It seems like every few weeks there is a report of another ridiculous cop shooting. Last week the news was Chicago police officer Jason Van Dyke killing seventeen year old Laquan McDonald by shooting him a dozen times. Here is a NY Times report with video.

This on the heels of many other publicized bad shoots recently, including that ridiculous one in South Carolina.

In Mississippi, there was news last week about an over-zealous cop at an Ole Miss game punching a fan who may, or may not have, mouthed off to the cops. Which you can’t do because the cops may knock the crap out of you–or kill you. Here is full coverage over at Jackson Jambalaya. At least the cop didn’t shoot the fan.

And if you want to watch law enforcement kill someone in Mississippi, well there is the video of the Jesse Lee Williams murder by Harrison County jailers in 2006.

So is police violence increasing? Probably not.

They are just getting caught sometimes now because of pesky cell phone videos. Cops still lie to support other cops’ bad shoots, as we saw in South Carolina. Prosecutors may be coming around on prosecuting bad cops, but you still get the feeling that their hearts are not in it. I’ve yet to see a recent prosecution of a cop where the prosecutor actually had a choice.

Here is my story of a cop shoot. A few years ago, after refusing on multiple occasions, I agreed to help Jackson lawyer John Giddens represent Zeta McBroom, a young woman who was shot and paralyzed by a Harrison County Sheriff deputy in 2006. The shooting followed a police chase. Zeta ran because she was previously beaten by the same crew of jailers that killed Jesse Lee Williams. The deputy shot Zeta through his windshield into the back of her SUV.

It seemed like over-kill. But as in every cop shooting, the deputy said he ‘feared for his life.’ Local authorities presented the case to a grand jury that did not indict.

But the fix was kind of in with the grand jury because the ‘investigators’ did not bother to canvas the neighborhood and see if there were witnesses. There were. Prosecutors and their investigators don’t want to find evidence that conflicts with the cops’ account. That’s where cell phone videos have changed the game.

Witnesses’ accounts of the shooting differed drastically from the cop’s and portrayed the cop as shooting Zeta in cold blood after she dinged his car while backing out of a debris pile she ran into while making a turn.

We found the witnesses and thought we had a chance in the civil trial. We didn’t. The jury was out for about 10 minutes before returning a defense verdict. The jury did not get to hear Zeta’s explanation for why she ran, but I don’t know that it would have mattered. Cops get the benefit of the doubt with juries.

But that was in 2006–before the proliferation of cell phone videos. Today, whatever happened would likely have been captured on cell phone video.

The problem with cops is too many Tackleberrys and not enough Hightowers.

That was funny in 1984 because there were cops like Tackleberry. There still are. Except they aren’t funny. They are scary. Many have a scary vibe. I don’t think that is ever going to change. It’s why some people want to be cops. They want to crack some skulls or shoot somebody.

But increased prosecutions of cops making bad shoots may dampen the Tackleberrys of world enthusiasm for gun play.

Driverless vehicles are on the way. Seriously. And people are starting to consider how the driverless revolution will impact the economy.

My favorite financial blogger Mish Shedlock has a post today about how self-driving trucks will impact the truck driver profession. But it’s not just truck drivers who will be affected:

At $40,000 a year, the incentive to replace truck drivers with software is massive. And it will happen. Not only that, but insurance costs will drop. Most truck accidents are caused by user error: Driving too fast, driving while tired, driving intoxicated, etc. Robots don’t drink, don’t get tired, won’t drive unsafe to get to a destination faster, etc.…

People keep emailing me about insurance. Many believe the cost of insurance will skyrocket. I believe accident rates will plunge, and insurance costs with it. So what happens to a lot of insurance salesmen? Claims investigators?

Turkewitz envisions self-driving cars as a bad development for the personal injury bar. But I think it’s broader than that.

Here is a link and pdf to Judith Resnik’s Yale Law Journal Article regarding arbitration. The abstract concludes:

The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of the court.

She’ll get no argument from me on that point.

But I don’t think the current system will last. I believe that the vast majority of judges outside the U.S. Supreme Court bubble agree that pre-dispute arbitration clauses should not be constitutional. U.S. Supreme Court justices are so insulated from the real world that they probably don’t understand how impacts everyday transactions for regular people.

In mandating arbitration, most judges are following Supreme Court precedent that they disagree with.

As for consumers who are subject to pre-dispute arbitration clauses, I don’t think I’ve ever met one non-lawyer who who understood that they were signing away their right to file a lawsuit.

Normal people don’t know what arbitration is. The typical response when it’s explained to them is “uh?” When it sinks in, they don’t like it.

Enforcement of pre-dispute arbitration clauses in consumer contracts is the imposition and enforcement of a crooked system. Is that sustainable long term? I don’t think so.

But it’s not going to matter for lawyers in my generation. We are stuck practicing in a world where many viable claims are made non-viable by arbitration clauses. This results in less work for litigation attorneys on both sides of the ‘V.’

One day, Congress or the U.S. Supreme Court will end the current arbitration nonsense. It will be good for business for lawyers. Sadly, I doubt I will still be practicing law when it happens.

Chase Bryan recently blogged about the billable hour system and alternative fee arrangements. A barrier to alternative fee arrangements is in-house lawyers who are afraid of change:

…a former outside lawyer and now a general counsel at a large company, expressed skepticism about alternative fee agreements. He said that everyone talks about alternative fees deals but folks rarely actually agree to engage in them. He relies on the default of hourly fee arrangements because it is familiar.

That’s consistent with my experience. I’ve proposed flat fees to corporate clients who weren’t comfortable with the concept because they had never done it before.

Corporate America is largely built on the backs of employees who do not want to rock the boat. Changing the way your outside attorneys bill would rock the boat–so companies usually maintain the status quo.

The legal industry is slow to change. I suspect that alternative billing will continue to grow, but at an extremely slow rate. Perhaps one day there will be a tipping point that speeds it up.

Another great defense-side idea that has been slow to adopt is resolution counsel who are separate from litigation counsel. I’ve seen this concept used a few times and am impressed with it. Having resolution counsel whose sole job is to try to settle the case eliminates the inherent tension between a defense lawyer’s need for work and the benefit of settlement for clients.

It’s a topic for its own post, but the concept of resolution counsel makes more sense than ever. The value of cases has dropped so much over the last 10-15 years that the exposure levels usually do not justify spending six figures to defend cases.

That made sense back when many cases settled in seven figures. Who cared if defense counsel billed $250,000 if they beat the settlement value down from $2 million to $1 million? That’s how it worked in the litigation boom.

Not so much today when those same can be resolved in the low to mid six figures. Perhaps I’ll post more of my thoughts on this topic later.

Background of Dispute:

The dispute between Miss. State University and former Rankin County Chancery Clerk Murphy Adkins has been covered by both the local paper and blogs. Jackson Jambalaya blogged about the case here and here.

The title of the JJ’s posts are “Disgusting” and “Amazing what money can do to people. Exhibit A: The Bradshaw estate.” Is the language in these titles a bit strong? No, not really.

The brief factual synopsis: Thomas Bradshaw died with no heirs. A prior will left his seven-figure estate to MSU. In 2008, Mr. Bradshaw was diagnosed with advanced Alzheimer’s. In 2009, the Court appointed Adkins Bradshaw’s conservator after the original petitioner withdrew due to health reasons. A conservator is charged with managing the person’s affairs. In 2008, Adkins drove Bradshaw to a lawyer’s office where Bradshaw executed a new will leaving his entire estate to…Adkins.

For those who want to read it, here is MSU’s Objection to Petition to Probate Will and Appoint Executor to the will and here is Adkins’ Answer to the Objection to Petition.

Adkins admits in his answer that he was entrusted with the physical care and financial oversight of Bradshaw.

My Take:

I agree with the general public sentiment that this is unbelievable. I don’t know what was going through Murphy Adkins’ mind. But I do know that he looks like a total scumbag.

Adkins was appointed conservator to prevent THIS from happening. Mr. Bradshaw needed protection from people who might do….exactly what Adkins did do. Rather than stop it, Adkins did it himself!

Of course Adkins has his defenders, like this comment on JJ that states in part:

Has anyone considered why he may have given everything to Mr. Adkins?? Did MSU go visit him daily? Take him to and from his appointments? Have him in their home on holidays? Treat him as a member of the family?

No, probably not. MSU was not Bradshaw’s court appointed conservator. As a court appointed conservator, Adkins was getting paid to be Bradshaw’s buddy. Doing your job as conservator does not make you family who gets the estate. I know that’s how you justify it in your own mind when you do this, but to everyone else, you come off looking like a thief.

Did Bradshaw–who had advanced Alzheimer’s–even understand that this person who had adopted him was getting paid to do it? And if Bradshaw did understand it, when? All the time? No, probably not if he had Alzheimer’s.

It would be one thing if the conservator was a family member or maybe even already in the will. But some dude the man didn’t even know before he was appointed conservator?

The law presumes undue influence in this situation, which is basically a presumption of stealing. If Adkins wins–and he could–he should enjoy the money. He is getting that money at the cost of his personal reputation, which a lot or people value more than money.

In the news last week was the ruling by a California appeals court that a high-profile Hollywood lawyer’s settlement demand letter was not extortion. The Courthouse News Service Reported:

Lavely & Singer lawyer Marty Singer had sent Malin the letter in 2011 on behalf of his client, “Top Chef Canada” judge Shereen Arazm aka Shereen Koules.

As a general partner in one of Singer’s restaurants, Geisha House, Arazm was allegedly worried that Malin was misappropriating assets.

In his letter explaining the alleged embezzlement, Singer accused Malin of using “company resources to arrange sexual liaisons with older men such as ‘Uncle Jerry,’ Judge [name redacted] a/k/a ‘Dad’ (see enclosed photo), and many others.”

While the letter included redactions and blanks where names should be, Singer warned that “there will be no blanks in the pleading” he planned to file in Los Angeles Superior Court.

Malin then sued Arazm, Singer and others on Aug. 1, 2011. In addition to alleging extortion, the “Big Brother” star claimed that Singer and Arazm hacked into his emails and tapped his phones.

Philadelphia lawyer Maxwell Kennerly wrote about the case last week on his blog and agreed that Singer’s letter was not extortion. Kennerly also examined the Model Rules of Professional Responsibility (Rule 4.4) and concluded that the letter did not violate the rules of professional responsibility:

Was there a “substantial purpose” to Singer’s letter and the letter sent to Flatley? I believe so: the purpose was to fully inform the defendant as to what information the plaintiff believed would become public if the was filed.

My Take:

I find Stingley’s tactics to be both unseemly and unprofessional. In my opinion, demands should be based on the facts of the case. If the defendant has other reasons to settle the case that are not directly related to the facts, then it is for the defendant to identify and weigh those reasons.

Even if ok, I don’t believe that threatening demand letters that have the taint of extortion will promote settlement. My guess is that more times than not, these types of letters turn a legitimate dispute into a no-holds-barred street fight.

Opinions can differ on this issue, but one could persuasively argue that it’s harder to settle cases when the defendant personally dislikes the plaintiff and his attorney. Letters like Stingley’s guarantee that this type of personal animosity comes into play.

What might be surprising to some defense lawyers is that many times the impetus for threatening demand letters is the plaintiff and not the plaintiff’s lawyer. I can’t count the number of times that I’ve had to explain to clients why I’m not going the take it personal route.

In general, plaintiffs greatly over-estimate the weight that the threat of litigation imposes on potential defendants. As a general rule, no one is ever going to settle your case just to keep it from the public domain.

I know we’ve all heard about the big alienation of affection case that settled pre-suit to keep it out of the public record. But cases like that are the exception, not the rule.

Also, how do threatening demand letters like Stingley’s make the profession look? Like a real profession? Or a bunch of mob goons? Some would say this doesn’t matter–a lawyer should push every limit to maximize his client’s prospects. I disagree. Lawyers taking this approach is a big reason that the public views attorneys unfavorably.

Making every case personal also is a sure path to a miserable life for a lawyer. You will never convince me that lawyers who make every case personal lead happy lives. Lawyers who do this are reviled within the profession and look miserable. To me, that’s no way to go through life.

File this one in the o’ brother department. The Wall Street Journal reported today that in-house law departments are cracking down on outside lawyer’s expenses such as meals, photocopies and legal research expenses.

“You’re paying a partner $800 to $1,000 an hour and they’re charging you because they ordered sushi.”

My Take:

This is funny.

Rather than find a good lawyer in someplace like Nashville, Birmingham or Jackson who bills at $500 an hour, big corporations still run to the over-priced East Coast firms, get raped on fees and then brag about getting tough on lunch.

It’s like the guy in the casino playing blackjack for $25 a hand bragging about getting free drinks. Dude, what you’re doing is nothing to brag about.

So why do they do it? In my opinion it’s because many in-house lawyers do not have the competence confidence to go out and find a good lawyer. So what’s the fall back? The fall back is to go out and hire the most expensive New York lawyers they can find. That way when things go wrong, the in-house lawyer can say: “don’t blame me, I hired the most expensive best lawyers money can buy.”

This will not last forever. Some corporate law departments have figured it out and are bypassing New York firms for lawyers who are just as good—probably better in some practice areas—and much cheaper. There is an opportunity for the regional law firms to compete with the national East Coast firms based on price.

There are already regional firms with a presence in Mississippi doing it. Bradley Arant and Butler Snow are two that come to mind. Others would be smart to figure out how to market their firms to take advantage of the opportunity. At $500 an hour they could even throw in the lunch and copies.