THEIR VIEW: Legitimate lawsuit abuse

By The West Virginia Record | Jun 26, 2008

CHARLESTON -- I have been a member of the Bar since 1967, yet I have personally filed only two lawsuits.

By RICHARD NEELY

CHARLESTON -- I have been a member of the Bar since 1967, yet I have personally filed only two lawsuits.

The first was against TWA Airlines for abusing me on a flight from Seattle to New York, and the second was last month against Idearc, the company that puts out the Verizon Telephone Book.

It used to be that we all did business with our friends and neighbors. When I came back from Vietnam, I bought my Pontiac Grand Prix from Paul Joe Petrolla, whose father had sold cars to my Grandfather for 30 years. The First National Bank in Fairmont remodeled the eighth floor of the Bank building for my law office, and I have kept my accounts there for 40 years even though I've lived in Charleston for 35 years and the Bank is now Wesbanco.

What has changed is that business is no longer local. On the one hand big business tries to appear local when it is soliciting customers, but as soon as there is a problem, big business hides behind what customers forgive as bureaucratic incompetence, but which is, in fact, a well calculated, deliberate scheme to avoid responding to legitimate complaints or having to pay just debts. And basically that was my problem with Idearc.

Both my partner, Michael Callaghan, and I are well known as courtroom lawyers. Thus, we do not need to advertise anywhere because people come to us for difficult cases by word of mouth. However, we completely rely on the Telephone Book to connect us to clients who are coming because of word-of-mouth recommendations. So, like many small businesses, the Telephone Book is crucial to our business. Thus, garbling a small business's ad in the Telephone Book is not like the laundry tearing a shirt or a garage mechanic failing to replace a small part. Rather, Idearc's garbling a small business's ad in the Telephone Book is like a doctor missing a cancer tumor or a lawyer failing to research applicable precedent. The Telephone Book is important to small business in a way that isn't casual!

Last fall, the law firm of Neely & Callaghan contracted for a three inch, in-column ad in Idearc's Charleston Telephone Book. But when the Book came out, the ad as printed completely misstated: (1) the name of the law firm; (2) the partners in the firm; (3) what the firm did; and (4) the credentials of the partners. But the screw-up isn't what is important for my discussion of "law suit abuse:" What is important for law suit abuse is how Idearc responded to a problem that caused real damage and was obviously their fault.

The West Virginia office of Idearc is in the same building as Neely & Callaghan. Furthermore, Mike and I consider Idearc's employees our friends. So when the screw-up was discovered, our office manager went downstairs and pointed out the problem, indicating that we would appreciate it if Idearc removed the cost of this particular ad from our bill. Thereupon, Idearc announced that we would be expected to pay one half of the standard charge! Obviously, I became annoyed, but I called the young lady in Lanham, Md., to whom my office manager was referred and explained that this was a major disaster for us and that I would appreciate it if she would remove the charge or have someone in the general counsel's office call me.

There was no call from the general counsel, of course, but we were forthwith billed the full price for the ad. Thereupon, I wrote to the young lady in Lanham, Md., indicating that I had been willing to "walk away" from this problem because Idearc's employees were friends, but that if I did not hear from the general counsel's office, I would file suit.

Now in the litigation business it is unwise to make idle threats, so on the deadline date that I had specified, not having received any intelligent communication from Idearc, I filed a complaint, 12 interrogatories, 7 requests for admission, 6 requests for production of documents and I gave a formal notice of a Rule 30(b)(7) deposition of the Corporation to be taken at my office on 8 September complete with itemized areas of inquiry.

All of this happened, however, not because I am an inveterate lawsuit abuser, but because big business these days is an institutional bully! Have you ever tried to cancel an AOL subscription? Have you ever tried to get a deposit back from a cell phone company? Have you ever tried to get your i-pod fixed under the warranty? If you have tried to do any of these things, then you understand that big business uses its very distance from the consumer to cheat and steal.

Business hides behind various types of "telephone hell." Version One of "telephone hell" is leaving you on hold for hours at a time. Version Two involves circular "voice mail" where you leave a message that is never returned and when the menu says, "press 0 to speak to my secretary, Sally Smith," you find that Sally Smith gives you voice mail and that her assistant, Betty Jones, also gives you voice mail. Then there are the national companies that provide no telephone number: They require that you use the Internet, which many young people easily do, but which is confounding to roughly 30 percent of all West Virginians either because they are old or because they can't afford a computer.

Idearc, the arrogant bully that it is, obviously has a template that it thinks will handle the wronged customers who have the temerity to sue. And this is how the template goes: (1) Neely and Callaghan signed an agreement that they would be bound by some master contract that nobody ever bothered to show them; (2) the master contract provided exoneration for all negligence and/or willful wrongdoing on the part of Idearc; (3) the master contract has an arbitration clause that forbids resort to court.

But unfortunately for Idearc and its covey of out-of-state lawyers, there is the landmark West Virginia case of Dunlap v. Berger, 211 W.Va. 549 that invalidates all Idearc's idiotic exoneration and/or arbitration clauses! In this state, a customer who is screwed by Idearc has a real remedy, particularly if the customer is a small business and can show a real loss as a result of Idearc's negligence. In our case, our office manager specifically asked for a "proof" of the ad to make sure that it would be correct and was told that "Idearc doesn't do that any more!" It is hard to be more negligent than that!

The point of all this is that much apparent "lawsuit abuse" is not the result of greedy plaintiffs' lawyers and litigious citizens; much of apparent "lawsuit abuse" arises simply from the fact that the only way to get big business's attention is to file a lawsuit. These days, as technology puts business farther and farther from customers, big business becomes an inveterate bully who, unlike small business, relies on inaccessibility to screw you. But once a law suit is filed: (1) someone with settlement authority must telephone; or (2) someone licensed to practice law in West Virginia with a listed telephone number must file an answer.

A lawsuit, then, is the only way that a consumer has to make contact with a distant, organized, collective intelligence. Essentially Idearc has gotten into the habit of throwing its weight around because it knows that wronged customers usually can't afford a lawyer. Thus Idearc and a bunch of other companies are just like the prison guards at Abu Greb; they abuse us because they can abuse us!

Neely is a Yale Law School graduate, a retired chief justice of the West Virginia Supreme Court of Appeals and a partner in the Charleston law firm of Neely & Callaghan.

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