The recent suicide of Kalief Browder gained national attention because his story of solitary confinement, false arrest and interminable court delays captured our attention. But why Kalief? There are hundreds of Kaliefs, maybe some sitting and sweating in Rikers (where he was incarcerated) right this very second. The difference is that Kalief Browder became the cause de celeb of Rand, Rosie and many others. Okay, so how did he get there? How did a poor kid from the Bronx raise our collective conscious on the decrepit justice system?
Welcome to the big business of civil rights law.
Browder was a walking dollar sign as are most plaintiffs in these types of cases. The lawyers like to claim they’re on a “quest for justice” - they march in parades, lead midnight vigils, hold press conferences - all for that pot of gold on the other side of settlement rainbow. The “sleazy underworld” of civil rights claims, is how one prominent New York City Attorney, who for obvious reasons chose to remain anonymous, put it.
A civil rights matter is frequently referred to as a “Section 1983” case because of how it’s codified under the Civil Rights Act of 1871. To be successful you must generally prove that you were deprived of some right or privilege by a person, or group of persons, who were acting under color of law. Color of law can be police, corrections and even a city as a whole. Section 1983 cases can be brought in state or federal court.
So when you’ve been wrongfully arrested, beaten by cops, and/or mistreated by corrections officers in jail – you have a civil rights claim. If you’re poor, not to fret, you don’t have to spend a dime on getting a lawyer. You can hire one on a contingency basis.
A contingency fee can be one of the shady deals in this practice area. According to the American Bar Association, a client pays this “only if the lawyer handles the case successfully”; this type of arrangement is used only when money is being sought. In a contingent fee agreement the lawyer usually agrees to accept one-third of the recovery.
However, it can be more, or less. Sometimes it’s as much as 50% and rarely it’s as little as 15%. To be fair, the fee also depends on the projected award – how much the case is worth.
The money train doesn’t stop there. The Civil Rights Attorney’s Fees Act of 1976 allows a Court, in its discretion, to award reasonable attorneys’ fees to the prevailing party (unless the plaintiff is a prisoner in which case the cap is 150% of the damage award). The Court will consider several factors such as labor, skill required, novelty of legal issues, standard hourly fee, time devoted, outcome and whether there is a contingency arrangement. Still, in 1989 (Blanchard v Bergeron with a 40% contingency agreement) the US Supreme Court decided contingency fees don’t limit the amount of attorneys’ fees; - and, putting contingency aside, the payout on just attorneys’ fees can be HUGE.
In the 2007 case of Robinson v. City of Harvey (Illinois), Mr. Robinson alleged the police framed him, the jury awarded $275,000 and the attorneys’ fees were $500,000! It wasn’t reported if there was also a contingency fee, (my educated guess is there was) yet it’s clear that lawyers sometimes make out better than the actual injured party.
Much better in fact. In the 1986 case of City of Riverside v. Rivera (California), eight Mexican-Americans were at a party when the police, without a warrant, broke it up using tear gas and unnecessary force. The group sued and were awarded $33,350. The Court gave the lawyers a whooping $245,456.25 and the US Supreme Court even upheld that amount.
So let’s imagine the money made by the lawyers in these astronomical awards:
- In a case from Colorado, Tim Masters was imprisoned for almost 20 years (1999-2008) for a murder he did not commit. He sued for false imprisonment and received $4.1 million dollars pursuant to a settlement agreement.
- From Chicago, in 1991 Juan Johnson was convicted of murder, spent 12 years in prison until finally being acquitted after a retrial. Johnson was awarded $21 million dollars.
- A Jackson Mississippi jury awarded $23 million dollars to Dale Archey who was shot in the face by a police officer in 2007.
Back to Kalief Browder – he was wrongfully arrested, tortured in jail, and spent much of his three years incarcerated in solitary confinement. Sounds like a multi-million dollar case to me. But was it a good idea to parade this mentally fragile young man on “The View”? Maybe less media blitz, more mental health care would have been smarter.
Well it may not matter because his suicide hasn’t stopped the wheels of justice, which sounds remarkably like a cash register, from turning. His mother should soon be named his administrator and his civil rights case against the NYPD, Department of Corrections, Bronx District Attorney and the city will continue.
As you can see in my byline, I am partly a civil rights lawyer but, full disclosure, I only assess cases and then refer them to an outside firm. I am entitled to referral fees, which can be substantial, but haven’t been thus far. Perhaps you don’t think I am any better than the shysters I’m calling out, however; I would never exploit one of my clients for personal gain. And I’ve certainly been tested.
A few years ago I had a very high profile criminal case and…..Oprah called. Yes, Oprah. THE Oprah. Sure I thought about it, but not for more than a few minutes. The client, like Kalief, had severe mental health issues; that coupled with the fact that being on “The Oprah Winfrey Show” served zero purpose besides furthering my career made the decision easy. I may not have a lot of principles but here’s one - I talk about other lawyers’ clients on television – never my own.
Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC. Seema is also an MSNBC Contributor and Host of "The Docket" on Shift/MSNBC.com. Follow her on Twitter @seemaiyeresq
Follow The Dean's Report on Twitter