I caught this article on CNN.com this morning about the lawsuit Natalee Holloway’s parents are bringing against Joran van der Sloot, whom they apparently believe was a culpable party in her disappearance. I don’t really care one way or another about the case, but this caught my eye before I had a chance to kill the tab:
The 16-page lawsuit makes its case with a mixture of fact and supposition, using a dramatic opening paragraph:
“This is a case about a high-school graduation trip to a tropical paradise that turned to tragedy. The trip was an opportunity for a group of young people to celebrate the end of one phase of their lives and the beginning of another. But for one young woman on that ill-fated trip, paradise it was not. For that young woman, Natalee Holloway, the trip was a brutal contrast to a life full of promise and hope.”
Now, most of the legal documents I’ve read involve contract law and intellectual property disputes, and it’s all pretty dry stuff in the “Pursuant to the schedule of claims as described in Section IV, Subsection 2, Paragraph 6, Line 49…” sense. It’s not exactly page-turning literature, and is certainly not like the lavish, over-perfumed prose stated above. Is this just some kind of wacked-out, groundless-but-desperate-for-publicity anomaly, or are lawsuits of this nature often written in such hand-wringing, sob sister style?
No, that’s definitely not the norm. I’ve seen some lawsuits about some pretty tragic circumstances, but they tend to be rather matter of fact. That’s fine for closing argument, but a petition it’s a little over the top. It seems like it’s “playing to the bleachers,” so to speak; if I were the judge it would strike me as somewhat unprofessional.
I’ve seen it in some complaints; I may even (perhaps) have drafted one or two like that. Lawyers – trial lawyers, at any rate – actually are just story tellers. Our clients come to us with their story about what happened. We take that story and translate it into legal talk. But legal talk doesn’t have to be full of heretofores and notwithstandings. Legal talk actually just means making sure that the client’s story meets all the elements of his claim for relief, so that he gets the chance to tell his story to the jury. We are storytellers and interpreters, not just counselors.
So it isn’t horribly unusual to include a short introduction that orients the reader to the story to come. But I think that, in this case, it likely was done because of the publicity surrounding the case. Knowing that the complaint would get picked up, the lawyers added some media-friendly language that could easily be added to news reports about the case. And guess what? It worked.
[boring lawyer talk]My first thought, of course, was what the hey were they thinking about jurisdiction. Then, having read the article, looks like the van der Sloots were nabbed in NY. Go Pennoyer! I have $5 on removal.[/boring lawyer talk]
I came into this thread, with the intent of posting this link. (Scroll down to the “First Affirmative Defense to the Third Cause of Action”.) That is an excerpt of one of my favorite briefs of all time. Enjoy.
There was a judge in Illinois - Clyde Kuehn - that wrote some of the most interesting opinions it’s ever been my pleasure to read. In one case, a man was convicted based on evidence that a bloodhound named Cain tracked his scent from the scene of the crime, despite an Illinois law that forbids that sort of evidence. The man appealed his conviction baed on that error, and on his attorney’s ineffective assistance for failing to object at trial.
Judge Kuehn’s opinion began: “This defendant raises Cain, and questions whether his attorney was able.”
In another, discussing a case in which two friends had a fight that culminated with one of them shooting the other, Kuehn wrote, “The defendant entered Smith’s trailer armed with a shotgun, and declared their friendship a thing of the past.”
What the lawyers are doing are setting forth in detail the horrible facts that they allege to try to shoehorn their claims into causes of action that aren’t quite the usual thing asserted in cases like this. It’s an application of the maxim: “When the law is on your side, pound the law; when the facts are on your side, pound the facts (and when neither are on your side, pound the table).”
If I had to make these claims, I probably would have done about what they did. My preliminary guess is that the case will be dismissed on the grounds of forum non conveniens, saying that, even though the defendants were served with the summons in New York, New York is an inconvenient place to try the case because none of the parties, witnesses, activities at issue or evidence are in New York.
[blt]Nope. If the case gets removed, the federal court could transfer venue to a federal court in Alabama under 28 USC 1404 where the mother lives, which would be the last thing the defendants want. By leaving it in NY state court, the choices are either forum non conveniens dismissal or to hear the darn thing, which I’m betting the NY courts won’t want to do.[/blt]
Californian here. I’d rather my forum non was heard in federal court than in state court, so I would remove, then move for dismissal for forum non. Honestly, if a federal court were going to transfer venue, they’d consider most of the same forum non factors, and I think the risk is pretty minimal that they’d end up in Alabama.
Of course, if the kid did it or I was otherwise concerned with what the plaintiffs would find out, I’d consider keeping the case in NY courts, which have no ability to command witnesses or evidence in Aruba (is Aruba signed on to the Hague Convention?). That would put the plaintiffs to significant cost to muster their evidence.
It seems that Aruba is a signatory to the Hague Evidence Convention. Still though I don’t know anything about Aruban civil practice, I would imagine that any defense lawyer would want to get the case out of a US court and the liberal US discovery rules. Also, the claims that the parents are asserting are very aggressive claims under US tort law. I would guess that most civil law countries wouldn’t accept the tort claims like loss of a child’s services that they are making.
I’m currently fighting a forum non conveniens motion in NY state court. The NY courts like to keep interesting commercial matters with some bit of connection to New York (and I hope they do in my case), but with this screwed up tort claim that is here merely because the defendants happened to get tagged in New York, I’m guessing it’ll get booted.
So move for the application of Aruban law and get the case dismissed for failure to state a claim. Thanks for the Hague Convention tip.
On reflection, I think you’re probably right that the cost-effective thing to do is to move for dismissal for forum non right off the bat. Wouldn’t it be interesting, though, if the defendants let the case play out and forced the plaintiffs to their proof?
Yes, that’s the danger. You have Alabama residents suing Aruban residents over events in Aruba. No connection to the forum.
Okay, done hijacking. Particularly to things that are interesting only for me and (dare I hope) Billdo.
As I recall, it did. The opinion pointed out in graphic and hilarious detail how the dog’s handler testified in detail about what his dog not only did, but even what the dog was thinking while he did it. Meanwhile, the defense attorney just sat there, never objecting.
I’m not so sure about that. The civil law concept of “delict” is more flexible in some ways than the common law tort system, being founded on the concept of simple harm rather than common law concepts such as foreseeability and the neighbour principle.
For example, most civil law systems have long recognized the right of the estate of a dead person to sue for wrongful death, a right of action that only came about in common law jurisdictions by specific legislation.
By way of illustration, the foundation article for the law of delit in Quebec is article 1457 of the Civil Code of Quebec:
So I could see an argument that the parents’ loss of their daughter amounts to a harm caused by the defendants’ actions, and the defendants may therefore be civilly liable in delict.
However, it’s been a while since I actually studied civil law, and have no idea if Aruban law is similar to Quebec law on this point, so take the above as general speculation.
[more blt]As always, when reading you chaps talking about removal and forum non con. and diversity and what not, I give thanks to the Canadian Fathers of Confederation who gave us an essentially unitary court system! [/more blt]
