Her story was atrocious.

Shawanna Nelson, a prisoner at the McPherson Unit in Newport, Arkansas, had been in labor for more than 12 hours when she arrived at the Newport Hospital on Sept. 20, 2003. Nelson, whose legs were shackled together and who had been given nothing stronger than an over-the-counter painkiller all day, begged, according to court papers, to have the shackles removed.

Nelson (now Lumsey) was a sentenced prisoner, and despite laws forbidding the shackling of prisoners giving birth in some states, Arkansas wasn’t one of them.  But lest she abscond from custody in the middle of birth to avoid her sentence for writing bad checks, the shackles remained on, impeding her delivery and receipt of proper medical care. 

Lumsey, as well as her doctor and two nurses, requested that the shackles be removed.  Her guard said “nope”.  The guard ultimately removed the shackles at the very end of delivery, at the doctor’s insistence, but Lumsey decided to challenge her treatment, found a lawyer willing to take up her cause and sued. 

Lumsey won.  Woo hoo!

Via Legal Blog Watch :
If you successfully represent a female prison inmate who was forced to give birth while shackled, in her civil rights claim against the state, you might expect to have your fees awarded as part of the judgment.

Apparently, you’d be disappointed. Shawanna Nelson Lumsey won her lawsuit against the Arkansas Department of Corrections, but was awarded only nominal damages of $1. And because the Prison Litigation Reform Act caps fee awards at 150 percent of damages, her attorneys were entitled to only $1.50, rather than the $140,000 they had requested. Sucktown.

No, I have no clue what “sucktown” means either, but I suspect it has much to do with the disappointment felt by the lawyer who fought and won at trial at the fee. 

With the constant barrage of instances of people’s rights being violated appearing in blogs, this one included, we similarly hear expressions of outrage and demands that someone should pay.  That rights are violated isn’t in issue.  That it’s outrageous isn’t in issue.  The problem is the “someone should pay” part.  You see, a right without a remedy is meaningless.  If there is no consequence for the violation of rights, then there’s no right.

What shocks people is that lawyers, those men and women who have dedicated their lives to the law, protection of the downtrodden and defense of the Constitution, too often lack much interest in taking up their cause when they suffer the denigration of their rights.  In some instances, it’s because their rights weren’t really violated, even though they think otherwise.  But in many, it’s because there’s no money to be had for the lawyers.  Whether for lack of compensable damages (that’s right, you don’t get a billion dollars just because they made you really, really angry) or lack of entitlement to legal fees, the bottom line is that nobody wants to be your freebie hero.

Is this adding insult to injury?  Probably, but it’s certainly understandable.  For inexplicable reasons, people view lawyers (and doctors, for that matter) as flying above the fray of such mundane concerns as earning a living.  We’re all understood to be wealthier than anyone has a right to be, and thus can afford to do a good deed whenever someone comes knocking.  We talk about rights and outrages all the time, so is it too much to expect us to put our money where our mouth is?

The answer is clearly yes.  As much as lawyers might love this fantasy to be real, where they can spend their days doing good for others and not have to concern themselves with such banal matters as dirty lucre, the sad fact of life is that lawyers have to pay for Pampers just like everyone else.  Landlords don’t give lawyers fancy offices because they like them, and restaurants give lawyers a check at the end of the meal just like you. 

But what about you?  What about the vindication of your rights?  Who will stand up for you when your rights have been violated?  Yeah, that’s a problem.  You see, there are a lot of you out there with rights being violated, or at least rights you think are being violated.  They call all the time, telling lawyers about their problems.  They want to meet, to discuss, to express their anger, frustration and outrage.  We understand, but we’ve heard it before. 

Hard as it may be to imagine, you aren’t the first.  You just weren’t paying attention when it happened to all those people before you, because it didn’t affect your life.  You went to work like usual, did your job and picked up your paycheck at the end of the week, and life was good.  Well, maybe not good, but as good as it gets.  All the while, someone else was having their rights violated, but you were too busy with your own life to notice.  We knew because we got the call.

Now, however, you are the person aggrieved.  Now, it’s important because it happened to you and made your life a nightmare.  Now, it matters.  So why aren’t we prepared to put everything else aside and take up arms for you?  It’s not that we don’t care.  We do.  We really do.  But we also know that there will be another rent bill on the first of the month, and the check will still show up at the end of dinner.  And you can’t pay us, which is completely understandable, and nobody else is going to pay us to be your hero. 

Thus, the choice is that we spend the years it takes (and it always takes years, even those “slam dunk” cases), cover the costs involved (and the costs have at least three zeroes, if not more, each time a check is written) and serve as your protector at our own expense.  Our children need new shoes, but that costs money.  We can’t take your telephone calls if our phones are shut off, and the darn phone company wants money.  In fact, all the things we do cost money.  You want us to make you our charity, to dedicate our practices to you, to bear the weight of what someone else did to you.  You want our families to do without so we can take care of you.  You want us to be your one friend in need, even though we never met you until the day you called to tell us about the outrage perpetrated on you. 

You aren’t to blame for this.  It’s not your fault that somebody in the government employ violated your rights.  You didn’t deserve it.  But it’s not our fault either.  Just as it’s not wrong that you’re angry and frustrated by your treatment, it’s not wrong that lawyers have to earn a living to survive as well.  There’s no pot of gold awaiting us at the end of the rainbow, as people somehow think, and your outrage will translate into our wealth.  At the end of the case, we sometimes get a hearty thank you and a handshake.  More often, the win is attributed to divine intervention and we are informed that it had nothing to do with us.  Nice.

Lest you think lawyers are cruel, heartless creatures, consider this: When was the last time you stopped at the table of a lawyer in a restaurant and offered to buy them a nice bottle of Chianti to go with their liver and fava beans as a sign of your appreciation of their contribution to the welfare of society without compensation?

As for those lawyers inclined to put out soulful cries that legal services should be freely available to all, call me when they decide to dedicate themselves to the cause and forego feeding their children.  Only then will I consider their otherwise disingenuous notions.

Consider the fine lawyers who represented Shawanna Nelson Lumsey.  They did a heck of a job.  They won.  The ruling will benefit other women who will be able to give birth without being shackled to a hospital bed.  They are heroes.  Too bad their winnings won’t be enough to go to Starbucks and celebrate with a vente mocha frappuccino.  Not even if they share it, and keep it a secret from their hungry kids.

Almost every lawyer I know does pro bono publico, but even so it’s woefully inadequate to care for all the outrages that call for redress.  The problem isn’t lawyers not caring, but the $1.50 they get in the end.  If they win.