Judges Behaving Badly: Their Ill-Considered Suits Against a Dry Cleaner, and Against the Yale Club

Recently, the news has been filled recently with stories about two judges who are pursuing dubious lawsuits. About a month ago, ABC News and the Washington Post started covering the "$54 million pants suit" filed by Administrative Judge Roy L. Pearson, Jr. against three members of a family that owns a dry-cleaning business. Then, last week, the New York City media reported that Robert H. Bork, the former federal judge and disappointed Supreme Court nominee, had filed a $1 million lawsuit against the Yale Club in New York.

Of the two, Pearson's suit has earned the greater scorn. The suit brought by Bork has been treated a little more gingerly, as if it were a "man bites dog" story, since it involves a respected conservative invoking the tort system. Yet both share a common theme: Both illustrate how difficult it is for the legal system to distinguish between legitimate and bogus claims in a quick and efficient manner.

The Pearson Case: Highly Dubious Claims, But It's Difficult for the Court to Quickly Dismiss Them

The Pearson case illustrates this problem perfectly. Pearson was at the relevant time a former Legal Aid lawyer who was about to begin his career as an administrative law judge in the District of Columbia. In May 2005, he brought a pair of pants into Custom Cleaners, a dry-cleaning store owned by Soo Chung, Jin Nam Chung, and Ki Y Chung. Pearson requested that they be altered and was told that they would be ready two days later. When Pearson came to pick up his pants, however, the Chungs told him the pants were missing. He returned the next day and the next day, and still the pants could not be found. Finally the Chungs asked Pearson to bring the matching jacket in, so they could try to locate the pants by sight, since the claim ticket held by Pearson was obviously not helping.

Here is where the story told by Pearson gets weird, or nefarious, depending on your point of view: Pearson brought a "red and blue pinstripe suit coat" to the Chungs, claiming that this was the matching jacket. The matching pants were still not found. Then, according to Pearson, the Chungs used a "pair of the plaintiff's pants" to alter a cheap pair of gray pants; created a claim ticket matching Pearson's, which they attached to the pants; and gave this cheap pair of altered pants to Pearson, instead of his expensive original suit pants. (I have not been able to figure out from the publicly available documents Pearson's theory of how the Chungs purportedly procured a second pair of his pants to create the alleged fake pair of pants. He had been a regular customer, though.)

Pearson then filed a battery of lawsuits against the Chungs, invoking D.C.'s very liberal Consumer Protection Procedures Act. He claimed that the signs in the Chungs' store--"Satisfaction Guaranteed" and "Same Day Service"--defrauded 27,000 D.C. residents and represented over 1200 separate violations of that Act--one for every day since Custom Cleaners had been open and had displayed the signs. This, and a number of other claims--such as a claim for Pearson's legal expenses in pursing the case on behalf of D.C.'s consumers, including renting a car--raised his demand to $65 million. He lowered that demand to $54 million after some pretrial motions were filed.

The media coverage has focused on the huge damages demanded by Pearson, which are the result of his extravagant interpretation of the DC consumer protection statute. Early on in the case, Pearson's efforts to sue on behalf of anyone other than himself were dismissed. But that still has not stopped him from reading DC's consumer protection law in ways that strain credulity.

Let's suppose, for a moment, that the Chungs indeed engaged in consumer fraud, as Pearson alleges. Even if that is the case, it defies belief that the statute, properly read, would hold them to have violated it 1200 times. Furthermore, the idea that the signs "tend to mislead" the consumer, which is the test for consumer fraud in DC--is ludicrous. Pearson himself admitted on the stand that he believes that the promise made by the sign "satisfaction guaranteed" is that the Chungs had to provide him with whatever service he deemed satisfactory, even if his preferences were unreasonable. But virtually any attorney (indeed, any observer) would agree that there must be limits to how subjective a customer's definition of "satisfaction" can be.

In the end, however, Pearson's grandstanding about the damages and his unconvincing claims about the meaning of "satisfaction guaranteed" are irrelevant to the real problem this case illustrates. I believe that the reason Pearson's case has not been dismissed is that if Pearson is telling the truth about his pants, then he, in fact, has a good claim under anyone's definition of consumer fraud. To put it bluntly, if the Chungs in fact took expensive, red and blue pinstriped suit pants from him, and then replaced them with a pair of cheap gray pants, then they plainly did a bad thing, and should be held liable. Indeed, if they indeed did this, then they deserve moral condemnation too - for such an act would make them liars and cheats.

Conversely, assuming Pearson actually gave a pair of cheap gray pants to the Chungs, which they temporarily misplaced and then found, then Pearson has done a bad thing -- since he doubtless would have known that he gave the Chungs the gray pants, not expensive red and blue pinstriped pants from a suit. Thus, if the Chungs are telling the truth, then Pearson is a liar and a cheat.

Thus, the "$53 million pants" case is really quite simple: Somebody is lying. I don't think that any of the media critics of the case would say that it is unimportant to find out who is lying. If the Chungs are lying, then Pearson has a genuine grievance with them. His damages should not be in the millions of dollars, but they should not be insignificant either. The law should provide consumers with a practical mechanism to prove that vendors are engaging in fraud.

On the flip side, if Pearson is lying, then the law should find that out too. If a lawyer--a judge!--concocts a fanciful story about pants being altered in the dead of night and claim tickets being fabricated, then everyone, not just the Chungs, has an interest in finding out that Pearson is a liar.

Unfortunately, our legal system is not well-equipped to determine the relatively simple question of who is lying, and who is telling the truth, in a reasonably short amount of time, and without having to first resolve related questions, such as the degree of accuracy of Pearson's bizarre interpretation of "satisfaction guaranteed."

The Bork Case: Raising A Genuine Legal Question that Needs to Be Resolved

Although it is less dramatic than the Pearson case, there is a real legal dispute at the core of Bork's suit - one that ought to be adjudicated. The facts behind Bork's suit are also quite simple: He was invited to give a lecture at the Yale Club in 2006. He fell while trying to step from the floor to the dais, and hit his leg and head.

Bork's lawsuit alleges that the Yale Club was negligent because it did not provide a step or a railing to assist speakers in reaching the lectern on the dais. Bork filed a six-page complaint that makes only a few vague claims: It alleges that the Yale Cub usually provides a step to help speakers reach the lectern. It alleges that the failure to provide any aid to reach the lectern was "gross negligence," and that Bork will prove that he deserves punitive damages at trial. Finally, it alleges that as a result of his injuries, Bork suffered months of "excruciating pain" and lost work time and income, and that fair compensation would equal $1 million.

Like Pearson's suit, Bork's suit poses a legal problem that deserves resolution: Society has an interest in determining whether the Yale Club (and, thus, similar institutions and facilities) ought to have a step or railing to assist speakers in reaching its lectern. If it should, and it failed to do so, it is negligent, plain and simple. No one disputes that Bork suffered an injury because he fell while trying to reach the lectern. If the Yale Club's negligence was a cause of that injury, then Bork deserves fair compensation - and that's true even if a jury were to decide that he was partially at fault for his own injury because he should have been more careful, or should have refused to climb the dais without aid.

As in Pearson's suit, however, a genuine legal dispute is confused by extravagant legal claims that are irrelevant to the core claim. It is hard for me to imagine under what circumstances Bork would be able to secure punitive damages against the Yale Club for its negligence, especially given New York's very high bar for proving "gross negligence."

In addition, the fate of Bork's lawsuit depends crucially on his damages allegations. Like Pearson's suit, which is either about the temporary loss of use of a cheap pair of pants or the deliberate theft of an expensive pair of pants, Bork's suit is either about a minor slip and fall (for which he may have been partly to blame), or it is about $1 million dollars of pain and suffering and lost income. Thus, Bork's factual allegations about his injuries, if false, change the nature of the suit dramatically. A big part of the lawsuit, if it goes to trial, will involve figuring out whether Bork was telling the truth when he described how much income he lost, and how much pain he actually experienced, when he filed the complaint.

A Serious Problem with Our System: The Strong Incentive to Make Outsize Damages Claims, and to Plead Causes of Action Unsupported by the Facts

We can now see what makes these two cases so frustrating: The legal issues they raise are relatively simple--a dry cleaner should return pants brought to them by a client; a private club should offer a reasonably safe means to access a lectern to members of the public. Yet what makes the cases themselves hard is that the circumstantial evidence suggests that the plaintiffs may well be misrepresenting important pieces of information--pieces of information that, if conceded them from the outset, would have made each lawsuit so simple that it would either never have been brought, or would have been settled quickly for a modest amount.

The problem is that there is no way to decide ex ante whether any of the parties to these lawsuits are telling the truth. That's why we have trials. Yet many people, myself included, feel very frustrated when confronted with suits like Pearson's and Bork's because we suspect that the plaintiffs are knowingly taking advantage of the American litigation system's clumsy insistence on trying factual claims, rather than allowing "common sense" to dispose of cases like these. (Common sense would likely give Pearson the cost of the pinstriped suit, give Bork a fairly modest sum for his injury, and leave it at that.)

Why do litigants exaggerate or misrepresent the truth in pleadings? The obvious answer is that, until a statement is made under oath, there is little or no penalty for doing so. Statements made in the course of litigation are privileged - that is, they cannot be the basis of a defamation claim; the only legal consequence that can arise would be a difficult-to-prove charge of perjury. This is, as every lawyer knows, "the real world" of litigation. Hyperbole and trumped-up claims are tactical maneuvers that set out the furthest reaches of a litigant's negotiating position when it comes to settlement, and everyone, in theory, is supposed to know that.

The problem, however, is that the real world of litigation has produced a situation where it can take a lot of time and money to cut through all the bluster that makes up so much of a plaintiff's initial allegations. The Chungs had to spend thousands of dollars whittling Pearson's case down to its real core. Now, they will have spend thousands more attempting to prove that Pearson is a liar In turn, the Yale Club will have to spend thousands challenging Bork's claim that he should be able to collect $1 million in punitive and compensatory damages, before his lawsuit is finally reduced to the minor slip and fall case that seems to lie at its core.

The fact that plaintiffs and defendants can use lies and exaggerations tactically in litigation may seem commonplace to lawyers, but I think the public is right to be irate when they see these tactics being used, in particular, by judges who choose to become litigants. The public is upset, I think, because they expect judges to be part of the solution to the problem of dishonest litigants, not part of the problem. They expect - reasonably so - that judges should set a high standard, not lower themselves to the level of the typical litigant.

The civil justice system can only work if litigants monitor themselves, refraining from exploiting the system's slow and clumsy mechanisms for ferreting out claims that are not true. By refusing to keep their claims and damage demands to a minimum that reflects the true core of their cases, Judges Pearson and Bork help erode public confidence in the civil justice system and weaken the very institution they swore to uphold.