Is “My Mommy made me do it,” a defense for bringing a frivolous claim? How about, “Plaintiffs threatened to disown me”? I have a feeling that Colorado lawyer Sheldon H. Smith may find out in a few weeks (March 22), when his Noisy Bather lawsuit comes before Denver District Court Judge Ronald Mullins. (Denver Post, “Lawsuit: Baths swamp sleep”, by Mike McPhee, Feb. 21, 2006; Overlawyered.com, “Early Bather Lawsuit,” Feb. 27, 2006)
“Shannon Peterson, a special education teacher in the Arvada, Colo. public schools, “can’t believe she’s being sued for bathing before leaving for work.” But the elderly couple who lives upstairs from her Denver condo unit have been complaining about noisy pipes, and unfortunately for Ms. Peterson they happen to have a son, Sheldon Smith, who’s an attorney at the large law firm of Holland and Hart.
Sheldon Smith, Esq. “Represented by their son, the Smiths ‘sued Peterson just before Christmas, citing the ‘reckless and negligent use of her bathtub.”’ Before that, the younger Smith had fired off a letter to Peterson, saying her ‘intransigence … and tortuous conduct have resulted in incredible sleep deprivation for Mr. and Mrs. Smith. Your obstinacy has ruled the day. That will now cease.’ According to the Denver Post, his demand letter insisted that that Peterson not run water in her bathtub before 8 a.m.”Peterson told the Denver Post:
“I’ve done everything I can think of to work this out,” she said. “I’ve had maintenance men remove all my tile and insulate the pipes. I’ve had sound engineers measure my unit and others in the building. Nothing’s abnormal. Even the homeowners’ board investigated and told the Smiths they should install sound barriers in their unit.”
The Post reported that “the homeowners’ association stepped into the fray and wrote Smith a letter that his request didn’t comply with the building’s rules.” Fortunately, Peterson is getting help from a friend, lawyer J. Michael Dowling, From what I’ve read, I have to agree with Dowling’s assessment: “This is the most frivolous lawsuit I’ve seen in 30 years of practicing law.”
So far, coverage by Overlawyered has provoked a chorus of webloggers rightly decrying the lawsuit. It will be interesting to see if this negative publicity gets all of the Smiths to back down. Of course, only Lawyer Smith has to worry about violating professional ethics rules against bringing frivolous claims — claims that have no colorable basis in fact or law.At first, I thought Sheldon Smith might be a tenderfoot, too young to say “no” to his parents’ request for legal assistance. But, his firm bio page suggests that he’s in his mid-50s, and is a respected lawyer in his specialty of employee and executive benefits. (He’s worked as an adjunct faculty member at Denver Law School and as a CLE presenter.) What I don’t understand is how his partners at the Rocky Mountain mega-firm of Holland & Hart could have let this matter get out of hand.
Certainly, someone in H&H’s Real Estate Litigation practice group could have told him how lame his claims are. Also, H&H has an Alternative Dispute Resolution section that could have come up with options short of litigation and national infamy. More to the point, however, H&H’s Water Rights practice group boasts: “Our water law practice involves commercial and other transactions that routinely require skilled negotiations and first-rate administrative experience.” Couldn’t they, or someone, at H&H have stopped this silly lawsuit? I have a feeling that somebody there just might be leaning on Sheldon Smith right now. I sure hope so.
Once again, I’m learning legal practice tips too late. Forget about noisy showers. When I moved into my first condo, in Alexandria, VA, two years out of law school, I could hear love-making from three other condo units (above, below, and on the otherside of my bedroom wall). Talk about keeping a lonely guy up. I wonder if H&H had a D.C. office back in 1978.update: Thanks to Suz-at-Large for pointing (March 11, 2006) to this post. Suz had an earlier piece on the case (Feb. 22, 2006), with the sub-headline: “The Law is Not An Ass, But No Thanks to Some Lawyers.” Suz points out that the new weblog Leadership for Lawyers is written by Mark Beese, the marketing director for Smith’s firm, Holland & Hart.update (April 26, 2006) see our water-torture bathtub suit still afloatin the shower
an economy size bar of soap
lands on my toe. . .. by Tom Clausen from Homework (Snapshot Press 2000)meteor shower
a gentle wave
wets our sandals. .. by michael dylan welch, HSA Henderson Contest; a glimpse of red:rma 2000from the shower
a sad love song –
bathtub cricketthe shower massage
finds her navel —
headful of suds
turns cold.. . . . .. . . . . . by dagosan