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Thursday, March 26, 2015

Better Call Saul does law

As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.

Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.

Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as  $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).

I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.

FRCP 11: Jimmy serves a "demand letter" (this is not necessarily a thing, even under New Mexico procedure, although many states require a plaintiff to serve a "Notice of Suit" letter) on the facility, which gets relayed to the facility's high-powered lawyer. The lawyer calls Jimmy and insists that "the best response would be to send a Rule 11 letter and have [McGill] sanctioned," because McGill had "no good-faith basis to threaten any litigation."

This one is clearly wrong. Rule 11  applies to papers filed with the court, not to something sent to counsel before litigation has even commenced. Plus, who would they ask for sanctions--no court actually has jurisdiction, since no lawsuit has been filed. Moreover, according to every court of appeals except the Seventh Circuit, Rule 11 cannot be triggered by a letter, only by motion (this was the very point of the Rule 11 essay I assigned this semester).

Jimmy's brother says they need  to "start pulling case law--any precedent dealing with 18 U.S.C. §§ 1961-68": This is RICO, so they got the statute right. But pulling "any precedent" on all of RICO may kick back kind of a large amount of stuff; perhaps they should narrow their search a bit.

Cases to be read and Shepardized include:

    Sedima v. Imrex: This is a major case loosening up the availability of civil RICO, holding that actionable conduct need not have resulted in a criminal conviction or produced a "racketeering injury."

    Holmes v.  SIPC: RICO requires proximate cause

    Slesinger v. Disney: This could be any of several lawsuits in state and federal court over licensing rights for Winnie the Pooh, none of which involved RICO. My guess is that this one is an inside joke.

Statutes to be researched include:

    30-47-1 NMSA: State statute concerning criminal offenses related to abuse and neglect of residents in health-care facilities

    57-12-1-24 NMSA: State statutory provisions on unfair trade practices.

On the RICO question: The show makes a big deal about invoices showing that the fraudulently charged supplies crossed state lines, thus providing the interstate commerce hook. But is that necessary to make the RICO claim? Wouldn't it be enough that the facility itself substantially affects interstate commerce (as all such facilities do) and that it committed fraud? Does RICO require that the fraudulent act itself have an interstate hook?

 Two other exchanges worth noting:

    • Jimmy's brother says they should start with class cert., trying to get a conditional certification that will hold long enough to start discovery.

Whatever. It was never that quick or easy to get into discovery, even in 2002 (when the show takes place), the pre-historic days before Twiqbal and Wal-Mart. They are going to spend six months fighting over 12(b)(6) motions, regardless of class cert, before sniffing discovery.

    • The ALF will not allow Jimmy onto the grounds. Jimmy's brother says they need to "quash this prohibition against you--some injunctive relief, maybe a TRO."

What other kind of injunctive relief is there besides a TRO when time is of the essence? Plus, "quash" seems an inappropriate term when there was no court order, but simply a private property owner controlling who has access to its property. But this raises an interesting remedies question--Would/Should a court of equity issue a TRO requiring that Jimmy be given access to a facility that he is suing, given that his client(s) live there? Or would the clients need to make the motion, arguing that they are entitled to have their lawyer visit them in their homes? Or would a private ALF be allowed to keep their  residents away from their attorney when the residents are suing the facility through that attorney?

All-in-all, not bad. And a lot of fun to listen to.

Finally, check out The Legal Ethics of Better Call Saul, a blog operated by New York attorney Nicole Hyland that analyzes just how unethical Jimmy/Saul is being, at least under New York (as opposed to New Mexico) law.

Posted by Howard Wasserman on March 26, 2015 at 09:31 AM in Civil Procedure, Culture, Howard Wasserman | Permalink


Turns out, the copy code was a red herring!

Posted by: Joe | Mar 31, 2015 1:41:18 PM

One possibility is the discussion with Kim regarding Chuck's partnership and the rules regarding him being involved with outside counsel. Kim suggests that is allowed for "small" matters -- not 20M lawsuits. The use of company resources here is a "smoking gun" that can bite Jimmy.


Posted by: Joe | Mar 26, 2015 3:44:46 PM

One possibility is the discussion with Kim regarding Chuck's partnership and the rules regarding him being involved with outside counsel. Kim suggests that is allowed for "small" matters -- not 20M lawsuits. The use of company resources here is a "smoking gun" that can bite Jimmy.


Posted by: Joe | Mar 26, 2015 3:44:46 PM

Joe, I totally agree re the future plot point. Otherwise, why go to that level of detail?

One major ethical oversight: No conflict check! Perhaps that's how the client code plot point comes into play?

Posted by: David Ziff | Mar 26, 2015 2:33:09 PM

The general conclusion over at a message board on the show is that the client code is going to be an important plot point in some fashion.

Posted by: Joe | Mar 26, 2015 12:43:51 PM

I appreciated the way they accurately noted some of the administrative obstacles to doing all this legal work "off book." As soon as Saul asked his friend to do the research and printing, my mind immediately went to "She's going to need a client code!" And then they actually addressed that issue. That's some serious realism right there.

Posted by: David Ziff | Mar 26, 2015 11:43:48 AM

You've missed the best line, about the admissibility of evidence gained after rooting through the nursing home's shredded trash:

"There's no reasonable expectation of privacy; It can't be private if a hobo could wear it as a wigwam; that's the standard, right Chuck?"

Posted by: N.B. | Mar 26, 2015 10:45:54 AM

The episode also tossed out the term "spoilation" and the lack of an expectation of privacy over garbage. Jimmy provides a rough summary of the standard; CA v. Greenwood not cited.

Posted by: Joe | Mar 26, 2015 10:43:25 AM

I'm assuming that the reference to Slesinger v. Disney related to Jimmy's search for shredded documents in the assisted-living facility's dumpster and recycling bins. (The trial court in the Slesinger litigation had dismissed Slesinger's lawsuit based on the fact that private investigators hired by Slesinger had searched through Disney's trash bins, which the trial court characterized as "egregious and inexcusable.")
It is a great show, for both lawyers and non-lawyers.

Posted by: BeachCruiser | Mar 26, 2015 10:20:57 AM

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