Lawyers' AbuseAuthor(s): Richard HarrisSource: Litigation, Vol. 7, No. 4 (Summer 1981), pp. 49-50Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758654 .

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Rebuttal

Lawyers'Abuse

Editor's Note: The Spring 1981 issue

o/Litigation discussed certain abuses in the use of the Federal Rules of Civil

Procedure. In this article, Richard Harris argues that abuses by lawyers are not so limited.

The most recent Harris poll on public confidence in various American insti? tutions and professions puts lawyers last.

Not long ago, Martin London, chairman of the New York City Bar Association's grievance committee, which handles complaints against lawyers here, attempted to explain lawyers' general disrepute. The rea? sons he gave, in a news report in The

New York Times, included the

Watergate scandal, a public tendency to blame lawyers for crime, the courts' involvement in setting new social

policy, the proliferation of govern? ment and other regulations that im?

pinge on everyone's life, the adversary nature of litigation, and the increas?

ing resort to legal action to resolve

problems. If this is the kind of rationalization

that guides the local grievance com

by Richard Harris mittee, no wonder it is so ineffectual. The attempt to make the unsavory reputation of the legal profession seem like a recent development ig? nores one awkward fact: Lawyers have been mistrusted and reviled for centuries. (Sir Thomas More, 1478 1535: "They have no lawyers among them, for they consider them as a sort of people whose profession it is to

disguise matters.'' Samuel Johnson, 1709-1784: "I would be loath to

speak ill of any person who I do not know deserves it, but I am afraid he is an attorney. "Ambrose Bierce, 1842 c.1914: "Lawyer . . . One skilled in circumvention of the law.") All that is new is that today they are involved in almost every part of our society and almost every aspect of our lives, so that the public is far more aware of their pervasive influence and its character.

The likeliest reason for the low

standing of lawyers in general is that

people know that all too many of them create and perpetuate conflict where none need exist, that they turn people who want to be friendly and behave decently toward each other in? to raging enemies, that in the process they reject all of the morality we were

taught to live by, and that they do these things for money?usually a lot of money.

Beyond this, the true culprit in our

legal "system" is the country's bar associations, which not only tolerate but implicitly encourage what has come to be called "lawyers' abuse"? that is, unethical use of the law

through such practices as filing nuisance suits to harass and intimi

Richard Harris, author of "Freedom

Spent, "

about the Bill of Rights, is writing a book to be called "Law and Lawyers in America.

"

date, and then endlessly appealing adverse decisions to continue the harassment and deplete an adver?

sary's financial and emotional resources. In short, legal blackmail. (Given the high costs of legal services these days, such lawsuits are a lot

more than mere nuisances.) At the heart of these abuses are perjury and subornation of perjury (inducing someone to lie under oath), for

without them the other abuses could not exist.

Bar associations' grievance com? mittees basically serve one purpose: preservation of the legal-fee system. Virtually the only time a grievance committee will discipline an errant

lawyer is if he or she is caught stealing money. That, it seems, is most vital, because if clients cannot trust law? yers with money, clients will not allow

lawyers to handle money, and the

largest part of legal practice would be transferred into other hands. Let a

lawyer steal and get caught and

?pow!?disbarment.

But let a lawyer commit perjury and suborn perjury over and over (the

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most pernicious abuses of all), let him file nuisance suit after nuisance suit, let him slander and libel the innocent under the privilege of court protec? tion, and nothing will be done to him. Yet if perjury and subornation of per? jury are accepted as a matter of course in our system?and they are, in tens of thousands of cases every year?then that system is obviously a farce. The truth is hard enough to get at even when all concerned are doing their best to tell it.

(In response to this, I am sure that our local grievance committee can submit a list "as long as your arm" of the lawyers it has disbarred for per? jury. But that list would probably not show that almost all of them were dis? barred for perjury after they lied about stealing money, which could not itself be proved against them.)

Our legal system could be restored to health almost overnight if the bar associations of this country started to fulfill their clear and essential respon? sibilities. One client sent to jail for 60

days for perjury and one lawyer disbarred for perjury or subornation of perjury in each jurisdiction in the United States, and this epidemic disease?lawyer's abuse?would be

practically cured. If it wasn't, the public would draw

the inevitable conclusions: Lying is the foundation of legal practice. All that holds our country together is

respect for the law. When that van?

ishes, as it must under the present abuses of the system, so will the law itself. Then it will be the lawyers who

cry in wonder, "What happened?" ? 1981 by The New York Times Company. Reprinted by permission.

Collateral

Estoppel (Continued from page 32) entered. He will devote every effort toward moving that case to trial. A

plaintiff with a weak case will delay trial until judgment can be entered in a related case.

Even trial preparation may change because of collateral estoppel con? siderations. If the defense decides that a $50,000 case should be tried first, a half-dozen lawyers may

prepare it, while one lawyer handles a weaker case for several million dollars. Plaintiffs are not likely to

change their commitment of re? sources in different cases unless privi? ty exists.

Finally, collateral estoppel may compel settlement in a case that would otherwise be tried. To avoid

trying a less favorable case, a defen? dant may choose to settle with the first

plaintiff to reach a weaker case first. A plaintiff may agree with other

plaintiffs to share in the recovery and settle a case to preserve the other

plaintiffs' chances of obtaining an

estoppel against the defendant. If you represent a plaintiff, you

should be concerned with three

aspects of collateral estoppel. First, avoid privity with other similarly situated plaintiffs. Avoid any tempta? tion to control another plaintiffs case. Second, consider your options in forum selection and joinder. In other words, do not seem to be lying in wait for the first judgment. Third, try to fit your issues to those of the first case so that you will be in a position to

argue collateral estoppel. If you represent a defendant, focus

on two aspects of collateral estop? pel: joinder and identity of issues. Your best chance of avoiding col? lateral estoppel will be to distinguish one lawsuit from the next. Beginning with the answer, make your best effort to build a record that will defeat any claim of identity of issues.

Avoiding privity will be a serious

problem for plaintiffs. If you use par? ties from other cases as witnesses, or if a single lawyer or firm participates in several cases, the parties may be in

privity. For example, in Watts v. Swiss

Bank Corp., 27 N.Y.2d 270, 317 N.Y.S. 2d 315, 265 N.E.2d 739 (1970), the court applied collateral

estoppel when the same firm

represented the loser in the first ac? tion and the party allegedly estopped by judgment in the second action. The court found that the second party was

effectively the firm's client in the first case. In Cauefield v. Fidelity &

Casualty Co. of New York, 378 F.2d 876 (5th Cir. 1967), the court took a similar view when the same attorney represented parties and nonparties, the nonparties testified in the first ac?

tion, and the nonparties agreed to

present no new evidence at the second trial.

These cases suggest that the coor?

dinating committees of lawyers repre? senting parties with identical interests

may well assume a sufficient control over the case to place the parties in

privity with the nonparties. Not only plaintiffs' but defense counsel run this risk if they assist each other in

defending the first case to be tried. Due process may limit collateral

estoppel. E.g., Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977), cert, denied, 434 U.S. 832 (1977). A

party ordinarily has the right to its day in court. Federal courts will be tolerant where groups of defendants must successfully litigate identical claims against a series of plaintiffs, while striving to avoid privity.

Throughout pleading and discov?

ery, collateral estoppel can help determine whether a plaintiff fulfills the requirement of identity of issues. There is no reason not to draft a com?

plaint with a view toward offensive collateral estoppel through another

plaintiffs claims. The same holds true for discovery to establish an iden?

tity with the issues in related cases.

Defense counsel will strive to create differences between the claims of related plaintiffs. Take, for example, an issue of the relevant geographic and product markets in which seem?

ingly related antitrust plaintiffs operate. If a prior action may establish that a business practice violates the antitrust laws in a given market, careful pleadings and

discovery may prevent a second plain? tiff from using offensive collateral

estoppel to establish injury within that market.

You must now consider collateral

estoppel when you choose between a bench and a jury trial. You may decide, for example, that the detailed

findings of fact from a bench trial will lead to preclusion in subsequent cases

and, therefore, waive a jury trial. Likewise, a defendant who might otherwise prefer the judge as trier of fact may choose a jury. You may make a similar choice between a

general and a special verdict.

Appeal does not affect the finality of a judgment entered by the trial court. But few trial courts will grant collateral

estoppel before final appellate review, a position the Restatement endorses. Restatement (Second) Judgments

? 41.3, comm. b (Tent. Draft No. 1, 1973).

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