# Opposition — McCord v. Bailey

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1137%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 983

## Text

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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1137%3A2. Public record. Not legal advice.