Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Wednesday, May 11, 2005

Richards Watson Gershon client linked to ethics inquiry

Reader tip: There is an Archive for the HW articles.

Does Harvard Westlake have defense counsel, much less a defense?

You'd think that when someone is an advocate of free expression that they might actually enjoy exercising those rights. Are some rights to free expression only permissible in certain cases?

Isn't it quiet? Just take a moment and listen. Isn't that strange?

What seems curious about the entire Harvard Westlake lawsuit is the press release shows signs of not having been coordinated with counsel.

Again, the size of the litigation $-amount is large: $100M. We remain unclear why, in the apparent absence of any credible defense as evidence by the weak press release, why the school didn't simply settle the matter.

  • Did Harvard Westlake miscalculate?

  • Did HW think that they would win?

  • How was HW advised by counsel in re the settlement amount: Was the amount too high; or was the settlement amount far in excess of the insurance deductible?

    I'm a little unclear what would prompt HW, despite the backing of Charlie Munger, to think that it didn't have a problem.

    One firm had such an excellent result for the client, that the client refused to pay. What did the firm do? They took them court.

    They eventually got their money.

    Let's consider some options. As of 2003, Counsel represented Congressman Xavier Becerra who had some issues with the LA City.

    Also, Erwin Adler is an expert in bad faith settlements, an officer in SCLA. Previously spoke in Seattle on the issue. Adler likes peacocks.

    The firm is an insurance litigator and one of its clients is Pasadena.

    Pre Litigation

    Funny how the DA seemed to make it all disappear.

  • Did the DA dismiss the case improperly?

  • Did HW presume the DA-dismissal would dissuade opposition counsel-plaintiff to drop the case?

  • Is Richards Watson Gershon retained and has an interest in the case because it's been brought in because of settlement issues?

  • Does the firm have a problem in that is has a conflict: One client has paid money to the DA; and/or did RWG use that knowledge from their primary client, to advise Harvard Westlake not to settle?

  • Did RWG inappropriately advise HW not to settle; and now is the firm facing the real prospect that HW could sue counsel?

  • Does RWG have some sort of interest in the HW because of possible bad faith settlement advice?

    The issue with the Campbell case was that the amount was deemed excessive.

    So why, at this juncture, would the firm [with a stellar track record of being associated with litigation in re insurance claims settlements] be either brought in to the Harvard Westlake nexus or have an interest in the case?

    Publicly, we are far from trial, much less any public claim about bad faith in re settlements. Quite an unusual amount of interest in something that has yet to even warrant a simple public statement by counsel.

    What do we rely on? At this juncture, we have only to 26 April 2005 release from Harvard Westlake. One would think, that if there was the slightest possibility of a problem counsel would be taking swift action to ensure the requisite momentum. In advance of trial. Before they appeared before the wise court.

    Yet, the sounds of silence.

    Gore Guideposts

    One view of the Campbell legacy is that people should settle cases. So why is this situation with HW still floating around, why wasn't it settled?

    Gore offers three guideposts:

  • (1) the degree of reprehensibility of the defendant’s misconduct;

  • (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and

  • (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

    I suspect HW is all but convinced they're going to lose the case. The question at this point is how far will they go to overturn the punitive damage award.

    Indeed, the lawsuit is for $100M. That's alot of money.

    There's alot going to happen between now and then. There will be jockeying over the amount, questions whether to give a portion of the request, or whether to reinstate the amount.

    Here's the problem: Settlement negotiations are not admissible as evidence. Isn't that good? You would think so. But apparently, the stakes are so high, that even if this settlement-related-evidence was withheld, the fact-evidence-nexus of the case are sufficiently probative that all of the above elements in re Gore could easily be satisfied.

    Which would come back to the initial question: Why, if the facts were glaringly in support of liability, didn't counsel advice HW to settle? That's going to be for the jury to evaluate.

    Gore also outlines a number of factors that would tend to increase the punitive damage award [517 U. S., at 576, 577]: the reprehensibility of a defendant by considering whether:

  • the harm caused was physical as opposed to economic;

  • the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;

  • the target of the conduct had financial vulnerability;

  • the conduct involved repeated actions or was an isolated incident; and

  • the harm was the result of intentional malice, trickery, or deceit, or mere accident.

    Each of these factors above is what is part of the pre-litigation give and take. Clearly, because the complaint was filed in court, the settlement negotiations broke down.

    If HW has, in fact, refused to settle [not because there was no liability, but because the amount was too high], then we fail to see any difference between these allegations and those against Bill O'Reilly.

    In other words, it appears the issue isn't whether the defendant HW is liable, but to the amount of their liability.

    Which gets us back to Mr. Erwin Adler. We have no way of knowing, but for a separate cause of action, to what extent the firm is more deeply involved in this matter than what appears.

    Perhaps the interest is merely academic. But what seems unusual, is that the same defendant that didn't appear to have a close coordination with counsel in re the 26 Apr 2005 press release . . . has an interest from the same firm that talked about making sure the litigation issues are carefully managed.
    "The keystone to avoiding a punitive damage award, in my opinion, is the proper control of the circumstances leading up to the courtroom, rather than being in the courtroom itself," said Adler.Ref
    I suspect Adler is either looking at this case as an excellent case study on how not to do things, or the firm has a far larger role in the HW litigation.

    There is partial support for the "theoretical approach to analyzing a case"-theory. RWG is reported to have analyzed the WalMart litigation.
    QUOTE: A study done by the Los Angeles-based law firm Richards, Watson Gershon showed Wal-Mart has never sued cities over ordinances that impose building-size limits, but it has sued cities that try to limit the amount of groceries that may be sold.Ref
    At this juncture, we can only speculate.

    It will be interesting to see how high the punitive damage award is and what thoughts Mr. Adler has on the issues in re settlement negotiations.

  • Does he have a client that wanted to do/not do something and the issues were supposed to have gone away?

  • Is there a defendant out there that knows it has a real liability issue, but like Mr Bill O'Reilly, the real issue is the amount of the actual settlement?

    This case may not actually go to trial. That could be the very thing which defense had assumed.

    On the other hand, defense could still be stunned, believing that counsel would have injected itself into the pre-litigation settlement circus and quietly make this all go away.

    Why would defense be led to believe that the district attorney would dismiss the case and this matter would go away?

    Small problem. The plaintiff has an outstanding legal team that is well organized, knows the law, and has already taken measures to protect the plaintiff from continued harassment.

    It should never have come to this. But here we are.

    Defense is unnecessarily worried. They could easily make this all go away just by saying, "Yes, we were wrong". Then it remains up to conjecture whether Harvard Westlake decides to go after their legal counsel for what may have been some less than stellar settlement negotiations.

    We shall see. There is nothing stopping Harvard Westlake from taking anyone to court. It looks like the institution has a bad habit of blaming the victim.

  • Is it outside the scope of possibility for someone to also avoid responsibility and blame counsel?

  • What's to stop Harvard Westlake from suing legal counsel or withholding legal fees?

    Guess which law firm can provide some guidance on that one. That's right -- RWG in re 39 Cal. App. 4th 1176.

    "Oh, it's completely different. . . "

    Actually, if you read the last sentence you see that the Appellate court said that both sides had to bear costs. Why didn't RWG settle with the estate as opposed to having it come back in 2005?

    Apparently, a firm that talks about the importance of settling didn't. Am I missing something here, or is counsel talking out of both sides of its mouth or is there some credible evidence to believe that things will change?

    Let's hope nobody reads this because someone might get really upset.

  • Is RWG "related" to the HW case?

  • Is an RWG-client "related" to the DA through political contributions?

  • Does RWG have a client that "promised" this would all go away?

  • Does RWG have a habit of not settling cases in 1995, but then advocating in Seattle in 2003 that they think others should to otherwise?

  • And what's going to happen next?

    We bow to the infinite wisdom of the court. For it is clear that settlement negotiations broke down and there's no other recourse.

    An after thought

    Oh, and defense counsel, are you planning on making any effort to recover from your clients gaffes in the 26 April 2005 release?

    From my end of the universe, you look strangely quiet. In fact, the client has said more than counsel.

    Curious. Last time I checked, you are paid to defend and exercise, what a wise counsel once said, "proper control of the circumstances leading up to the courtroom . . ."

    I see the court room. It is before us.

    We are now in the "circumstances leading up to the courtroom . . . "

    Oh. . . is someone at risk of having their fee downgraded as it was in Santa Clara? But hay, 1999 Palo Alto talked about an increase.


  • I wonder how their counsel gets paid relative to other firms?

  • Is that a substantial gap? [Here are more compensation details.]

    Who's getting what they pay for, baby!

    See you in court!


    Here is what we can only speculate on as it's all "such a big mystery":

  • Does the firm have an interest in the case because residents who live in Westlake Village have raised questions about risks to future tax revenues if there is a problem at HW?
    Terence R. Boga ( is a shareholder of Richards, Watson & Gershon in the Los Angeles office, and is the city attorney of the City of Westlake Village, California Ref
  • What's the relationship between RGW and HW?

  • Why is RGW interested in HW case?
    Maybe because Terence Boga is with Watson & Gershon and he is the City Attorney of the City of Westlake Village? Ref
  • Has HW retained RGW for advice on settlement issues?

  • Did RGW have the chance to review the press release prior to its formal release?

  • What was the reason for RGW's fee downgrade in Santa Clara?

  • Is the RGW client [that had a previous "issue" with LA City] still a client?

  • What's the relationship between RGW and the LA District Attorney? RGW has given briefings to prosecutors:
    QUOTE from 2004: Richards, Watson & Gershon, which is commemorating its 50th anniversary in 2004, serves as city attorney, agency counsel, bond counsel, general counsel and special counsel to over 50 public agencies throughout California. With offices in Los Angeles, Orange County and San Francisco, Richards, Watson & Gershon also serves a distinguished roster of private sector clients.

  • What was the reason for not settling the estate case in 1995?

  • Is there some sort of issue between RGW, HW and a second group of defense counsel that Harvard Westlake Alumni might want to know about; or something the board may need to know?

    Stickers here: