Warner Mendenhall Grasps at Straws

Akron News Now has begun what they promise will be a continuing series on the back-and-forth between Warner Mendenhall and, apparently, anyone who works for the city of Akron but doesn't carry a union card. The first report concerns an email statement Mendenhall sent out about his lawsuit against the city's speed zone cameras:

The fight over Akron's method of catching speeders through the use of cameras attached to some traffic lights continues, but now it's being woven into the fight to oust Akron's mayor from office. The case is now pending in the 6th Circuit Court Of Appeals, where judges routinely mandate conference calls to determine if cases will move forward. That happened in the traffic cam case as well, but Attorney Warner Mendenhall says the city wasted time and money by not having Akron City Council present for the talks.

"It's mandatory for the decision makers to be present when we're in a mediation and the city did not meet the requirements of that rule," said Mendenhall.

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Mendenhall's allegation, in an email sent to the media, that it was a "waste of thousands of dollars worth of attorney time" is raised because he says that the session could not possibly be productive if city council - the client - wasn't present to consider any offers that might be made.

This is all curious to me because I've been on a Sixth Circuit mediation call without my client and my opposing counsel -- in general even more of a self righteous hysteric than Mendenhall -- didn't say boo about it.

Let's break all this down, one issue at a time. First off, the Sixth Circuit's mediation rule:

The court may direct the attorneys - and, when appropriate, the parties - to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceeding or implementing any settlement agreement.

So, presence isn't required unless specifically ordered by the court. The attorneys do need to know what settlement authority they have. Mendenhall claims in the audio interview linked on ANN that the city attorneys didn't do that, citing as evidence that they didn't tell Council about the conference call.

That as may be, but attorneys serving public boards don't tell clients about every step in litigation, just the ones they need to know about. In a lawsuit that is purely about the legality of city actions (which is to say, not about money damages) the chances of a settlement are remote and the attorney and the clien board generally understand that their posture is not to settle but to get a legal opinion from the court and go forward from there.

Which brings up the second issue: The settlement that Mendenhall is talking about appears to be entirely hypothetical. Throughout the interview he never mentions making a settlement offer. It seems unlikely that, having gone through the trial court proceedings, the parties could suddenly come up with some consent decree that would make the litigation go away. The litigation exists to get a court opinion.

Finally, there's the matter of "thousands of dollars worth of attorney time" he alleges were wasted. Thousands of dollars? Not on the city side. I'm confident that city attorneys aren't pulling down that kind of coin. As for Mendenhall, if he spent more than an hour total on this call, he's a fool. The call takes maybe fifteen minutes and that's if the attorneys are particularly chatty. Prep is no more than a review of the file. And I'm quite confident that an hour of Mr. Mendenhall's time won't result in a four figure bill.

Once again, Warner Mendenhall could be an effective critic of the administration. Instead he stamps his feet and carries on about every little thing, making even his decent points look silly.

Disclosure One: The city attorney quoted in the story is a family friend, and Warner Mendenhall . . . isn't.

Disclosure Two: I agree that speed cameras need to comport with basic requirements of due process. That said, last Thursday some idiot flew past my daughter's school during pick up at what had to be forty, minimum. So I'm OK with the city finding innovative ways to enforce speed zones around schools.