Year Joined Organization: 1973

Lawyer Overview

A THEMATIC APPROACH TO POLICE MISCONDUCT LITIGATION THROUGH

THE MILLENNIUM

1. Why do police misconduct litigation?

2. The National Climate

1. Lawsuit abuse; hot coffee.

2. Pro-enforcement

3. Racism

3. "General counsel at your elbow"

4. Assessing the case (plaintiff's perspective)

5. The fee agreement, who advances costs; shaping the

client's view of the case (plaintiff's perspective)

6. Initial pleading (complaint, answer, motion practice)

and considerations of qualified immunity

7. Pre-discovery settlement, offers of judgment

8. Discovery; experts

9. Interlocutory (Qualified Immunity) Appeals -- Delay and

Expense

10. Trial (the importance of the case)

11. Fees

Why Do Police Misconduct Litigation?

First, why not to do police misconduct litigation: to get rich. Although everyone has heard about a million dollar fee award in a case with a 30,000 recovery, every case is not a winner -- how would you like to be the attorney who has invested a million dollars of contingent fee time and loses? Or only wins on one claim and receives a vastly reduced fee award? Or who obtains a modest recovery on a state law claim and no damages on federal claims?

If you're not doing police misconduct cases to get rich, then why do them? Each one of you will have to answer this question individually. Perhaps you're an idealist, and believe that by doing police misconduct cases you are making the world a better place. Perhaps you do criminal cases, come across police misconduct cases in your practice and would rather do the case then refer it to another lawyer. Or you simply have found a job with a firm that does police misconduct -- either plaintiff's side or defense -- and your choice of cases is out of your hands.

The National Climate

Many people do not like lawyers. Or lawsuits. Or people who seem to be trying to win the lottery by filing a lawsuit for a trivial injury.

Many people like the police and are "pro enforcement." People who watch the "true life cop shows" on TV believe that police officers are always reasonable, courteous and have a hard job.

If you are in a community where a small number of minorities make it onto juries (and I would include the Northern District of Illinois in this group), then you have to contend with racism -- if you argue that the only reason the police arrested your client was because he was a large, African-American man, you will find jurors who will think that the officer's actions were perfectly reasonable.

On the other hand, you might be doing a civil case in a community with a large police corruption scandal. But this is no ticket to success -- the victims of police corruption are often unsympathetic persons (drug dealers, street hustlers) and juries can (and have) found in favor of the corrupt officer.

General Counsel at your Elbow

One of the themes of my talk is to litigate police misconduct cases as you had a "general counsel at your elbow. What this means is the following:

You should litigate police misconduct cases as if you had

a corporate client who was paying you by the hour and your

bills were subject to minute scrutiny by the client's

general counsel. If you could not bill a client 14 hours

for drafting a three page complaint, you should not claim

to have spent 14 hours drafting the complaint.

Perhaps some of this time was involved in researching a new and novel area of the law; perhaps the time came to 14 hours because the lawyer is inexperienced. But if it takes you 14 hours to draft a complaint in a case that has realistic damage value of five thousand dollars, there's a problem.

Assessing the case (plaintiff's perspective)

A potential client has walked into your office and wants to sue a police officer. If you're overburdened with people who want to use your services, you can charge an initial consultation fee or delegate pre-screening to a paralegal.

One of the first things you should determine is whether the statute of limitations has run and, if not, when it will run. The general rules on this for federal claims is that the duration of a statute of limitations is determined by state law. When a claim accrues -- when the clock starts to run -- is determined by federal law.

Whether the statute of limitations has been tolled by some event is determined by state law.

You should also consider whether there are state law claims that are not time barred that you could assert under supplementary jurisdiction, 28 U.S.C. Section 1367.

Once you've determined that there is a non-timebarred claim, you have to determine what the claim is.

One approach is to work backwards, and analyze the way in which the person was damaged by the occurrence. Are there any physical injuries? Any medical expenses? Any lost wages? If the person tells you about emotional injuries, did the person seek counseling (and did the person talk about the incident in counseling)?

In talking about what happened, you should be mindful of how the facts will be presented on a qualified immunity motion and whether there is a municipal liability claim (for which there is no qualified immunity defense).

The Fee Agreement

Most police misconduct cases are handled on a contingent basis, which generally requires a written fee agreement.

An important provision of any contingent fee agreement where statutory fees may be available is a provision in which the client agrees not to waive the attorney's claim to seek court-awarded fees.

Another provision which is useful in a fee agreement in a small damages case is express authority to settle for a particular sum. This eliminates the possibility that the client will balk at an early and reasonable settlement and seek to require the attorney to enhance the value of the case by investing time.

Another useful provision is to require the client to advance costs, or to reimburse costs on a monthly basis.

Paying costs provides the client with a personal stake in the outcome of the case, but is often not practicable.

The Initial Pleading (complaint, answer, motion practice)

and considerations of qualified immunity

The federal rules endorse notice pleading. In the Seventh Circuit, "a plaintiff in a suit in federal court need not plead facts; he can plead conclusions." In the words of one judge, "a complaint should limn the grievance and demand relief.

There are at least two situations in which detailed factual allegations are important. The first is where your case has some news value; here, you should include in your complaint the facts that you would put in a press release. The second situation requiring detailed factual allegations is where you want a quick resolution of a qualified immunity defense: If you're going to lose on qualified immunity, you should lose sooner rather than later.

Cases supporting a "heightened standard of pleading" for municipal liability were overruled by the Supreme Court in Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993). At least one district judge has sought to apply a "heightened pleading standard" in qualified immunity cases, but the better view is to use other devices -- a motion for a more definite statement or a motion for summary judgment -- as the procedure to flesh out the plaintiff's contentions.

Pre-discovery settlement; offers of judgment

The reality of litigation is that most cases are settled. Oftentimes in civil rights litigation the defendant will agree to settle because of exposure to attorney fees. What this means, as a practical matter, is that in a contingent fee case, the settlement is brought about by the attorney's investment of time.

An example: Suppose a plaintiff in a civil right case has a claim worth three thousand dollars, in order to recover this claim after trial, the plaintiff's attorney must make an investment of fifteen thousand dollars of time. Assume that, after reviewing the complaint and interviewing the officers, defense counsel makes a settlement offer of three thousand dollars, inclusive of fees. Assume that this offer is rejected and that after full discovery, on the eve of trial, defendant offers nine thousand dollars, inclusive of fees. The settlement value of the case has increased, probably because the plaintiff's attorney has invested time. This is probably a bad investment of attorney's time.

Early settlements, before discovery and before the attorney has started to invest time, avoid this bad investment problem and permit the client to secure reasonable compensation without delay and uncertainty.

A powerful weapon for the defense is an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. Federal judges have not been put off by language in a Rule 68 offer that the offer is made "with no admission of liability and said judgment herein to have no effect whatsoever except in settlement of this case" is a valid offer. Experts can be important for damages and may or may not be important for liability. Keep in mind that for every "police practice" expert who will offer the opinion that the police acted unreasonably, the defendant will be able to hire their own "police practice" expert who will swear that the officers acted reasonably.

Interlocutory (Qualified Immunity) Appeals

An order denying a motion to dismiss on qualified immunity grounds is immediately appealable, if the immunity defense was rejected as a matter of law (e.g., was the right clearly established), rather than as a question of fact.

The qualified immunity defense is a difficult area. The reversal rate from orders denying qualified immunity claims is high. The only way around a qualified immunity defense when the law was not clearly established is to proceed on a municipal liability theory.

The qualified immunity defense is pernicious. A police officer can be motivated by personal gain and violate internal police department rules, but his (or her) actions can still be "objectively reasonable" and render the officer immune from suit under Section 1983.

Trial (the importance of the case)

Trial of a civil rights case is no different than the trial of any personal injury case. If your case is a small damages case, do not assume that the jury will treat your case as unimportant or run of the mill. Jurors, in general, take cases seriously, even when very little monetarily is at stake.

Be wary of punitive damages -- a million dollar verdict against a bankrupt defendant is of little value.

Fees

Several traps await the victorious plaintiff's attorney: Did you spend time on losing claims that are unrelated to the claim on which the plaintiff prevailed? Was your victory less than complete? Perhaps the most universal truth about statutory fees is unpredictability.

Written materials that accompanied presentation by Kenneth N. Flaxman at the 14th annual conference on Section 1983 Civil Rights Litigation, IIT-Chicago Kent College of Law, March 13-14, 1997.