Curmudgeon turns down a case

The fax came in late yesterday afternoon. There was a printout of a brief email exchange, a copy of a Summons and a Complaint.

I read the papers and called the attorney who sent them.

This is the worst kind of case, I told her. It's a blood feud disguised as a legal proceeding: A continuation of a custody battle moved to the Law Division in the guise of a tort suit.

Without going into too many details (for obvious reasons) the suit is about the affections of a 10-year old boy. The boy's parents divorced. His mother obtained sole custody of the child and has since remarried. The suit is brought by the boy's father against the stepfather. Essentially, in the first count of his two count pleading, the father accuses the stepfather of intentional infliction of emotional distress in turning the boy against his father. In the second count the father asks for an injunction -- a court order -- requiring the stepfather to stop doing what he's doing.

The father doesn't realize that his son is soon going to turn against somebody anyway. We call this phenomenon "adolescence." If the stepfather were really trying to supplant the father in the boy's affections, and if he were in fact successful, the boy would turn against the stepfather -- in two to four years, tops.

But these considerations are too abstract for the people in this dispute. I told the attorney who asked me to look at the case that the first thing our prospective client (the stepfather) should do is to tender the case to his homeowners insurance carrier. (By "tender" I mean photocopy the complaint and send it, with a letter requesting a defense, to the insurance company and to the agent who sold the policy.) The conduct alleged in the suit would probably not be covered, I told my colleague, because allegedly intentional conduct is typically excluded from coverage -- but stranger things have happened.

More than once, when I was a young lawyer working in an insurance defense firm, my boss gave me a new file and said, "Here, file an appearance." When I looked at the complaint, though, it was obvious to me that there was no coverage. I would go back to the boss and suggest he call the insurance company and confirm that it wanted to assume the responsibility to defend the case even though there was no coverage.

Sometimes, the insurance company had made a cold-blooded decision that it was cheaper to defend than to assert a coverage defense. Sometimes, though, nobody had thought about coverage.

You'd think insurance people would think about coverage... but that's the point.

And what if I'd been a good soldier and did as I was told? You can't unring a bell: Coverage would have been provided whether it was owed or not. A reservation of rights letter might be crafted (by the insurer or another law firm) after the fact -- but, in the meantime, the insured would have his defense paid for.

And getting the defense paid for is important.

Lawyers cost money.

So I explained all this to my colleague. I said that the parties in this suit were bitter to begin with and their attitudes toward each other would only harden over the course of the litigation. It would be a very expensive suit to defend -- especially if I (or whoever picked up the defense) was unable to persuade the trial court to throw the case out on a motion to dismiss.

I said I'd get involved in the case only if I received written assurances that the insurer had refused to defend and, even then, only if the prospective client ponied up a substantial retainer (I had $10,000 to $15,000 in mind) that would have to be maintained at that level throughout the course of the case.

My colleague said she would pass the word along. In our discussion, she mentioned that a prominent suburban lawyer had turned down the case, supposedly because of scheduling problems. Tender the defense, I said.

An hour later, my colleague called again. The prominent suburban lawyer had given the prospective client the same advice I had, she told me, and the prospective client had refused. He didn't want the insurance company telling him what to do, he supposedly said. (A homeowners insurance company typically has a right to control the defense of a suit when it accepts coverage. It can decide whether to settle a case, even if the insured doesn't want to, or whether to proceed to trial, even if the insured would rather settle.)

"Then we don't want this case," I told my colleague.

"But he supposedly has a lot of money," she told me. "He can afford to handle his own case."

"There isn't enough money in the world for us to take this case," I told my colleague. I explained: If he wouldn't listen to the prominent suburban lawyer, if he feared being told what to do by the insurance company, what are the odds that he would take our considered legal advice?

My colleague acknowledged that he probably wouldn't listen to us.

My analysis? Every one of this man's decisions (made in ignorance and anger) would wind up costing him more and more in fees. Eventually, he'd come to align us, his advocates, with his enemies. We'd immerse ourselves in a swamp of pain, misery and bitterness -- we'd lose sleep and stomach lining over the horrible facts of the case -- and, in the end, we'd be largely uncompensated for the services we provided.

I'd rather starve.