It was like one of those puzzle pictures we used to read in Highlights Magazine in the dentist’s office waiting room. The “What’s wrong with this picture?” one. But with one major difference. In this case, the picture is She-Hulk v 3 # 8, and the answer to what’s wrong with it is, not much of anything. Still, I want to show I can waste as much of our time writing about how a comic book story got the law right as I can writing about how it got the law wrong. So here goes.
She-Hulk v 3 # 8 started in a Los Angeles hospital where a dying nonagenarian made a death bed confession regarding “something terrible he needed to get off his chest.” No, not his “I heart Snooki” tattoo. Unfortunately, the story immediately cut to three weeks later, so we don’t know to what the dying man confessed.
After said three weeks transition, Steve Rogers, the once and future Captain America – Seriously, does anyone really think Falcon will still be Captain America when the third Cap movie comes out in two years? – visited the law office of Jennifer (She-Hulk) Walters. Cap told Jennifer why he came, but not us readers. Again with the keeping secrets from the readers? All we know is that Cap’s being sued in Los Angeles Superior Court for wrongful death, because of something that happened in Los Angeles in 1940. The rest will be parceled out slowly over the course of this multi-part storyline. It’s enough to make you wish that Lost never got on the air.
Jennifer suggested filing a motion to dismiss the suit on the grounds that Cap died a few years ago and a person can’t be sued post-mortem. Cap nixed the idea. He didn’t want to win the case on a technicality. Which is just as well, as Cap didn’t really die. He had been shot with a gun that caused him to phase in and out of time and space and everyone thought he was dead; but he wasn’t. Filing a motion to dismiss that argued Cap had died when he hadn’t would have been a fraud on the court. Matt Murdock may play so fast and loose with legal ethics that he’d argue a motion based on a fact he knew wasn’t true; I’m not so sure about Jen.
Jen also considered the statute of limitations. Both state and federal jurisdictions have statutes which command that causes of action must begin within a certain number of years after the event which caused the cause of action. If the lawsuit isn’t filed within the statutory limit, it is procedurally barred. Hence the name statute of limitations.
Statutes of limitations exist to protect defendants from the possibility that the evidence necessary to defend themselves has been lost, destroyed, or forgotten in the intervening years. In California, the statute of limitations for wrongful death is set forth in California Code of Civil Procedure § 331.5 and it’s two years. Which means the time to file the wrongful death suit against Cap expired in 1942.
But the suit against Cap asked for equitable tolling of the statute, because the family didn’t learn it even had a wrongful death action until that deathbed confession three weeks earlier. Judges can grant a motion to toll the running of the statute of limitations, if the plaintiffs did not know about the claim until after the statute of limitations had expired. Some judges won’t, because they see it as a way of getting a case off their docket. But they can. Some judges do, because they see it as fair and equitable. But they don’t have to. The judge in our case probably doesn’t even have to worry about it.
Remember Cap already said he didn’t want to win on a technicality. He wanted to try the case and win it on its merits, so that his name would not tarnished in any way. A statute of limitations dismissal would be the type of technicality that Cap would veto.
And Jen would have to accede to Cap’s wishes on this, even though it might not be in his best interests. If a client wants his or her case handled in a certain way, the lawyer representing the client must accede to the client’s wishes, as long as the client’s wishes aren’t illegal or unethical. If a client wanted to put on perjured testimony, a lawyer wouldn’t have to do that; in fact, couldn’t do that. It’s illegal and unethical. But there’s nothing illegal or unethical – merely unwise – about not wanting to file a motion to dismiss and a lawyer couldn’t file one against the client’s wishes.
Someone asked me how Cap can be sued in Los Angeles when he’s a citizen of New York City. That’s easy. Whatever happened in Los Angeles back in 1940, Cap was there when it happened. That gave California and her courts personal jurisdiction over Cap for the case. If you visit L.A. and cause a traffic accident, the other people in the accident can sue you in L.A. That’s where the accident happened and where you were, when you caused it.
The next thing that happened was that Jen had to get some California lawyer to sponsor her appearance in a California court pro hac vice. This is a procedure by which a lawyer who is not licensed to practice in a state gets permission to be admitted to that state’s bar just for the one case; pro hac vice being a Latin term meaning “for this occasion.” It’s done by having a lawyer who is licensed in the state file a pro hac vice motion on behalf of the out-of-state lawyer.
But why, you may wonder, did Jen have to proceed pro hac vice? After all, waaay back in The Savage She-Hulk# 1, Jen lived, and practiced law, in Los Angeles. She was already a member of the California bar. Emphasis on the “was.”
California, like Ohio, has a registration requirement. In order to continue practicing law in California, every three years a lawyer must take enough California continuing legal education classes to meet California’s CLE requirements. Oh, and pay an annual registration fee. Several years ago Jen moved to New York and started practicing there. In addition, for some period of time, Jen was disbarred and worked as a bounty hunter. Although Jen got her license back, between years of practicing in New York and months of being a disbarred bounty hunter, Jen let her California license become inactive.
Yes, she could get her California license reinstated, but only after taking enough CLE classes to satisfy California and paying her registration fee – don’t forget her registration fee, money-strapped California won’t. But that takes time.
The wrongful death suit against Cap was filed no more than three weeks ago and probably later. Jen agreed to represent Cap some about days before it was set to go to trial. Jen didn’t have time to get her California law license reinstated. Hence the pro hac vice request.
Jen called Matt Murdock – who had just resumed practicing law in California after he was disbarred in New York, himself – to help her file a pro hac vice motion. He turned her down. So Jen ended up using Matt Rocks, one of former X-Factor leader Jamie Madrox’s duplicates who had become a successful entertainment lawyer in L.A.
For two days, Jen prepared herself for the trial, until she was confident that she’d be ready for anything the opposing side could throw at her. Which led to the big surprise ending. And to this
As in, I’m about to give away the surprise ending of the story and you have been warned not to proceed if you don’t want to know it.
When Jen entered the courtroom, she discovered that opposing counsel was Matt Murdock.
Although, come to think of it, that wasn’t really all that much of a spoiler. If you didn’t see this ending coming the second Matt Murdock turned Jennifer down, you weren’t paying attention when you took Twist Endings 101.
The surprise ending did puzzle me, tough. Why didn’t Matt simply tell Jen he couldn’t help her file a pro hac vice because he was opposing counsel? There is absolutely no reason for him to have kept this information secret other than to be a dick. Still, considering some of the crap Matt has pulled in the past few years, being a dick may have been reason enough for him.
On the other hand, Jen should have known Matt was opposing counsel, anyway. As the attorney of record, Matt would have signed the official court filings in the case; the complaint, motions, requests for discovery, or what have you. Even if some other lawyer prepared the case, filed the complaint and all the other motions, and Matt only just took over the case; Matt would have filed a notice of appearance in the case to alert the court that he was now the attorney of record. Jen should have seen that notice while preparing for the case and known about Matt. If she didn’t, she should really withdraw from the trial, because she’s a poor excuse for a lawyer.
Now I said the story got the law right. Actually, it mostly got the law right. But the story would have us believe a seventy-four-year old wrongful death suit was going to trial only three weeks after the plaintiffs first learned their cause of action existed. I’m sorry, but no.
Neither Jen – three days – nor Matt – three weeks – would have had sufficient time to prepare their cases; what with all that pretrial discovery and deposing witnesses and endless motion practice. Both sides should have moved for a continuance to give themselves adequate time to prepare for a trial that is so important. Even squeaky-clean Cap could have no complaints to Jen’s moving for a continuance so she could have more than three days to prepare for a trial. Winning a trial because your lawyer is prepared is not winning on a technicality. And going to trial with a lawyer that hasn’t had time to prepare is more suicidal then playing Russian Roulette with a fully-loaded revolver.
Also, three weeks? I admit, I’ve never practiced law in California, so I can’t tell you how quickly civil cases move forward out there. But three weeks?
I can tell you that in Cleveland it takes several months – usually several years – for a civil case to come to trial. And Los Angeles County is 7.67 times more populated than the county where Cleveland sits, so probably has lots more civil cases clogging up its dockets. Those cases would be ahead of Jen’s trial and would have been tried first. There is no way a complicated wrongful death suit would ever come to trial in only three weeks.
Trust me, the constitutional right to a speedy trial only applies to criminal trials, not civil trials. Civil trials are about as speedy as Congress moving on immigration reform.
Well, what do you know? This is the longest column I’ve written for ComicMix. Turns out I was wrong before. Seems I can waste even more of our time writing about how a comic book story got the law right than I can writing about how it got the law wrong.