The “Racket” of Making Cops Look Bad ( Overlawyered Update)

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.

22 comments on “The “Racket” of Making Cops Look Bad ( Overlawyered Update)

  1. Marc R

    His reasoning is in no way representative of the majority of attorneys his age. Rather, it’s akin to the reasoning of those who often defend 1983 suits.

    I’d like to see the stats on the money paid yearly by citizens to defense attorneys. Then I’d like to see what percent was paid where the case was no filed/nolle prossed or where the jury/judge acquitted the defendant.

          1. Marc R

            I understood that from the start. I just wanted to head off a slackoise comment.

            But the main point is the stats for money spent by innocent NYC defendants far outweighs any amount the gov’t spends on frivolous civil rights defenses.

  2. jakee308

    Not only would cleaning up the cops act aid the city in reducing their liability costs but it seems to me that if the cops are being falsely accused yet the city keeps losing, who’s fault is that?

    1. SHG Post author

      The City isn’t losing cases where the cops are falsely accused. It’s quite difficult to mount a successful 1983 case against the City, and it’s similarly difficult to get a lawyer to take the case if it isn’t strong because there will be no recovery. The whole notion is total nonsense.

      1. Marc R

        1983 Plaintiffs generally aren’t paying flat fees or hourly retainers. There’s tons and tons of pro se 1983s filed by inmates or people on federal probation, but all the winning ones are generally filed by attorneys on contingency. Moreover, because this is how it works prisoners with legit claims but small injuries ending up getting nothing; no representation, no injury redress, and certainly no money damages.

          1. Marc R

            You didn’t suggest anything other than his (the subject of the blog post) dishonest whining. I assume that’s the point. I agree he’s clueless or intentionally feigning ignorance of the costs associated with 1983 litigation.

            1. SHG Post author

              They’re not mutually exclusive. Based on Hanson’s Razor, I might assume he’s ignorant rather than disingenuous, but frankly, it’s hard to imagine that anyone engaged in 1983 litigation is that much of a dolt.

  3. TomH

    What Mr. McCann needs is a little perspective. After about five years of practicing in insurance defense at the outset of my career (and five years of drinking the defense attorney kool aid) I was told by an older and wiser attorney, and took to heart ,the notion that without plaintiff’s lawyers bringing lots of cases there are no defense lawyers. Plaintiff’s and their attorneys aren’t the bad guys. They just have a different point of view.

    In about 2008, there was (as my boss saw it) a big drop in cases brought by plaintiffs and a concomitant drop in the number of files coming from the insurance companies into our office. Guess what, due to budgetary reasons, I was excessed, let go, discharged from 9 years if loyal and exemplary employment. Now, for the past several years, my solo practice is a large proportion 1983 cases along with plaintiff personal injury and other litigation.

    So, as illustrated by my anecdote, and as a pragmatic matter, Mr. McCann has no job if I and the people like me see the light and stop bringing our frivolous cases of false arrest, malicious prosecution, excessive force and all the rest. He had better watch out what he wishes for. Maybe an old and wise attorney will let him know that, too.

    1. TomH

      I should always edit out sarcasm. There is no “light” to be seen from Mr. McCann’s direction and my cases certainly are not frivolous.

  4. Tim Cushing

    One sure way to cut down on both police misconduct and frivolous abuse lawsuits would be to “arm” every cop with a body camera. And yet, the NYPD strongly resists this. It must prefer keeping a large number of attorneys gainfully employed.

    1. SHG Post author

      I would have thought that as well, though experience is showing that dash and body cams don’t seem to inhibit cops much when they engage in abuse. Go figure.

  5. Pingback: A police abuse epidemic? One view from NYC - Overlawyered

  6. Leafs004

    I have friends who are police officers and more and more of them are proponents of cameras. As one officer who was telling the anecdote, “I’m not sure if the police changed their attitude, or complainers changed their attitude after seeing the video, but many cities are reporting positive reactions to cameras.”

    Bad cops who abuse will always continue to do so, but the camera then serves as evidence against them and hopefully makes it easier to remove these individuals from the streets.

    [Ed. Note: Link deleted per rules.]

  7. Maxwell

    Hidden among your personal attacks are a few valid criticisms of the article. I think another valid criticism is that perhaps the value of encouraging open access to the courts outweighs the costs of having to pay out for cases of questionable merit. But I fundamentally disagree with your statement that “Lawyers don’t bring frivolous claims against the City because there will be no award at the other end . . . .” That’s simply not true, but I suppose “frivolous” is in the eye of the beholder. Also, I’m curious, do you disagree with the basic premise that a Sect. 1983 lawsuit is not itself evidence of misconduct?

    1. SHG Post author

      Let’s start at the beginning, since you’ve chosen to use the name Maxwell rather than Max McCann, thus obfuscating that you are the writer of this nonsensical post and here to defend your post. Next, Max, a quick lesson in publishing your thoughts. If you don’t like someone telling you your baby is ugly, then don’t put your baby on display. You made some overarching assertions that were remarkably disingenuous and relied on your credibility. Yet, you neglected to mention that you are paid to defend claims against the City for police misconduct, or that you were an inexperienced lawyer. You conceded, somewhat, that you cherry-picked examples, even though your examples failed to prove your point to anyone with any knowledge of the subject.

      Now, as for your contention here that lawyers do bring frivolous claims, you answered your own question. If they thought the claims frivolous, and therefore certain to lose, they wouldn’t bring them. That the City may win at trial doesn’t make a claim frivolous.

      Finally, as to your ultimate question, of course bringing a 1983 claim isn’t evidence of misconduct, any more than an arrest is evidence of a crime. Yet, headlines convict defendants daily, your opening sentence notwithstanding.

    2. A Voice of Sanity

      Spend a little time on Bad_Cop_No_Donut on reddit.

      Then let me know why all of these lawsuits are frivolous – esp. since ordinary citizens appear to have no other recourse. I suppose they could try making a citizen’s arrest of a cop and trying for a private prosecution – but wait, the SCOTUS has ruled that cops are immune from such actions because they are all such special little snowflakes. What’s an injured and innocent citizen to do? Or his family when he is shot to death while unarmed?

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