The Weakest Link (Space Alien Update)

There are many things a student can learn in law school.  The newest thing is to be a witless coward, cave in when there’s not a reason in the world and buy off one’s problems.  Welcome to St. Thomas School of Law, where  Deborah Hackerson will be your guide.

they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can’t, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

I’m absolutely disgusted that this is how anyone, but especially a law school and lawprof, would behave. Cowards? Gutless?  Morons?  Pray they write something mean about you, because you know they’ll be happy to fork over five grand for nothing.

Update:  In contrast to my rather clear disdain for acquiescing to this absurd bit of childish extortion, some on twitter raised the question of whether this settlement might have been a decision by the law school’s insurance carrier to throw $5 grand Rakofsky’s way as nuisance value, to rid themselves of this minor annoyance.  Not that this isn’t exactly what this kid might have wanted, which is precisely why this isn’t a wise idea.  But insurance companies think in terms of business decisions, not principles.

The point is well taken to the extent that the carrier might have been willing to toss money into the toilet, despite the complete absence of merit or jurisdiction and any potential for loss, thinking that it would cost that much to defend anyway and now it’s off the books.  But raising this possibility is troubling in a few ways.

But to change the analysis, a confluence of two things must have occurred:

1.  The carrier had complete, unfettered determination without St. Thomas Law School’s approval, or contrary to its disapproval.

2.  The determination of the carrier to settle out from under St. Thomas ws done without its knowledge, such that even if the carrier had the right to settle despite the law schools disapproval, it would have exercised that right in the face of the insured’s insistence that it not settle.

Is it possible that these two things occurred?  Sure, but it’s extremely unlikely. It’s also possible that the decision-maker at St. Thomas School of Law is bipolar and agreed to settle in a state of manic delusion, but that’s not likely either.  And let’s not even get into the space alien possibilities.  The point is, when you hear the sound of hoofbeats, don’t assume it’s a zebra.

 And even if they did occur, there was nothing to stop St. Thomas Law School or Debby Hackerson from asserting, once this became known, that this settlement was contrary to their wishes, their belief, their principles.  No such statement has been made.

All of this makes me wonder why some would make the effort to “explain” (what I would better characterize as “excuse”) this act of stupidityu and cowardice.  Some innate human desire to be contrarian, perhaps?  Some desire to show how smart you are, a rather typical affect of lawyers?  No matter, as Occams Razor teaches us that the simplest explanation that accounts for all known facts is usually the correct one.  There are always outlier arguments, which provide a convenient excuse.

If my assessment of St. Thomas School of Law is wrong, then I invite them to say that they disavow this settlement and despise that it made them appear to sacrifice principle to buy their way out of this completely frivolous lawsuit.

If not, I side with  Mark Bennett who wrote of this monumental collapse of judgment and spine:

From some individual non-lawyer blogger, afraid of going to court, that might be acceptable, but from a law school it is not. Aspiring lawyers, unless they aspire to learn the art of surrender, should avoid St. Thomas; employers, unless they are in the surrender business (like James J. Toomey of New York, who made the deal for these defendants?) will avoid St. Thomas grads.

Well, St. Thomas?  Was is space aliens?

34 thoughts on “The Weakest Link (Space Alien Update)

  1. Antonin I. Pribetic

    According to Deborah “Debby” Hackerson’s bio on the St. Thomas Law School website:

    “Prior to entering the law librarianship field, she practiced law with an insurance defense litigation firm in St. Paul.”


  2. Andrew

    Fear not. There are only three other law schools within five miles of St. Thomas. Of course, there are no others in the entire state of Minnesota, but four law schools in the Twin Cities is quite enough, yes?

    I don’t know how tuition compares, but maybe one of the other schools would be a better choice…

  3. Legal Baby

    OK, the Devil’s Advocate in me is trying to come up with an explanation besides the School being “utterly lacking in principle”.

    I don’t know much about US Federal and Minnesota State insurance law but could the insurance carrier have refused coverage if the St Thomas’ and Prof Hackerson had not agreed to the settlement? Is the insured even entitled to decline to follow the Insurer’s intended settlement once they seek indemnifcation under the policy?

    I am just curious if this is perhaps a case of the insurer’s taking a commercial decision and the law school (or their parent university) having a policy to agree to the insurer’s intended settlement. A policy which was blindly followed.

    It just seems daft to me. I am sure it wouldn’t have cost St Thomas’ and Prof Hackerson (or their insurers) $5,000 to tag on to the Randazza/Turkewitz represenation.

  4. Antonin I. Pribetic

    I wonder if James J. Toomey, Esq.,counsel for St. Thomas Law School and Deborah Hackerson, and Managing Counsel at Travelers, would care to explain his rationale for settling Rakofsky’s defamation claim even though it is wholly devoid of merit. Perhaps “turn the other cheek” or “the meek shall inherit the earth”?

    I prefer Proverbs 11:9 An hypocrite with his mouth destroyeth his neighbour: but through knowledge shall the just be delivered.

  5. SHG

    Short answer is that it’s conceivable that the insurance carrier paid it off without their knowlege, but highly unlikely that the carrier would have settled if the school was against it or refused it.

    And if they declined indemnification, so what? There is no merit to the action whatsoever, and they can’t acquire jurisdiction regardless.   In other words, it was impossible to lose, and yet they caved. The idea that the carrier is to blame without their input and approval is extremely farfetched.

    Is there something in this blawg that suggested to you that baby lawyers are invited to play devil’s advocate?

  6. SHG

    But Nino, there was no jurisdiction. Rakofsky did not and could not have acquired jurisdiction in any event.  There is simply no possible reason other than to be an astoundingly stupid coward.  Would Jesus have settled?

  7. Anonymous

    I tried to tell someone that $5,000 more than covers the motion to dismiss. They didn’t believe me; tried to break it down as a cost/loss equation.

    If even a law school capitulates…

    What is there left? Every bully get’s there day? You wouldn’t believe how many times I’ve seen that. No, I’m not an attorney.

    Maybe the law school did not have a choice due to whatever the university and their insurance company said.

    Still cowardice. Period.

  8. Legal Baby

    I’ll rephrase: “Baby Devil’s Advocate”.

    On a slightly more serious note, I thought it best ascertain what the legal position was in America. Most UK insurance policy’s have a condition which allow the Insured to take over the conduct of the claim. My insurance, for example, includes a clause that provides “[The Insurer] can take over and conduct in [The Insured]’s name, any claim or legal proceedings at any time. [The Insured] can negotiate any claim on [The Insured’s] behalf”.

    So whilst I didn’t think the Insurer would have paid without their knowledge I was curious as to whether or not the Insurer would have done so without their approval.

    Thanks for your answer.

  9. Antonin I. Pribetic

    As an atheist, I can’t speak for Jesus. However, as a renounced Catholic, I think Jesus would overturn some tables and quote his Dad:

    “To me belongeth vengeance, and recompence; their foot shall slide in due time: for the day of their calamity is at hand, and the things that shall come upon them make haste.”

  10. SHG

    Especially when it’s a law school, for whom teaching ethics is an integral component of its mission.

  11. Greg

    Giving a guy that dumb and oblivious 5,000$ ought to count as a charitable donation for tax purposes.

    maybe that’s the animating principle here. needed an offset, too much effort to google red cross or the cancer society

  12. Mark Bennett

    I don’t recall the topic of whether to settle frivolous suits for nuisance value coming up in my law school ethics classes.

    But I would like for law schools to teach law students to fight for their principles

  13. Antonin I. Pribetic

    Yes, law schools should teach law students to fight for their principles. Ironic that St. Thomas School of Law did not take heed of its namesake’s advice on the issue of “unjust price”:

    “If someone would be greatly helped by something belonging to someone else, and the seller not similarly harmed by losing it, the seller must not sell for a higher price: because the usefulness that goes to the buyer comes not from the seller, but from the buyer’s needy condition: no one ought to sell something that doesn’t belong to him.

    — Summa Theologiae, 2-2, q. 77, art. 1

    Taking advantage of a buyers’ increased willingness to pay constituted a species of fraud in Aquinas’s view.

  14. Andrew

    Well, I did choose one of those other three… for music school. But, even though I now make a decent living as a software developer, I could always use another five grand, I suppose. It sounds like I could collect $5,000 by:

    1. Drafting a summons and complaint. It doesn’t have to be any good, or even remotely true, but bonus points if it would survive a Motion to Dismiss pursuant to Minn. R. Civ. P. 12.02.
    2. Mailing it, along with a blank Notice and Acknowledgement of Service by Mail for good measure, to Ms. Hackerson.
    3. Waiting for the check for $5,000 to arrive in the mail, then immediately depositing the check.
    4. Profit!

    I might go for something like intentional infliction of emotional distress (caused by the settlement, of course). Frivolity doesn’t matter, right? Rules 9 and 11 were made to be broken, yes?

    “That if once you have paid him the Dane-geld,
    You never get rid of the Dane.” — Rudyard Kipling

  15. SHG

    For a musical software developer, you’ve got a darn good handle on how to scam a law school out of nuisance value.  But you’re going way too far.  Forget the notice and acknowledgement of service by mail, as extraneous effort.  Nor do you need to strain for the bonus points, as they’ll never get as far as a motion to dismiss.  Any why bother with Minneapolis law when any generic cause of action from any foreign jurisdiction where they can’t be touched will do.

    Don’t overcomplicate it. They check’s in the mail, and that’s all that really matters.

  16. SHG

    I would settle if law schools rejected the notion of “do as I say, not as I do.”  Perhaps they might consider being a model of the ideas the charge to instill in their students.

  17. Eddie

    What do you make of paragraph 3 of the stipulation, “This stipulation shall not be filed in any court, except to the extent it becomes necessary to do so in order to enforce it after a breach.” I see stips all the time and rarely have I seen such language except when dealing with issues of confidentiality. It looks like Rakofsky prepared the stip so I wonder why he was so keen on keeping it out of Court?

  18. SHG

    Hard to explain, unless it was a term demanded by the law school who didn’t want anyone to know of its capitulation.

  19. Josh King

    The insured always controls the terms of settlement, although that may mean losing the right to indemnity in a given case. Which is highly unlikely here; the insurer is going to be loathe to play that card on such an obviously meritless case – especially if the school explains how the suit cuts to the core of it’s mission, etc.

    There’s no way this is anything other than St. Thomas taking the handwringing lawyers’ way out rather than fighting.

  20. Andrew

    Good points. The notice and acknowledgement would be a waste of paper and postage, so I shouldn’t bother. But, I do live in Minnesota and happen to know where the sample summons and complaint forms are on the court website. Just laziness, you see. Plus, using Minnesota rules, I don’t have to suffer the embarrassment of actually filing the suit in court or the expense of paying a filing fee to do so. But, maybe I didn’t need to anyway.

    Or maybe I should just drive over to St. Thomas and ask the law librarian for $5,000. One never knows.

  21. Just a defense lawyer

    I do professional liability defense. To say that the carrier settled without the insured’s knowledge or consent is ridiculous. No way, even if it wasn’t a consent policy that the carrier settled this case without the insurd’s knowledge and approval, especially with a law school. I can’t believe anybody who has a clue about insurance defense (aside from those who only know auto or homeowner policies) would say such a thing. No way.

  22. SHG

    Given that there apparently is some controversy over this, any idea what drives it? Is this really such a controversial issue within the insurance defense bar?

  23. another id lawyer

    Small claims get settled without consent of the insured. very few policies require consent of the insured. this isn’t going to be a specialized policy for professionals – defamation claims are covered under general property/liability policies. these settlements happen most particularly for smaller claims where the guy is looking to fight for all he’s worth for a $800 fender bender. There is no point when you can buy the claim for cheap. if st. thomas did object to the settlement which cost them nothing in $$, they could be potentially breaching the noncooperation clause and jeopardizing their coverage.

    which . . . they should have done. standing on principle isn’t an insurance/business decision, so their insurance is (i think rightly) not responsible to pay for principles. But nothing stopped st. thomas from making a stand on their own, and it’s only their own craven cowardice that prevented them from doing it.

  24. SHG

    This wasn’t a small claims case, but a Supreme Court case. His demand was for nuisance value, but the putative damage (had there actually been a case) could be significant.

  25. Rachel

    “His demand was for nuisance value, but the putative damage (since he had no case) would have been non-existent.”

    Fixed it for you.

  26. rebecca

    It seems likely that the University, rather than the law school settled the case. That often happens–the university will overrule a particular school that actually cares about “the principle” because a lawsuit is a nuisance to the university as a whole.

  27. SHG

    That may be.  Of course, that doesn’t preclude the law school or Hackerson, who are tarred by this decision, from expressing their point of view, particularly since the settlement has now become public knowledge and they are being blamed for it.

  28. stephen orel

    as I understand it, the typical educators’ liability policy has a hammer clause, meaning that (under a typical clause) if the insured rejects a proposed settlement agreed to by the insurer, the insured is on the hook for any damages ultimately awarded above that amount, and also for additional defense costs. assuming these facts, then unless the insured wants to put up its own money, it has to go with the insurer. The money is clearly being paid by the insurer, as the stipulation recites. The school decided that money trumps principle.

  29. LJP

    Came across this recent revelation on St. Thomas Law Minnesota ranking based on “bad” data, the school surges in the rankings. Next they self report we made a mistake. Whoops!!! It’s a good thing they double checked after the rankings came out.

    Law school’s ranking might be based on faulty data [Edit. Note: Link deleted per rules.]

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