It’s funny how things in life just come together sometimes. You spend ten years trying federal criminal cases in Los Angeles, then fifteen more years trying complex civil cases, and then spend another five years being a full-time mediator on well respected dispute resolution panels. Suddenly it becomes obvious to everyone that you are an ideal person to mediate those hybrid cases that allege significant civil damages but take place against the backdrop of any criminal arrest, investigation, or serious injury which occurs while an inmate is in custody.
My knowledge of local police practices and procedures from my days as a Deputy Federal Public Defender now serve me well in analyzing allegations of “excessive force”, “over detention” and “police misconduct”, as I have often been called upon to do as one of the only attorney mediators appointed by Federal Judges Tevrizian and Feess to be on the citywide Rampart Mediation Panel. My first hand experience with the County Jail system, after representing literally hundreds of pre-sentenced and sentenced prisoners, visiting them in jail and also dealing with their families, has been enormously helpful to me in mediating custody-related claims. These often involve allegations of possible medical and/or psychiatric malpractice rooted in the inadequate staffing and insufficient training prevalent in penal institutions, particularly short term custodial facilities. When the level of care or supervision falls below acceptable standards and significant injury occurs, inmates, through counsel, can invoke not only traditional state court remedies, but also the penalty provisions of the Federal Civil Rights Act (42 USC 1983, et seq).
These cases have become popular among the plaintiffs’ bar because they carry with them the potential for punitive damages and/or recovery of statutory attorney fees for successful claimants. In an appropriately egregious case, injurious inattention to an inmate’s physical or mental condition, which falls below the prevailing standard of care, can trigger not only malpractice liability and an award of consequential damages, but also the recovery of punitive damages and statutory attorney fees upon a showing of constitutionally infirm “deliberate indifference” on the part of prison personnel. Such cases lend themselves well to impassioned advocacy by plaintiff’s counsel even in the case of prisoners who have already been sentenced, since the damage suffered will generally reflect a new level of “punishment” wholly disproportionate to the underlying or original crime. When the alleged neglect or abuse involves a newly arrested individual or one who is awaiting trial and only in custody because of his or her inability to post bail, and hence still cloaked with the presumption of innocence, the tragedy almost always seems that much more severe. When buttressed by the testimony of sympathetic family members and plaintiff’s own medical experts, and when involving damages up to and including wrongful death or serious and avoidable incapacity, the pain and suffering components of these cases can be extremely compelling.
It is, after all, that concept of how we treat those who are arrested and incarcerated which supposedly distinguishes our civilization from those to which we, as a society, prefer not to be compared. Such are the nature of the “excessive force” cases as well, which feed heavily upon the current atmosphere of distrust for police personnel, and urge quite reasonably, that those who enforce the law also obey the law by applying no more than the reasonable amount of force truly necessary to arrest or subdue a given suspect. With the advent of the video camera and helicopter news footage, the media and the public now have the capacity to patrol those who would patrol them, frequently resulting in major verdicts or settlements against the responsible municipality. Police practices experts and forensic medical personnel are often able to demonstrate how police agencies or jail doctors have violated their own internal procedures, pointing to incomplete medical files and or inconsistent police reports to suggest either gross incompetence (at best) or conspiratorial, racist, or even sadistic motives (at worst). The prospect of litigating constitutional rights in the Federal courts frequently brings forth outstanding, committed advocates well suited to litigating these potentially strong cases.
Contrast this with the inherent advantages naturally bestowed upon the defense in these cases and the reasons for seeking an early mediated solution become readily apparent. The defendants in theses cases are generally financially-strapped government entities and either individual officers, prison guards or jailhouse medical personnel, all of whom can be sympathetically portrayed as doing a increasingly dangerous job which few else are willing to do. Add to that an ambivalent jury which knows that its verdict may reward “a criminal” with precious tax dollars, throw in the potential for unenlightened jurors who regard post arrest injuries as “righteous punishment for being in jail or committing crimes in the first place,” and factor in the possibility of a negatively predisposed judicial officer at trial, and the advantages held by the defense become equally impossible to ignore. The mistreated inmate or possible victim of unjustified police violence will often have a significant police record, casting a grave shadow of doubt over his credibility at trial, particularly when his or her testimony is compared to that of legions of well rehearsed officers, prison guards, and medical personnel.
These cases often can be mediated to a successful conclusion when the balance and interplay of all of these factors is appreciated by a mediator who has both civil and criminal law experience. The plaintiff’s threat of being able to collect at least $100,000 -$200,000 in attorney fees if a successful verdict can be obtained makes these cases very risky for a city attorney, district attorney, county counsel or deputy attorney general to take to trial, unless given no choice. Likewise, the plaintiff’s fear of confronting a biased jury or one overly protective of the public coffers dictates those plaintiffs be reasonable in their pre-trial demands. The frequent lack of any significant lost wages claim in these cases, coupled with the likelihood of extreme financial need on the part of the inmates’ immediate family, make it unlikely that such high publicity cases will escape the firm grasp of an experienced mediator without coming to some kind of pre-trial resolution.
Where are these cases settled? At the intersection of criminal and civil law where a mediator’s knowledge of both disciplines is enormously helpful and highly predictive of success.
Previously Published in: ACResolution, The Quarterly Magazine of the Association for Conflict Resolution, Spring 2003.Introduction You are probably saying to yourself “What a strange title.” This seems especially true when...By Ginny Morrison, Rob Robson