Animal Law
An Overview

By Robert J. Derocher

The reactions, says sole practitioner Barbara Gislason, were quick and almost universal five years ago when she told people her practice included animal law: “You must be a blood-on-a-fur-coat activist. You must be out there.”

The reactions today, she says, are much different: “It doesn’t trigger a conclusion. It triggers a conversation.”

It’s an indication, Gislason and others say, of how animals and their growing interactions with people and the law are fast becoming a more serious topic of discussion in the legal community. From a boom in law school course offerings to increasing membership in local, state, and national bar association committees, animal law is quickly moving from the fringe to the mainstream.

The high-profile 2007 conviction of former football star Michael Vick on dogfighting and animal cruelty charges highlighted the role of animals in criminal law, and the $12 million bequest of former hotel queen Leona Helmsley to her pet Maltese dog that same year sparked conversations about the role of animals in civil law.

Lawyers and observers in the field maintain that carving out a niche solely in animal law remains challenging for solos and small firm practitioners. But as animals increasingly become part of custody proceedings, business transactions, wills, trusts, litigation, and criminal prosecutions, the field of animal law will likely present increasing opportunities for the people who practice in a wide array of law disciplines.

A Growth Industry

How attached are people to their pets? A study released in 2006 by the Pew Research Center found that 85 percent of dog owners and 78 percent of cat owners considered their pets to be family members. Toss in other numbers showing that 57 percent of all Americans are pet owners and that pet industry sales jumped 50 percent between 2001 and 2008 to more than $45 billion, and it would indicate that pets are big business.

And it’s not just pet owners who have a large financial stake in animals. According to U.S. Department of Agriculture (USDA) statistics, the value of livestock sales jumped about 50 percent between 2002 and 2007, totaling more than $150 billion in 2007. By the end of 2007, the USDA pegged the cattle (beef and dairy) inventory at 97 million and the hog and pig population at 65 million.

Although estimates on how much is spent on legal needs and issues for pet and animal owners are hard to come by, those in the field are seeing the increasing interest in animal law. At the Animal Legal Defense Fund (ALDF), which has been fighting animal neglect and abuse for 30 years, an Animal Law Program was launched in 2000 to encourage animal law instruction law schools, says Pamela Alexander, the program director. When the program was launched, there were nine animal law classes offered and a dozen law school chapters in the program nationwide. Today, there are more than a hundred classes and 140 chapters. “It’s very telling of what a burgeoning field this is,” she says. “We want to make sure there’s a chapter and classes offered at law schools throughout the country.” The ALDF is also making plans for an Animal Law Conference in spring 2010. Two previous conferences in 2004 and 2007 sold out, Alexander says. (For more on the ALDF, see the article " Animal Legal Defense Fund".)

After helping establish an Animal Law Committee at the Minnesota State Bar Association, Gislason says she became “the Johnny Appleseed of animal law for the national bar” when she helped found the Animal Law Committee within the ABA Tort Trial and Insurance Practice Section (TIPS) in 2004. In just five years, the committee has grown from a few dozen members to nearly 300, boasting its own discussion board, newsletter, and 22 subcommittees.

“There are so many serious scholars and academics who are involved in this field today,” says Pamela Frasch, assistant dean and executive director of the Center for Animal Law Studies at Lewis and Clark Law School in Portland, Oregon. “This is an intellectually challenging and robust field.”

A veteran animal law attorney who has taught at Lewis and Clark for 11 years and co-authored two books on the subject, Frasch is bullish on the potential opportunities for lawyers to get involved in the field. “We’ve seen and we’re continuing to see tremendous change. It’s a growth area,” she says.

Areas of Impact

Part of what makes animal law an increasingly active and appealing area of law for solos and small firm practitioners, Frasch and others say, is its continually widening reach. “We see it cut across every area of law,” Frasch says. “You are pretty much guaranteed to encounter some aspect of animal law somewhere in your career.”

Solo attorney Geordie Duckler of Portland, Oregon, is a rarity in the legal profession: He is one of a small number of lawyers whose entire practice is devoted to animal law. He’s been at it for ten years, and his caseload grows each year.

“I think I would have had a real hard go of it more than ten years ago, or if I wasn’t in a metropolitan area,” he says. “It’s a diversifying area. I’ve seen a number of things change.”

A former corporate attorney who is also a Ph.D. biologist who has written and lectured on animal anatomy, Duckler got into animal law as a way to marry his interests—although he cautions that he is “not an animal rights person. I’m an owner’s rights person.”

“Many of my clients do all sorts of things. Some treat [animals] like children and others treat them like automobiles,” he says. “I represent pig farmers. Their entire job is to farm pigs and sell them for slaughter. But what do they do when there is poison in their feed product and it kills their pigs? They need a lawyer.”

Duckler’s active caseload averages around 50, he says, with the most common involving veterinary malpractice, disputes among breeders, pets injured or killed by others, and livestock and exotic animal owners who often find themselves in disputes with local, state, and federal government authorities.

But perhaps the fastest-growing area of the law that involves animals, he and others say, concerns pet custody in matrimonial and family law.

“Animals are legally treated as property, but everybody knows that a pet is not the same as your iPod,” says Diane Sullivan, a longtime professor of animal law at the Massachusetts School of Law. As a result, she says, more judges in such cases are making provisions in rulings that accommodate demands for pet custody, visitation, health care, and upkeep.

Orders of protection for pets that might be threatened in domestic disputes are also becoming more common, says Kathy Hessler, a Lewis and Clark law professor and director of the school’s Animal Law Clinic.

The highly publicized Helmsley case has also brought increased attention to how pets are provided for in wills and trusts, Hessler adds. Although their bequests usually are not as extreme, more people are making provisions for what happens to pets after the owner dies.

“The courts are continuing to grapple with these cases, since many [state] legislatures are not,” she says. “The [legal field] here has not yet been saturated.” In the Helmsley case, for example, a judge reduced the $12 million set aside to care for Helmsley’s Maltese, Trouble, to $2 million, while providing estate funds for two Helmsley grandchildren who had been cut out of an inheritance.

In the area of criminal law, many state and local prosecutors are taking a closer look at animal cruelty and neglect cases—particularly in what are known as “hoarding” cases, says Frasch, when authorities discover people housing large numbers of malnourished dogs or cats.

“There have always been these cases out there, but the difference is that now we’re seeing the [animals’] suffering, and that’s evolved. We are opening doors that were once closed,” Frasch says. “Prosecutors often seek out assistance with animal control cases.”

Additionally, observers say, law enforcement is taking a greater interest in cases where pets are involved in attacks and confrontations with people. More communities are passing nuisance laws that seek to hold pet owners more responsible for their animals, Gislason says, and that, in turn, is spilling over into issues such as insurance and criminal defense. “[Those issues] are of interest to a broad range of lawyers. The insurance issue, in particular, is huge,” she says.

Still, Gislason and Duckler say, the majority of their animal law cases center on veterinary malpractice. “When someone’s animal is harmed or killed,” Gislason says, “they want recourse.”

A New Frontier

Still, even malpractice cases point out the evolving and somewhat frontier nature of animal law, adding to the allure—and potential—for many attorneys. With most animals regarded as property, compensating a pet owner for a wrongful death remains a murky area for the courts. Just a few states attach “special value” to pets rather than what the replacement cost would be, Duckler says, and even then that value is small.

“There’s a huge need for appropriate tort law to address the value of animals in this country,” Gislason says. “We sometimes forget to see animals as friends and family.”

The issue of animal activism—exemplified by groups such as People for the Ethical Treatment of Animals (PETA)—can also have an influence on the future of animal law. Although PETA has brought attention to animal cruelty, it has also sparked controversy with sharp attacks on meat consumers, farmers, and others. Splashing fake blood on fur wearers is a much-publicized tactic.

“You need more of a middle ground to make changes [in the law],” Sullivan says. “I’m a pet owner and a vegetarian, but [PETA] is too far out there for me.”

Duckler adds that it is important for lawyers to make the separation between activism and the law.

“You don’t need to be an activist, yet you need to have knowledge of animals and the law,” he says. “Right now, I’m turning away cases.”

“No state in the country has pet custody laws,” she says. “There has to be a serious effort made to address this issue.”

Robert J. Derocher is a freelance writer living in Loudonville, New York. He may be reached at rjderocher@verizon.net.

Copyright 2009

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