The Indianapolis Star has an article on an Anderson couple who decided to represent themselves in challenging a school’s dress code and ended up owing Anderson’s legal bills in excess of $40,000. I have not been following the story too closely, but my impression is that they alleged some sort of Constitutional violation by the dress code. They chose to represent themselves in pressing the claim. The claim wasn’t likely to succeed in that prior challenges in other jurisdictions. When the realities of trying to litigate in federal court hit them, they couldn’t handle it. I’m not sure where I got this idea — it’s not in the linked article — but I believe that, to some extent, they simply stopped responding to the court’s order.
Representing yourself on a federal Constitutional claim is just a Bad Idea. There are so many pitfalls, both procedural and substantive, that it’s difficult to succeed without training. Even beyond that, often times it seems like those representing themselves don’t even bother to read the court orders, let alone the rules of trial procedure, relevant statutes, or prior case law. They just want to get into rambling arguments about how they have been wronged.
That being said, the City of Anderson might want to look into more economical lawyers. I can’t see generating $40,000 in fees on a case where the Plaintiffs are unrepresented and the case law is pretty clearly on my side. Maybe there were special considerations in this case, like I said, I didn’t follow it closely. But $10,000 to $20,000 worth of legal work seems to be more in the ball park. Maybe that’s why I’m still driving a Saturn and not a fancy car. And now the City of Anderson needs a good collection lawyer to try to collect on the assessment of legal fees.
Yeah, these folks screwed up, didn’t take things seriously, and based on the quotes in the article, never will get it. In my experience, federal courts are much more accommodating than state courts toward pro se plaintiffs. I don’t practice in federal court as much as I used to, but I recall that there are some notice requirements that apply to pro se cases and no others. The article suggests that Judge Hamilton was more patient with the Bells than the typical state court judge would be.
As for the fees, I’m conflicted. On one hand, certain of the large firms in town (and to be clear, I’m NOT talking about Bose–in my experience with Bose, I have not noticed this from them) just bill the crap out of files. I have been involved with cases in which some of the “big boys” represented co-defendants in fairly straightforward car crash cases. Despite the basic nature of the case, these firms had two attorneys at every deposition, every routine scheduling conference, every mediation, everything. These were not $500/hour cases, but with two attorneys at every event, that’s probably what they were billing, effectively, and with no particular performance advantage over those of us from middle class firms (if anything, they were a bit out of their element compared to us insurance defense types). Again, I’ve never seen this from Bose and don’t mean to suggest that they did so in this case, but certain firms are notorious for it.
On the other hand, my boss and I, just the other day, were talking about how much more difficult it is to litigate against a dumb attorney than against a smart one. Take a summary judgment motion. If I’m responding to a summary judgment motion filed by a smart lawyer, I will be responding to a well-organized brief with proper citations to evidence and case law. If I’m responding to a brief filed by a dumb lawyer, there will be factual designations in five different places, there will not be good, pinpoint cites, there will be numerous misstatements of facts and law, there will be many more arguments, mostly meritless, but all requiring a response, and so on. Pro se plaintiffs can be even worse on all counts.
The City of Anderson made the decision to hire an Indianapolis firm that bills at a high hourly rate, and given that it is a constitutional question, I don’t blame them. As I noted above, there are cases where these big firms aren’t worth the money, but I’m sure Bose deals with similar issues much more often than the typical Madison County practitioner. Without seeing the bill, I have a hard time saying that $40,000 is unreasonable per se.
That’s a good point about the difficulties litigating against someone who doesn’t know what the hell they’re doing. I’m reminded of a quote that went something like, “You’re so far off, you’re not even *wrong*!”
It’s like playing racquetball against drapes.
Why should Anderson look for less expensive lawyers? (I know as well as anyone: the taxpayers.) But then, if the bill is being sent on to the litigants, where’s the harm?
I’m on the fence about this one as a frivolous lawsuit, but I like the fact that the costs are being shifted to the litigant. I think it should always be that way: bring suit & lose = pay the whole bill.
One part of the story that wasn’t accurate what the paragraph about legal fees “often” being passed on to the losing party. I would say that is true only in a slim minority of cases. Some federal discrimination statutes have built-in loser pays provisions, and it typically is within a court’s discretion to assess legal fees in cases in which the lawsuit is truly frivolous. By the way, Marcia Oddi has an entry linking to the available court documents.
Mike, the problem with assessing legal fees against all losing parties is that such a move almost certainly will have a chilling effect on the filing of meritorious lawsuits. One could take the position that such a chilling effect is a desired result or a worthwhile price to pay, but it should be addressed.
I can see that, John. One of the things a lawyer could do (check me on this, Doug) for a client is to advise them whether or not their case is particularly worthy of a hearing. Right now, if someone has nothing but time to burn, and a lawyer willing to roll the dice, you’re on the docket. I suspect lawyers would be less willing to take cases they find devoid of merit, if the penniless would-be litigant would be on the hook for costs in the event of defeat.
Right now, there is virtually no check on filings- as you say, in but a slim minority of cases. We’re at an extreme, and I’m willing to center up a bit here.
One of the duties of a lawyer, in my opinion, is to tell a client when their case is worthless or when the cost of prosecuting their case is likely to outweigh the benefits. In the former case, I think it’s the lawyer’s duty to decline to move forward in the case. In the latter case, I think the lawyer should advise the client, but if both are willing to proceed anyway, then it’s probably o.k. to go ahead with the case.
I’m frequently surprised at the grateful reaction of clients when I give them the “don’t waste your money” speech.
I’d figure most lawyers would be unwilling to take a meritless case on behalf of a penniless client for the purely practical reason that lawyers like to get paid for their time. And I sort of suspect that the types of lawyers who are willing to roll the dice on any case that walks in the door probably won’t care that much if they lose a case and leave their client stuck with a huge loser’s bill.