Scorched Earth Defense Burns Government (This Time)

Academics call it “asymmetrical,” which is a needlessly officious way of describing the fact that the government has essentially unlimited resources while you have, well, whatever you have.  And even under the best of circumstances, having a lawyer dedicated to zealously fighting for your cause, money matters, as was made clear in the suit against Oregon State Police Capt. Rob Edwards.

[Plaintiff Justin] Wilkens sued Edwards in 2014. The jury in January awarded Wilkens more than $180,000 in damages and supported his claim that Edwards had used excessive force by kicking him in the upper chest during a traffic stop. The jury also found that Edwards acted with negligence when his unmarked police car rear-ended Wilkens’ motorcycle seconds before the kick. Wilkens fell off the motorcycle after it was rear-ended by Edwards.

Nice guy, Edwards. First hit Wilkens’ motorcycle, then kick him in the chest for, you know, kicks. But that was just the start of Wilkens’ problems. Rather than let discretion be the better part of valor, the Oregon Department of Justice chose to go scorched earth on behalf of their place kicker.  Fortunately for Wilkens, his lawyer, Lauren Regan, wasn’t inclined to back away from the fight.

“But for the behavior of (Oregon Department of Justice) counsel at trial, I would chalk such tactics up to inexperience,” McShane wrote in a March 29 order awarding the fees. “The condescendence that was exhibited toward (Wilkens and his lawyers) during trial, however, can only lead this court to agree with the characterizations (made by Wilkens’ attorneys in their request for payment) that the government’s trial tactics made the litigation more costly and prolonged, and ultimately conclude that it was intended to deter (plaintiffs) from filing lawsuits.”

How much “more costly and prolonged”?

McShane called the government’s courtroom strategy “unprecedented in both its scope and its lack of regard for the law and the facts of the case.” He wrote that state lawyers filed 22 “groundless” objections to exhibits introduced by Wilkens; and he noted an instance during the January trial in U.S. District Court in Eugene in which one of the state attorneys — while Wilkens was testifying — “pretended to be asleep in his chair, his unconscious visage being broken only by an occasional loud sigh. Such tactics failed miserably to impress the jury and required repeated warnings from the court.”

When the facts are against you, pound the law. When the law is against you, pound the facts. When both the facts and law are against you, object to everything and pretend to sleep through the plaintiff’s testimony. Cool tactics.

United States District Judge Michael McShane not only refused to tolerate the crap in his courtroom, but did two things that rarely happen. First, he took the government’s lawyers to task, named names, as it happened.

“From my perspective it was disappointing,” McShane continued in his comments on the government’s strategy. “From the perspective of those wronged by police conduct, those tactics can only be described as purposely focused on chilling any attorney without a stout heart from an avalanche of pointless litigation.”

During the trial, McShane had scolded the state assistant attorneys general, primarily Dirk Pierson, several times for what the judge viewed as unprofessional behavior in court.

But there is a collateral problem that neither judges nor the public realize. There is a cost associated with such scorched earth tactics.  Because government lawyers like Dirk Pierson, who engage in “unprofessional conduct,” get a paycheck no matter what, they can indulge in whatever lowball garbage they want.  The flip side is that the plaintiff’s lawyer has to spend the time to counter these tactics.  While a lawyer taking on a case might anticipate a certain amount of needless effort engendered by frivolous tactics, there is a limit to how much of their life can be dedicated to nonproductive litigation.

In other words, the government, with its unlimited resources, can engage in a war of attrition, making it too burdensome and expensive for plaintiff’s lawyer to fight.  Judge McShane saw through this, and refused to let the government win this war of attrition.

McShane wrote in his order that Regan deserves the full $280,950 that she had sought, at an hourly rate of $375. He awarded another $37,739 to two Eugene attorneys — Cooper Brinson and Marianne Dugan — who worked with Regan on the case. The judge also ordered the state to reimburse Wilkens’ legal team $17,141 for various additional court costs.

McShane added that the government lawyers’ tactics, overall, “chill” attorneys “from engaging in the field of civil rights. Those willing to take on this additional burden have the right to set a reasonable (fee) rate to do so.”

At $375 an hour, Regan was a bargain.  Much as one might assume that “justice will prevail,” there is never a guarantee that the cop won’t win, regardless of how egregious his conduct.  And even if the jury does right, there is no assurance that the judge won’t cut legal fees to the bone, as they often refuse to compensate lawyers for their time when, in the judge’s head, it was unproductively used. For some judges, the idea that lawyers actually work, and work hard, on their cases is foreign. If a judge decides a motion could have been done in an hour, that’s all the lawyer gets, even if it took 20 hours of research, thinking and writing to actually produce.

Wilkens was awarded $180,000 for his damages, which will make some cringe when realizing that the attorney fee award was substantially higher, totaling $318,000.  For someone who takes the numbers at face value, this might come off as yet another example of the system taking care of its own, while the guy who actually suffered the harm gets, well, not as much as the lawyers. This would be one of those Overlawyered examples of the legal system gone badly awry.

By looking beneath the surface, and in particular at how the government can wage its war of attrition designed to chill lawyers from bringing civil rights actions when cops do harm, it all makes sense.  And Judge McShane’s award isn’t merely the right thing to do, but a significant contribution to raising the cost of police misconduct.  Now, if only there was a referral to professional discipline for that “unprofessional conduct,” this case would offer the trifecta of incentives.

But as for Edwards, the kick hasn’t been bad for his career.

Edwards, 46, held the rank of lieutenant and served as supervisor of the state police office in Springfield when he crossed paths with Wilkens. He later was promoted to captain and transferred in early 2015 to the agency’s headquarters in Bend. Edwards has been a state trooper for 22 years.

The State Police issued a statement after the verdict supporting Edwards, noting that:

In situations like these, officers have milliseconds to make what may be life-or-death decisions, and those officers should be shielded from the liability of civil damages.

But there was no rush to decide whether to promote Edwards to captain after breaking Wilkens’ left clavicle and rib. Like the deliberate scorched earth tactics at trial, they had all the time in the world to make the decision to do the right thing, and this is what they chose to do. At least the government got burned by its tactics, even if Edwards got new bars.

H/T Wrongway

20 thoughts on “Scorched Earth Defense Burns Government (This Time)

  1. Weebs

    If a judge decides a motion could have been done in an hour, that’s all the lawyer gets, even if it took 20 hours of research, thinking and writing to actually produce.

    I’m curious: Do attorneys have any way to document their labor? Is there any software or platform one could use to record the time involved on the research side?

    I work with consultants and program managers quite often. They document EVERYTHING and charge accordingly.

    1. SHG Post author

      Sure, there are tons of ways to keep track of time, but that’s not what I’m talking about.

      And really cool how you wrote EVERYTHING in all caps.

      1. Weebs

        Sorry, it was an afterthought but I was wondering if it would be easier to convince a judge of the validity of costs when there is documentation to back it up.

        I’ll shut up now.

  2. John Barleycorn

    Wrongway gets eight hundred and fourty eight free beers, unlimited bleacher privileges, two custom bleacher cushions with embroidered back rests, and veto powers on who is added to the national anthem singers roaster until the allstar break.

      1. John Barleycorn

        And don’t you know it! Everyone wants to touch my cushion.

        And oh my, my, when I let them have a good feel of the extra memory foam padding and have a good long look at the reinforced adjustable nylon back rest straps, they know…

        I might have to send one to McShane along with a note letting him know that next time he should just “settle on in” and finish the job.

        P.S. Whatever it is you have been doing, this spring, before you take the mound keep doing it. An exceptional nice mix of pitches you have been bringing together and putting where you want to as of late.

        1. Hal


          As much as you dislike having warm air blown up your shorts (or claim to…), I want to echo the following;

          P.S. Whatever it is you have been doing, this spring, before you take the mound keep doing it. An exceptional nice mix of pitches you have been bringing together and putting where you want to as of late.

          You do seem to be on a roll of late and, as just one of your adoring fans (OK, interested readers), I hope you can keep this up.


          1. SHG Post author

            You *do* realize that Barleycorn can only comment when they allow him internet access at the asylum, right?

  3. Keith

    Because government lawyers like Dirk Pierson, who engage in “unprofessional conduct” get a paycheck no matter what, they can indulge in whatever lowball garbage they want.

    Is there an impediment for sanctions against the Gov attorneys, based on the unnecessary and excessive interruptions to the hearings, that would have to be paid by the individual attorney?

    1. SHG Post author

      There’s no impediment to sanctions, but I don’t think it wouldn’t change indemnification by government. But there’s always professional misconduct (not to harp too much on this point).

      1. Keith

        I don’t think it wouldn’t change indemnification by government

        The last time I saw a sanction order against attorneys (in the context of making a false statement), it included language that the sanction must be paid by the attorney and funds may not be charged to the client. Not sure if you can do the same to the gov, but I’d love to see a judge try it for something like this.

        1. SHG Post author

          Go to law school so I don’t have to explain this stuff to you. Passing a sanction through to a client is entirely different than govt indemnifying its employee. I understand why it might be confusing to a non-lawyer. Go to law school. Tell them to send me the bill.

  4. DaveL

    Yes, I’m sure it really stung those prosecutors when taxpayers got stuck paying the judgement.

  5. Simon Elliott

    “officers have milliseconds to make what may be life-or-death decisions”: how is this relevant to rear ending and then kicking someone?

    1. SHG Post author

      This is required in all police statements, no matter what (though the milliseconds was a curious rhetorical flourish).

  6. Herbert Stock

    Can the sanctions the judge may impose include making the prosecutor personally liable for the additional costs that result from his/her actions?

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