Will patience pay off in civil suit against prosecutors and police?

In February 2006, Claude Zain McCollum was convicted of murdering a Lansing Community College professor, but he walked out of prison last fall after Ingham County Prosecutor Stewart Dunnings III told the Michigan Court of Appeals a mistake had been made.

Yesterday, McCollum's legal team walked into Ingham County Circuit Court and filed a 50-page civil complaint against almost everyone, including Dunnings, who had anything to do with his arrest and prosecution.

The complaint contains an impressive mix of constitutional and tort-based claims. Whether this actually goes anywhere remains to be seen. Most of the named defendants are prosecutors and police officials. Governmental immunity is a pretty thick shield to pierce.

But you can't fault McCollum for trying.

According to McCollum's complaint, when Dunnings asked the Court of Appeals in September 2007 to vacate the conviction, he said a new suspect had been identified. He also cited videotape evidence "showing that [McCollum] may have been somewhere other than the crime scene at the time of the crime." The complaint alleges that what Dunnings didn't tell the COA is that the defendants in McCollum's civil complaint allegedly had known about that video evidence since March 2005, a couple of months after the professor was killed and McCollum had been arrested. The complaint goes on to say that the evidence was never disclosed to McCollum's trial attorney, and the jury never heard about it.

At an October 2007 press conference to announce that he was seeking dismissal of the charges against McCollum, Dunnings again mentioned the new suspect. Later, the Michigan State Police went one better. They said the new suspect had confessed to the murder.

Last Sunday, the Lansing State Journal published an exhaustive report about McCollum's saga, including the fact that his attorneys had a civil suit in the works.

On Tuesday, Jan. 22, Dunnings said he still believes McCollum is innocent but wants to keep open the option to recharge McCollum on the off chance that the Michigan State Police, who are resifting the evidence, might turn up something against him. For that reason, Dunnings said, he would resist McCollum's efforts to have the dismissal of the murder charge converted from a dismissal without prejudice to a dismissal with prejudice.

Yesterday, as mentioned, McCollum's suit was filed. Paragraph 123 of the complaint unambiguously states what McCollum's lawyers think about Dunnings' latest statements: "Defendant Prosecutors furthermore continue as recently as January 22, 2008 to threaten Plaintiff [McCollum] with possible prosecution, motivated not out of a search for the truth for the real killer, but for political or other improper means, if not continued animus toward Plaintiff, all to his significant detriment."

The Lansing State Journal, in its Sunday report about McCollum's case, said he "is not bitter about his imprisonment. If anything, he expects wrongs will be righted.

"'I believe by being patient,' the Lansing man said, 'it will pay off.'"

Time will tell. He may need the patience of Job for this one.

Business, bankruptcy, litigation and evidence: FBA plans Feb. 6 seminar

The Eastern District of Michigan Chapter of the Federal Bar Association is accepting on-line pre-registrations for a Feb. 6 seminar, "Trial Advocacy: Financial Issues In Commercial Litigation and Business Bankruptcies."

The 8:30 a.m. event at the Theodore Levin U.S. Courthouse in Detroit features two demonstrations: "Financial Issues In Commercial Litigation & Business Bankruptcies" and "Presenting Evidence And Expert Witnesses In Business And Bankruptcy Proceedings."

More information here.

Mail or e-mail? Ingham judge will decide union contract vote issue

A labor pact between Michigan State University and over 1,700 members of the Administrative Professionals Association is on hold until Ingham County Circuit Court Judge Paula Manderfield decides whether APA officials were authorized to conduct a ratification vote by e-mail.

Judge Manderfield enjoined enforcement of the union-approved contract last week after some members complained that APA bylaws require voting by mail, not e-mail.

A hearing is scheduled for Nov. 15. The Lansing State Journal has the story.

Ohio Supreme Court pans Fieger client's $30M verdict

It was the Ohio Supreme Court's turn last week to do what Michigan appellate courts have done several times over the past few years - wipe out a multi-million dollar verdict for one of Geoffrey Fieger's clients.

This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.

The reason the OSC brought the curtain down on the verdict? In part, it was Fieger's "theatrics" in the courtroom.

Now, the trial judge wasn't exactly blame-free either. As recounted by the OSC, the trial judge let Fieger's expert testify, over defense counsel's objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge's in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge's on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.

When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge's acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger's client a record-breaking award.

Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.

Some Michigan judges have seen it, said it before Michigan's appellate courts, on occasion, have been extremely critical of Geoffrey Fieger's trial tactics, and have taken him to task for many of the same things discussed in the Ohio courts' opinions. See, Powell v. St. John Hosp., Badalamenti v. William Beaumont Hosp., and Gilbert v. DaimlerChrysler.

The OSC echoed the trial judge's observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses' mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.

In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.

In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.

After the trial judge entered the order for a new trial, the plaintiff's team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.

Up in the Court of Appeals of Ohio, Eighth District, the majority and dissenting opinions reveal that none of the judges were concerned about the trial judge's extracurricular handling of the newspaper article. The majority said Fieger hadn't objected and defense counsel apparently had a private chat with the trial judge about the article. They weren't about to reward a claimed error that defense counsel instigated.

The majority characterized Fieger's performance as zealous representation. "While we agree that plaintiff's attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial." In contrast, the dissenting judge spent 27 pages detailing what she called Fieger's "manipulative trial technique" and "the extent of his outrageous melodrama" in his closing argument, which, she said, was enough by itself to warrant a new trial.

The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury's liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages. Remittitur would be the correct remedy. And, "the trial court is in the best position to determine whether a damages award is excessive."

The OSC said the appeals court was looking at the wrong thing. It's not about whether there was sufficient evidence to support the jury's verdict. It's all about the trial court being in the best position to determine whether the jury's verdict "was excessive and given under the influence of passion or prejudice" and whether counsel's misconduct "tainted the verdict." The OSC ruled that if there's competent, credible evidence to answer "yes" to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision "should remain undisturbed."

A dissenting justice sided with the lower appeals court majority on the issue of remittitur.

He also had this to say:

To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors - such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.

The verdict should be knocked down to $10 million, the dissenter said. That's a lot closer to the evidence of economic damages.

And he closed with this zinger:

Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.

The case is Harris v. Mt. Sinai Medical Center.

Antitrust claim treated as board game, says judge

From the late 1980s through 2001, if you did your own body work on your car and you needed automotive sandpaper, you had two choices, 3M or NicSand. Now the only choice is 3M.

Sixth Circuit Judge Boyce F. Martin, Jr. thinks that's abrasive.

Most folks with banged-up cars let the bump shop deal with the patching and painting, and the resulting dust and stink. So, there's not a huge do-it-yourself market for automotive sandpaper.

It doesn't make economic sense for retailers to stock both brands. That's why the retailers NicSand and 3M dealt with insisted on annual, exclusive-supplier agreements. The retailers were not adverse to switching suppliers. But to get in, you had to furnish a full line of products, provide all the display equipment, discount the first order and buy the retailer's current inventory of sandpaper.

This worked extremely well for NicSand until 1997, when 3M decided to get serious about improving its one-third market share. One-by-one, over a several-year period, 3M offered the retailers six- or seven-figure incentive payments to stock 3M products on an exclusive, multi-year basis. The retailers told NicSand to come back in a few years and maybe we can talk business then.

When 3M was done, NicSand was out of the automotive sandpaper business, into bankruptcy court seeking reorganization and on the phone to its lawyers to sue 3M for antitrust violations.

The issue in the Sixth Circuit was antitrust standing. Judge Jeffery S. Sutton, writing for an en banc majority, said NicSand didn't have it because 3M's pricing was not predatory and there was no illegal tying (being forced to buy one product to get another product that you really want). The incentive payments were price cuts offered in exchange for getting the retailer's business. And the multi-year contracts? This was no different than buying in bulk to get a discount. What about the exclusive nature of the contracts? This was the retailers' condition, and 3M couldn't be faulted for going along with that.

Judge Martin, in dissent, said the case made him long for the good old days

when monopoly was an evil targeted by Congress and guarded against by the antitrust laws of the United States. Since their enactment, it has been the purpose of the federal antitrust laws to prevent the emergence of entrenched monopoly power and "to perpetuate and preserve, for its own sake and in spite of possible cost," the existence of competition in industry. ... Today, however, the majority treats monopoly more as a board game than as an economic harm to the public.

Judge Martin continued

The majority seeks to characterize this case as one in which one company that had long prospered in a particular niche market became lazy and fell victim to a more vigorous competitor that simply played the game of business more effectively. While NicSand may have once been the dominant competitor, that former status can neither legalize 3M's anticompetitive business practices nor make 3M immune from antitrust suit. Yes, NicSand was 3M's competitor, and yes, it obviously fell prey to 3M's tactics. However, 3M now holds a monopoly over the market, products have been eliminated and prices have correspondingly risen by seventy percent. The question here is whether the tactics 3M employed to attain that status were legal and whether NicSand is an adequate representative of the market's interests in this suit. Contrary to the majority's contentions, at this stage of the case [dismissal on a Rule 12(b)(6) motion with no discovery], it is impossible to conclude that NicSand has failed to meet its burden. The dangers of monopoly are well-recognized in our law ... and I believe the majority has improperly turned a blind eye to them in this case.

The case is NicSand v. 3M.

New trend: fewer business suits

This has nothing to do with casual Fridays or clothing shortages at your favorite tailor or department store.

This has everything to do with the declining involvement of U.S. businesses in litigation, both as defendants and plaintiffs, as reported in a survey released yesterday by the Houston-based, mega-international law firm of Fulbright & Jaworski.

For the first time since the firm began tracking such matters, major U.S. corporations have reported "a distinct drop in the number of lawsuits filed against them."

In the firm's "Fourth Annual Litigation Trends Survey Findings," 17% of in-house counsel at 250 major U.S. corporations say they haven't had to defend a new suit in the last year, compared with 11% in the 2005-06 reporting period.

They've also been a little less eager to sue. Sixty-five percent of the survey respondents reported filing at least one new suit, down from 70% in the prior reporting period and down more sharply still from 2004, when 88% said their company filed at least one new suit.

But there's plenty of unfinished business. One-third of the companies say they have more than 25 suits in process at any one time, and 18% have over 100.

Governmental action against corporations continues to be a significant source of litigation. Almost half reported some type of regulatory proceedings brought against them in the last 12 months.

The survey notes a dip in securities and bankruptcy disputes and an up-tick in product liability and patent cases.

The survey also includes information about average settlements, use of outside counsel and attorney billing (including alternative fee structures) and company attitudes toward their outside lawyers, to name a few.

Download a copy here.

Pointless pleading

You may recall a case that got some national attention recently, in which a Nebraska state judge enjoined the use of words like "rape" and "victim" at a sexual assault trial. The complaining witness then sued the judge in federal district court on a First Amendment theory.

The federal suit, according to the Associated Press, angered Nebraska State Senator Ernie Chambers.

"This lawsuit having been filed and being of such questionable merit creates a circumstance where my lawsuit is appropriately filed," the Cornhusker lawmaker explained.

His suit, duly docketed in the District Court of Douglas County, Nebraska, is captioned, State Senator Ernie Chambers v. God.

You read it right.

The complaint blames God for every terrible wrong that has ever happened in the world, including "fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes, pestilential plagues, ferocious famines, devastating droughts, genocidal wars, birth defects, and the like."

No jurisdictional problems here, the complaint alleges, because God is everywhere, including Douglas County.

No problems with service of process, either. If the court won't waive personal service, the court should take judicial notice that God is all-knowing and thus has actual notice, according to paragraphs 15 through 17 of the pleading.

District Court Judge Marlon A. Polk, the unlucky jurist who was assigned the case, is being asked to slap the Almighty with an injunction to desist "from engaging in the types of deleterious actions and making of terrorist threats as identified and described herein."

It remains unclear how such an injunction would be enforced against a deity that many folks presume to be all-powerful.

All kidding aside, what is clear is that Judge Polk should drop-kick this one right out of his courtroom with all the frivolous-complaint sanctions he can issue under Nebraska's court rules and statutes.

"Chambers says he's trying to make the point that anybody can file a lawsuit against anybody," writes the AP's Nate Jenkins.

Sorry, Senator Chambers, with a suit like this, I'm not getting the point at all.