The qualified immunity question plays a substantial role in the evaluation of a prospective client because of the effect that the defense has upon recovery of damages for violations of constitutional and federal rights. QI recognizes that the time and resources of government officials is severely limited and therefore none of these should be wasted in forcing these governmental officers to defend against all claims made against them. Only claims which have merit should divert the officer's attention from his appointed duties and obligations.
In order for the officer to be subjected to the rigors of litigation, or be liable for that matter, the plaintiff must have suffered a violation of a constitutional right, the person must be in a situation or circumstances which clearly entitle him to constitutional protection as of the time that the events took place, and the defendants' conduct must have been such, that he could have reasonably expected to violate the plaintiff's constitutional rights and proceeded to act, regardless.
How to evaluate civil rights claims when deciding whether to engage in representation of a client, and the effect of the qualified immunity defense on the evaluation of the client intake form:For me, only the first prong, whether a constitutional right was violated or not, is the one I focus upon in the client initial interview. Client interviews are often difficult because the prospective client focuses on trying to convince me that his constitutional rights were violated. It is often difficult to differentiate fact from argument. Hence, the first interview is often the most inappropriate time to determine whether QI defense is likely to impede the claim.
During the first interview I tend to focus on other issues like time bar, res judicata and its progeny, and Eleventh Amendment Immunity. This first interview is swift and often done over the telephone.
I will then ask the person to spill out the facts in a written narrative, and I never cease to be amazed at the rivers of ink that people can muster to jot down or type in a machine. If the narrative warrants it, then I will interview the client again for a more detailed version of those facts which are relevant to frame a constitutional claim.
At this moment, only the first prong of QI plays a role. At the outset my concerns are more oriented at whether the facts flesh out, or not, a claim for violation of constitutional rights.
Other factors considered in weighing the question of whether to accept or reject a client, client considerations, resources of the office:On this second interview I try to identify legal matters and issues which may have affected the potential defendant's judgment and the circumstances surrounding the event. This analysis prevents the investment of effort, time and money, in pursuing a claim that may be struck down by a QI argument.
So at this second interview I am concerned with governmental structures and interests surrounding the government officers and the victim, and how these affected the circumstances in which the violation of constitutional rights occurred. These questions, and the effect that the answers given will have upon the second and third prongs of the QI defense, contours of the constitutional rights and whether the defendant could reasonably expect his conduct not to abridge the constitutional rights of the plaintiff; vary with each type of claimed constitutional right. So it is important to correctly cabin the type of constitutional right before this second interview.
Yes, I said three prongs although these have been reduced to two. However, I am staunch believer in the three prongs. Particularly since the Supreme Court derogated the Saucier v Katz order, it makes no sense to compress any of the prongs together.
At this second interview I also apprise the client of rigors of the process, particularly, the costs of discovery and the possibility of losing the case altogether. I also make it a point to determine whether the case will need a substantive expert, and/or a damages expert. The client must be willing to assume all the costs of litigation.
If the client is willing to assume these costs, and pay a retainer fee; then I will send a written proposal to him describing the details of the engagement.
After this, it is then time to study.
Concerns of legal standard that would have to be met in litigation:At this moment one already knows what is the type of constitutional claim considered and whether the case fits within the legal strictures that one imagines would apply to each type of constitutional case or not.
However, it occurs often that once the case law is examined, I find that other requirements apply to the type of claim I am trying to put forward. It is necessary to research these requirements before filing, in order to properly allege the constitutional violation and differentiate your case from situations in which judgment calls or intensely complicated determinations, circumstances, or events have prompted Courts to recognize to the government officials a wide berth, room, or latitude for mistakes, even if these potentially hinder constitutional righs of the people affected by these decisions.
Also, in this stage of more intense study, I will also make sure that the plaintiffs' claims can be simplified to a degree which allows them to be framed as recognizable constitutional claims, and apart from the dreaded penumbra that justifies application of the QI.
If I take these steps before being retained, particularly in cases in which the circumstances or the claimed constitutional rights are very complex, the evaluation becomes too narrow and too focused, maybe inadvertently, on the merits of the defendants' possible defenses.
Only if this is possible will I recognize that the plaintiff has a case.
Other considerations, Iqbal and pre-discovery factual investigations:Additionally, meeting the applicable substantive standard is important because of the case of Iqbal. At least in the district of Puerto Rico, the plausibility requirement of Iqbal has profoundly impacted pleading practice. Thus, at the moment in which the complaint is to be filed, the attorney has to be well aware of the substantive requirements so that he can allege facts sufficient as to each of these requirements. This consumes a substantial amount of time and energy.
An additional consideration that an attorney has to make when considering whether to file a case or not is the amount of investigation, factual investigation, that will be necessary to properly litigate the case. Very often clients will presume that attorneys have means to obtain all of the evidence which is necessary to litigate their claims. Discovery is often insufficient to uncover some issues, even when defendant are cooperating with it. It is important that clients understand that most of the discovery that is worth anything must be pried from the defendant. In order to do that, the attorney must be able to pin-point particular circumstances, persons, documents, and statements so that discovery requests are sufficiently particularized and calculated to require production of the sought material. QI makes this even more difficult, because it further protects the defendant, not only from fishing expeditions, but also from discovery of matters which even if relevant, hold no bearing to the claimed constitutional violation.
Thus, clients must be able to pinpoint these facts, statemets, documents, or circumstances which will aid his or her attorney to properly argue the need for a particular type of discovery.
Ave. Rio Hondo PMB 130
Rio Hondo
Bayamón, PR 00961-3113
Cel. 787-647-6632,
Fax: 775-366-7629,
6476632@gmail.com
En otro lugar en este blog comenté las implicaciones que el pronunciamiento de Watchtower podía tener sobre gestiones de expresión no necesariamente relacionadas a material religioso. Dichas expresiones pueden ser de carácter comercial. Sin embargo, la ley de control de acceso no presenta términos claros para proteger la diseminación de expresiones comerciales legítimas. De hecho, la configuración e implementación de controles de acceso puede tener un efecto disuasivo y desalentador de dichas expresiones. Tal resultado puede redundar en la debilitación de las potestades otorgadas a las urbanizaciones bajo la ley.
