Thursday, December 9, 2010

Here's Why Americans Hate Lawyers, Part 2

What stunts will some lawyers pull in order to gain an unfair advantage in the courtroom? From our experience, the bag of tricks is almost endlessly deep.

We've already reported about one Alabama attorney who, while a defendant in a federal lawsuit, is trying to represent another defendant in the same case. Never mind that both state and national ethics rules say that cannot be done. He's trying to do it anyway.

Now let's consider another common trick: the hiding of evidence. If you ever are genuinely wronged and file a lawsuit because of it, don't be surprised if the opposing lawyer tries his or her darnedest to hide evidence. Also, don't be surprised if certain judges, and maybe even your own lawyer, let them get away with it.

We've witnessed that kind of thing firsthand, in a lawsuit my wife and I filed against unethical debt collectors. In fact, I wrote about it in the following post:

Denying Discovery: A Favorite Tool for Cheating Litigants in Court

We will return to that subject in future posts. But for now, let's focus on a lawyer named Lisa Huggins. She works in the Office of Counsel at the University of Alabama at Birmingham (UAB) and is defending the university in a lawsuit regarding my unlawful termination after 19 years on the job.

The lawsuit involves a number of counts, including age and gender discrimination, conspiracy, First Amendment violations, and state-law claims. Huggins is heading UAB's defense, and it's interesting to note that she used to work for the Birmingham firm of Haskell Slaughter, which we have mentioned in several posts. Founding partner Wyatt Haskell has strong ties to UAB and the University of Alabama System, and we have presented evidence that individuals at the firm might have played a role in my termination--or at least know who did.

Back when I still had a job, I used to run into Huggins fairly often in the UAB Administration Building. I didn't know her name at the time, but she was a familiar face, and we would chat occasionally in the hallways or on the elevators. She seemed like a pleasant enough person. But now that I am "plaintiff" and she is "defense counsel," I'm seeing a different side of Lisa Huggins.

As I reported earlier, I have evidence that shows Huggins signed off on my firing. In other words, she was involved in the decision-making process, and that means she almost certainly knows the real reasons I was fired and who was behind it. Assuming she has that knowledge, and a few functioning brain cells, she knows it was a royal cheat job. But like many lawyers I've encountered, Lisa Huggins doesn't seem to care much about matters of justice, basic right and wrong. In fact, I've seen signs that she doesn't care much about the actual law. She just wants to win her case, it seems. If my life is ruined, my wife's life is ruined, the law is butchered, the public is cheated, our court system is abused, well . . . tough.

Why do I say that UAB's lawyer seems to have little regard for the law? Well, we will examine that in a number of posts. But first, let's look at a little matter called "spoliation of evidence." That's a legal term that refers to the "intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding."

As plaintiffs often do in lawsuits, I sent a spoliation notice to the defendants, instructing them not to destroy or alter any potential evidence related to my case. The notice especially mentioned relevant university records and any electronic communications to and from the named defendants.

You can check out my spoliation notice, and based on my research, it's pretty standard for a modern legal case. Items such as e-mails, phone records, voice messages, and computer records are a critical part of many lawsuit these days, so a lawyer should not be surprised at the contents of my spoliation notice.

But UAB's lawyer did seem surprised by it. In fact, Huggins filed a document with the court styled "Defendant's Motion to Limit Spoliation Notice." (See the motion, and my response, at the end of this post.)

My guess is that most lawyers have never heard of such a motion. I've examined the files in quite a few lawsuits, including a number involving UAB, and never seen such a motion before. It's possible that I missed some, but I have a feeling Huggins' handiwork could almost be described as "unprecedented."

Keep in mind what a spoliation notice is and what it is not. It is not a matter of the plaintiff saying, "I am entitled to every item listed" or "I demand all this material right this minute." It's simply saying, "These items have potential evidentiary value in this case, so please make sure they are not destroyed or altered."

It's about making sure that potential evidence is preserved, whether the court deems that it must be produced eventually or not. Huggins, however, seems to be setting the stage for UAB to obstruct the flow of evidence in my case.

In her motion, she claims that my spoliation notice is "extremely overbroad," especially regarding the first three items listed. But those items could not be more simple, straightforward, or relevant. They ask for preservation of electronic communications involving the named individual UAB defendants and members of the University of Alabama Board of Trustees, plus voice messages and phone records.

Huggins claims: "These preservation requests are not limited in any way to the plaintiff, his claims, or even plaintiff's department." She says my requests would be "unduly burdensome" on the defendant.

Notice, however, that Huggins is treating this as a discovery request. But that's not what it is; those issues should come later. This is a spoliation notice. It doesn't say, in so many words, "Turn all of this stuff over." It says, "Don't destroy this stuff, it might be important."

Huggins goes on to make a curious claim: "For that matter, some of what is requested is not available to the defendant and would be impossible to preserve."

E-mails, phone records, voice messages, and computer records are impossible to preserve? I'm not an IT expert, but I worked at UAB for 19 years, and I know the place has whole buildings devoted to the processing and storage of electronic communications. I find it hard to believe that, in the cyber age, UAB does not have the capacity to preserve such information--at least going back in the relevant time frame, two to four years.

Makes me wonder if some of this material already has "disappeared." If the judge in the case is honest--always a huge if--UAB should pay the consequences if relevant evidence is missing. The whole point of a spoliation notice is to set the foundation for holding a party accountable when it can't seem to come up with certain evidence.

UAB, it appears, does not want to turn over any information about employees outside my department. But my termination was a universitywide decision, upheld by the director of human resources and the president--against the recommendation of their own grievance committee. Discrimination cases, by definition, involve "comparators"--others in the same workplace who faced similar issues but were treated differently from the plaintiff. The treatment of other UAB employees is central to my case, but the university already appears to be stonewalling on such information.

In essence, Huggins motion is asking the court, "Please let us go ahead and destroy certain evidence that might be connected to the Shuler case. He shouldn't need it, even though the law says he's entitled to it."

Why is Huggins concerned about such issues, especially so early in the case? It makes me think she knows there is an electronic "paper trail" that explains exactly who was driving my termination train--and why they were driving it. My guess is that the e-paper trail leads to some interesting places outside the UAB campus, probably to some sectors of the legal and government communities--sectors inhabited by people that Huggins and the university want to protect.

Below, you can check out Huggins' Motion to Limit Spoliation Notice. After that, is my response to it.

(To be continued)

Spoliation UAB Motion

Spoliation Response


Kevin said...

I am learning to hate lawyers (although I have encountered some nice ones in the past).

In an ongoing battle between some in my neighborhood and an organization that claims to be the HOA for the neighborhood, the HOA's lawyers have tried every trick in the book, from getting the plaintiff's lawyer thrown off the lawsuit to using delaying tactics in the discovery process - one of the last court appearances, the defense's lawyers tried to prevent the discovery, pressing for delay after delay, and when the judge finally put his foot down, they waited till the last minute to give the plaintiff's attorney what they wanted. In the process, they had to admit that things the defendants had said in the past were indeed false (because the documents obtained in the discovery process revealed otherwise.)

Sadly, this case is over two years old and dragging on and the HOA is continuing to try and enforce their rules - the focus of the lawsuit surrounds the HOA's and their attorney's assertion that they can force non members to pay them money of any amount based on the approval of the membership because the attorney coined a phrase describing this type of HOA arrangement - mandatory maintenance.

Very frustrating...

I understand the details in your situation and it is unfortunate.

Anonymous said...

Kevin you don't have a CLUE