dispute. Following a hearing, Douvan, according to Russell, followed Russell into an elevator and grabbed his arm. Russell sought an injunction under California’s anti-harassment statute, Code of Civil Procedure §527.6. Although the underlying case had concluded by the time of the injunction hearing and both attorneys acknowledged that they did not have anything otherwise to do with one another, the trial court concluded that a battery had been committed and issued the injunction. Douvan appealed, and the Court of Appeal concluded that the trial court should not have issued the injunction.

The appellate court’s reasoning was simple: even when an injunction is authorized by statute, the remedy can only operate prospectively. Injunctions deal with future harm, not with events in the past. Absent evidence that there was an actual threat of future wrongdoing, no injunction could be justified.

When the [trial] court concluded that a single act of unlawful violence required the issuance of an injunction, it construed its role too narrowly. There may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable. That finding, however, must be made and the court failed to do so here.

The appellate court was silent on the ethical or disciplinary consequences of even a single act of lawyer-on-lawyer violence. We trust that the Court does not mean to be understood as endorsing a “one free bite” rule for attorneys.

The Court's decision in Russell v. Douvan (Sept. 30, 2003), Case No. A096261, can be found at these links in PDFand Word formats.

[Thanks to Ken Lammers at the CrimLaw blog and to The Southern California Law Blog for their links back to this post. Both are well worth your while, if you aren't already checking them regularly.]

[UPDATED:] Adding Injury to Insult -- Lawyer Gets Blasted, Shrapnel Harms Client

Carolyn Elefant of My Shingle (a very interesting site for those, such as your Decs and Excs scribe, who practice law solo or in a small firm) picks up on the subject of attorneys who insult judges and asks an entirely reasonable follow-up question: Punishing Lawyers Is One Thing - But Should The Client Pay the Price? In other words, if a judge has been provoked by an attorney's carrying-on, is it really fair that the client should suffer by having his $16 million judgment taken away from him?

David Giacalone at ethicalEsq?:, whose post started all this has updated it to respond to Carolyn, noting that "we need to know more about the decision and its procedural context . . . before deciding whether the judge has degraded the court." David having placed himself on hiatus until October 1, I will step into the breach.

This latest story on the original decision to toss out the judgment indicates that the actual opinion -- which will most likely answer David and Carolyn's questions more clearly than any speculation I can offer -- will be published on Monday. Watch this space, and I will update and comment further at the top of the week.

UPDATE 9/22: Unfortunately, it appears that the court's decision is available on a subscription-only basis, leaving us no better informed than last week. But that won't stop me from engaging in a little speculation, based on experience under California law (which may or may not be identical to the rules applicable in New York.)

I suspect that the ruling "throwing out" the plaintiff's verdict probably took the form of an order granting a new trial on the grounds of attorney misconduct. That is, the trial judge apparently concluded that attorney Moore's behavior was sufficiently egregious that it undercut the reliability and objectivity of the jury's findings, resulting in a verdict no necessarily supported by the evidence. If that is the case, the plaintiff is faced with the frustration, delay and expense of a second trial, but still has an opportunity to make his case.

Carolyn Elefant objects that "during the trial, the judge never sanctioned Mr. Moore, issued a curative instruction or entertained the possibility of a mistrial." News reports, even in legal publications, often omit procedural details, so it is certainly possible that those sorts of actions were taken. (The actual opinion probably answers these questions more fully than the news reports.) Whatever the case, we do know that the judge criticized Moore's behavior and cautioned him to stop it during the trial While we can say with hindsight that it may have been better if the judge had acted prior to the verdict, or had provided Moore with a clearer warning that the verdict might be at risk, it is not unheard of for a new trial motion to be granted in a situation like this one.

Further updates may follow, if I get my hands on a copy of the actual decision.

Further Reflections on Insulting Judges

Via David Giacalone at the always-interesting ethicalEsq?: comes this article: "Verdict Set Aside Over Lawyer's Conduct". It tells the story of a leading New York medical malpractice plaintiffs' attorney whose insults and insinuations about the judge and defense counsel led the court to vacate a $16 million verdict in his client's favor. A sample:

Justice Green also faulted Moore for denigrating opposing counsel and several witnesses with "mocking comments," such as, 'With all due respect, I asked a question that a fourth grader could answer if he's telling the truth,' and 'The game is up, Doctor, I hate to tell you.'

The judge cited some of Moore's closing remarks as prejudicial toward the defense attorney, including comments that there was an 'orchestrated, deliberate, concerted effort' by the defendants 'to deprive plaintiff of justice,' and that the defense attorney 'did his best but he had to defend the indefensible.'

[Rhetorical Rule of Thumb: When an attorney prefaces anything with the phrase "with all due respect," the odds that a respectful remark will follow decrease rapidly toward zero.]

Our earlier discussion of this topic -- with a focus on the poor judgment of defendants' counsel in questioning judges' integrity -- can be found here.

Attorney Must Be Disqualified from Representation in Opposition to a Former Client If Current Case Bears a "Substantial Relationship" to the Former Representation

The Court of Appeal for the 5th Appellate District has revisited the standards to be applied when an attorney represents the opponent of a former client and the forme client moves to disqualify the attorney. Reversing a trial court ruling that allowed the attorney to continue in the case, the appellate court determined that the lower court had not applied a correct standard in ruling on the motion to disqualify. The court remanded the case for application of the "substantial relationship" test. The court articulated that test as follows:

[T]he question whether an attorney should be disqualified in a successive representation case turns on two variables: (1) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation, and (2) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation.

The decision in Jessen v. Hartford Casualty Ins. Co., (Aug. 25, 2003) Case No. F041425, can be found at these links in PDF and Word formats.

A factual summary and other comments will be found in the Continuation of this post:

Asked and Answered: The Pros and Cons of Insulting Judges

David Giacolone of the valuable legal ethics blog ethicalEsq? (which you will find added to the links list to your left) has propounded a question in the general direction of this blog and, seeing as how we are in a service profession, I will respond as best I can.

Twice in the past month, David has found himself writing about irresponsible carrying on by insurance defense attorneys in their appellate briefs. First, in this July 27 post, he caught up with the case of Michael Wilkins, an attorney in Indiana who woulnd up on the receiving end of disciplinary action by that state’s Supreme Court. Wilkins had been representing Michigan Mutual Insurance Company in a coverage dispute. The case went against his client at the trial level and again in the Indiana Court of Appeal. In his petition seeking review by the Indiana Supreme Court, Wilkins included an ill-advised footnote in which he characterized the appellate opinion as being “so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual's opponent] and then said whatever was necessary to reach that conclusion.” [Underscoring by ethicalEsq?.] The Supreme Court found this to be a “scurrilous and intemperate attack on the integrity” of the lower court, and responded with a disciplinary thunderbolt, resulting in Wilkins’ suspension from practice. (David's post on the case dives deep into the First Amendment aspects of the dispute, among others.)

And earlier this week, in this post, David notes another example. In a case that I also noted here -- in which the appealing insurer’s counsel failed to include any portion of the disputed insurance policy in the appellate record -- the court again took counsel to task for tossing accusations at a lower court:

One final point. Baseless attacks on the integrity of the district court are inappropriate even in offhand conversation. Here, Travelers' brief could easily be read as accusing the district court of misconduct, rather than simple legal error. Travelers' counsel must exercise greater care in the future. The record contains nary a hint of impropriety by the trial judge.

Underscoring is mine. And of course part of counsel’s problem in that case was that the record seems to have “contained nary a hint” of any other useful information, either.]

From these two instances, David suggests that something is amiss in the insurance defense/coverage bar and sends out this question:

What's up? I'm thinking some smart-aleck appellate lawyer wrote a snappy, irreverent footnote a few years ago, and it has been floating around the insurance defense bar ever since, passed on from one frustrated, smirking scribe to another. Maybe it's even become ill-conceived, hyperbolic, anti-bench boilerplate.

I'm hoping that insurance-oriented blawggers (e.g., Doug Simpson at Unintended Consequences, Dave Stratton at Insurance Defense Blog, or George Wallace at Declarations and Exclusions) will find the source of the footnote. Even if we never know the original miscreant, let's hope the offending words and notions have been deleted from word processing documents across the insurance defense bar.

I think David is too willing to detect conspiracy in this case. So far as I know or have been able to determine, there is no pre-fab footnote being shared among insurance counsel to be trotted out when one of us feels the urge to suggest that a lower court judge was not merely wrong, but crooked. And there is a simple reason for my belief that the thing Does Not Exist: Why circulate an all-occasion anti-judicial j’accuse when very few insurance attorneys would be foolish enough to use it? It is to be hoped that very few attorneys, period, regardless of their field of specialty, would succumb to that temptation.

There are few things better calculated to turn a court against you -- and thereby to cause serious harm to your client’s case, regardless of its substantive merit -- than suggesting that a judge has willfully ignored the facts or the law, or worse. Even if the attorney making the accusation avoids discipline, as he or she likely will in all but the most extreme cases, there will almost never be any short- or long-term advantage to be gained by stooping to that tactic. As most attorneys learn early on, judicial decisionmaking involves a lot of close calls, in which the court exercises a broad discretion to decide which of several possible interpretations of the facts or the law to adopt. Once a court has been turned against the advocate by an ill-conceived attack on its integrity or intelligence, it is that much harder to persuade the court to make those close calls in favor of that advocate’s position. Judges have long memories, especially for attorneys who appear regularly in their courtrooms, and to lose the judge’s trust by the use of such a cheap shot can only harm future clients’ interests. (By the same token, developing a reputation for playing it straight with the court even in a losing cause can earn the advocate the benefit of the doubt in future close cases.)

Yes, I believe there are cases in which a judge actually does adopt a result-driven approach that leads to his or her outright ignoring compelling evidence or a legitimate legal argument. I also believe those cases are more rare than not. When presenting such a case on appeal, a direct attack on the judge in an appellate brief is less likely to succeed than is a carefully argued, well-documented tour of the record, demonstrating to the appellate panel just how far wrong the lower court was on the record actually before it. In the even rarer case in which a judge has genuinely crossed the line toward unethical or corrupt conduct -- something I have not personally encountered -- I tend to think that the issue is better handled through judicial discipline procedures than in an appellate brief.

So, there is a rather longwinded response to David’s inquiry. He has already given the short answer himself: "Attacking a judge's integrity in a footnote is both tacky and bad strategy." True, true, true.

Thanks to David for thinking of this blog when he came up with that question. I will update this post with links to any other responses he draws.

A Valuable Safety Tip

From Dave Stratton's Insurance Defense Blog, an important piece of advice for appellate attorneys in general and appellate insurance coverage attorneys in particular: always include a copy of the policy you are arguing about in the record on appeal, because The Appellate Court Can't Construe What It Can't Read.