Bad Legal Results

By Michael J. "Mike" Emling

The City suffered a judgment of twenty three million dollars through bad case management.

On August 4, 2004, after twelve years of litigation, and on the two hundred and ninth day of trial, the jury found for the plaintiffs, and the judge entered a judgment in the amount of twenty-two and one half million dollars. The judgment was later reduced to fourteen million in damages, but nine million was added to the award for attorney fees payable to the plaintiffs and their lawyers. The total loss is twenty-three million.

Following judgment, the excess insurer refused to pay on the ground that the conduct was willful, and therefore not insurable under Insurance Code section 533.

The case was handled in house for a number of years. In 2001, it was referred to an outside law firm that charged the City more than three million dollars.

The result is horrifying. It was also both predictable and avoidable.

Any lawyer can recognize this as a dangerous case that ought to be settled. Without knowing any more about it, the case has a dramatic tag line. "City bureaucrats ruin opportunity for Alzheimer's victims."

Just about any case can be settled. Over the years of litigation, and particularly during the intensely expensive few years before trial, both sides had an incentive to come to a rational settlement.

The excuse offered is that the plaintiffs never made a demand for settlement. This is nonsense. There is no rule that says you have to wait for a demand from the plaintiff before you can move toward settlement. The court system offers many opportunities for mediation and settlement conferences, and encourages the parties to use them. There are many outside dispute resolution services that provide highly skilled mediators to assist in resolving a case. It was incumbent on the City Attorney to recognize the danger inherent in the case, and bring it to a resolution, not to pass the buck to an outside law firm.