Legal Analytics: California’s Law Enforcement Officer Misconduct Litigation

Over the past ten years, we’ve been bombarded with news of law enforcement officer and police officer misconduct.  And it seems, it may be getting worse.  Headlines related to excessive force, sexual harassment, and even wrongful death perpetrated by law enforcement officers seem to fill our headlines on a near daily basis.  In an attempt to counteract this trend and bring greater transparency to this issue, California passed a law giving greater access to reports of officer misconduct which went into effect in early January 2019.

We all remember it, on March 2, 1991, four police officers viciously attacked Rodney King. While the officers kicked him and hit him with batons, the abuse of power was caught on video by bystanders. Despite this documentary evidence, the 4 officers involved in the beating were found not-guilty, demonstrating the cognitive dissonance between violent abuses of power, and our understanding of the criminal justice system. The absence of appropriate safeguards and the lack of retribution for the officers involved exposed a societal inability to process what we saw in the highly publicized video.

Nearly 28 years after the Rodney King incident, we regularly see video of officer misconduct. Proliferation of mobile phones containing high end camera and video software have inundated us with evidence. Even more recently, officers wearing “body cams” record the experience from their point of view. Public viewing of use of force has drastically increased as a result of video, body cams and related technology.

Until the beginning of this year however, the public had no right to view disciplinary records of officers accused of wrongdoing. Only in litigation, through a Pitchess motion, would the public discover an officers’ history of misconduct. As a result of this limited access, the public would have no way to confirm whether a specific accusation was the first time a specific officer had been reported, or whether this officer had a long history of similar instances of misconduct.

All of this changed when SB 1421 went into effect. It requires California law enforcement agencies to produce records of officer misconduct. SB 1421 amended Penal Code section 832.7 “to allow disclosure of records related to officer use of force or confirmed instances of officer sexual assault or dishonesty via a Public Records Act request.”

Naturally, in line with the effective date of this new law, litigation abounds. Officer unions and agencies have filed restraining orders and lawsuits to determine if SB 1421 has retroactive application. The California Supreme Court has already been asked to weigh in. For now, they’ve declined to provide guidance and refused to enjoin enforcement of the revised law. As such, officer disciplinary records are currently discoverable. It will take some time to see how matters move through the lower courts to understand how this retroactivity issue, will be resolved.

What does “abuse of power” litigation have to do with legal analytics?

The passing of SB 1421 will certainly have an impact on litigation against law enforcement agencies. Accusations  of excessive force, sexual assault, and dishonesty now have greater transparency and records which may make these claims easier to prove are now accessible. Making such records more easily discoverable improves public accountability and transparency — a necessity if trust in our justice system is to be rebuilt. Where police personnel have too many excessive force complaints or accusations of dishonesty, an officer may find themselves looking for alternate forms of employment as the department now faces greater exposure related to these claims.

Litigation analytics and related trend data will not only lead to greater ‘abuse of power’ litigation claims, but will also assist  with the successful prosecution of such cases. For example, those who bring excessive force or wrongful death actions now have the ability to review all litigation surrounding an officer. In the last 2 years, more than 24 matters  involving “officer misconduct” have been filed in Los Angeles County alone.

If you’re filing a Pitchess motion in CA state court, it may be helpful to see the 42 other instances where this issue has been addressed in Los Angeles County and how each of the judges have ruled on the related motions. Understanding your judge’s tendencies, rational and preferred case law related to Pitchess motions will help you better craft your argument. For instance, Hon. Dennis J. Landin had this issue arise in at least 6 different matters last year.

Combining SB 1421 with legal analytics will drastically improve a lawyer’s performance in cases of officer misconduct… which may in turn start to change some officer and police department behavior. There is no doubt that SB 1421 is going to open the floods gates of officer discipline information. Legal analytics will be necessary to assist in curating the data for relevant litigation and bringing forth necessary societal change.

 

Judicial Analytics in California Opioid Litigation

Last year was big! Cities, counties and states began bringing major lawsuits against “Big Pharma” companies for their marketing and distribution of pain killers like Oxycontin, Oxycodone, and their generics and derivatives.

Legal scholars and reporters are comparing opioid litigation to the tobacco litigation of the 1990’s. That means the litigation is just beginning and the lawsuits are going to keep on coming!

Whether you’re counsel for plaintiff or defense, your case and litigation strategy will be deeply impacted by legal intelligence and data-driven litigation insights, often referred to “judicial analytics.”

What do we mean by legal intelligence? Simple. Would you benefit by knowing how your state trial court judge has ruled on motions in the past? Would it be helpful to know which judges in Orange County, California, have presided over recent opioid litigation?  Trends for similar litigation across the state, or within Multi State Litigation.

According to the Tobacco Master Settlement Agreement, original participating manufacturers agreed to pay a minimum of $206 billion over the first 25 years. That agreement went into effect in 1998. Last year, 72,000 people died from an opioid overdose. With a massive death toll and inflation, pharmaceutical manufacturers and distributors are looking at potentially devastating payouts and counsel is looking at a massive influx on suits.

Based on data sourced from Trellis’ legal intelligence platform, only two judges have heard such cases in Orange County since 2017! And even between those judges, rulings on similar motions sometimes led to disparate results.

To help makes sense of thousands of different rulings, and the fact patterns they are based upon (a task that no human could effectively complete), Trellis provides in-depth judicial analytics known as Trellis: Judicial Strategy Reports (JSR). Trellis’ JSRs provide attorneys a never before seen peek behind the curtain as to how specific judges have ruled on various motion in the past.

For instance, one of the judges presiding over opioid litigation has granted 16 of the last 30 motions presented to her. In Orange County, this places this judge in the 72nd percentile for granting motions of all types. Whereas as her counterpart, another judge presiding in Orange County tends to sustain demurrers only 42% of the time. Knowing whether (and how often) your judge sustains demurrers across various case types can not only help you make strategic decisions about what motions to bring and when, but can even help you craft a more successful motion. Searching through your judge’s rulings on similar demurrers will provide the framework from which to draft a successful motion, even down to citing to the judge’s preferred case law when possible.

Legal intelligence is changing the game. And this type of legal intelligence isn’t just limited to analytics on demurrers and dispositive motions (as massively impactful as those insights might be), instead, Trellis’ Legal Intelligence database allows attorneys to search through their judge’s language on similar substantive rulings, providing context, and deeper substantive analysis making legal research more effective and more practical. Analytics in a vacuum aren’t actionable.

For defense counsel in high-value opioid litigation, as the legal implications and number of additional cases filed continue to grow, you’ll likely want to understand how your judge has ruled on issues involving the False Advertising Law (FAL), one of the many claims against defendants in opioid litigation. Some of you may be interested to discover that a judge in one such case found the complaint “sufficiently alleged each of the defendants have violated the FAL within the last three years and continues to do so.” For defense counsel armed with this knowledge, and further strategic litigation insights (including searching through the largest database of CA state court rulings currently available) counsel’s chances at persuading a specific superior court judge increase almost exponentially.

For those attorneys outside of CA considering pro hac vice admission to represent a party in opioid litigation, Trellis found that an Orange County judge involved in similar litigation was particularly strict on counsel’s failure to properly apply to represent one or more of the co-defendants (see People v. Purdue Pharma LP). Recognizing a judge’s pet peeves and technical and evidentiary requirements prior to drafting a particular motion can mean the difference of a successful outcome. Obviously, failing miserably in multiple facets of the pro hac vice application would be harmful to your client (and likely to your reputation). Your client may even begin looking for local counsel to represent them if they perceive that the judge is already disheartened by out-of-state counsel who has trouble following the California Rules of Court. Certainly, the stakes are high.

For litigators involved in opioid litigation with big pharma, legal intelligence and judicial analytics may make the difference for your client and your case, setting you apart from antiquated litigators relying only on their trusty yellow pad.