Lessons of Emert Wyss
If it were a basketball game, the story of the Madison County trial lawyer who got so creative he accidentally sued himself would already be on ESPN’s Classic Sports. Even deep in America’s “Judicial Hellhole,” it’s the stuff of legends.
It’s nice to cheer when courtroom bullies get a taste of their own medicine. But Emert Wyss’ quandry is about more than a feeling. It’s about lawyers behaving badly on a shameless search for profit-making plaintiffs.
Wyss’ case—detailed by Record reporter Steve Korris-- opens a rare window on a world where ordinary Metro East people are recruited and used to extract millions of dollars in "hush money" settlements from our nation’s largest corporations.
Alton’s Carmelita McLaughlin had no clue what she was getting into when Wyss asked her to serve as a plaintiff for the Lakin Law Firm in a class action lawsuit against Alliance Mortgage over $30 fax fees. She didn’t even remember paying them.
Reading a transcript of her sworn deposition, it is clear McLaughlin didn’t know why she was suing Alliance. Heck, she admitted that she hadn’t even read her own complaint.
The only thing McLaughlin knew for certain was that she stood herself to make some cash in the case.
“That is my understanding,” she said.
Barratry is one of those obscure words that make for spelling bee casualties.
Smart lawyers know what it means. But all lawyers—- in Illinois at least—- seem content to ignore it.
This rings odd to us because the act of barratry is against state law, for lawyers in particular.
According to the Illinois Criminal Code, “barratry” is when a lawyer “excites and stirs up actions or quarrels... with a view to promote strife and contention.” This means it’s technically illegal for lawyers to hunt or ‘create’ plaintiffs for the purpose of manufacturing lawsuits.
Reviewing a case a few years back, the U.S. Court of Appeals for the Fourth Circuit in Baltimore cited barratry in an opinion, describing what it called a “lawsuit-mining arrangement.”
Lawyers aren’t supposed to trudge through neighborhoods looking for Nissan car owners to lead a class action lawsuit they concocted. They cannot call around looking for cash-hungry career smokers or change-poor gift card users, wanting Barbie collectors or frightened Sears stove owners.
Wronged folks are supposed to come to lawyers-— not vice-versa. At least that’s what the law says.
The lawyers had their lawsuit ‘concept’—- but they needed a plaintiff.
For Emert Wyss, that’s where this story begins. Like a headhunter filling a job opening for a piece of the action, he went searching through his title company’s records for someone who would fill the part. He found Ms. McLaughlin.
So today she’s just playing her role, an actress in a staged production. Her lawyers—- who wrote this script and guide her every move-— are the producers and the directors.
This tale is a drama—- Ms. McLaughlin’s character has been wronged by those fax fees. The lawyers are out for public justice and a happy ending.
Here's hoping Mr. Wyss' fate in this case raises some awareness in between laughs. It's about time our elected leaders took on Illinois' merchants of conflict.