Legally Speaking: There's No Cure for Stupid

John G. Browning Sep. 10, 2008, 3:30pm

I marvel sometimes at the human capacity for stupidity, or perhaps more accurately, to put one's stupidity on display for all to see by invoking the protection of the legal system.

A colleague of mine once defended a personal injury lawsuit brought by an individual who claimed paralysis as the result of an accident. When my attorney friend (a martial arts enthusiast) saw a familiar name among the competitors at a full-contact karate tournament, he decided to gather a little evidence with his camcorder.

At a court-ordered mediation of the case, the supposedly "permanently and totally disabled" plaintiff discovered that a picture can indeed be worth a thousand words when my colleague played the videotape of that plaintiff executing roundhouse kicks, spins, and other karate moves en route to winning that tournament. Gold medal? Yes. Big personal injury settlement? Not quite.

Stupidity is, sadly, not a rare commodity in the legal system. Take Boston firefighter Albert Arroyo, for example. Mr. Arroyo filed for a disability pension in April of this year as a result of a back injury, and shortly thereafter was successful in getting a doctor to conclude that he was "totally and permanently disabled."

However, this July he was ordered back on the job by Fire Commissioner Roderick Fraser Jr. It seems the department learned that, even while he was claiming to be disabled and drawing benefits at taxpayer expense, Mr. Arroyo ( a competitive bodybuilder since 2003) had competed in a national bodybuilding competition just days after receiving his disability rating, placing eighth.

Compounding Arroyo's attempt to put one over on the fire department was the feeble insistence by his physician, Dr. John Mahoney, that despite examining Arroyo 13 times before certifying his "total and permanent" disability, he never noticed Arroyo's muscular bodybuilder physique.

One would think that a disgraced, disbarred attorney who had pleaded guilty to having sex with underage girls would do everything possible to avoid the public eye. But common sense doesn't appear to be a strong suit of 44-year-old James Colliton, who confessed to statutory rape in October 2007 and was sentenced to three concurrent one year terms.

Colliton, a former attorney with a prominent Manhattan law firm, sued American Express in July, claiming that the credit card company violated its cardholder privacy agreement when it gave law enforcement personnel information that led to his capture. Colliton had been indicted on charges of having sex with young girls, but then fled and was arrested in February 2006 near Toronto.

American Express had no comment on the lawsuit.

Perhaps Colliton thought he had a different card in his wallet: the Pedophile Express card – don't leave the country where you're facing criminal charges without it.

Maybe Nebraska Attorney General Jon Bruning is not a stupid guy, but he certainly would benefit from a map. Apparently, Mr. Bruning is not happy with the National Indian Gaming Commission's (the federal agency that regulates tribal gambling operations) decisions to allow the Ponca Indian tribe to build a casino on five acres of land it owns in Carter Lake.

So Bruning decided to do something about it, filing a federal lawsuit in January of this year. There was just one teeny little problem, as Department of Justice lawyers pointed out in their 26 page response: Carter Lake is in Iowa, not Nebraska.

Allowing Nebraska to challenge activities that occur in Carter Lake, the DOJ lawyers argued, "would essentially make the state boundary irrelevant."

Bruning has defended his boneheaded quest, stating that "Carter Lake is in a unique geographic location. You have to go through Nebraska to get there."

I guess by that logic, Bruning thinks he should be able to weigh in on anything that occurs in any of the states bordering Nebraska.

Maybe there's something in the water in Nebraska. Last fall, state Sen. Ernie Chambers filed a lawsuit, demanding that the defendant "cease certain harmful activities and the making of terroristic threats."

The defendant Sen. Chambers was referring to is God – as in, the Almighty. Chambers' lawsuit accuses God of causing "fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes, pestilential plagues, ferocious famines, devastating droughts, genocidal wars, birth defects and the like."

Sen. Chambers says that his main objective is to bring attention to his belief that everyone is entitled to access to the courthouse, despite attempts by other senators to prohibit the filing of certain kinds of lawsuits. Sen. Chambers maintains that "anybody can file a lawsuit against anybody – even God."

There has been no ruling from the judge assigned to the case. But if lightning just happens to strike Sen. Chambers on the Nebraska Senate floor, let's just say I won't be surprised.

Just to prove that lawyers and politicians haven't cornered the market on stupidity, I give you Dr. Steven Kirshner, a Philadephia-area board-certified orthopedic surgeon. In a lawsuit filed in July, Dr. Kirshner is accused of "rubbing a temporary tattoo of a red rose" just below the panty line of a female patient while she was under anesthesia for surgery to repair a herniated disc.

Dr. Kirshner doesn't deny placing the tattoo, and his lawyer says that in the past he's left similarly washable marks on patients to lift their spirits.

Despite this, medical ethics experts, like Dr. Art Caplan, chairman of the University of Pennsylvania School of Medicine's Department of Medical Ethics, point out that "you cannot do something like this even as a joke." According to the patient's attorney, Gregg A. Shivers, she was "extremely emotionally upset" by Dr. Kirshner's action.

Gill Switalksi is a British lawyer and former head of legal affairs for financial asset manager Foreign & Colonial (F&C). She wants a lot of money – 19 million pounds, to be exact – from her former employer, claiming that she had a nervous breakdown, was discriminated against, and is entitled to compensation.

But lawyers for F&C have responded that Ms. Switalkski is hardly the shattered shell of a person that she purports to be. In fact, they point to the fact that while suffering from this mental illness, Ms. Switalksi successfully interviewed for a job at a rival asset manager.

So what do you do when you're busted? If you're Gill Switalkski, you claim that it was your "alternate personality" that actually got the job. Apparently, at least one of her personalities is a good interviewer. Let's hope for her sake that one of them is also a credible witness.

Finally, Shannon Kelly really wants to be a lawyer; badly enough to sue the West Virginia Board of Law Examiners for violating his rights under the Americans with Disabilities Act (ADA).

Mr. Kelly, who graduated from Concord University in West Virginia in 1997, and from Florida's Barry University School of Law in 2003, maintains that he has learning disabilities and in fact on that basis received extra time to complete exams while in law school.

In 2007, the West Virginia Board of Law Examiners accommodated Kelly with special treatment for the bar exam. It printed his exam in large, 18-point type, permitted him a private room to take the test, and even gave him an extra day to finish the exam (normally, the West Virginia exam is administered over two days).

But according to Mr. Kelly and his lawyer, this special treatment wasn't enough, and they say that unless he's given four days in which to take the test, then the "enormous time, money and energy" invested by Kelly to reach the threshold of the legal profession at age 32 will have been wasted.

Kelly's lawyer, Edward McDevitt, says that his client "has severe deficits in processing speed, cognitive fluency, and rapid naming."

I've got to wonder – with issues like that, should he really be in the legal profession? Let's face it, courts aren't going to insists that his opponent's legal briefs and pleadings be written in 18-point type, and judges won't give him twice as much time during closing arguments or a private room so he can "focus" during trial. And how many clients will be beating a path to hire a lawyer with such "severe deficits?"

There's only one position that I can think of in the legal profession where you can apparently get by with severe deficits in "cognitive fluency." Unfortunately, Nebraska already has an attorney general.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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