Much as I admire Wally Olson’s standing guard against the stupid and venal in law, his effort to demonstrate the inconsistency of the American Rule, that each party pays its own legal fees, through the case of Alabama prisoner, Anthony Warren, is a poor choice.  Warren isn’t exactly the most sympathetic of “victims”:

Warren is serving a 20-year sentence for attempted murder stemming from his running over a police officer during the chase, in which he also hit a school bus and a patrol car before crashing and being ejected from his vehicle.

And for this he gets paid?

The incident gained public attention with the release of a 2008 video of police officers punching and kicking Anthony Warren as he lay on the ground after leading them on a roughly 20-minute high-speed chase.

Yes, he gets paid.  Even bad guys, criminals who flee and clip a cop in the process, aren’t to be beaten to release the anger and frustration of cops.  But what kind of crazy lawyer or firm would take on such a case?  An extremely unsympathetic client, in prison, who was subject to a beating but not terribly hurt, isn’t a sure bet for a win.  Indeed, it could well mean years of work, many thousands of dollars in expenses, that must be endured and paid in the process, with a very real possibility of a goose egg on the back end.  Where does the line form?

Wally notes:

“An Alabama man who sued over being hit and kicked by police after leading them on a high-speed chase will get $1,000 in a settlement with the city of Birmingham, while his attorneys will take in $459,000, officials said Wednesday.”

Before you start counting your toes, no, the lawyers did not get a third.  When suing for a violation of civil rights, the law provides for legal fees and expenses on top of damages.  That the damages were $1000 is, well, debatable.  So many people assume that every beating will produce a lottery win. How many times do we have to explain that it doesn’t usually turn out that well.

But should that mean the cops can beat someone with impunity, provided they don’t do any significant permanent damage such that there will be a huge payout at the end? The point of legal fees being recoverable in §1983 cases is to allow cases of civil rights to be vindicated despite there being less than monumental damages. It allows the poor, the downtrodden, a means to access the courts even though they can’t pay for counsel.  It’s an incentive for municipalities to both stop their armed forces from violating people’s constitutional rights, beating the daylights out of them, and, if they do, refusing to settle up.

Wally really doesn’t take issue with the rationale behind the award of legal fees in civil rights cases, but rather the American Rule’s inconsistent application.

One reason for that is that the U.S. does not actually hew consistently to the so-called American Rule; across wide areas of litigation, including civil rights suits, it follows “one-way shift” principles in which prevailing plaintiffs but not prevailing defendants are entitled to fees, and whose encouragement to litigation is greater than either the American Rule or the loser-pays principle.

The frustration is understandable.  As the government continues to pile regulation upon regulation in its quest for the perfect world, giving rise to private causes of action against other private parties for dubious claims that would make Harrison Bergeron puke, the cost of defending plus risk of losing gives rise to a set of perverse incentives that have been seized by litigation trolls to wreak havoc on American businesses and individuals.

But this is different, and it should be different.  On the street, the power belongs entirely to the police, who protect and serve such that they’re given weapons, shields and mind-numbing deference to use them against their fellow Americans.  There is little one can do to stop a swinging club, a kicking boot, a jabbing first, short of inviting a bullet to the head.  It is neither a fair nor reasonable fight.

Stopping police who exceed their authority, who harm for the same reason a dog licks his balls, matters.  Sometimes, it happens with nice people, good people who find themselves inexplicably on the wrong side of the curve.  Most of the time, it happens to people the rest of us deem unsympathetic.

They are people who lack any clout to come back afterward and seek redress.  And painful as it may be to law-abiding, tax-paying Americans, who struggle to understand why these unsavory people won’t just keep their nastiness in their own neighborhoods, they too are entitled to their constitutional rights, their civil rights, their right not to be beaten because cops can.

Does the American Rule work unfair hardships at times?  Of course.  There is nothing in the American legal system that doesn’t work hardships at times.  We’re an extraordinarily versatile people when it comes to finding ways to screw with a system for our own advantage. It’s the American way.

But the case of Anthony Warren, and others like it, where the American Rule is set aside so that they can have access to the courts, and more importantly, so their access can inure to the benefit of the rest of us by preventing even wider spread police abuse and misconduct than exists with law that allows for the award of legal fees, is a poor example to make this point.

When it comes to governmental violation of civil rights, a clear line can be drawn that justifies why the American Rule isn’t applied.  This isn’t a flaw, but a feature of the law.  It may not seem fair when compared to other aspects of law that serve to exacerbate the harm of the legal system, but let’s not diminish one of its features because it’s not available under other, often dissimilar, situations.  This was a good exception. Let it be.