Alleged “Win-At-All-Costs” Tactics in Defense of Exoneree Lawsuits for Wrongful Conviction Damages

Two recent articles describe alleged “win-at-all-costs” tactics in defense of wrongful conviction lawsuits in Baltimore and Chicago.  They point to, on the one hand, allegations of damages claims for unreasonable amounts by exonerees and, on the other, alleged scorched earth defenses costing millions of dollars and subjecting exonerees to unreasonable indignity.

I don’t know anything about the cases other than what is in the articles, but I do have extensive experience representing police in alleged wrongful death cases.  Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005).[1]

Bloomberg reports that Chicago spent $200 million on lawyers to defend alleged police misconduct cases since 2004.  Roy Strom, “Chicagoans Tire of Paying Lawyers to Defend Wrongful Convictions (bloomberglaw.com), June 23, 2022.

Mr. Strom wrote that: “Chicago is dubbed the ‘wrongful conviction capital of the country’ for a reason….” The article reports payment of $143 million in settlements or verdicts.

The cases described appear to be vigorously litigated.  Mr. Strom stated: “In one long-running fight over a case brought by a man later cleared of an arson that resulted in six deaths, the Tribune reported [law firm name] and another local firm billed the city for more than 20,000 hours over five years and collected more than $6 million in fees. The case settled for more than $9 million.”

The Bloomberg article states that “a group of nearly 50 Chicago leaders is urging a judge to stop the city from paying millions to lawyers to deny this history when fighting lawsuits by people who did prison time for crimes they didn’t commit.”

The author reports that:

[Chicago’s] City officials have in the past defended their litigation strategy, saying plaintiff’s lawyers ask for too much if there’s no pushback, and that the cost of outside lawyers is worth the expertise for fighting complex cases.

In the second article, ‘Win-at-all-costs’ Chicago law firm reaps $5.3M defending Baltimore cops in wrongful conviction suits (thedailyrecord.com) (June 23, 2022), Madeleine O’Neill described a juvenile who was pressed “for details about a murder at Harlem Park Junior High School using coercive tactics that state prosecutors now agree led to the wrongful convictions of three innocent men, known as the Harlem Park Three.”  After release, the exoneree sued.

Ms. O’Neill reports that plaintiff was questioned in deposition by “lawyers who are being paid millions to represent city police officers in wrongful conviction lawsuits.” The exoneree is quoted as saying that: “It felt like I was a criminal that was being cross-examined.”  He said that he felt like he was being set up to say untrue things, was asked misleading questions, and that counsel was disrespectful at times.  The article states that:

Lawyers who have opposed the firm and its founders in court say they are uniquely combative in their approach to these cases – and that by hiring them, Baltimore is undermining efforts to right historic wrongs perpetrated by its police department.

The Daily Record reports that Baltimore city has paid the firm $5.3 million since 2019.  The article asks:

The firm’s scorched-earth approach to these lawsuits raises a troubling question about the adversarial nature of the legal system: Can powerful institutions and their lawyers go too far in defending against claims of serious injustice?

However, like Chicago, Baltimore “defended the firm’s practices. [The City] said Baltimore has an obligation to approach these cases aggressively in order to save taxpayer money that might otherwise be paid out in settlements.”  The City noted the below-market hourly rates of its outside counsel and said that: “Our job is to zealously represent our client.” Ms. O’Neill also wrote that the City argued that “it is unfair to criticize the city for its defense of these cases when it is policymakers who have forced exonerees to use lawsuits, rather than a less adversarial system, to win money for wrongful convictions.”  It appears that defendants’ vigorous discovery uncovered wrongdoing by a plaintiff.  The Daily Record reports that: “Last year, a federal judge tossed a lawsuit brought by Tony DeWitt after the firm alleged that he had forged a police memo and tried to bribe witnesses to win his freedom in a 2002 murder case.”

Nevertheless, those are controversial contentions on the facts described.  David Jaros, the faculty director of the University of Baltimore School of Law’s new Center for Criminal Justice Reform responded: “I think it’s problematic to just hire attorneys and say, ‘Save us money any way you can, even if it involves trying to suggest someone who was innocent actually was guilty of the crime.’” Ms. O’Neill reported on another opinion:

“I’m no shrinking violet, and I’ve certainly dealt with my share of aggressive and forceful litigators,” said Michele Nethercott, the former director of the University of Baltimore Innocence Project Clinic. “But these guys just take it to a whole other level.”

Another critic of the governmental approach to defending these types of cases was described by Ms. O’Neill:

Kobie Flowers, a lawyer at Brown, Goldstein & Levy who is representing the Harlem Park Three in their lawsuit, said paying millions of dollars to such an aggressive law firm sends the wrong message.

“In the age of mass incarceration and post-George Floyd, spending $5.3 million to defend wrongful conviction cases suggests that Baltimore has failed to meet the moment,” Flowers said. “Why isn’t the city using that money to solve the problem of wrongful convictions?”

Some of the issues involved allegedly overbroad discovery.  Ms. O’Neill reported:

[Defense counsel] sought years of [the plaintiff exoneree’s] phone records, his personnel record from his employer and his decades-old transcripts from Coppin State University as part of an effort to discredit his testimony.

When [the exoneree] was the subject of a lengthy New Yorker article about wrongful convictions, [defense counsel] also tried to subpoena the reporter’s recordings of her interviews for the piece, hoping to find inconsistencies in [the exoneree’s] story.

A judge blocked those subpoenas from moving forward.

The Daily Record article refers to $950,000 Settlement Approved in Civil Suit of Oscar Walden | People’s Law Office (peopleslawoffice.com), in which Flint Taylor, Esq.,  wrote: “[Chicago] put on a defense, in the teeth of the innocence pardon, that Walden was nonetheless guilty….” The Daily Record also describes findings of “racially motivated” tactics, “references to excluded evidence at trial, including brutal descriptions of a rape in which the defendant had been pardoned,” admonishment by a court for “win-at-all costs unethical conduct,” bad faith misstatement of facts, as well as some litigation successes.

The duty to cooperate in litigation is well-recognized.  M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 315.  Cooperation and proportionality are intertwined.  Id. at 316.

In advocating for cooperation, Kenneth Withers of The Sedona Conference has pointed to the need to change “a litigation culture of ‘fierce warriors’ gone haywire.” Id. at 320-21.  Judge Grimm wrote that “war of attrition” practices threaten to close the courthouse doors to litigants of moderate means.  Id. at 321.  Thus, if it was ever viable, the “warrior” mentality argument cannot justify a refusal to cooperate in the digital age.  Id. at 329.

Stephen Gensler suggests that cooperation ends the era of the “silent gunslinger.” Gensler, “A Bull’s-Eye View of Cooperation in Discovery,” 10 Sedona Conf. J. 363, 365 (2010).

To the same effect, the Hon. Steve Leben recently wrote of a law firm that advertised “that going against it in discovery matters would be like meeting Genghis Khan on the steps of the court house.” S. Leben, We All Have a Role in Protecting Our Justice System: Promoting Procedural Fairness, 46 ABA Litigation 6, 8 (2019). The judge noted that the Genghis Khan advertisement was effectively used in a sanctions motion against that firm and was “counterproductive to building public legitimacy for our judicial system.”  See Berman, “ESI in Maryland Courts” at 330.

It is well settled that:

The lawyer’s highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. The lawyer’s role imposes on him [or her] a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends. … A lawyer recreant to his [or her] responsibilities can so disrupt the hearing of a cause as to undermine those rational foundations without which an adversary proceeding loses its meaning and its justification. Everywhere democratic and constitutional government is tragically dependant on voluntary and understanding co-operation in the maintenance of its fundamental processes and forms.

It is the lawyer’s duty to preserve and advance this indispensable co-operation by keeping alive the willingness to engage in it and by imparting the understanding necessary to give it direction and effectiveness….

….  For the lawyer the insidious dangers contained in the notion that “the end justifies the means” is not a matter of abstract philosophic conviction, but of direct professional experience.

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 361–62 (D. Md. 2008), quoting Lon L. Fuller & John D. Randall, “Professional Responsibility: Report of the Joint Conference,” 44 A.B.A. J. 1159, 1162, 1216 (1958).

Judge Grimm wrote:

A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve. Thus, rules of procedure, ethics and even statutes make clear that there are limits to how the adversary system may operate during discovery.

Mancia, 253 F.R.D. at 362-63 (emphasis added).

I don’t have sufficient information to form an opinion on the Baltimore and Chicago disputes and rely on the media descriptions of them. Certainly, the public fisc and police officers are entitled to a reasonable, proportional defense in these high-stakes, high-profile cases.  On the other hand, exonerees are also entitled to be protected against unreasonable, scorched-earth defenses that may close the courthouse door to potentially viable claims.

Hopefully, the public attention being brought to these matters will result in fair and reasonable processes consistent with the most important procedural rule.  Federal Rule of Civil Procedure 1 states: “These rules … should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”  [emphasis added].  That should be the overriding goal of both exonerees and governmental defendants.

See generally:

• Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation;
• Failure to Cooperate Costs Clients Money;
• Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications; and,
• Maker’s Mark: What Happens When Neither Party Cooperates?

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[1] In Waterman, a “DVD and hard-copy version of a Powerpoint^© computer presentation [summarized] the evidence presented in the defendants’ [summary judgment] memorandum.”  Waterman v. Batton, 294 F. Supp. 2d 709, 723 (D. Md. 2003).  The presentation involved computer modeling of an incident captured on analog videotape.  The District Court rejected plaintiff’s evidentiary challenge to this novel presentation of ESI.  Waterman, 294 F. Supp. 2d at 723–24.  The Fourth Circuit held that the officers had qualified immunity.