An attempt to use the Victims’ Bill of Rights to prevent depositions in a civil case.

Defendant was sued for molesting girls named in the caption and in the opening of the opinion but thereafter referred to as Crime Victims. (Reminds me of when people refer to the guy who “allegedly” shot Judge Roll; for many the use of labels is a process that need never involve the brain.) Defendant’s Lawyer withdrew because his bills didn’t get paid. Defendant then found money somewhere and settled the case for a judgment that said $2.2 million but was really for $111,000 plus a third of the recovery in Defendant’s malpractice case against Lawyer. Defendant then sued Lawyer (for reasons unclear, apparently something to do with discovery). Lawyer’s counsel subpoenaed Victims for deposition; they moved for protective order on the basis of being victims. The trial judge prohibited questions about the molestation but otherwise allowed their depos.  They took special action.

The Victims Bill of Rights prohibits depositions and discovery by or for the defendant. “We start (and end) our analysis with the language” the court says  (but of course doesn’t really mean – it starts by explaining at length that statutes and the constitution mean what they say). Lawyer wasn’t acting by or for Defendant. (Daughters apparently tried to argue that he really was, that their dispute was phony, maybe just a ruse to take a prohibited deposition; the court disagrees in a factual finding disguised as a footnote. Daughters presumably failed to explain why they contracted to buy a third of a phony dispute. The various ethical issues in this case are interesting but unremarked.)

Victims also objected, under Rule 26(C), that the depositions would be embarrassing and oppressive. The trial court’s limitations in response to that were within his discretion.

The court declines to rule on whether the Victim’s Bill of Rights applies “beyond the end of a criminal case.”

(link to opinion)

THIS OPINION HAS BEEN VACATED

This holds that a wrongful-death award of zero can be proper.

Mr. Walsh died in defendant’s care. His wife and adult children sued. The jury awarded the wife one million dollars and, for no apparent reason, the children zero. After the jury was discharged they moved for new trial. The trial court ruled that they had waived the issue since you must move to correct a defective verdict when the jury is still seated. (Though zeros happen not infrequently too many lawyers have no clue; ask the judge to remind the jury of the instructions or instruct it appropriately and have it deliberate some more – the idea is that you have to give that judge and jury a chance to fix it.)

The Court of Appeals says that the waiver issue is “moot” because it decides that a wrongful-death zero isn’t defective. That puts the cart before the horse. The court reaches the zero issue because it wants to.

At common law damages are an element of the cause of action — if you have none then there is no liability, thus a plaintiff’s verdict for zero dollars is contradictory. But a wrongful-death action is statutory. (The court says that the result is the same even if wrongful-death has some common-law tie, in deference to a strange case suggesting that called Summerfield.) Wrongful-death damages are not the result of a negligent act; they are the result of the result of a negligent act. The statute lets the jury award what is  “fair and just”; it doesn’t’ say that “fair and just” can’t be zero. The jury was free to decide that the children weren’t really damaged despite their protestations to the contrary.

Two cases from Division Two hold that a wrongful-death zero is defective. There were dissents in both cases, with which this court agrees.

The court declines the children’s request to make this holding prospective only. That can be done where an opinion overrules “clear and reliable precedent.” The court tells us that  the Division Two precedent wasn’t because those cases had “strong dissents”  Well, there are other reasons to deny this sort of request and maybe they were valid here. But to say that two clear cases weren’t “clear” because these judges agree with their dissents – which thereby become “strong dissents,” as opposed to a dissent they didn’t agree with, which would presumably become a “weak” dissent – is little more than an insult. If there had been a dissent in this case, how would the majority have characterized it? The same, presumably, as the majority in the two other cases would have characterized theirs. Maybe there’s something after all to the idea that Division One looks down on Division Two.

Given the dissent between the divisions, of course, this one could go further.

(What, you ask, about a zero in a contract action? Maybe defective and maybe not; the safe course is to assume so.)

(link to opinion)

It has been over two years since we complained about memorandum decisions; things haven’t changed (yeah, we’re shocked, too), so time to do it again.

This is an order dismissing an appeal for lack of jurisdiction. The details of the case – a mess involving foreclosure – aren’t important. Appellant’s brief argued only about a non-appealable order (contrary to what her docketing statement said, to which the court apparently looked when denying an earlier motion to dismiss, though there’s no indication that anybody’s going to be sanctioned). It takes the court about a page to deal with that.

So why is the decision eleven pages long?

Because of eight pages of “Facts and Procedural History.” And even that mere heading has its own footnote (this is Division One, remember): it tells us that the facts are undisputed.

So who in the world is the court talking to? Does it really think that anybody needs to read that? Nobody will, nobody benefits, and nobody cares. The parties know the facts and procedural history. There isn’t any remand to worry about. The Supreme Court won’t touch this with a ten-foot pole but even if it did a Petition can easily enough handle undisputed facts. 

A few of them help explain why the court had denied the motion; it’s courteous of the court to do that but one sentence could have done it nicely. Eight pages of undisputed facts in a memorandum order that has very little to do with any of them?  In a reported decision this would be bad enough – and often is. Here it’s beyond ridiculous.