Clean Hands ...

Rule Two of the federal Rules of Civil Procedure is seldom discussed anymore. Elegant in its simplicity, it starkly declares that thereafter there shall be one cause of action, a civil action. Prior to 1938, there had been two systems of justice, one in law and the other in equity. Rule Two did away with the need to plead your cause in one or the other.

Efficient as the new system is, the legal profession has lost something in the process. Law students no longer memorize the Twelve Maxims of Equity or even consider the principles of equity other than as simply another remedy. However, the principles of equity still show up on occasion. Perhaps the most common maxim applied in modern courts is the so-called clean hands doctrine which states that he who seeks relief in equity must come before the court with clean hands. What follows is a very good discussion of the clean hands doctrine from two rather obscure cases where it was applied:

“The maxim of equity that "[he] who comes into equity must do so with clean hands" dates back to the late eighteenth century when it was gleaned by a British barrister from a collection of cases in which plaintiffs had been denied relief on the basis of their inequitable conduct. While the doctrine might be considered relatively new in light of the long history of maxims of equity it is well embedded in American jurisprudence.

“The unclean hands doctrine is aimed at providing courts of equity with a shield from the potentially entangling misdeeds of the litigants in any given case. The Court invokes the doctrine when faced with a litigant whose acts threaten to tarnish the Court's good name. In effect, the Court refuses to consider requests for equitable relief in circumstances where the litigant's own acts offend the very sense of equity to which he appeals. As former Vice Chancellor Brown aptly put it,

“[T]he purpose of the clean hands maxim is to protect the public and the court against misuse by one who, because of his conduct, has forfeited his right to have the court consider his claims, regardless of their merit. “ 1

“Many courts have held that a civil claim for damages may be dismissed when the party asserting the claim is guilty of fraud or some other act of bad faith closely relating to the matter being asserted. The authority to dismiss a claim under these circumstances arises from the Court's fundamental authority to protect its own integrity and the integrity of the judicial process.

“The authority to dismiss a claim for the protection of the integrity of the court was thoroughly developed by courts of equity through the equitable maxim of clean hands. As stated in Mas v. Coca-Cola, 163 F.2d 505, 507-508 (4th Cir. 1947): The clean hands doctrine is one which the court applies, not for the protection of the parties, but for its own protection. Its basis was well stated by Professor Pomeroy (Equity Jurisprudence, 4th Ed., sec. 397) as follows: "It assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with reference to the subject-matter or transaction in question. It says that whenever a party, who, as actor seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy."

“As the above quotation indicates, the clean hands maxim ("He who comes into equity must come with clean hands") is a discretionary defense signifying the chancellor's traditional authority to refuse to grant equitable relief to a petitioner with "unclean hands". Unclean hands results from fraud or other inequitable conduct by the petitioner which so closely relates to the claim being asserted that it would be improper to permit the petitioner to prosecute the claim in a court of equity.

“Until recently it was thought that the clean hands defense was available only in equitable actions, and that there was no comparable broad-based grounds for dismissing legal actions for damages. For example, in Carman v. Fox Film Corp., 269 F. 928 (2d Cir. 1920), reversing 258 F. 703 (S.D.N.Y.1919) and Carmen v. Fox Film Corp., 204 App.Div. 776, 198 N.Y.S. 766 (1923), the plaintiff was initially denied the right to sue in equity for an injunction and damages, but subsequently was allowed to recover a verdict at law for damages on the same claim. See also Dobbs, Handbook on the Law of Remedies, § 2.4 at p. 46 (1973).

“Court opinions and commentaries since the procedural merger of law and equity in 1938 have expressed the view that the clean hands doctrine embodies a general principle equally applicable to damage actions, and that rights not suited for protection at equity should not be protected at law.” 2

So, in summary, the Maxims of Equity are not only an inseparable part of our legal heritage but also substantive law as adopted through the Federal Rules of Civil Procedure. It might be wise for we modern readers of the law to go back and memorize these Maxims because you never know when, despite the “Jerry Spring Show” character of modern litigants, these Maxims might still raise their ancient heads from the bench and bite you where you sit down when you least expect it.

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1 NAKAHARA v. AMERICAN TRUST Case No. 15905. Court of Chancery,
New Castle County, Deleware.

2 BUCHANAN HOME AND AUTO SUPPLY CO., INC., v. FIRESTONE TIRE AND RUBBER COMPANY, 544 F.Supp. 242.

Lumpkin to Legislature - I need your help here!

His Honor Gary Lumpkin, Presiding Judge of the Oklahoma Court of Criminal Appeals, started the new year with a bang, sending a message to the Oklahoma Legislature through the Oklahoma Bar Journal. The case was: JAMES v. STATE, 2007 OK CR 1. His Honor took great exception to the majority’s overturning of the “greater latitude rule” which allows courts to take prior similar acts into consideration when dealing with a sex offender. His well-reasoned dissent deserves attention by the public:

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LUMPKIN, VICE-PRESIDING JUDGE: DISSENTS
¶1 In Myers v. State, 2000 OK CR 25, 17 P.3d 1021, 1031, this Court stated its position regarding an area of criminal law of which we have grown all too familiar. Regardless of whether or not that familiarity comes from watching the nightly news, reading the daily newspaper, or sitting for years on an appellate court bench, most of us know that those who commit crimes of sexual assault against women and young children tend to be repeat offenders.
¶2 Myers thus recognized the unique nature of sex crimes. Sexual abuse or assault is unlike such crimes as, say, murder, theft, or selling drugs—crimes that generally arise out of poverty, greed, lack of a sense of right and wrong, or the need to feed one’s chosen drug habit. As a general rule, a person commits sexual abuse, or like crimes, against an adult female out of hatred of the opposite sex, the desire to control, or because the abuser was himself or herself abused as a child. Unfortunately, sex crimes are crimes of propensity—a proclivity that rarely goes away.
¶3 Even worse are sex crimes committed against children. Here, the crimes are usually committed by a relative or some other person extremely close to the child, i.e., someone who exercises dominion and control over the child or who holds a position of trust. That relationship or position of trust often allows the perpetrator to commit crimes over an extended period of time without being caught, due to the use of fear and control tactics. Such heinous acts are the result of a perverse sexual attraction, and, again, the abuser may have experienced similar abuse as a child.
¶4 Sexual crimes committed against women and children, therefore, present special evidentiary issues when a person charged with such crimes is bound over and brought to trial. Many such crimes go unreported due to the embarrassment and humiliation involved or because the person abused is trapped. With children, the victims are often so young when the abuse began that they have trouble narrowing down the year when the abuse first occurred. Indeed, many details of the crimes committed are often lost in the interim or confused by guilt and conflicting feelings resulting from the violation of trust.
¶5 And so, Myers took the nature of these crimes into consideration and stated an evidentiary position about what is universally known. And in doing so, it attempted to protect both women and our most vulnerable citizens, children. Myers thus announced a “greater latitude rule,” one that simply recognized that those who commit sexual crimes are more likely to fall into one of the well-known exceptions to 12 O.S.2001, § 2404 , the rule prohibiting evidence of other crimes, wrongs, or acts to prove action in conformity with one’s character. That is, a person’s past sexual abuse of a female or young child tends to fall within one of the “excepted” areas of section 2404, i.e., motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. And while the prior crimes may be somewhat dissimilar to the contemporary ones charged and many years may separate the two, the fact that a person has sexually abused another places them into a fairly narrow category that touches on most of the exceptions in one way or another.
¶6 Today’s opinion would do away with the “greater latitude rule” on the basis that the rule is “unworkable.” Perhaps the more preferable word would be “uncomfortable,” for the opinion gives no example of how it is unworkable. I suspect it is unworkable only in the sense that some don’t want to work with it. In fact, since Myers, members of this Court have merely refused to follow that law established in Myers. Indeed, this may be more about the author of Myers than it is about an inability to work within the confines of that holding, which garnered four concurs and only Judge Chapel’s concurring in result vote, an indication that, while he did not ascribe to the idea of greater latitude, he found nothing reversible in the case that used it. 1
(snip)
¶11 Moreover, if you flip through the pages of our evidence code, you will see that sex-related crimes are treated differently and that greater latitude in this area is a common theme, one that our Legislature has repeatedly recognized. Thus, an accused is prohibited from introducing evidence concerning an alleged victim’s sexual past or reputation, except under specific circumstances. 12 O.S.2001, § 2412. The spousal privilege recognized in 12 O.S.Supp.2002, § 2504 does not apply when one spouse is charged with a crime against the other or a child of either. The rules against impeaching witnesses with stale convictions do not apply where “the witness is a defendant currently charged with a sexual offense involving a child….” 12 O.S.Supp.2002, § 2609. Special rules have been enacted when children are witnesses, concerning the manner of taking testimony. 12 O.S.Supp.2003, §§ 2611.2 – 2611.11. Sequestration rules are relaxed for the parents of child victims. 12 O.S.2001, § 2615(4). And the all-important hearsay rules are also relaxed when a child under 13 makes statements regarding physical abuse or inappropriate sexual contact. 12 O.S.Supp.2004, § 2803.1 .
¶12 And so, I would not do away with the “greater latitude” rule in sex-related crimes, especially those involving children. I do not believe the rule swallows 12 O.S.2001, § 2404 (B). Rather, I see it as simply one additional factor to consider when the court is looking at admissibility on the issue of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Indeed, by denouncing greater latitude, we wind up in a worse place than we were, because a comparison of the cases indicates that even when the “rule” had not been announced, it was still being used. For these reasons, I must dissent to the Court’s opinion in this case.
¶13 In closing, I would also urge our Legislature to take notice of this issue, take steps to protect those most vulnerable in our society, the children, and adopt a version of Rule 413 of the Federal Rules of Evidence in an effort to protect our children.
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I agree.

Key Provision of So-Called "Medical Tort Reform" Found Unconstitutional

Every lawyer in the State of Oklahoma receives a plain newsprint magazine several times per month. The Oklahoma Bar Journal records the cases decided by the Oklahoma appellate courts as they are released. Oklahoma attorneys are required to read it from cover to cover. Frequently, it is pretty tough going. There may be ten pages on insurance subrogation or five pages that seem like forty on some obscure point of personal jurisdiction or venue. But, every once in a while you read one that is really worth the trouble … a case that makes your realize that the high court does “get it” sometimes. The last Bar Journal in 2006 contained one of these cases, ZEIER v. ZIMMER, INC. 2006 OK 98:

"1 A single dispositive issue is presented on appeal: whether the affidavit of merit1 requirement of 63 O.S. Supp. 2003 §1-1708.1E2 is constitutional. (snip)

"¶14 The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes -- those who pursue a cause of action in negligence generally and those who name medical professionals as defendants. In 1984, Oklahoma became a notice pleading state with the adoption of the Oklahoma Pleading Code.27 The pleading code does not require negligence claimants generally to have an affidavit supporting the facts alleged and the anticipated basis for the right of recovery to be filed along with the petition.28 Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff's claim and the grounds upon which it rests.29 These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition,30 while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

"¶15 Not only does 63 O.S. Supp. 2003 §1-1708.1E divide tort victims on the basis of whether the victim is pursuing a general negligence claim or whether medical malpractice damage is alleged, it also necessitates the recognition of a subset of medical malpractice claimants relying on the legislatively codified doctrine of res ipsa loquitor for medical malpractice cases.31 This is a doctrine we may not presume the Legislature intended to repeal by implication32 in passing 63 O.S. Supp. 2003 §1-1708.1E.

"¶16 The nature of a res ipsa loquitor claim often negates the necessity of expert testimony to prove the cause.33 Therefore, if 63 O.S. Supp. 2003 §1-1708.1E is inapplicable to such claims -- which may be brought against physicians and hospitals,34 a third subsection of the whole of negligence plaintiffs is severed. With the enactment of the affidavit of merit statute, courts are required to classify three sets of negligence plaintiffs: 1) general negligence plaintiffs -- not required to file an affidavit of merit; 2) medical malpractice plaintiffs to which the affidavit requirement of 63 O.S. Supp. 2003 §1-1708.1E applies; and 3) a third class comprised of medical malpractice plaintiffs who may not be subject to 63 O.S. Supp. 2003 §1-1708.1E because, generally, no professional opinion is required for recovery under res ipsa loquitor.

"¶17 A statute is a "special law" where a part of an entire class of similarly affected persons is separated for different treatment.35 Just as the discovery rule considered in Reynolds suffered from underinclusiveness,36 so does 63 O.S. Supp. 2003 §1-1708.lE -- it sets aside a subset of negligence plaintiffs for different procedural and evidentiary treatment based on the type of action they pursue.37 The professional affidavit requirement of 63 O.S. Supp. 2003 §1-1708.1E has no counterpart in the general law of tort claims. Only medical malpractice claimants are burdened with the necessity of obtaining a medical opinion to support the filing of a petition in the district court. Furthermore, only medical malpractice defendants, not negligence defendants generally, are granted what is a mandated discovery privilege before a petition for recovery will ever be heard -- although the statute prohibits the admitting of the expert's opinion at trial or its use in discovery,38 it allows the defendant to obtain a copy of the same.39 This is precisely the vice that the Oklahoma Constitution and this Court have long guarded against -- the granting of preference to some and the denial of equality to a class.40 (snip)

"¶20 The physician and the Association assert that the affidavit requirement of 63 O.S. Supp. 2003 §1-1708.1E43 creates no bar to access to judicial resolution of medical malpractice cases. The patient argues that the statutorily created requirement for the payment of professional services as a prerequisite to the filing of a petition alleging medical malpractice violates the court access guaranteed by art. 2, §6 of the Oklahoma Constitution.44 We agree with the patient.

"¶21 The Oklahoma Legislature implemented the Affordable Access to Health Care Act (Health Care Act), 63 O.S. Supp. 2003 §1-1708.1A et seq. for the purpose of implementing reasonable, comprehensive reforms designed to improve the availability of health care services while lowering the cost of medical liability insurance and ensuring that persons with meritorious injury claims receive fair and adequate compensation.45 Although statutory schemes similar to Oklahoma's Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs.46 The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price.47 They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery.48 Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs' claims based solely on procedural, rather than substantive, grounds.49

"¶22 Another unanticipated result of statutes similar to Oklahoma's scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians.50 These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits.51 (snip)

"¶25 The Okla. Const. art. 2, §6 provides:
"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." [Emphasis provided.]

"The clear language of art. 2, §6 requires that the courts must be open to all on the same terms without prejudice. The framers of the Constitution intended that all individuals, without partiality, could pursue an effective remedy designed to protect their basic and fundamental rights.78 Although we recognize that the Legislature may facilitate speedy resolution of differences, legislation cannot be used to deny the constitutional guarantee of court access -- a fundamental right. Therefore, this Court strictly scrutinizes actions which deny such opportunity.79

"¶26 Access to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities.80 Claimants may not have the fundamental right of court access withheld for nonpayment of some liability81 or conditioned on coercive collection devices.82 Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000,83 before they may proceed to have their rights adjudicated.84 In at least one instance, an affidavit of merit cost the litigant $12,000.85 A statute that so conditions one's right to litigate impermissibly denies equal protection86 and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion.87 Therefore, we determine that 63 O.S. Supp. 2003 §1-1708.1E88 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.89 (snip)

"¶31 This Court does not correct the Legislature, nor do we take upon ourselves the responsibility of legislating by judicial fiat. However, we are compelled to apply Oklahoma's Constitution.97 It has long been the policy of the Oklahoma Constitution, the statutes and this Court to open the doors of justice to every person without distinction or discrimination for redress of wrongs and reparation for injuries.98 Although art. 2, §6 does not promise a remedy for every wrong, it requires that a complainant be given access to court when a wrong suffered is recognized in the law.99

"¶32 Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claimants interjects a degree of arbitrariness which sabotages equal access to the courts.100 Section 1-1708.1E creates the potential for a medical expert to usurp the functions of the judiciary and the trier of fact. The requirement that a medical malpractice claimant obtain a professional's opinion that the cause is meritorious at a cost of between $500.00 and $5,000.00101 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.102"

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All I have to say is ... they got it right.

VOIP and Voice Stress Analysis

Voice over internet provider Skype opened Pandora’s box a few days ago when it began offering the Kish-Kish voice stress analysis software as an option to its regular services.

VSA is a software algorithm that detects minute frequency changes in the human voice that are typically associated with high levels of stress. VSA has been around for a long time in the intelligence and law enforcement community and for several years in the business community. Many police departments now have either fairly sophisticated software packages to run on a laptop or an actual dedicated device. Small handheld devices which unobtrusively run the software have been available for years.

The problem with VSA is that it doesn’t really detect lies. It detects stress that is commonly associated with lies. Those are two entirely different things. In my opinion at least, VSA cannot conclusively determine the truth or falsity of any given statement or series of statements. And again, in my opinion at least, what VSA can do is detect stress in the person being examined on a given subject and lead a skilled interrogator to correctly suspect deception on that subject. This is very useful information because it lets the interrogator know where to look next and where to focus both further questioning and investigation. Perhaps the most conclusive use of VSA would be where a person being examined makes a statement conclusively known to be false and then presents no associated stress level. The examiner would then know that they were dealing with a person whose inner psychological makeup does not recognize the difference between the truth and a lie.

Skype’s announcement let the genie out of the bottle at multiple levels. First, now everyone with a computer will know what practitioner’s of the black arts of truth detection have known for a long time … that is that VSA works just fine over telephone lines, from recordings made with small handheld recorders and even over raspy VOIP connections. Second, while VSA has been commonly used by the intelligence community, police departments, private detectives, insurance investigators and even some businesses for a long time, it has been either too expensive or too technically challenging for average people to fool with. Skype does away with all of that and make it a push button option on their popular VOIP service. And third, a lot of people who are not skilled interrogators are going to have access to information that they don't have the skills to interpret. And that in turn, can cause a lot of grief for all concerned.

The legality of using Skype’s new service remains to be tested. Skype’s equipment is located in Estonia and their business offices are in London. So, it remains to be seen what will happen when an Okie from Muskogee using VOIP accesses an algorithm on equipment located in Estonia to determine whether or not his business associate in Tulsa is telling the truth about what happened to last month’s cash receipts. I have no idea what the courts will do with that mess but it will sure be fun to watch.

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