When the first sentence of a post damn near causes whiplash, you know things are going to get bad. Your head spins back from the squiggly lines on the page in shock at seeing what appears to be the rantings of a total lunatic, except the writer is listed as “Max McCann, Attorney, City of New York.” Who? The guy who wrote this:
Most of the time, reporters avoid writing a story about an arrest in a way that assumes the guilt of the person charged.
That should be the case. It would be great if it was the case. It’s never the case. Unless, apparently, you’re a kid lawyer who works for Corp. Counsel representing the City in police misconduct cases. The byline is not untrue, but not quite precise.
While McCann is a lawyer, and is in New York City, and does represent the City, he’s got a horse in the race and is beating that horse to death. It’s not that he’s not entitled to write about the world as seen through his peculiar lens, as he’s hardly the only one who does so, but at least be up front about it.
But when wrongdoing is charged against law enforcement itself, in the form of civil complaints against police officers, reporters too often treat plaintiffs’ contentions as if somehow pre-validated as findings of genuine misconduct.
Or maybe it has something to do with the videos of cops wantonly beating helpless people, heinous charges dismissed as lies or the fact that headlines never include the word “alleged” for any accused, cops included?
That is one reason we should be cautious when we see headlines like this one, reciting that civil rights lawsuits against members of the NYPD are on the rise, costing New York City $185 million in fiscal year 2011. Often these reports simply take it for granted that — to quote the activist above — where there’s this much smoke, there must be fire. Why would so many civil rights lawsuits be filed, other than a high rate of misconduct by members of the NYPD?
This is where McCann gets to the thrust of his post, the abject unfairness of extrapolating from the huge sums paid out for police misconduct that it might have something to do with, well, police misconduct. What are we thinking?
McCann’s contention is that police don’t do wrong, at least not nearly as much as the newspapers or the payouts suggest, but that they are unduly maligned and the system is against them. The poor City forced to endure a system heavily weighted against the police and in favor of the whiny, lying, scheming plaintiff. That’s what the numbers prove to McCann.
One possible explanation is that many persons who get arrested find the experience disagreeable and strike back by filing a complaint, which helps solidify in their own and their families’ minds that the trouble they had with the law was not their fault. Another, which may strike readers as more surprising, is that even relatively weak cases can be profitable ventures for the lawyers who file these cases. In fact, the lawyers often win more than the actual plaintiffs.
As usual, blame the filthy rich plaintiffs lawyers for bringing those frivolous §1983 cases whenever a payment is due on the Ferrari. There’s always a criminal defendant who found the “experience disagreeable” and is happy to sue and grab their piece of the police misconduct lottery. McCann notes that the prevailing lawyer can recover legal fees, enabling them to ”generate a large fee entitlement” for ”marginal” claims.
McCann gives some examples, which he notes “are not typical outcomes,” showing plaintiffs who prevailed against the City and obtained $20,000 verdicts for wrongful arrests and excessive force, where the legal fees were substantially greater. I suppose his point is to invite anger toward the lawyers for being paid, though it never dawns on McCann that in each case, the City lost. The cops did wrong, whether by arresting or abusing a person, and a lawyer put in the time and effort to represent the injured party. It never dawns on him that if it pains him to see the lawyers recover legal fees, the solution is for cops not to wrongfully beat the crap out of people.
Making matters worse, attorneys’ fees are awarded after the trial by the judge, so the typical jury has no idea that its award of a few hundred dollars to the plaintiff may trigger a five or six-figure payout to the plaintiff’s lawyer.
Apparently, if you squint real hard, features begin to look like flaws, given that the point of legal fees to the prevailing plaintiff is to enable people who lack the funds to pay for a lawyer to pursue claims of police abuse. Police are pretty good about not beating wealthy folk, leaving the poor to enjoy the business end of a taser or boot more regularly. How unfair to cops.
Furthermore, the risks for the plaintiffs in these lawsuits are relatively low. If someone brings a frivolous suit against a police officer, and the city spends the resources required to win the case at trial, the plaintiff is unlikely to have to pay the city attorneys’ fees. That means, if the plaintiff wins, the taxpayers are on the hook for the plaintiff’s attorneys’ fees as well as the city’s. If the police officer wins, the taxpayers are still on the hook for the city attorneys’ fees.
McCann has much to learn about the incentives of practicing law, which is understandable since he lives on the City’s teat. Lawyers don’t bring frivolous claims against the City because there will be no award at the other end, and it’s hard to pay the rent after spending years litigating a case and ending with bupkis. That’s the incentive.
On the other hand, McCann bemoans the unfairness of not recovering from plaintiffs, as it places the financial burden on the taxpayer. Notably, he doesn’t bemoan the taxpayer’s liability for paying the judgment and legal fees due to the bad cop.
Given this lose-lose situation, the city has a significant incentive to settle these cases prior to trial, generating a vicious cycle: the prospect of an easy settlement encourages more lawsuits.
Perhaps no one mentioned to McCann that the City’s incentive is to prevent frivolous suits, which is why the City challenges claims so vigorously, and why kids like McCann have a job. If there is a vicious cycle, a prospect of easy settlement (which does not involve an award of attorney’s fees after trial), that would serve as a huge incentive to fight false claims. And indeed, the City does. And still suffers such huge losses because of very real misconduct and abuse.
The post not only reflects the fallacy of the true believer, an affliction that affects all sides, but outs McCann for his inability to construct a facially credible argument.
Blaming the lawyers tends to work in many instances, given the general public antipathy toward us, but given the ubiquity of proof of outrageous police misconduct and abuse, the beatings, the killings, the verbal abuse, the false arrests and the phony charges, all of which McCann manages to studiously fail to mention in his indictment of greedy lawyers, he comes nowhere near persuasive.
Instead, the tone deafness of his facially absurd explanation for the costs suffered by the taxpayer, not to mention the suffering inflicted by cops, reminds us of how and why cities like New York excuse the police misconduct by shifting the blame. There is an answer to the problem. Clean up your cops and then you won’t have to lose at trial and pay all those nasty lawyers. How’s that for a racket, kid?
Update: My friend, Wally Olson, reposts the McCann “column” at Overlawyered under the heading of keeping an open mind. The problem is that if one’s mind is that open, there is a very strong likelihood that things will fall out. It would get messy.