Opposition — McCord v. Bailey

No. 80-1167

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

James W. McCorp, JR.,

. Petitioner,

F. LEE BAILEY, GERALD ALCH,

BAILEY, ALCH AND GILLIS,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ROGER C. SPAEDER

Counsel of Record

RoGER E. ZUCKERMAN

G. RICHARD STRAFER

ZUCKERMAN, SPAEDER, TAYLOR

& KOLKER

1800 M Street, N.W.

Washington, D.C. 20036

(202) 223-8606

Attorneys for F. Lee Bailey and

Bailey, Alch & Gillis

BARRY E. COHEN

Counsel of Record

ARTER HADDEN & HEMMENDINGER

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 857-0960

Attorney for Gerald Alch

— , sania eames

WILSON - EPES PRINTING CO.. INc. - 789-0096 - WASHINGTON, D.C. 20001

€

QUESTIONS PRESENTED

1. Whether a party who has received full and fair

consideration of his claim by a court in a summary

judgment-type proceeding may properly be collaterally

estopped from relitigating that claim in another proceed-

ing?

2. Whether the Supreme Court should define a uni-

form standard for the tort of attorney malpractice and

whether it should review the Court of Appeals interpre-

tation of the local District of Columbia standard?

3. Whether the district court’s termination of discov-

ery presents a federal question worthy of review where

an abuse of discretion was not claimed and where the

ruling was proper?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .. seaanceacitian eardanebecien i

SAB CE AAT 5 ee MME sestenexsestisverssshavcstiieiccnies iv

OPINION BELOW Wistiatnluseleuaeeetein l

JURISDICTION siiadastiasadigiaiadaceteiiabes l

STATEMENT OF THE CASE .....00.....000000000000.... l

REASONS FOR DENYING THE WRIT ................... 3

1. The holding of the Court of Appeals on collateral

estoppel accords with the decided cases and does

not present an important federal question .... 3

2. The second and third questions proferred by

petitioner involve only the state law matter of

the appropriate standard for malpractice lia-

838. The district court’s discovery ruling does not

present an important question and, in any event,

WUE IG oasikxcecstcssenscciscacmoenecs 5

COPA HME S INURE ‘wns becatvonshaccbccdpacchccsdsuancessursecsinaea eben 7

(iii)

PREVIOUS PAGE WAS BLANK

iv

TABLE OF AUTHORITIES

CASES:

Admiral Theatre Corp. Vv. Douglas Theatre Co.,

BA Ey a) Be Se: | ee

Blonder-Tongue Laboratories, Inc. Vv. University of

Illinois Foundation, 402 U.S. 318 (1971) ..........

Exhibitors Poster Exchange, Inc. v. National

Sereen Service Corp., 517 F.2d 110 (5th Cir.

1975), cert. denied, 423 U.S. 1054 (1976) .......

Ferri v. Ackerman, 444 U.S. 198, 62 L. Ed. 2d

BE SOD encenscvnnexsecersuctessessrocenseeroncssssncctumnaecscizaves

Fidelity Deposit Co. V. United States, 187 U.S.

Be IED ash scecknatsaduckeissusdadcatsecddsusussmaivacnventisiapasions

Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635

ERED cusccenecavinvnbncncelinsenknven couatiudapeveddaescovansabsesvanenucess

Hubicki v. A.C.F. Industries, Inc., 484 F.2d 519

SUTURING > IID. -<iccccenlasa Saqusiyetoxannansanecmesvasvadete <a

In re Falstaff Brewing Corp. Anti- Trust Litiga-

tion, 441 F. Supp. 62 (E.D. Mo. 1978) 7

In re Peterson, 258 U.S. 300 (1920) .......................

Jackson v. Hayakawa, 605 F.2d 1121 (9th Cir.

MINI cinczcicctalvencilciauevesetussomigueaicaibberecsesnsdtemabsesetinsess

Lauchlin v. United States, 444 F.2d 1037 (7th Cir.

1971), cert. denied, 405 U.S. (1972) .

McCord V. Bailey, No. 79-1085, slip op. (D. C. Cir.,

Sept. 9, 1980) .

Neeld Vv. National Hockey League, 439 F. ‘Supp.

446 (W.D.N.Y. 1977) .............

United States v. McCord, 509 F. ad 334 (D. C. Cir. )

(en banc), cert. denied, 421 U.S. 930 (1975)...

STATUTES:

28 U.S.C. § 1254(1) sete

28 U.S.C. § 2111 ........ Shae auedpataes Wibhecaantnbenenasiens?

GD Us FTO EE escicnevnccscssnsescncesssesescrsccecsssscees —

MISCELLANEOUS:

Rule 17, Rules of the Supreme Court .......................

Stern & Gressman, “The Supreme Court Rules,

The 1980 (Revisions,” 27 Crim. L. Rep. 4109

CRUE Te ID svsiasdssassccasctecscnsctessansccansnsesatntoedamnicsscns

Page

noo =

8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 80-1167

JAMES W. McCorpb, JR.,

. Petitioner,

F. LEE BAILEY, GERALD ALCH,

BAILEY, ALCH AND GILLIS,

Respondents.

On Petition for a Writ sf Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (Pet. App. la-

31a) is not yet reported.

JURISDICTION

Petitioner filed for a writ of certiorari on January 12,

1981. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATEMENT OF THE CASE

In January, 1973, petitioner James W. McCord, Jr.,

was convicted of eight felony counts arising from his

participation in the Watergate burglary. McCord at-

2

tacked his conviction both in a coram nobis petition and

on direct appeal, alleging, inter alia, that his Sixth

Amendment right to the effective assistance of counsel

had been violated. The Court of Appeals, sitting en banc,

accepted as true all of McCord’s material allegations but

rejected McCord’s claims as without merit. United States

Vv. McCord, 509 F.2d 334, 352 (D.C. Cir. 1974) (en

banc), cert. denied, 421 U.S. 930 (1975).

On August 1, 1975, McCord filed the amended com-

plaint in this case, making factual allegations virtually

identical to those made in his appeal from his conviction

but recast as civil causes of action for intentional and

negligent malpractice, conspiracy and civil rights viola-

tions. McCord v. Bailey, No. 79-1085, slip op. at 5 (D.C.

Cir., Sept. 9, 1980), Pet. App. 4a. After over two years

of discovery, in February, 1978, the trial court dismissed

all of McCord’s claims by summary judgment.

The Court of Appeals affirmed the district court as to

all but one of McCord’s claims. /d., Pet. App. la-3la.

The Court of Appeals recognized and McCord admitted

that “no... material contentions” were raised in the

civil suit which had not been heard and rejected in the

criminal proceedings. Id. at 5, Pet. App. 4a. Since Me-

Cord had already been afforded a full and fair oppor-

tunity to litigate his claims of misconduct by his counsel,

the Court of Appeals held that he had properly been pre-

cluded from relitigating them. Jd. at 7-8, Pet. App. 6a-

7a.

The Court of Appeals affirmed on the alternative

grouna ‘at McCord could not demonstrate the existence

of an essential element of his alleged torts—causally-

related injury. MecCord’s claims of misconduct by his

attorneys reduced to his assertion that his lawyers failed

‘That claim was based on a provision of the Civil Rights Act

of 1871, 42 U.S.C. § 1985(2), and is the basis of a cross-petition

for a writ of certiorari in case number 80-1168.

3

to raise a defense which could have caused his acquittal;

since the Court of Appeals reasoned that the defense was

not available to McCord on the basis of the facts alleged,

no injury followed from not raising the defense. Jd. at

11, Pet. App. 10a.

REASONS FOR DENYING THE WRIT

1. The holding of the Court of Appeals on collateral

estoppel accords with the decided cases and does not

present an important federal question.

Petitioner McCord seeks review of the holding below

that he is collaterally estopped from relitigating his mal-

practice claims, arguing merely that the court below

erred in applying the doctrine against him, because in

neither of the two prior proceedings in which his allega-

tions of attorney misconduct were decided was he af-

forded an evidentiary hearing. Nowhere, however, in

McCord’s petition does he identify any “special and im-

portant reasons” why certiorari should be granted as

to this (or any other) question presented. See Rules of

the Supreme Court, Rule 17.

McCord claims that collateral estoppel should not have

been applied in his case, because he was never afforded

a “full and fair opportunity to prove a claim’? of at-

torney misconduct during the criminal proceedings. He

argues that the Seventh Amendment requires that he be

afforded a jury trial on the same allegations that the

Court of Appeals, in the criminal proceedings, assumed

to be true but rejected as legally insufficient to establish

misconduct by McCord’s attorneys. But this Court has

noted: “No one is entitled in a civil case to trial by

jury, unless and except so far as there are issues of

fact to be determined.” In re Peterson, 253 U.S. 300, 310

(1920). Here, no such facts exist because McCord’s

* Blonder-Tongue Laboratories, Inc. v. University of Illinois

Foundation, 402 U.S. 318, 324-25 (1971).

- a

4

allegations were accepted as true in the prior adjudica-

tion and found wanting to support a claim.*

Collateral estoppel applies to findings made in a non-

plenary proceeding, including summary judgment.* Thus,

no question worthy of the writ is presented by the ap-

plication of the doctrine to contentions made in a civil

case when those same contentions, accepted as true, were

rejected as legally insufficient in a prior criminal proceed-

ing.» Moreover, since the court below rested its decision

on alternative state law grounds (see discussion § 2,

infra), the claimed federal question presented by Mc-

Cord does not even need to be decided.

2. The second and third questions proffered by petitioner

involve only the state law matter of the appropriate

standard for malpractice liability.

McCord asks this Court to grant his petition to re-

view the relationship between the standards for mal-

3In effect, McCord does no more than contest summary judg-

ment procedure as inconsistent with the Seventh Amendment, an

argument rejected by this Court long ago. Fidelity & Deposit Co.

v. United States, 187 U.S. 315, 319-21 (1902).

4See, e.g., Jackson v. Hayakawa, 605 F.2d 1121 (9th Cir.

1979); Exhibitors Poster Exchange, Inc. Vv. National Screen

Service Corp., 517 F.2d 110 (5th Cir. 1975), cert. denied, 423

U.S. 1054 (1976); Hubicki v. A.C.F. Industries Inc., 484 F.2d 519

(3d Cir. 1973); Lauchlin v. United States, 444 F.2d 1087 (7th

Cir. 1971), cert. denied, 405 U.S. 965 (1972); In re Falstaff

Brewing Corp. Anti-Trust Litigation, 441 F. Supp. 62 (E.D. Mo.

1978); Neeld v. National Hockey League, 439 F. Supp. 446

(W.D.N.Y. 1977).

5 The dissent in the court below argues that collateral estoppel

should not necessarily apply in this case only because there is an

“unusual combination of circumstances” present. McCord v. Bailey,

slip op. at 5-6, Pet. App. 28a-29a (Wald, J., concurring in part,

dissenting in part.) That a decision “turns on its own facts”

is itself a sufficient ground for denying certiorari since the time

of the Court is ill-spent in cases of limited applicability.

5

practice liability and the Sixth Amendment right to the

effective assistance of counsel and to review a purported

holding that a criminal conviction bars a subsequent civil

suit for malpractice. Petitioner’s questions, however, suf-

fer the fatal defect that they raise no federal question.

As this Court has recently indicated:

[The Supreme Court is] not concerned with the ele-

ments of a state cause for action for malpractice

.... For when state law creates a cause of action,

the State is free to define the defenses to that claim,

including the defense of immunity, unless, of course,

the state rule is in conflict with federal law....

Ferri v. Ackerman, 444 U.S. 193, 62 L. Ed. 2d. 355,

359-60 (1979). Just as a state is free to define defenses

to a malpractice claim, it is free to define the claim

itself. Since McCord has failed to demonstrate, or even

allege, any “conflict with federal law,” the writ should

be denied.®

3. The district court’s discovery ruling does not present

an imporant federal question and, in any event, was

correct.

McCord contends that a procedural ruling of the dis-

trict court, terminating discovery for both sides over two

years after the complaint was filed, should be reviewed.

However, the propriety of such a ruling hardly con-

6 Indeed, a recent rules amendment reflects the Court’s apparent

disinterest in reviewing such decisions even in otherwise appro-

priate cases. See Stern & Gressman, “Supreme Court Rules, The

1980 Revisions,” 27 Crim. L. Rep. 4109, at 4116 (July 2, 1980):

. . . Rule 17 omits one item that was set forth in former

Rule 19—a federal court of appeals decision that resolves

“an important state or territorial question in a way in con-

flict with applicable state or territorial law.” The omission

doubtless reflects the Court’s lack of interest in reviewing

diversity cases where the only issue is an alleged conflict

with applicable state law.

6

stitutes an important federal question, particularly where

no abuse of discretion by the trial judge or prejudice

to litigants is claimed; appellate review of discovery

rulings is routinely declined where these factors are not

present. See, e.g., Admiral Treatre Corp. v. Douglas

Theatre Co., 585 F.2d 877, 898-99 (8th Cir. 1978). See

also 28 U.S.C. § 2111 (“On the hearing .. . in any case,

the court shall give judgment after an examination of

the record without regard to errors or defects which do

not affect the substantial rights of the parties.” )

The discovery ruling was, moreover, a proper one.” It

occurred after ample time for discovery had passed (Pet.

App. 3a), it was made well in advance of its cut-off date

(giving parties ample time to complete discovery), and

it served the salutary purpose of creating an opportunity

for the filing of dispositive summary judgment motions.

Indeed, petitioner McCord himself filed a summary judg-

ment motion as to liability, confirming that he believed

his discovery to be complete.

™This Court has recently observed that “judges should not

hesitate to exercise appropriate control over the discovery process.”

Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 1649 (1979).

-

(

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

ROGER C. SPAEDER

Counsel of Record

ROGER E. ZUCKERMAN

G. RICHARD STRAFER

ZUCKERMAN, SPAEDER, TAYLOR

& KOLKER

1800 M Street, N.W.

Washington, D.C. 20036

(202) 223-8606

Attorneys for F. Lee Bailey and

Bailey, Alch & Gillis

BARRY E. COHEN

Counsel of Record

ARTER HADDEN & HEMMENDINGER

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 857-0960

Attorney for Gerald Alch