The Trial Practice Tips Blog

As a young defense lawyer, I once drafted a nasty letter to the lawyer on the other side of a case, then handed the letter to a partner for his review. While waiting for the pat on the back I was sure I'd get for being so imaginatively mean-spirited, I noticed that the partner was frowning.

"You can't send a letter like this," he said. "We've been working with this firm for fifteen years, and may work with them for another fifteen. We do better for our clients if we're civil to opposing counsel."

It seems obvious now. In a long career, it's possible to run across the same lawyers again and again. Why poison the relationship unnecessarily? Why seek the thrill of being nasty once, even if you're right? The thrill will fade in a few days, but your opponent will never forget. He'll take the memory to his grave. And all the while, he'll be looking for an opportunity to strike back.

It was The Uncivil Litigator's post "Fun" that made me remember that exchange with the partner early in my career. When the The Uncivil Litigator wrote the post, he must have been feeling incredible contempt for his opponent. Yet when dealing with the opposing lawyer in person, he kept these feelings to himself.

"I was very humble and gentlemanly," he writes, adding that he was careful not to reveal "any of the emotions" he expressed in the post.

Good thing. Had he told the opposing lawyer how he really felt--well, go read the post and decide for yourself whether you think much good would have come of it.

The voluntary payment doctrine is an old rule of law that has taken on a new life as a defense to consumer fraud cases. As explained by the Third District in Flournoy v. Ameritech, No. 02--MR-585 (July 2004)--

The voluntary payment doctrine provides that, absent fraud, misrepresentation or mistake of fact, money that is voluntarily paid under a claim of right to the payment and with full knowledge of the facts by the payer cannot be recovered unless the payment was made as a result of compulsion.

In Flournoy, the lower court dismissed a case against Ameritech on the grounds that the payments to Ameritech, which constituted the damages being sought, had been made voluntarily. The appellate court reversed, characterizing the allegations against the phone company as "deceptive acts" rather than "unfair acts." According to the court, this is an important distinction to make--the voluntary payment defense might apply to latter, but not to the former. When the cause of action is "in the nature of fraud," the voluntary payment doctrine does not bar the claim.

Plaintiffs' lawyers suing for violations of the Illinois Consumer Fraud Act would be well-advised to plead their case to fit within the holding of the Flournoy decision.