January 30, 2007
Sen. Brownback Seeking to Stem Establishment Clause Litigation
I certainly understand the abuses of the ACLU as regards public displays of Christian symbolism. Nonetheless, I'm not sure this is such a good idea.
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Posted by: Ragnar at
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At this stage, there are plenty of organizations on both sides willing to sue - for free - regarding establishment clause and free exercise issues. There is no need to encourage litigation by adding an attorneys fees provision, especially in this context where the fee provision is one sided and the city is blocked from recovering fees if it wins.
As a lawyer, I know how to make easy money. You find a little niche area of law that has some statutory attorney fee provision, and then sue the bejeesus out of anybody and everybody. You'll make enough to retire in one year. I had to defend a case where we were the 130th lawsuit this guy had filed in eight months, and he was going to collect at least $5000 in statutory fines plus attorney fees for each case. Of course, if we were to defend and win, we would not be entitled to recover our fees. So we had no choicebut to pay up, as the cost of fighting and risk of having to pay fees was too great.
On establishment clause cases, trial judges are generally morons who don't know the law. You can't get a predictable result until you reach the appellate stage, which is far too costly for most small towns. So the small towns just pay up to the ACLU, rather than fight a bogus lawsuit.
As a lawyer, I know how to make easy money. You find a little niche area of law that has some statutory attorney fee provision, and then sue the bejeesus out of anybody and everybody. You'll make enough to retire in one year. I had to defend a case where we were the 130th lawsuit this guy had filed in eight months, and he was going to collect at least $5000 in statutory fines plus attorney fees for each case. Of course, if we were to defend and win, we would not be entitled to recover our fees. So we had no choicebut to pay up, as the cost of fighting and risk of having to pay fees was too great.
On establishment clause cases, trial judges are generally morons who don't know the law. You can't get a predictable result until you reach the appellate stage, which is far too costly for most small towns. So the small towns just pay up to the ACLU, rather than fight a bogus lawsuit.
Posted by: wooga at January 30, 2007 08:20 PM (t9sT5)
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Wooga -
I appreciate your input, but are these amounts really "far too costly for most small towns" to afford? What amounts are we talking about? Are we talking about 100K per side or 5M per side? If it's closer to the 100K end, I can buy that the cities would prefer to not pay the successful plaintiff's attorneys' fees, but are they really going to be bankrupted by it? Are they really without options, or is about wanting more money in the budget for local patronage? I'm less sympathetic to the latter.
Is the award of attorneys' fees mandatory or discretionary? If it's mandatory, I'd be willing to go along with a shift to discretionary. If it's presently discretionary, it seems like the problem is with the judges rather than with the statutes.
Like I said, I understand the abuses. Being that you're a lawyer intimately involved in fighting these cases, I'm sure you understand them even better. I'm just not sure that eliminating attorney's fees is the best way to remedy the abuses.
I appreciate your input, but are these amounts really "far too costly for most small towns" to afford? What amounts are we talking about? Are we talking about 100K per side or 5M per side? If it's closer to the 100K end, I can buy that the cities would prefer to not pay the successful plaintiff's attorneys' fees, but are they really going to be bankrupted by it? Are they really without options, or is about wanting more money in the budget for local patronage? I'm less sympathetic to the latter.
Is the award of attorneys' fees mandatory or discretionary? If it's mandatory, I'd be willing to go along with a shift to discretionary. If it's presently discretionary, it seems like the problem is with the judges rather than with the statutes.
Like I said, I understand the abuses. Being that you're a lawyer intimately involved in fighting these cases, I'm sure you understand them even better. I'm just not sure that eliminating attorney's fees is the best way to remedy the abuses.
Posted by: Ragnar Danneskjold at January 30, 2007 10:44 PM (n9XYI)
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Isn't the issue here that the people bringing the suit can recover legal fees even if the suit is a loser? Even if that is not the case here I'm not bothered by this change because it seems to be of very limited scope and directed at a type of case not related directly to those likely to be "low income" litigants. If someone were so offended and poor that their one true wish was to get that "damned cross" off the Town Seal, I'm thinking that they could find somebody to take the case without charging them for it.
Posted by: TBinSTL at January 31, 2007 03:57 AM (MSiPb)
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I'm for it. Also for allowing court fees for frivilous lawsuits.
As an interesting item. My son has a friend (genius type) who attended Harvard Medical School. Upon graduation he immediately attemded Harvard Law School. His goal? Be a malpractise attorney and become a multi-millionaire before the age of 40. Guess what? He will be. A person with his ability more interested in sueing people attempting to save lives than saving them himself. We are screwed up somewhere. And what about the seat taken at medical school. Wasted?
As an interesting item. My son has a friend (genius type) who attended Harvard Medical School. Upon graduation he immediately attemded Harvard Law School. His goal? Be a malpractise attorney and become a multi-millionaire before the age of 40. Guess what? He will be. A person with his ability more interested in sueing people attempting to save lives than saving them himself. We are screwed up somewhere. And what about the seat taken at medical school. Wasted?
Posted by: greyrooster at January 31, 2007 10:17 AM (w+w6p)
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