Claims and Bad Faith Law Blog

P.S. TO "BIG LAW JOINS FIGHT TO PROTECT VOTING RIGHTS": HOW EXACTLY?

P.S.

The NYT online headline and subhead give a more accurate introduction to the story.  Kudos to the online editor who wrote the online headline and subhead; she almost makes up for the print editor in this case (almost): 

Defying Republicans, Big Companies Keep the Focus on Voting Rights / A coalition of law firms has joined business leaders in wanting to use their clout to oppose state legislation that would make it harder to vote.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

"BIG LAW JOINS FIGHT TO PROTECT VOTING RIGHTS": HOW, EXACTLY?

 

Georgia Recount, November, 2020 (John Amis / Atlanta Journal-Constitution)

It may be a story with substance to it yet:  Big Law Joins Fight to Protect Voting Rights, by David Gelles and Andrew Ross Sorkin, The New York Times, Tuesday, April 13, 2021, at B1.  As published, however, this NYT story was a bust.  This particular reporting did not fulfill the headline that someone besides the reporters wrote for it.  (Reporters rarely write the headlines for their own stories.  However, they almost always know what the headline is going to be on their story.) 

          I would like to say at the beginning that this is no criticism of the people whose bylines are on this story.  They are two of the more respected journalists at The New York Times.  They have earned that respect.  However, everyone has a bad day and this was just one of theirs.    If you want to be impressed with the knowledge that no-one is perfect, you can ask anyone who is a parent.

         The NYT reporters on this story did not feel the need to beef up their reporting to match the headline.  They mentioned once or twice that law firms have "formed a coalition" to challenge voter suppression laws, but that was all.  No details, no specifics, no facts.  Perhaps there was really nothing yet to report when this story was reported in the NYT.

         News stories are breaking slowly on other outlets.  For example, NBC News reports that 65 law firms are signing a letter to tell government officials to respect voting rights.  A much smaller number of law firms, apparently something on the order of 16 law firms, are 'committing' in some way to defend voting rights.  The NBC News story is here: https://www.nbcnews.com/politics/elections/top-private-law-firms-plan-swat-teams-fight-voting-laws-n1263891.

          I confess to a healthy skepticism of how far this story goes.  Let me explain.

          My skepticism comes from experience.  I have known lawyers for all of my professional life.  I am a lawyer.  It is hard to imagine lawyers working together on the same side amicably, suppressing their individual egos for the greater good, unless they are all paid by the same person or corporation.  But I have constantly been surprised in my life, and I am open to surprise now -- in fact, in this case, I am hoping for it.  These could be the people we have been waiting for, as the saying goes, and in the end they could be the ones who end up doing things that need to be done.

          So far, there's lots of noise frankly, and little action.  It's probably too soon to see the end of this or where it may go.  Time will tell ....

          But let's please get some facts in the meantime.  Or to borrow a phrase, this is a tale full of sound and fury, signifying nothing.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

POSTSCRIPT TO JURISDICTION.

(Sun Sentinel photograph)

In a postscript to yesterday's article on Jurisdiction, we now have further reports that clarify some of the earlier confusing reporting.  Apparently three lawsuits have been filed by the losing candidate's campaign so far, as previously reported.

           Two of those lawsuits were filed in State Court, not Federal Court, however.  One was filed in Georgia and the other was filed in Michigan.  Both have already been rejected by State Court Judges.

           The third and remaining lawsuit at this time was filed in Federal Court in Pennsylvania.  The announced purpose was to stop the counting of votes already cast.  The Federal Judge presiding over that case rejected that one, as well.  No word yet on the Federal Court's claim to jurisdiction, if any, over State Election Law.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

ARE PLAINTIFFS IN ELECTION CASES DEMANDING FEDERAL ACTIVISM, PREEMPTIVE JURISDICTION?

This article arises from the same common nucleus of operative facts, so to speak, out of which an earlier article published today also arises.

Recently filed elections cases have also caused me to wonder about Federal jurisdiction.

Are the plaintiffs in these elections cases asking Federal Judges to be activists and preempt the jurisdiction of State Courts over State Election Laws?  That seems to be the gist of the lawsuits I have seen reported to date.

There was a lawsuit filed in U.S. District Court in Texas, in which the same person or group of people reportedly filed the same lawsuit they had already lost in the Texas Supreme Court.  Each time the lawsuit challenged the legality of drive-through voting in Harris County (Houston).

Isn't the issue of legality of drive-through voting a matter for the Texas State Courts to decide?

Parenthetically, I understand that the same person or group of people who lost their case in the Texas Supreme Court also lost their case in the U.S. District Court and then they lost again in the Federal Appellate Court.

Different people have filed their own lawsuits which are basically one lawsuit as well, but these people have filed in different States, all in Federal Court.  They have so far filed their lawsuit in Georgia, Pennsylvania, and Wisconsin.

The same losing candidate's campaign organization has reportedly filed three times, once in each of three Federal Courts.  It is confusing.  Apparently two of these same lawsuits were filed to stop counting votes and the third was filed for a re-count.

Isn't the issue of applying State Election Law an issue for State Court Judges to decide? 

I am going to look into the jurisdictional basis if any for asking Federal Courts to preemptively and actively exercise jurisdiction so as to impose their own views of local Election Law in these States.  As I wrote today in the earlier article also arising out of these developments, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

"BAD FAITH" ATTORNEY'S FEES EXPOSURE: LITIGIOUS PLAINTIFFS IN ELECTION CASES?

(Photograph Brennan Linsley / Associated Press)

Recently filed litigation has caused me to wonder about "bad faith" attorney's fees liability.  First, let me describe the lawsuits that have caused the wondering.

In Texas, the same person or group of people reportedly filed the same lawsuit more than once challenging the legality of drive-through voting in Harris County (Houston).  They filed in Texas State Court to begin with, ultimately losing at every level all the way to the Supreme Court of Texas, according to the confusing reporting.  Then they filed in a U.S. District Court in Texas and they lost there.  Then they filed an appeal to the Fifth Circuit Court of Appeals.  My understanding is that they lost again there.

Other people have also filed their own "one-note" lawsuit but in different States, all in Federal Court.  In Georgia, Pennsylvania, and Wisconsin there is a lawsuit filed in a Federal District Court in each state by the losing candidate.   The same losing candidate filed in each.  It is confusing, at least before looking more closely at each of these lawsuits, but apparently two are to stop counting votes and the third is for a re-count.  Presumably the votes have already been counted once before the recount litigation was filed, or else there could not be a "recount" yet, but as I say, the reports are confusing.

I want to temporarily put aside the question of Federal jurisdiction to adjudicate State election matters, and concentrate here on the issue of exposure to "bad faith" attorney's fees in Federal Court.

Having laid out the facts for the moment, here now is the law.  My understanding has long been that there can be exposure under Federal Rule of Civil Procedure 11, under Federal Appellate Rules and under State Court equivalents for parties and their lawyers for bad faith in litigation.

Did the defendants and their lawyers even request attorney's fees in any of these cases for having to go through a "Groundhog Day" kind of litigation?

Parenthetically, if they did not request attorney's fees, did they request some kind of sanctions for this conduct?  I am not asking why the Courts did not assess attorney's fees or sanctions; I wonder if the defendants and their lawyers even asked for them.  Why should the defendants have to bear the full burden of their attorney's fees for repeatedly having to defend the same losing propositions?

I am going to look into this exposure in more detail.  In the interim, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

THANK YOU FOR VOTING!

Many people never got the chance we have to vote.  But without them, our votes would not be possible.  We remember them and honor them every time we vote.

Thank you for being a voter.

 

Photo courtesy of Common Ground.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

 

MORE RESOURCES, MORE VOLUNTEER OPPORTUNITIES FOR PROTECTING THE VOTE!

And now a message from the Common Ground Project in Florida:  More resources, more volunteer opportunities for protecting the vote!

(Common Ground Project)

Defend Democracy:

Poll monitors needed!

Can we count on you?

The Common Ground Project is looking for volunteers to assist in our Poll Monitoring and Election Protection Program. This is a large statewide initiative led by our coalition partners: Common Cause, State Voices, and Florida for All. The Common Ground Project is committed to ensuring that all voters have safe and accessible access to casting their ballots and having their voices heard on November 3rd. We are in need of volunteers!

Please join us for this critical work to protect our election. We look forward to working with you as a leader in your community!

Please register to be a poll worker and sign up for one of the following upcoming training opportunities:

• Friday, October 30th at 6 PM
• Saturday, October 31st at 12 PM

As always, please do not hesitate to reach out if you have any questions!

Regards,

Lisa Perry

REGISTER

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Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

TRUST THE VOTE.

And now, a message from Election Protection.  Trust the Vote.

We care about the integrity of our elections and love when election officials quickly fix errors. Some politicians use these errors to make us feel that our votes won’t count. Do not let this affect our confidence in our system or our willingness to vote. #VoteReady.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

AMERICAN BAR ASSOCIATION ANNOUNCES FINANCIAL INCENTIVE FOR LAWYERS ASSISTING VOTERS.

(American Bar Association)

In an email received this morning, the American Bar Association announced it is offering a financial incentive to lawyers who assist voters at this time.  Here is the ABA's announcement:

Volunteering at the polls is an important civic duty that lawyers are especially suited for given the profession's long tradition of civil service. This November, the ABA and MyCase are partnering to give ABA members who volunteer during the general election a $50 credit to ShopABA for their service. Whether you have already volunteered at your local polling place, or plan to volunteer on election day, November 3, you can earn a $50 credit towards books, webinars, CLE and other purchases in ShopABA.*

Register your service by November 6, 2020.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

DON'T BE AFRAID, VOTE!

(Photo by Ilene Vegazo.  Used with permission of the artist.)

MEMO TO LAWYERS:  As a lawyer, your clients look to you as a leader. When they ask you about voting, your clients are interested in how they can vote. Be a leader. Familiarize yourself with Florida's voting laws, enough at least to guide your clients on how to engage the voting process.

Which is not the same as telling your clients how they should vote! Everyone has their own opinions about that & respectfully, your clients do not think your opinions are special that way. But clients do look to you for help negotiating the process. Thank you for being a voter.

MEMO TO EVERYONE:

Early Voting began in Florida October 19. Early Voting continues through Saturday, October 31. The Election as you know is on Tuesday, November 3.

Remember to vote!

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

RESOURCES TO PROTECT THE VOTE THIS YEAR.

 

(Brynn Anderson / Associated Press)

Want to help protect the vote this year, but unsure of where to go or what to do?  Here is a list of contacts for places and sources that can help answer your questions.

ELECTION PROTECTION.  This is an umbrella of many different organizations that all have different pieces of election protection, such as Poll Monitors, Social Media Monitors, Legal Volunteers, and On-Call Legal Support, among others.  Telephone 1-866-OUR-VOTE or email grassroots@commoncause.org.

POSTCARDS TO VOTERS.  Just like it sounds, volunteers write postcards with messages provided by campaigns that have signed up with PTV, to addresses that are anonymous as far as names; only mailing addresses are provided.  Volunteers mail postcards on their own dime, so to speak.  For more information, visit www.postcardstovoters.org.

FLORIDA RESTORATION OF RIGHTS COALITION.  You may have heard about this group which works with registering returning citizens to vote.  To find out about their current activities, email them at info@floridarrc.com.

ADOPT A STATE - VOTE SAVE AMERICA.  This group offers ways to contact voters especially in 6 targeted States in which voters will likely affect the outcome of the Election.  Their Email Address is votesaveamerica@crooked.com.

Best of luck and use your best judgment in evaluating these groups, what they have to offer, and your place in it all.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

Voting in a Pandemic of Misinformation, i.e., Lies.

A WORD ABOUT VOTING DISINFORMATION FROM ELECTION PROTECTION:

If you see disinformation about voting in an online post or ad, do your part to stop the spread. Don’t engage, react or comment — that only means more people will see it! Do take a screenshot to submit it to ReportDisinfo.org. Then share official voting information, like your local election official or Secretary of State. Do your part to keep voters safe from disinformation! Need help voting or need to report a problem? Call or text 1-866-OUR-VOTE.

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

VOTE, LAWYERS AND PEOPLE, VOTE!

Here for ease of reference is another article from Election Protection:

A politician is suggesting people vote twice to “test the system.” This is to create confusion and is against the law. You MUST choose 1 way to vote and should make a plan to vote now. Vote by mail is a safe, secure, and trackable way to vote. #ProtectOurVote #VeYVota #YallaVote

 

The telephone number on the image may be a little hard to read.  It is 1-866-OUR-VOTE.

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

PARTICIPATE IN DEMOCRACY:  VOTE!

Between now and Election Day (one week from today) Claims and Bad Faith will concentrate on the upcoming Election and voting.  For starters, here is an article which we post from the Election Protection coalition:

Vote by Mail is Safe and Secure

Certain politicians want you to think vote-by-mail will lead to ballot manipulation. The truth is they don’t want people to vote-by-mail because they think it will hurt their chances at the polls. In the states that have transitioned to all mail-in ballots, there has been no evidence of a partisan advantage for either side. Having the option to vote-by-mail is critical to ensuring the health and safety of every eligible voter. Read more here: https://www.nytimes.com/2020/04/10/us/politics/vote-by-mail.html Call or text 866-OUR-VOTE for nonpartisan help if you have questions.   

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.