damages

A Reminder: Why “User Pays” Is Unethical

/ Jack Marshall / 30 Comments

The View

[Back in 2007, a ridiculous lawsuit spawned an even more ridiculous pronouncement from “The View’s” Rosie O’Donnell, which prompted the following post (originally titled “The Pants, the Judge, and Rosie’s Mouth”)  on this blog’s predecessor,  The Ethics Scoreboard.The two law-related issues that the public has the most difficult time grasping are why lawyers defend guilty people, and this one: the contingent fee system for civil plaintiffs.  While I was pre-occupied the last couple of days by two challenging ethics programs and 10 hours of driving back and forth into West Virginia to deliver one of them, I missed the outbreak of another “loser pays” discussion in one of the comment threads. It’s clearly time to run this one again (I last put it on Ethics Alarms in 2010), with a few tweaks.]

The tale of Roy Pearson, the infamous Washington, DC administrative law judge who is suing his dry cleaner for damages of $65.5 million for a lost pair of pants, would normally warrant scant comment beyond this obvious one: Pierson is a bully, his lawsuit is unreasonable and unethical, and he deserves whatever sanctions the legal system can devise. A Washington Post editorial suggested that the lawsuit, which Pierson says is justified by his inconvenience, court costs, and the mental anguish caused by the loss of his beloved pants, is proof enough of bad character and terrible judgement that he should not be reappointed to another ten-year term.  [ Update: He wasn’t.] That would normally end the issue, freeing me to move on to more important matters, like global warming and American Idol.

And then Rosie O’Donnell opened her big mouth. Continue reading →

James O’Keefe Gets What He Deserves…Just Like ACORN

/ Jack Marshall / 34 Comments
That will be $100,000, please,

That will be $100,000, please,

James O’Keefe is a darling of the right who has executed, with varying levels of success, deceptive, unethical and sometimes illegal vigilante ‘stings’ (using hidden cameras) to prove various conservative targets like NPR and Planned Parenthood are secretly as bad as the right thinks they are. Everything about this is wrong, of course, beginning with his methods, which would be unethical journalism if he were a journalist (rather than a partisan hit man), and ending with his targets, which, if O’Keefe had integrity, would include both right and left. That wouldn’t be good for business, though.

O’Keefe’s biggest hit was on ACORN, the progressive, many-armed community-organizing non-profit that was operating on considerable taxpayer largesse. In 2009, O’Keefe and a female colleague dressed as a young prostitute secretly videotaped themselves seeking help from several ACORN offices, including those in Brooklyn, Baltimore, Washington, D.C., San Diego ( actually National City), and San Bernardino. O’Keefe spun various versions of a tale about a cruel pimp importing underage girls to stock his inventory, and and O’Keefe’s  plan to house them in secret and safety, but the sham’s goal always was to gull ACORN employees into giving advice regarding how to hide  illegal activities and how to get financial assistance for the prostitutes.  In San Bernardino, an ACORN employee told O’Keefe and the woman that the girls could classify their underage brothel as a “group home” to avoid detection, or maybe they should open a massage parlor. The Brooklyn office gave advice to the “prostitute” about how to hide her money, including opening multiple bank accounts.  D.C.’s  ACORN staffer provided advice on how to file tax returns without revealing her true trade. The Baltimore ACORN employee opined, “Well then, you know what, you can always claim them as dependents” and suggested, “You are gonna use three of them; they are gonna be under 16, so you is eligible to get child tax credit and additional child tax credit.” When O’Keefe asked, as the helpful friend of the girls,”What if they are going to be making money because they are performing tricks too?”,  the ACORN employee replied, “But if they making money and they are underage, then you shouldn’t be letting anybody know anyway.”

In National City, near San Diego, however, O’Keefe’s luck ran out.  Continue reading →

Unethical Quote of the Week: Drew Curtis’ Fark

/ Jack Marshall / 61 Comments

“Seduced by your teacher at 16 thereby robbing of your childhood, oh yeah that’s surely worth 10 million…”

—Drew Curtis’ Fark, satirical news aggregation site, commenting on a mother’s 10 million dollar lawsuit against Brooklyn and the teacher who had repeated sex with the mother’s 16-year-old son, whom she was supposed to be tutoring.

Erin Sayer—teacher, child molester, sex fantasy. “How to GO kid! I’d hit that, for sure!”

Let me begin by saying that Fark is one of my favorite sites. It is consistently irreverent and funny, and its news links have inspired some of the most interesting exchanges on Ethics Alarms. Let me also say that I understand that the point of the site is to make snarky, often irreverent, sometimes obscene and intentionally outrageous tongue-in-cheek comments about news stories  trivial, major and odd, and that for the most part, it accomplishes its mission with wit and good humor.

This comment, however, is wrong, unethical, because whatever value it has as humor is outweighed by the harmful attitude it reinforces. Whether it is the  sentimental, , “Summer of 42” myth of the beautiful right-of passage of a teen-aged boy with the help of a loving, lovely, adult woman, or the macho “All right–I sure would have loved to have had a roll in the sack with MY hot high school teacher!” reaction of the locker room crowd, the idea that an adult teacher seducing and having sexual relations with a minor student is anything but sexual assault, rape, and a dastardly breach of trust, position and power does affirmative and continuing harm. The currency and resiliency  of this enabling attitude (read the comments to any online news story about a female teacher prosecuted for having sex with a student) emboldens sexual predators in the schools, reinforces an indefensible double standard ( a male teacher who has sex with a female student is an unequivocal villain, but a boy being raped by a female teacher is a lucky stiff) ) and worst of all, makes student victims more vulnerable.

The cultural assumption that a boy who is seduced by a teacher has been given some kind of gift is in the same category as the claim that women who are raped secretly “want it.” It is important that this theme be rejected, which means that websites like Fark shouldn’t reinforce it even in jest, because the jest does reinforce it.  Hitting communities, schools and teachers with tough jury verdicts is an essential part of eliminating this far too common crime in our schools. Ten million dollars in damages properly states how wrong and intolerable the conduct is, and like all forms of rape, it is nothing to laugh at.

________________________________________

Facts: Fark

Source, Graphic: Daily Mail

(Again, thanks to Jeff Field for catching a typo!)

Ethics Quiz: Is It Wrong For A Rescuer To Sue The Victim He Rescued?

/ Jack Marshall / 15 Comments

"OK, Princess, you'll get my bill for this rescue in five to seven business days."

On March 11, 2009, Mark Kinkaid and David Kelley were riding in Kinkaid’s truck when they saw a detached bumper, headlights and all, lying in the middle of Rt. 23.  Smoke was rising up from the highway embankment,  and the two men concluded that someone was in trouble. The truck stopped, and they got out, hopped a barbed-wire fence, made their way down the steep highway embankment, where they saw a flaming Hummer. Theresa Tanner was trapped inside, screaming for help. They forced their way into the vehicle, pried a door open and pulled Tanner out. She was injured and burned, but after weeks in intensive care, survived.

Now Kinkaid and David Kelley are suing Tanner, claiming that the crash was her fault and that she is liable for the injuries they sustained in rescuing her. They have filed a lawsuit asking for damages of at least $25,000 each. “All I know is that I am not the same man I used to be,” says Kelley, a 39-year-old truck driver and father of five, who says the heavy smoke and fire that day damaged his lungs so that he can’t carry a laundry basket up the three flights of stairs in his home.

The law provides a rationale for such a lawsuit. “The precedent is clear: danger invites rescue … and if you’ve acted recklessly or negligently and someone gets hurt rescuing you, you could be in trouble,” says Stan Darling, a tort law specialist. A well-established principle known as “the Rescue Doctrine” holds that if someone is in peril because of their own negligence or recklessness, an injured rescuer can recover damages if he acted reasonably and can prove that his injuries were caused by the rescue attempt.

That’s the law, however. This is ethics, and your Ethics Quiz today is:

Is it ethical for a rescuer to sue the person he rescued? Continue reading →

Ethics Quiz: Should Shannon Stone’s Family Sue the Texas Rangers?

/ Jack Marshall / 33 Comments

One Thursday, a 39-year-old firefighter named Shannon Stone leaned over a stadium railing at a Texas Rangers game to catch a ball flipped into the stands by Ranger outfielder Josh Hamilton.  Stone’s son, 6-year old Cooper, was a big Hamilton fan, and the devoted father made an extra effort, catching the ball but falling over the railing down to the concrete 20 feet below. He went into cardiac arrest on the way to the hospital, and died.

The railing where Stone fell is 33 inches, seven inches more that the legally required 26 inches. Why is it that short? So people sitting in the front row can see the game without having to look through the railing. Is it dangerous? Well, it was dangerous this time.

Everyone, naturally, is horrified by the tragedy. The Rangers held a moment of silence for the firefighter at the game last night. Hamilton, who like all major league players has been instructed to toss inning-ending balls and retrieved fouls into the stands for fans to catch as souvenirs, is understandably distraught.

Your Ethics Quiz: Should the Stone family sue the Rangers? Continue reading →

The Freeland Community School District Law Suit: Just or Joke?

/ Jack Marshall / 9 Comments

It’s time for another Ethics Quiz!

Freeland (Mich.) High School Marcie L. Rousseau has already been sentenced to prison for committing sex crimes with one of her students, but the matter is hardly over. The student’s lawyer says he is seeking at least $1 million in damages in a lawsuit  naming Rousseau, the Freeland Community School District, Freeland Superintendent Matthew A. Cairy, Freeland High School Principal Jonathan Good and former high school Assistant Principal J. Barry Weldon Jr. as defendants. The suit alleges negligence, and that the three administrators “neither completed a proper investigation nor reported the findings as they had a legal and ethical obligation to do,” despite having sufficient information to alert them that Rousseau was having sex with her student, who was 16 at the time.

This is pretty standard stuff. What is causing some skepticism and hilarity around news rooms, coffee machines and the Internet, however is this: the lawsuit  claims that the young man has suffered and continues to suffer “physical, psychological and emotional injury” because of the illicit relationship with Rousseau, which the law suit claims “was non-consensual”  and which, according to police reports, included at least 100 instances of sexual intercourse and at least 75 other sex acts between May 2009 and February of 2010.

Your question:

Is the law suit’s contention that the young man participated in various forms of sex with his teacher against his will inherently absurd and dishonest when it includes 175 sex acts in a nine month period? Continue reading →

In Search of Accountability, Fairness, Justice and a Champion: the Unending Persecution of Anthony Graves

/ Jack Marshall / 4 Comments

Job would pity Anthony Graves

Governments and other bureaucracies are capable of unimaginable callousness, stupidity, and wrongful conduct, allowing individual fools to multiply their power to harm exponentially, and then to see an inhuman computer-driven monstrosity run amuck as everyone denies responsibility. You could not devise a better example of this process than what Texas is doing to Anthony Graves.

He is an innocent man convicted of murder in 1994 who was released last October after spending 18 years in prison, condemned to death. He had been convicted with fabricated evidence and coached testimony employed against him by former Burleson County District Attorney Charles Siberia, and a state investigation got a Texas judge to set Graves free. But the maw of Texas bureaucracy wasn’t through ruining his life. Continue reading →

Unethical Quote of the Week: Wrongly Imprisoned Victim John Thompson

/ Jack Marshall / 3 Comments

“I don’t think training would have had anything to do with nothing really, to be honest with you, because you could have trained them and they would still do it. You need to punish them for doing it, then they won’t do it.”

—John Thompson, who was wrongly and illegally convicted of murder in Louisiana and spent 14 years on death row because prosecutors withheld exculpatory blood evidence from his lawyers and his trial. His civil suit against the prosecutor’s office, run by Harry Connick, Sr. (yes, the singer’s father) for millions in punitive damages, on the theory that the prosecutors who framed him were inadequately trained, was overturned last week by the U.S. Supreme Court.

This statement apparently was made by Thompson last October, when the Supreme Court took the case, and I missed it. It surfaced again this morning in a Washington Post editorial calling for harsher punishment for prosecutors who violate the rights of accused suspects and send innocent people to prison or execution. The Post has never been more right, and the $14 million originally awarded to Thompson by an appalled jury for his ordeal is still inadequate compensation for the 18 years he spent behind bars because of a prosecutor’s dishonesty.

But the theory used to get Thompson his money—that the tragedy would have been prevented if Connick’s office hadn’t been negligent in training its lawyers in prosecutorial ethics—was a sham, and deserved to be rejected by the Court, no matter how much Thompson deserved the money, or indeed, ten time the money. Continue reading →

FLASHBACK: What’s Wrong With “Loser Pays” (and Rosie O’Donnell)

/ Jack Marshall / 14 Comments

[Back in 2007, a ridiculous lawsuit spawned an even more ridiculous pronouncement from Rosie O’Donnell, which prompted the following post (originally titled “The Pants, the Judge, and Rosie’s Mouth”)  on The Ethics Scoreboard. I had forgotten about it, but the issue of “loser pays” still comes up, and Rosie (and Joy Behar) continue to require periodic slapdowns, so here it is again—Jack]

The tale of Roy Pearson, the infamous Washington, DC administrative law judge who is suing his dry cleaner for damages of $65.5 million for a lost pair of pants, would normally warrant scant comment beyond this obvious one: Pierson is a bully, his lawsuit is unreasonable and unethical, and he deserves whatever sanctions the legal system can devise. A Washington Post editorial suggested that the lawsuit, which Pierson says is justified by his inconvenience, court costs, and the mental anguish caused by the loss of his beloved pants, is proof enough of bad character and terrible judgement that he should not be reappointed to another ten-year term.  [ Update: He wasn’t.] That would normally end the issue, freeing me to move on to more important matters, like global warming and American Idol.

And then Rosie O’Donnell opened her big mouth. Continue reading →

The Training Myth and Connick v. Johnson

/ Jack Marshall / 6 Comments

The U.S. Supreme Court is deliberating on the issue of whether a District Attorney’s office can be held liable when individual prosecutors commit serious misconduct, on the grounds that the government breached its duty to train its prosecutors and ensure their competence. The case is Connick v. Thompson, and it began when it was discovered that a New Orleans man had been sent to Death Row for 18 years for a crime he hadn’t committed. John Thompson was innocent, and a lab report proving that the blood found at the crime scene belonged to someone else would have proven it. Prosecutors withheld the evidence from the defense attorneys.

When Thompson was freed he was understandably angry, but the options for redress when the criminal justice system ruins your life are severely and unjustly limited. In 1976, the Supreme Court decided in Imbler v. Pachtman that prosecutors have absolute immunity from lawsuits, even when there is genuine, malicious and illegal conduct. The Court acknowledged that its ruling “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,” but declared the alternative was worse: making prosecutors timid and fearful of making a mistake that could leave them penniless. The Court suggested that professional discipline would be enough to keep prosecutors honest, but that hasn’t been the case: a USA Today study found that even in egregious cases of prosecutorial misconduct, attorneys who put innocent people in jail almost never had to endure any punishment at all. Thompson sued the District Attorney’s Office on a theory of negligent training, and won 14 million dollars from a sympathetic jury. Now the Supreme Court is deciding whether such suit can stand in light of the ruling in Pachtman.

It should, but the theory behind the lawsuit is a myth, and I suspect that everyone knows it. Continue reading →