Chapter 21 - Take on the Big Guys: It's only a War of Words

When you have a complete and well-rounded working knowledge of all the basic ingredients that make up the baloney we call "the law," you will have occasions to go up against some big players. I will share one such story.

I had occasion to represent a doctor who worked in the state prison system. He was sued by the system's pharmacist for libel. Because Doc was a state employee, the state took on his defense. The assistant attorney general undervalued the plaintiff's case (I probably would have, too). But there was a bigger problem.

Doc lost - big. A $375,000 judgment for libel. All through the case, the assistant attorney general told Doc that plaintiff was blowing smoke. "Even if they win, it's a libel and 'hurt feelings' case. The state includes up to $100,000 in indemnity for its employees. No jury will ever award $100,000. Don't worry. We're trying this one."

After the judgment was rendered, Doc gets a letter. "Sorry it didn't go well for you. And by the way, libel is an intentional tort. By statute, indemnity is not available for intentional torts."

Well, I knew it would be a tentative case to complain about a "he said/she said" over whether the assistant attorney general undervalued the case. Even so, sometimes stuff happens, and it is not malpractice just to estimate and guess wrong. There has to be more before I can consider what can be done.

It so happened the state brought an appeal for Doc. In their appellate brief, Point of Error #1 complained that the trial judge kept out the state's offer of the indemnity statute into evidence. The state wanted the jurors to know that a plaintiff's verdict would be coming out of the taxpayers' pockets.

Bam! My client was telling the truth. He was misled into thinking there would be indemnity. The appeals court affirms. I make a demand on every assistant attorney general in the signature block in the pleadings, all the way up to the top - to the head honcho himself. I mean The Attorney General. He was listed as an attorney for my client in those pleadings.

I received a rather unabashed attempt to intimidate me. This came from the Office of the Solicitor General. The Solicitor is legal counsel for the Attorney General. The letter was succinct. I was off my rocker, and I obviously had no clue about the law of official immunity. If I was to carry on, they would have my tail sanctioned.

Honestly, it was a bit intimidating - not because I doubted my knowledge of the law - but because these guys were being pretty sharp. Maybe an older, wiser attorney, despite justice, would have said, "These are waters in which attorneys should not swim." I was only 31. I was "it." There was no firm or senior attorney to back me up. This decision was on me. I had some odd thoughts swirling around in my head. These guys certainly have connections and maybe people who will back them up. I wondered if I was going to be harassed by local police and given bogus speeding tickets, or who knows what? But I put my nerves aside. I did my research. In fact, you can rest assured I did it before I ever sent the demand letter. Now, it was time for me to keep doing my job.

I told them in a reply that we obviously see the case law from different perspectives. I told them I was fully aware of the law on official immunity. I showed them the malpractice cases against state doctors. Those cases had held that state doctors do not benefit from official immunity because the public policy will not extend immunity to professionals who render professional services and who inflict harm while doing so. To me, it sounded undeniably like an attorney fit right in to this reasoning. How could it not? So, I told them I had no choice but to continue on. I asked them to reconsider before I filed suit.

They dilly-dallied. Put me off. Put me off. Put me off. This went on a long time. Maybe 3 or 4 months. They kept telling me, "Give us some time. We have people to coordinate, but I am telling you, if you file, it's going to be your biggest mistake you ever made." I told them, "Hey, limitations is coming up. You leave me no choice." They were playing me. They figured I would cower and choose to let limitations expire.

Well, a week goes by, and The Attorney General, himself, was served with citation of my lawsuit in the luxury and privacy of his own home. The Solicitor calls and says, "If it goes away now, you'll have a $75,000 check in the mail." Given that our realistic best day ever would be $100,000 per the indemnity cap, my client said, "Take it." I agreed with that decision. It helped the client settle that judgment.

The moral here is you will have opportunities to take on some big kids if you look for them and are not afraid. They are scary, but they make good stories. Do not take them lightly. But do not be a coward if you are convinced in the integrity of your cause.


2015, Jeff M