May 2004 Archives

Ramesh Ponnuru of National Review Online ("The Corner", May 18) has written in defense of the new Virginia statute, much criticized in this space, which declares null and void within the state not only civil unions but also any "partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage" (Mar. 19, Apr. 18, Apr. 23, May 12). As I noted two weeks ago, given the unclarity of the law's drafting, a prolonged guessing game about its meaning may be inevitable; but some guesses are more plausible than others.

Yes, it can happen: following the enactment of sweeping state-level liability reforms, the rate of personal-injury filings in Australia is way down and legal practices are closing or shrinking as business declines. In the state of Victoria, claims over public liability, assault, dog bites, slip-falls and school accidents have dropped sharply and a total of 19 medical negligence claims were filed in the six months to April 29, down from "hundreds of claims two years before". (Fergus Shiel, Melbourne Age, May 11). In the state of New South Wales, which includes Sydney, "The court's Chief Judge, Reg Blanch, said statements of claim had fallen from a record 20,784 in 2001 to just under 8000 last year. ...There are now only minor delays in bringing on a civil case, with the exception of motor vehicle claims, which require more documentation." (Michael Pelly, "Lawyers in job void as claims drop", Sydney Morning Herald, May 8). For more on the excesses which led to a public re-examination of "compensation culture" Down Under, see our Australia page.

Bad legal news comes in threes for cigarette makers: federal judge Gladys Kessler has ruled that the U.S. Department of Justice will be allowed to ask for disgorgement of $280 billion in past tobacco industry profits in the federal racketeering case against the industry (Nancy Zuckerbrod, "Judge: Government Can Seek Tobacco Profits", AP/Washington Post, May 24)(more on suit). Health-program recoupment suits similar to those successfully pressed by state governments in the U.S. have been almost uniformly rejected in foreign courts, but an exception may be shaping up in Canada, where an appeals court in the province of British Columbia has just given its go-ahead to such a suit (Rod Mickleburgh, "Court upholds B.C.'s right to launch 'big tobacco' suit", The Globe and Mail, May 21). And: "In the first verdict of its kind in the nation, a New Orleans jury decided Friday that four big tobacco companies should pay $591 million for a comprehensive, 10-year smoking-cessation program for a half-million or so of their Louisiana customers." (Susan Finch, "Jury tells tobacco firms to pay up", New Orleans Times-Picayune, May 22). More: On a somewhat brighter note, the California Assembly has narrowly defeated the scary bill sponsored by Assemblyman Marco Firebaugh and backed by the American Lung Association that would have prohibited parents from smoking in cars in which their children were riding (see Apr. 30) (Steve Lawrence, "Assembly rejects bill to bar smoking in cars carrying young kids", AP/SignOnSanDiego, May 28); for more news on secondhand smoke controversies, see updates appended to post of Oct. 16, 2003 (scroll to end).

An animal-rights group that calls itself the Physicians Committee for Responsible Medicine is assisting a disappointed dieter in suing the Atkins people over allegedly failing to warn that levels of bad cholesterol can rise on a meat-rich diet. A torts professor quoted by the Times says the complaint "reads as if it were done by someone who is doing it for reasons of publicity rather than private gain", and even the named plaintiff pretty much admits that it's more about headline-seeking than anything else. (Marian Burros, "Dieter Sues Atkins Estate and Company", New York Times, May 27). Does the self-proclaimed Physicians Committee want publicity, then? Here's some: National Council Against Health Fraud, Brian Carnell, Center for Consumer Freedom commentary and press release, ActivistCash.com . Together these links tell you all you probably need to know about the PCRM, which has also been extensively quoted in the press as a cheerleader for lawsuits against McDonald's and other burger chains. Plus: yet more from CCF.

One reason not to commission a mural for your building: the federal Visual Artists Rights Act of 1990, which with some exceptions "prohibits the intentional alteration, mutilation or destruction of artworks without the consent of the artists" and gives the offended artist a right to sue. Lawsuits under VARA have not been numerous, but have raised questions of fairness to art owners as well as of unintended consequences. (Daniel Grant, Wall Street Journal Leisure & Arts/OpinionJournal.com, May 27; Cynthia Esworthy, "A Guide to the Visual Artists Rights Act", NYArtsAlive.com, undated; IvanHoffman.com.

"Janet Jackson's wardrobe malfunction during the Super Bowl halftime show may be a lot of things, but it's apparently not worth $5,000. A judge rejected a Utah lawyer's claim that CBS owner Viacom should pay him $5,000 for having to see Jackson's bared breast during the Feb. 1 show. Eric Stephenson, contending false advertising, sued Viacom in small-claims court." (AP/San Francisco Chronicle, May 27). On the earlier Boobgate lawsuit by Terri Carlin of Knoxville, Tenn., see Feb. 5, Feb. 8 and Feb. 14.

A federal grand jury has indicted Houston attorney Gene Burd and chiropractic clinic owner Paul Samson Christie on tax charges. Among the allegations against Burd are that he employed runners to bring in car-crash victims which he signed up as clients and referred as patients to the chiropractic clinics; that the clinics kicked back about half the fees they charged to him; that he conspired to defraud insurance companies in the resulting lawsuits; that he settled some clients' cases without their knowledge or consent, and misrepresented to them the share of the settlement money that he was keeping; and (perhaps his most fateful lapse, if the allegations prove true) that he failed fully to report the income from all this for federal tax purposes. Lawyers for Burd and Christie assert that their clients are not guilty and Burd's lawyer attributes the indictment to "a misunderstanding by the government". (U.S. Department of Justice press release, Apr. 12; Mary Alice Robbins, "Houston Attorney, Clinic Owner Face Federal Tax Charges", Texas Lawyer, Apr. 23).

What, you still haven't subscribed to our free periodic newsletter? The latest one went out this afternoon to its c. 2300 subscribers, covering the last three weeks' worth of postings to the site. It's a great way to keep up with items you may have missed. Don't delay any longer: sign up here.

In a new poll of educators conducted by Public Agenda and commissioned by Common Good, "Nearly 8 in 10 teachers (78%) said students are quick to remind them that they have rights or that their parents can sue." (Fredreka Schouten, "Study: Pupils pay academic price for unruly classrooms", Gannett/USA Today, May 11)(more at Common Good: poll, May 11 forum co-sponsored with AEI-Brookings Joint Center for Regulatory Studies, "EdWatch"). More: Tresa Baldas, "The Anaconda in the Chandelier", National Law Journal, May 19.

Andy Chasin tossed a FedEx airbill -- just the one piece of paper -- in a trash receptacle near his District of Columbia home. Thirteen days later, he was served with a $35 ticket from the city's Department of Public Works charging him with Improper Use of Public Litter Receptacles: statute 24 DCMR 1009.1 provides that "Public wastepaper boxes shall not be used for the disposal of refuse incidental to the conduct of a household, store, or other place of business. ..." Official inspectors, it turns out, rummage through the litter in search of items that should have been disposed of in home or office trash. "I tell people all the time: Don't put anything with your name on it in a public trash can," says Mary Myers, spokeswoman for the city's Department of Public Works. (Marc Fisher, "When It Comes To Waste, D.C. Is Priceless", Washington Post, Mar. 24).

"I like Overlawyered.com.

"But then, I like public hangings." ...

How can you not keep reading after an opening like that? (Sharp Knife, May 23)

Steven Sarenpa's father and stepmother were critical of Steven's separation from his wife, and of his new girlfriend. Steven claims they yelled at him and called him a sinner for his adultery. But Steven wasn't just their son--he was also their employee, so he's sued his parents for religious and marital status discrimination in Minnesota federal court. The theory seems to be that parents lose the legal ability to express unhappiness with children in certain ways if they're all part of a family business sufficiently large enough to be subject to federal anti-discrimination law. The parents argue that the fact that Steven's wife and her uncle also worked at the company created workplace tension (especially when his girlfriend would drive him to work during his wife's shift), and say that's why they asked Steven to take some time off. (H.J. Cummins, "Son sues father after leaving job, marriage", Minneapolis Star Tribune, May 26) (via Romenesko).

"Stepping into an issue that has alarmed homeowners and led to hundreds of lawsuits and billions of dollars in insurance payments, a government panel of experts reported yesterday that toxic mold in homes did not appear to pose a serious health threat to most people." A panel of epidemiologists, toxicologists and pediatricians convened by the Institute of Medicine, an arm of the National Academy of Sciences, surveyed existing scientific literature on the subject. "Though the experts said mold and indoor dampness were associated with respiratory problems and symptoms of asthma in certain susceptible people, they found no evidence of a link between mold and conditions like brain or neurological damage, reproductive problems and cancer." (Anahad O'Connor, New York Times, May 26). For more on mold litigation, see Dec. 4 and earlier posts; "The Growing Hazard of Mold Litigation", U.S. Chamber of Commerce and Manhattan Institute Center for Legal Policy, Jul. 17, 2003 (paper in PDF format/press release). More: press release, video briefing and report links from National Academies.

"The six straight men who sued to prevent the broadcast of an UK reality show in which, unbeknownst to them, they competed for the affection of a preoperative Mexican transsexual quickly got over their claims of injury and public humiliation in return for a cash payment, clearing the way for the program to debut on UK television". (see Oct. 31, Nov. 5). Various reports pegged the undisclosed settlement "at anywhere between $150,000 and $250,000 a man". (Steve Rogers, "Lawsuit settled, 'Crying Game'-like 'There's Something About Miriam' premieres in UK", RealityTVWorld, Feb. 23; Debi Enker, "Reality reaches new low", Melbourne Age, May 20) (via Curmudgeonly Clerk, May 20).

Court-appointed forensic evaluators, who may be psychiatrists, psychologists or social workers, wield extraordinary influence in New York custody litigation. Judges usually go along with their recommendations, which can include the smallest minutiae of visitation; they can present the court with a bill for $40,000 or more, which the parents have no choice but to pay; and some parents and lawyers believe that cronyism plays a part in some judges' handing out of the lucrative appointments. "And many -- including some forensics -- question whether there is any scientific basis to justify the evaluators' recommendations." (Leslie Eaton, "For Arbiters in Custody Battles, Wide Power and Little Scrutiny", New York Times, May 23).

AEI is hosting a conference on that question tomorrow at 2 pm. Participants are Sasha Volokh, Martin Grace, John Lott, and Jonathan Klick. (Sasha Volokh, "The Products Liability Revolution and Labor Markets", May 22).

A $1.3 billion award to oyster farmers -- exceeding the value of the last century of oyster harvests -- was argued before a skeptical Louisiana Supreme Court Monday. We covered the case in detail Oct. 18. (Jeffrey Meitrodt, "$1.3 billion oyster case hits La. high court", New Orleans Times-Picayune, May 25; AP, May 25). Update Oct. 24: La. Supreme Court throws out cases.

In other oyster-related litigation news, a Korean legal immigrant is fighting a denial of his citizenship application; the federal government said that the $153 fine Kichul Lee admittedly paid for collecting a bucket of oysters at a beach proved lack of good moral character. The Washington State Department of Fish and Wildlife officer who issued the ticket is appalled at the heavy consequences. (Chris McGann, "One mistake robs man of citizenship", Seattle Post-Intelligencer, May 10; Susan Paynter, "Moral flaw? Uncle Sam, look in the mirror", Seattle Post-Intelligencer, May 19).

Profoundly depressing: "A Manhattan appeals court [last week] reinstated a $1.3 billion fee award for attorneys who helped to settle tobacco litigation in California, saying the arbitrators who awarded the fee did not exceed their authority and should not have been second-guessed by a state judge." A year and a half ago Manhattan judge Nicholas Figueroa (Sept. 27-29, 2002) struck down as "irrational" the $1.25 billion fee award to the so-called Castano Group of lawyers, who had filed many different legal actions including one under a California private attorney general statute. As we commented at the time, the lawyers in question "didn't actually represent California -- the state's own lawyers did that -- and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees". With an appellate panel's quashing last August of Judge Charles Ramos's inquiry into tobacco fees (see Aug. 10), the tobacconeers have now compiled a well-nigh perfect record of rolling over judicial opposition, with the notable exception of the Freedom Holdings v. Spitzer case in the Second Circuit (see Jan. 12). (Tom Perrotta, "$1.3 Billion Fee Upheld in California Tobacco Case", New York Law Journal, May 19).

One day before the statute of limitations would have expired, a doctor is sued over a patient's post-surgical complications. She is in for a shock. "Before this case, I'd never realized that we have a system of law where one person can stand up in a public forum and assassinate someone else's character without a single piece of substantiating evidence (known in legalese as 'closing arguments'). He faces no consequences for doing this. He isn't even expected to apologize. We have a system of law that requires the witnesses to tell the whole truth, but then encourages attorneys to manipulate and hide that truth.

"I know that most of my friends will tell me to 'get over it.' They'll tell me that I shouldn't worry about what the jury thinks of me -- I'll never see these people again. They'll tell me that the only important thing is that I won." Trouble is, "I don't feel like I won; I feel like I have been violated." (Patricia I. Carney, "Our system lives on personal attacks", Medical Economics, May 7).

David Giacalone (May 4) has another update in the ongoing saga of Rochester, N.Y. attorney Jim ("The Hammer") Shapiro, who advertised that "I want to get YOU the biggest, fattest cash award I can, as fast as I can, from as many defendants as I can find. Just call me! Day or night, I'll talk to you free." but later admitted in a deposition that he lived in Florida and had never tried a case (see Jun. 17-18, 2002 and Dec. 5, 2003). It seems a state court has now suspended Shapiro from practice in New York for a year over transgressions that include misleading commercials as well as "a solicitation letter to a comatose hospital patient". Shapiro said he sold his Rochester law practice six months ago. (Matter of James J. Shapiro, Apr. 30; "NY Lawyer Known for Ads Suspended", AP/New York Lawyer, May 3). More: Apr. 15, 2005.

"Republican Californian Congressman Duncan Hunter has introduced a bill titled the 'Parents' Empowerment Act,' which would allow the parent or guardian of a minor to sue (in federal court) anyone who knowingly disseminates any media which contains 'material that is harmful to minors.'" The bill would apply in cases where "a reasonable person would expect a substantial number of minors to be exposed to the material" and "the minor as a result of exposure to that material is likely to suffer personal or emotional injury or injury to mental or moral welfare." "Compensatory damages under the bill would start at no less than $10,000 for any instance a minor is exposed to harmful entertainment products", and liability would apparently extend to original publishers, final retailers, and everyone in between. ("House Bill Threatens Retailers", icv2.com News, May 21; Jonah Weiland, "CBLDF: New Censorship Bill Turns Parents Into Prosecutors", May 21; Alan Connor, "The Parents' Empowerment Act: finding the porn in Harry Potter", London Review of Books, May 20)(text of H.R. 4239, introduced Apr. 28, courtesy TheOrator.com). Focus on the Family, the religious-right group, likes the idea (Keith Peters, "Congress Considers Parents' Empowerment Act", Family News in Focus, May 3)(more on free speech and media law).

To the horror of the litigation lobby, the Food and Drug Administration has begun intervening in liability lawsuits urging courts not to second-guess design and marketing issues already contemplated and resolved by the federal regulatory agency. For many years now it has been commonplace for lawyers suing over side effects to claim that a drug's marketer should have, e.g., given a stronger warning even though the FDA had considered and rejected the idea of its doing so. Agency general counsel Daniel Troy is credited with the new policy, which is based on the longstanding principle that state government action should not undercut comprehensive federal regulatory schemes. ("FDA stepping into liability lawsuits on side of drug makers", Newhouse/Seattle Times, May 11).

From the Canadian Arctic: "On May 1, the workers' compensation board for Nunavut and neighboring Northwest Territories prohibited smoking in any enclosed business or work site, including office buildings and bars. Ever since, smokers have been required to step outside to smoke in a region where temperatures can drop farther than 40 below zero in winter." (Clifford Krauss, "Snuffing Out a Smoky Way of Life in the Canadian Arctic", New York Times, May 21).

"A lawsuit many called frivolous because it sought more than $41 million from the U.S. government for the relatives of 11 Mexican nationals who died trying to cross illegally into the United States has proven to have more staying power than predicted. A federal court in Tucson has given the relatives another two months to prove accusations that their family members died in the treacherous southern Arizona desert in May 2001 because the Interior Department failed to approve the installation of water stations 'in the exact area' of the desert where the Mexicans were found dead. ... [The] suit said the illegal aliens died in the Interior Department-managed Cabeza Prieta National Wildlife Refuge north of Yuma after department officials denied a request by Humane Borders, a Tucson-based social-welfare organization, to place water stations in the area. The suit seeks $3.75 million for each of the victims." (Jerry Seper, Washington Times, May 17; "Dead illegal aliens' lawsuit to continue", UPI/Washington Times, May 17). We originally covered the case May 10-12, 2002.

Last week (May 13) we commented that it we found somewhat ironic that lawyer client protection funds, run collectively on behalf of the legal profession, generally cap recoveries by defrauded clients at a very stingy level, given the profession's jaundiced view of capping recoveries in other settings. David Giacalone, with whom we agree on so many other issues, very strongly disagrees with our comments (May 20) and we respond to his criticisms in a three-paragraph addendum to our original post.

Consider having your baby somewhere else: hit hard by the state's malpractice crisis, the "five-county Philadelphia region [lost] 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.

"Liability issues have put extraordinary pressure on OB programs in southeastern Pa., while well over 50 percent of practicing obstetricians in the region, perhaps closer to 75 percent, have become employees whose liability coverage is paid for by hospitals, says Wigglesworth, who adds that the trend toward employed OB status in southeastern Pa. has accelerated over the past three and a half years. 'It is clear that, without the intervention of hospitals to employ and cover obstetricians in the region, we would have an extraordinary crisis, in terms of availability of OB services,' he says...

"Wigglesworth [notes] that liability costs alone have approached two-thirds of the reimbursement level. ...'Surviving' OB programs in the region are mostly represented by teaching hospitals, including Hospital of the University of Pennsylvania (HUP), Pennsylvania Hospital, Einstein, Hahnemann, Jefferson and Temple." (Christopher Guadagnino, "Obstetrician scarcity in Pennsylvania", Physicians News Digest, May)(via Donna Rovito) (& letter to the editor Aug. 16).

Easily breaking our previous one-day record set in January, we drew 33,369 unique visitors yesterday, the great majority of them coming when FARK.com picked up our item on the lawyer mobile van. Our readers' generosity (rattles tip jar) helped make it possible for us to upgrade our hosting service a couple of months ago, which makes the difference in allowing us to accommodate the added traffic. Thanks for your support!

"The mother of accused serial killer Maury Travis, whose bizarre hanging death in the St. Louis County Justice Center was ruled a suicide, filed a suit Friday against the county, the architects who designed the jail and the contractors who built it." Authorities believe Travis committed as many as twenty murders; he hanged himself in his prison cell after leaving a note. (Peter Shinkle, "Mother of accused serial killer sues over death in jail", St. Louis Post-Dispatch, May 15)(via Brian Noggle)(& letter to the editor, Jun. 22).

Why is New York Attorney General Eliot Spitzer so feared by the state's financial community? A major reason is a little-known piece of 1921 New York legislation called the Martin Act, aimed at financial fraud. "It empowers him to subpoena any document he wants from anyone doing business in the state; to keep an investigation totally secret or to make it totally public; and to choose between filing civil or criminal charges whenever he wants. People called in for questioning during Martin Act investigations do not have a right to counsel or a right against self-incrimination. Combined, the act's powers exceed those given any regulator in any other state.

"Now for the scary part: To win a case, the AG doesn't have to prove that the defendant intended to defraud anyone, that a transaction took place, or that anyone actually was defrauded. Plus, when the prosecution is over, trial lawyers can gain access to the hoards of documents that the act has churned up and use them as the basis for civil suits." Important reading (Nicholas Thompson, "The sword of Spitzer", Legal Affairs, May-June). Radley Balko comments (May 12), and see our Jan. 17 item. More on Spitzer's financial enforcement: Dec. 17, 2003; Jun. 17-18 and Oct. 30-31, 2002; Mar. 31-Apr. 2, 2000.

"On the one hand, it should not surprise us that genuine contrition defuses litigation. Anybody who has ever served as a general counsel of a corporation knows -- or should know -- that most people bring lawsuits because they are angry. ... On the other hand, we have created rules of evidence that make it very difficult for people and institutions to apologize. ... If you apologize, it can and will be used against you to prove liability. If you don't apologize, though, you may increase the likelihood of the lawsuit, you avoid coming to terms with your own culpability, and you fuel the rage of the person you injured.

"Two states, Colorado and Oregon, have created a little space for civility by passing laws that bar plaintiffs from introducing a doctor's apology as evidence in a medical malpractice case. A great start, but why carve out an 'apology privilege' just for doctors?" -- Jack Henneman of Tigerhawk (May 18). And see Cut to Cure, also May 18.

...setting the stage for appeal. For our coverage of this Beaumont/John O'Quinn case, see Apr. 28. (Dale Lezon, "Judge supports $1 billion verdict in drug suit", Houston Chronicle, May 18).

The New York Sun, on a roll recently, digs deeper into that controversial cosmetics-giveaway class action settlement being aired before an Oakland federal judge (see Apr. 14 of this year and Jul. 21, 2003). According to a declaration filed last week by San Francisco attorney Francis Scarpulla, "Plaintiffs' counsel consulted with a litigation-risk expert, who, after carefully reviewing all aspects of this case, opined that if plaintiffs' counsel tried the case 100 times, they would win only seven times". Harvard law prof David Rosenberg describes the case as having "little merit". (Josh Gerstein, "The Case of the Cosmetics Giveaway", New York Sun, May 17). Update Dec. 3: settlement OK'd; Mar. 14, 2005: judge approves settlement.

"The Supreme Court upheld the right of disabled people to sue state governments that fail to provide ramps, elevators or other forms of access to their courthouses yesterday -- a clear but limited victory for the disability rights movement that blunts a trend at the court in favor of states' rights." The case of Tennessee v. Lane split the Court 5-4, with Sandra Day O'Connor swinging over to join the liberal wing. (Charles Lane, "Disabled Win Right to Sue States Over Court Access ", Washington Post, May 18)(opinion). Public radio's "Marketplace" business show interviewed me about the case Monday afternoon in a segment that can be heard online (May 17, audio clip -- first item in broadcast). More: Brian Doherty at Reason discusses the case ("A Nation of Vague Laws", May 20) and makes kind mention of our work. Even more: see Marcia Coyle, "Watching Out for 'Lane' Changes", National Law Journal, May 28.

...and in the physician-only parking area, no less, this lawyer's van seen at Brooklyn's Maimonides Medical Center. (Pics #1 and #2 at EMedConcepts, May 6) (via Gross Anatomy). We wonder about that hydrant in pic #1, too. More: a reader directs our attention to the website maintained by the van's owner, the Law Office of John Dearie & Associates, which includes a page on the "mobile law office" and a reprint of a Dec. 26, 2001 New York Times article about it. Further: welcome Fark visitors (see May 20); and one observer speculates that the lawyer might have scheduled a deposition at the hospital, a theory about which we are skeptical (see Yclipse, May 18, with comment from me); see also Chris Rangel, May 19. More: Jan. 21, 2005 (TV show adapts idea), Jun. 5, 2005 (law firm's side of story).

"Until last month, lying to your own company's lawyers was not a crime. Now it is. Defense lawyers and civil libertarians are expressing alarm at the government's aggressive use of obstruction of justice laws in its investigation of accounting improprieties at Computer Associates, the giant software company." Among sources of the pressure to cut a deal with prosecutors rather than fight: in March Jamie Olis, a mid-level executive at natural gas firm Dynegy, was found guilty of accounting fraud in a scheme to please Wall Street by hyping earnings and sentenced to 24 years in prison. The guy would have been a lot better off to have gunned down someone on the street instead, or even tried to grow psychedelic mushrooms (see Dec. 6). (Alex Berenson, "Case Expands Type of Lies Prosecutors Will Pursue", New York Times, May 17)(& letter to the editor, Jun. 22).

In the late 1930s, Edward Kasner was asked to come up with the name for a large number; as legend has it, he asked his nine-year old nephew, who said "googol," and Kasner's 1940 book "Mathematics and the Imagination" popularized the term for the number 1 followed by a hundred zeroes. Over a half century later, a variation of that word was used to name a popular search engine, which you may have heard is going public in an e billion dollar offering.

Now Kasner's great-niece, Peri Fleisher, is going public herself, complaining that her family hasn't been compensated for Google's choice of a name, and "exploring" the possibility of legal action. Fleisher has said that she would settle for being allowed to participate as an "insider" in the IPO; the interviewer, either out of ignorance or charity, doesn't point out that because the Google IPO is a "Dutch auction," Fleisher already has the right to participate as an "insider" (presuming she means a "friends and family offering"), which is merely the right to buy shares in an IPO at the issuing price. (Gerald P. Merrell, "Have your Google people talk to my 'googol' people", Baltimore Sun, May 16).

Cynthia Allen Mann retained the Dweck Law Firm on a contingency basis to represent her in an employment discrimination claim. Mann turned down a $1,035,000 settlement offer, so Dweck went back to the table, and negotiated a 30% larger $1.35 million settlement offer. But when Mann turned down this offer after (it claims and Mann disputes) Dweck refused to reduce its fee to increase her take-home amount, Dweck sued her.

The court dismissed a 2002 complaint for breach of contract, so the law firm amended the complaint to allege bad faith, and Southern District of New York federal Judge Shira Scheindlin recently ruled that the suit could go forward. "Where a client refuses a settlement offer because she believes her claim is worth more, and that her attorney has not effectively advocated on her behalf, she is not acting in bad faith," the court said. "If, on the other hand, the client believes the settlement offer is satisfactory, but refuses it because she does not want to forfeit any recovery to her attorney, her actions may constitute bad faith." ("Law Firm Has Claim Against Former Client For Rejecting Settlement Offer in Bad Faith", ABA/BNA Lawyers' Manual on Professional Conduct, May 19).

It remains unclear how one is to determine this subjective state of mind except through litigation--if a plaintiff takes the position that she does not want to settle because she wants to have a greater recovery than the combination of settlement offer and contingent fee permits, is that good faith or "bad"? The court made no effort to consider the ex ante effect of allowing law firms to have a plausible threat of suing a client if the client refuses to accept a settlement of a contingent case, especially given lawyers' ethical obligations to their clients. Of course, the problem is more often the converse case: a risk-averse client wants a settlement, while a plaintiffs' lawyer, who spreads his or her risk over several cases, wants the chance of a big payday.

Yesterday's New York Post published my favorable review of Brett Fromson's book Hitting the Jackpot: The Inside Story of the Richest Indian Tribe in History about the machinations that resulted in the rise of the Mashantucket Pequot tribe in Connecticut and its fabulously successful casino, Foxwoods. The story is one replete with bald impostures facilitated by lawyers who, in a fine career arc, started out in the ever-so-idealistic legal services movement and gradually turned into well-compensated casino promoters, all on behalf of a crew of putative tribe members who "are about as authentically Indian as Camilla Parker Bowles." (Walter Olson, "Betting on the Pequots", May 16).

Australia: 28-year-old James Samuel Steward, who "was serving a three-year sentence at Goulburn jail when he overdosed on illegally acquired methadone in May 1998", is now "suing the state for more than $4 million. ... His barrister, Barry Hall, QC, ... argued that among the department's breaches of duty of care was its failure to adequately manage the jail to prevent the entry of illegal drugs." (Leonie Lamont, "Ex-prisoner sues over drug disablement", Sydney Morning Herald, May 11). For a case in which a woman sued an American hospital for not preventing the smuggling of the illegal drugs on which she overdosed, see Jun. 27, 2003.

Plaintiffs' attorneys "across the nation have begun to target the alcoholic beverage industry." The press coverage largely ignores the issue of consumer choice and personal responsibility. (Richard Willing, USA Today, May 13; Steve Raabe, "Alcohol lawsuits target ads", Denver Post, May 12).

There's a fascinating and detailed piece in the Wall Street Journal about the Baycol mass tort litigation, with a plaintiffs' lawyer seemingly out of a John Grisham novel, complete with personal airstrip. (Monica Langley, May 3).

The plaintiffs' bar regularly pooh-poohs efforts at legal reform (Mar. 11, Mar. 13) to prevent a shakedown blaming the food industry for obesity by noting that no anti-obesity lawsuit has succeeded yet. (For example, blogger-lawyer Evan Schaeffer claims that the publicity of obesity litigation is really a conspiracy of the defense bar to generate fees.) A Lawyers Weekly USA puts the lie to this by talking to the plaintiffs' bar; Trial Lawyers Inc. clearly thinks that obesity lawsuits are a profitable new business opportunity. (Elaine McArdle, "String Of Fast-Food Suits Expected By End Of Year", Lawyers Weekly USA, May 10 (and can temporarily be found here); Laura Parker, "Legal experts predict new rounds in food fight", USA Today, May 6; Alex Beam, "A super-size portion of half truths", Boston Globe, May 11). As with the tobacco lawsuits, the strategy is to keep filing frivolous lawsuits until random chance assigns a sympathetic judge who writes an opinion that creates a precedent that opens the doors for future lawsuits--and John Banzhaf and other plaintiffs' lawyers claim that has already happened.

"The Mississippi Supreme Court on Thursday threw out a $48.5 million damage award imposed on the makers of the heartburn drug Propulsid and ordered that separate trials be held for each of the 10 plaintiffs." The jury in the case had originally rendered a verdict of $100 million parceled equally among the ten complainants; the defendants, Johnson & Johnson, denied that the drug was responsible for any of the complainants' health problems (see "Robbery on Highway 61", Oct. 1-2, 2001). With the acquiescence of the plaintiffs, Judge Lamar Pickard later cut the award by a bit more than half before its appeal. (Jackson Clarion-Ledger, May 14).

The "Florida Supreme Court has agreed to review last year's Miami appellate court decision that vacated a record-setting $145 billion punitive damage verdict against the nation's largest cigarette companies." We've had a lot to say over the years about the travesty that is the Engle case: see Jul. 12, 1999; Jul. 18, 2000; Mar. 23, Jun. 24 and Aug. 3, 2003; other posts on this site. (Laurie Cunningham, "Fla. High Court to Review $145 Billion Tobacco Case", Miami Daily Business Review, May 13).

Lawsuits have been filed for years blaming automakers for exposure to asbestos found in brake pads and other auto parts, but the volume of such litigation appears to be sharply increasing. Between February 2002 and February 2003 the number of cases filed against Ford nearly doubled, from 25,000 to 41,500. "In a filing with the SEC, Ford said that it is facing a rise in lawsuits as the original manufacturers of the components have gone bankrupt over the past several years. Ford's report said, 'In most asbestos litigation, we are not the sole defendant. We believe we are being more aggressively targeted in asbestos suits because many previously targeted companies have filed for bankruptcy.'" (Robert Lane, "Asbestos Suits Costing Ford As Others Go Broke", Blue Oval News, Apr. 14; Ed Garsten, "Automakers see asbestos lawsuits rise", Detroit News, Mar. 21).

Citigroup announced the other day that it was paying an unexpectedly munificent $2.65 billion to settle lawsuits filed on behalf of investors in WorldCom, the telecom stock which collapsed after being hyped by Citigroup analyst Jack Grubman. (Mark Hamblett, "Citigroup Settles WorldCom Litigation", New York Law Journal, May 11). According to a New York Sun editorial, two law firms noted for their work in shareholder class actions -- Barrack, Rodos & Bacine and Bernstein Litowitz Berger & Grossman LLP -- "stand to share a legal fee of up to $144.5 million for representing the lead plaintiff, the New York State comptroller, Alan Hevesi, in the case against Citigroup." As it happens, both law firms donated generously to the political campaigns of Hevesi and his predecessor, Carl McCall. And while a chunk of the settlement will indeed flow into the coffers of New York state and city pension funds to compensate them for their losses in WorldCom stock -- holdings worth around $306 million at their peak -- it turns out that the same public entities own $1.6 billion in stock in Citigroup itself, which was hurt by the litigation (and which of course is also a major New York employer). In fact, the Sun notes in its detailed analysis of the affair, that "stock is worth about $45 million less now than it was before Mr. Hevesi's heroics," a sum that may or may not exceed what the city and state wind up gaining by recouping some of their WorldCom losses. ("Citigroup wake-up call" (editorial), New York Sun, May 11).

U.S. District Judge Samuel Kent, famed for the tongue-lashings he's dealt out to lawyers in the past, "has fined attorney Anthony Griffin nearly $18,000 for filing a lawsuit the judge termed an attempt to 'legally extort money' from the Galveston Independent School District." Judge Kent "said Griffin, a nationally known black civil rights lawyer, conducted 'virtually no meaningful investigation' before filing a suit in which a fired administrator maintained the district paid her less than others because she is black. ... 'Even a minimal investigation into the facts and the law of this case would have revealed the abject frivolity of all of [plaintiff Sonia Boone's] claims,' Kent said. 'Filing it shows either an ignorance of the law or an utter disregard for it, both of which are inexcusable.'" (Kevin Moran, "Attorney rebuked and fined", Houston Chronicle, May 10). Unsurprisingly, attorney Griffin says he plans to appeal ("Attorney will appeal fines set by judge", Galveston Daily News, May 12). For more on Judge Kent, see Sept. 6, 2001 and links from there.

The new softcover edition of The Rule of Lawyers, promoted in this space only a few days ago, arrived this afternoon from the printers. Yes, it looks nice. The front inside pages reprint eight excerpts from favorable reviews the book received last year in its hardcover edition, including the following from Gene Epstein at Barron's: "With a marvelous combination of irony, insight, and outrage, Olson covers the whole range of opportunistic litigation over tobacco, asbestos, breast-implants, autos, and guns. And yes, he knows that tobacco and asbestos can kill people, and that corporations aren't angels. Olson even proposes sensible ways of reforming the jury system that might actually make a difference." The hardcover edition continues to be available here.

Not just in faraway places: Rodney Hulin case (Texas 1996, from Human Rights Watch 2001 report) (via Right Side of the Rainbow) (more from Curmudgeonly Clerk).

Most of organized lawyerdom, as we know, strongly opposes any notion of capping damages recoverable by victims, even as applied to "non-economic" damages claimed for intangible harms such as pain and suffering or emotional distress. It turns out, however, that the bar enthusiastically supports the capping in nearly every state of one particular form of compensation, namely, the compensation of clients who are embezzled from or otherwise defrauded by their lawyers. In Pennsylvania, for example, the official Pennsylvania Lawyer Fund for Client Security (more) caps damages payable to defrauded clients at $75,000, although the loss actually sustained by the victimized client often runs far higher than that. Columnist Don Spatz of the Reading, Pa. Eagle notices the irony: "Even if you can prove your lawyer stole $200,000 from you, you're out of luck. There's a cap. ... I haven't heard lawyers worry about caps taking away those victims' rights." ("First, lawyer, heal thyself", Reading Eagle, Mar. 24, at HALT site).

It should be noted that the damages clients attempt to recover after being defrauded by their lawyers are typically direct out-of-pocket economic losses, as opposed to money for humiliation, psychic distress and the like. Yet lawyers in most states have secured payout caps even lower than Pennsylvania's $75,000, often much lower: Illinois lawyers cap their collective responsibility at a paltry $10,000 per case, for example, and Nevada's at $15,000. (2002 ABA Center for Professional Responsibility survey of state plans, reprinted at Michigan Bar Association site, PDF, scroll to Chart II, part 2). Perhaps these lawyers are worried that setting caps at a more generous level (or, heaven forfend, removing them entirely) would increase the premiums currently assessed against them to cover the risk pools. In Pennsylvania, according to columnist Spatz, these premiums were recently running at the very extravagant level of $45 per lawyer per year.

In a number of states, it should be noted, lawyers impose an effective cap of zero on this particular kind of claim, by the simple method of not having established any collective client protection scheme at all. And there is a certain very plausible logic to that position: why after all should rank and file attorneys be asked to clean up the messes left by their errant brethren? Is a lawyer his brother's keeper? It's just that this argument would sit better were the leaders of the bar not constantly denouncing the medical profession for its alleged failure to police itself.

Incumbent West Virginia Supreme Court Justice Warren McGraw (see Sept. 4) withstood a stiff challenge in Tuesday's Democratic primary. The race was one of the more expensive in state history, with plaintiff's lawyers and labor unions backing McGraw and business groups heavily supporting challenger Jim Rowe, who won the endorsement of both Charleston papers. McGraw must still face Republican Brent Benjamin in November. (Toby Coleman, "McGraw defeats challenger", Charleston Daily Mail, May 12; Scott Wartman, "Some say Justice race most important", Huntington Herald-Dispatch, May 5).

More scrutiny of that request for a bodacious $258 million in fees for lawyers who sued Microsoft on behalf of California consumers (see Mar. 31) in what the company says was a piggyback action restating allegations from its federal antitrust case. In defending their request, the lawyers -- prepare to shed a tear -- say they had to work on the case over "the entire Thanksgiving holiday weekend" in 2001, among other things. Although Microsoft says it has allocated $1.1 billion to compensate California consumers, it "could end up spending much less. The deal enables anyone who bought a computer in California to get vouchers worth $5 to $29 per Microsoft product, but only a small fraction of the millions eligible have applied for the money." (David Kravets, "California lawyers say they deserve $258 million for suing Microsoft", AP/San Francisco Chronicle, May 12). Update Sept. 23: judge slashes fee to $112 million.

The newly enacted Virginia statute which bans private contracts and other unspecified "arrangements" that "purport[] to bestow the privileges or obligations of marriage" (see our posts of Mar. 19, Apr. 18, Apr. 23) gets wider discussion, in places that include a Washington Post editorial ("Uncivil Disunion", May 9) and a commentary by UCLA's Eugene Volokh (May 10). Andrew Sullivan (May 6) linked to our coverage last week in sounding the alarm about the law. A range of further views: Obsidian Wings, Beaverhausen, Ramesh Ponnuru, Justin Katz. It should be noted that although several of the above commenters express a high degree of certitude (sometimes in opposite directions) as to whether the bill would or would not ban various forms of private arrangements commonly entered into by same-sex couples (e.g. medical powers of attorney, wills, pooling of assets), the actual experience under the law is more likely to consist of a prolonged guessing game as to whether or not such devices, singly or in combination, are or are not too "marriage-like" to be upheld as valid -- and that guessing game is likely to impose significant costs on hapless persons caught up in the Virginia legal system even if the law is eventually construed narrowly or struck down. Update May 31: response to Ponnuru defense of law.

Common Good, the advocacy group chaired by author Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and whose motto is "Reforming America's Lawsuit Culture", on Apr. 8 announced its first "Gatekeeper Awards" honoring judges who throw out lawsuits that would better never have been filed. Among the cases praised: a Pennsylvania Supreme Court opinion excluding scientific testimony to the effect that Doritos, the snack food, is intrinsically unsafe in texture; a Virginia high court ruling upholding assumption of risk in the case of a baseball spectator hit by a ball; a Third Circuit decision holding that a "public school third-grader cannot sue for being prevented from soliciting classmates' signatures for a petition opposing a voluntary class trip to the circus"; an Eighth Circuit opinion excluding punitive damages in the case of a patently accidental air crash; and the Nevada Supreme Court's ruling (see Nov. 7) that a passenger cannot sue a homeowner over injuries sustained when a car crashed into a flowerbed.

The Fifth Circuit has rejected a claim that Employers Casualty Co. violated the Employee Retirement Income Security Act, otherwise known as ERISA, by wrongfully failing to terminate a group of employees during a reduction in force (RIF). The workers argued that being fired would have entitled them to an enhanced retirement package and that the company fell short of its fiduciary responsibility when it refrained from giving them the axe. ("Court rejects workers' claim that they should have been fired sooner", California Employment Law Letter/HRHero.com (M. Lee Smith Publishers), Feb.). The case was Bodine v. Employers Casualty, Dec. 12, 2003 (No. 03-20190).

Fixing the adversarial classroom, or just escalating its madness? "Children and parents who maliciously wreck teachers' careers by false accusations should be forced to pay compensation, the second biggest teachers' union [in Britain] said yesterday." The National Association of Schoolmasters Union of Women Teachers "voted to seek a change in the law to allow children to be sued for compensation and forced to pay the money out of future earnings." (Liz Lightfoot, Daily Telegraph, Apr. 15). "Only 69 of the 1,782 allegations of abuse made by children against NASUWT members in the past 10 years have led to convictions. In 1,378 cases no action was taken at all, the union says." (Lucy Ward, "Teachers call for right to sue false accusers", Guardian, Apr. 15).

In March Moody's lowered its rating of New York City's tobacco settlement bonds (which securitize the future flow of booty to the city from the great 1998 robbery) in light of the Second Circuit's highly significant decision in Freedom Holdings v. Spitzer (see Jan. 12) exposing the settlement to antitrust challenge (Reuters/Forbes, Mar. 23). The Second Circuit itself denied a petition for rehearing (opinion Mar. 25 in PDF format). The General Accounting Office published a report confirming that states are spending most of the proceeds on their general budgets rather than on anything related to the weed or its effects (March report in PDF format, via the University of Tennessee's AgPolicy.org page on tobacco litigation, which has a number of useful resources), which in turn touched off a number of caustic commentaries ("States Spend Mega-Billion Tobacco Settlement On Budget Shortfalls", Competitive Enterprise Institute, Mar. 23; Christine Hall, "States Spend Tobacco Settlement on Budget Shortfalls", Heartland Institute, May 1; see Nancy Zuckerbrod, "States rely on tobacco settlement to fix budgets", AP/Louisville Courier-Journal, Mar. 23). Also check out the debate between CEI's Sam Kazman and ever-blustering Connecticut Attorney General Richard Blumenthal on CNNfN (Mar. 18). Vice Squad (Mar. 27) has further updates on the efforts of state governments to curtail small and independent cigarette producers by way of protecting the anticompetitive arrangements established in the 1998 settlement (see Feb. 28). And the Clinton-initiated federal racketeering lawsuit against the tobacco industry, the continued prosecution of which must surely count as among the low points of the Bush Administration's domestic record, is apparently headed toward trial in September or thereabouts ("Federal suit against tobacco moves toward trial", AP/Helena Independent Record, Mar. 22).

If you enjoy this website, and especially if you want to learn more about the "big" lawsuit campaigns that generate fortunes for lawyers and tag industries with billions in liability, you would probably enjoy my book The Rule of Lawyers, which got a fair bit of attention when it was published last year. Now St. Martin's, the publisher, has come out with a new softcover edition, just now posted on Amazon at an attractively priced $10.47. It includes a newly written epilogue in which I discuss major developments of the last year such as the fast-food litigation, the enactment of comprehensive tort reform in Texas, and the surprise move by the ABA to support reform of asbestos and class-action litigation, as well as the latest twists in gun, tobacco, fen-phen and lead paint courtroom battles, among others.

The hardcover edition of The Rule of Lawyers continues to be available here and seems to be a popular gift for Father's Day and for new graduates, law school or otherwise. The Manhattan Institute maintains a site that compiles publicity about the book, related op-eds, etc. As for the spanking new softcover, the publisher tells me that the first copies will be in hand today, and that it will ship later this month. Its back cover is graced with an excerpt from Robert Lenzner's rave review of the book for Forbes.com, in which he calls it: "A truly gripping read about tort lawyers ... a brilliant expose of the way courts are being overwhelmed by mass tort actions." (& thanks to David Giacalone for (end of item) his kind words).

Human interest: Family physicians Jim Schwieterman M.D., and Tom Schwieterman M.D., who are brothers, are "scheduled to deliver their last baby in September, stopping a more than 100-year run of their family bringing children into the world in Mercer County, Ohio." Their practice in the rural town of Maria Stein dates back to their great-grandfather, and has never had a lawsuit payout. But obstetrics is a high-risk field legally speaking: their insurance company "was asking for $80,000 for the brothers to keep delivering the 60 or so babies a year that they average", up 150% or so from six years ago. "And given how long their family has been in the community, neither wanted to move 20 miles west to Indiana where tort reform is established and rates would have been 75% less." The brothers will continue in medical practice aside from obstetrics. (Tanya Albert, American Medical News (AMA), May 3).

The Chicago Cubs have settled their longstanding dispute with owners of neighboring buildings over what the Cubs considered unlawful viewing of baseball games from the buildings' rooftops. (See "The right not to be looked at?", Dec. 18-19, 2002). The rooftop businesses agreed to share revenue with the team, in most cases amounting to 17 percent of their gate, as compensation for availing themselves of the disputed photons. ("Cubs reach agreement with last rooftop business", AP/ESPN, Apr. 9). Dan Lewis comments at Armchair GM (Apr. 9).

Los Angeles Superior Court Judge George Wu "is giving the Knoxville Zoo six months to report back on the social life of an African elephant named Ruby." The Humane Society of the U.S. sued challenging Ruby's transfer from the Los Angeles Zoo, saying she would be made unhappy at separation from her friend Gita, a fellow pachyderm (see May 16-18 and Jun. 2, 2003). "'As far as I'm concerned, it's the first time in America that we've had a Superior Court judge bend over backwards to see if an elephant is happy,' said Gretchen Wyler, vice president of the U.S. Humane Society's Hollywood office." (AP/WATE-TV Knoxville, Apr. 28) (via Brian Noggle).

Another look at the "man-made legal disaster" (see Jan. 12, Jan. 17) suffered by the taxpayers of Lodi, California after the collapse of a would-be innovative scheme "to force Lodi businesses and their insurance companies to pay to clean up the city's pollution while immunizing the city from any liability". The city borrowed $16 million from Lehman Brothers at 25 percent interest to foot the bills of lawyers like the "manipulative" and "astoundingly greedy" Michael Donovan, who concocted the scheme with an assist from Lehman. (Ken Garcia, "Lawyer shows time wounds all heels", San Francisco Chronicle, Apr. 26).

I'm scheduled to be a guest on CNBC's popular "Kudlow & Cramer" business talk show this evening, live from New York between 5 and 6 EDT (probably around 45 minutes after the hour). I'll be discussing the recent $1 billion fen-phen verdict in Texas (see Apr. 28), as well as mass tort and class action litigation generally. My book "The Rule of Lawyers", which discusses all these topics and was published by St. Martin's last year, is available through Amazon here.

We've posted four more reader letters on our letters page. Topics this time: a lawyer who won a $50 million award over the city of Chicago's slow response to a 911 call (later settled for less) writes to take issue with our perspective on the case; a Texan who worked for 35 years in the Social Security disability program believes that as the process has become more legally contentious it has grown both slower and less fair; Missouri employment lawyer George Lenard discusses the recent, widely publicized "popcorn butter" workplace-injury verdict; and a North Carolina lawyer shows some exasperation with us.

In Great Britain, Immigration Minister Beverley Hughes has resigned following a scandal over reports of well-organized fraud and abuse in visa applications from Romania and Bulgaria. "Applicants from Eastern Europe have to demonstrate they can set up a business generating income in Britain. Sir John [Ramsden, a senior Foreign Office official] said the embassy received 70 'virtually identical business plans' from one firm of London solicitors acting for agents in Bulgaria." James Cameron, a British consul in the Romanian capital of Bucharest, said that "fraudulent applications were being nodded through by the suitcase load without proper checks. He claimed visas had been given to [among others] builders and electricians who 'knew nothing about bricks, mortar or electrical details'. 'The applicants rarely know what is in their business plan, cannot speak English, and have absolutely no knowledge or experience in the type of skills needed for respective businesses,' he said." Home Secretary David Blunkett announced that a lawyer who had been "involved in fraud and in unacceptable illegal dealings" had been arrested at the end of February. (George Jones, "Blunkett orders inquiry after immigration scandal deepens", Daily Telegraph, Mar. 13; Brendan Carlin and Ian Waugh, "'Organized scam' over immigrant entry to UK", Yorkshire Post, Mar. 31; "Blair's worst nightmare", Yorkshire Post, Apr. 2).

Our latest free newsletter, summing up the past 2 1/2 weeks' or so worth of items on the site, went out today to its 2300 or so subscribers. If you're not on the list, you can sign up here for future mailings and to read older newsletters. It's a great way to keep up with items on the site you may have missed.

As has been reported here and there for years, Diet Coke as it is served at soda fountains is sweetened in part with saccharin, whereas the version sold in cans and bottles is sweetened with more expensive aspartame. We always assumed that the reason must be that competition between brands is more intense in the supermarket aisle than in restaurants, but the Coca-Cola company cites another reason for the formula variation, saying aspartame is not as stable in fountain use. At any rate, class-action lawyers have now filed lawsuits in Florida, Illinois and California on behalf of beverage drinkers supposedly victimized by this practice. The company says the allegations in the various lawsuits are identical and that it expects to prevail. (Lawrence Viele, Bloomberg/Oakland Tribune, Mar. 26)

In Australia, an appeals court has "overturned a ruling giving $160,000 compensation to a woman who claimed she was discriminated against by not being allowed to work from home." Two years ago a tribunal ruled against the publisher of the Hansard parliamentary reports, saying it had unreasonably required subeditor Deborah Schou to attend work in person on days when Parliament was sitting although she had asked to stay home and work via modem. The appeals court, however, found the tribunal's view of the matter "inconceivable". (Ian Munro, "$160,000 workplace ruling overturned" , Melbourne Age, May 1).

Charm offensive? "Last week, ATLA dispatched a team of Republican trial lawyers to meet with key GOP lawmakers on Capitol Hill. ... behind the scenes, ATLA has been surprisingly generous toward GOP organizations," giving $30,000 apiece this cycle to the National Republican Senatorial Committee and National Republican Congressional Committee, the maximum allowable. (Geoff Earle, The Hill, May 5)(see Aug. 25). In Florida, housing secretary Mel Martinez's background as a former president of the Academy of Florida Trial Lawyers continues to generate controversy in the Republican Senate primary race, which comes to a vote Aug. 31; but Martinez says he supports class-action reform and even some version of loser-pays (William March, "Stance On Tort Awkward For GOP", Tampa Tribune, May 2; see Feb. 21). [Update Sept. 3: Martinez wins primary]. And in Pennsylvania, the plaintiff's bar is both perplexed and delighted that two of its good friends -- incumbent Republican Arlen ("Shanin's dad") Specter and Democratic challenger Joe Hoeffel -- are running against each other for Senate. "It's going to be a tough call," said James Mundy, a former president of the trial lawyers' association in the Keystone State. "But in a sense it's a nice call, because we can't lose." (Melissa Nann, "Arlen Specter or His Opponent? Trial Lawyers Like Both", Legal Intelligencer, May 4). See also Lori Patel, "Lawyer Loyalties Eclipse Family Ties", Law.com, Feb. 5 (Kline & Specter members donated more to Sen. Edwards than to Sen. Specter).

Last week a San Diego judge considered objections to a proposed settlement between Verizon Wireless and class action lawyers who've been suing over its billing practices. Consumers would receive two coupons: the first "could be redeemed for a choice of immediate bill credit of $15 on a new or renewed one-year service contract, $30 off of a two-year contract, $24 off an existing contract over a two-year period, $15 off a purchase of Verizon merchandise, a free 120-minute long distance calling card, or 1,500 free text messages over a six-month period. The second coupon would entitle consumers to an 'earbud' for handsfree use of their phone or $15 off of a similar accessory." Consumers Union, which objected to an earlier settlement, says it likes this one, but an objecting lawyer says that "the ear accessory described as having a 'retail value of $15' can be bought for $3 or $4 at discount stores. The wholesale cost to Verizon must be even lower, Mr. Tusa said." (Josh Gerstein, "Settlement Looms for Verizon Wireless", New York Sun, Apr. 30).

In May 1995, Dawn Goodson's car was rear-ended by a car insured by American Standard. Fourteen months later, in July 1996, Goodson and her children spent $8,000 on a chiropractor. Goodson submitted an insurance claim three months later.

You might imagine a wee bit of skepticism on the part of the insurance company. Goodson hadn't gone through American Standard's PPO, which meant that the bills were higher than they would have been; moreover, American Standard was skeptical that a chiropractor's 1996 treatment for three individuals was medically necessary as a result of the 1995 accident, and asked for an independent medical evaluation. Nevertheless, American Standard, after initially offering to pay part of the bill, eventually paid the full medical bills in April 1998.

Not good enough: Goodson sued three months later, seeking damages for "emotional distress." A jury awarded $75,000, and doubled it with $75,000 of punitive damages. The Colorado Supreme Court affirmed Monday, holding that the eighteen-month delay in full payment was grounds for recovery of non-economic damages. You can guess what the eventual consequence will be for Colorado insurance rates now that an insurer is potentially subject to penalties of over 2000% for questioning a claim, but the Colorado Trial Lawyers Association paints it as a victory for the consumers who will now have to pay for the meritless claims insurers will pay out of fear of lawsuit. (Howard Pankratz, "Court says tardy insurers liable for emotional damages without proof of loss", Denver Post, May 4; Karen Abbott, "Insurer is ordered to pay family $300,000", Rocky Mountain News, May 4; Goodson v. American Standard Insurance Company of Wisconsin opinion).

A cottage industry has arisen in the plaintiffs' bar seeking huge damages in US courts against foreign governments for what, reasonable people can agree, are often despicable acts. The plaintiffs and press (and sometimes the courts and Congress) express surprise when the State Department protests or otherwise intervenes against the suits. The State Department's concerns are perhaps best explained by the risk of reciprocal suits and, indeed, it appears our neighbors have caught on: a Tehran court issued a $600 million "verdict" against the United States for the US's role in the Iraq-Iran war in the 1980s. (Reuters, Apr. 28; IRNA, Apr. 28).

Via Legal Reader (May 3): a California court of appeals has reinstated 17-year-old Angelo Seaver's suit against Santa Cruz county, which a trial judge had thrown out. While stoned on pot one moonless night Seaver had gone skateboarding in a public park after closing and crashed into a gate. The "panel found that because there were no signs, reflectors or lighting to help Seaver see the gate, the county created a 'dangerous condition of public property.'" The county could not rely on the defense of assumption of risk, the court ruled, "because Seaver was riding his skateboard for transportation, not to perform stunts". (Peter Blumberg, San Francisco Daily Journal, May 3, not online; Angelo M. Seaver v. County of Santa Cruz, unpublished opinion, Apr. 30 (PDF))(more personal-responsibility cases).

In an article about the controversial Lucent class action settlement ($84 million for the lawyers, $8 million for the class; see Apr. 5) the St. Louis Post-Dispatch talks with Joy Howell, spokeswoman for lead class counsel Stephen Tillery, who's among Madison County's most prominent class-action lawyers. Later in the piece it emerges that Ms. Howell "also serves as a spokeswoman for the Coalition to Preserve Access to Justice", a group that vehemently opposes the reform-minded Class Action Fairness Act on behalf of "more than 80 national consumer, environmental and civil rights groups". Hmmm. (Trisha L. Howard, "Nixon backs state role in class action suits", St. Louis Post-Dispatch, Apr. 3). And the local press is casting a skeptical eye on what the Post-Dispatch calls "the strange little courthouse in Edwardsville" (Illinois) and the doings of Judge Nicholas C. Byron in particular (see "It's a Mad, Mad, Mad Madison County", Apr. 22) ("Madison County: What's the judge hiding?" (editorial), St. Louis Post-Dispatch, May 1; Brian Brueggemann, "Judge Byron endures hot seat", Belleville News-Democrat, May 3; "'Judicial hellhole' deepens with law firm's banishment" (editorial), Bloomington Pantagraph, Apr. 27). Last month "Byron ordered a newspaper reporter to leave the courtroom Monday when [attorney Rex] Carr and Tillery began arguing about the apparently sensitive issue of how much money the firm has earned." (Brian Brueggemann, "Class-action lawyers fight over money", Belleville News-Democrat, Apr. 11, and how's that for a quotidian headline?). Finally, visions of sugar plums seem to have gone a-glimmering for class action attorney Judy Cates, of columnist-suing fame, when a Belleville jury rejected her lawsuit demanding $300 million from Allstate because it does not reimburse its auto policyholders after crashes for the decline in the resale value of their fully repaired cars. According to defense attorney H. Sinclair "Rod" Kerr, the lead plaintiffs, Michael and Tiffany Sims of East St. Louis, Ill., "decided to sue only after a relative called their attention to a newspaper ad placed by Cates' law firm seeking plaintiffs against Allstate." (Robert Goodrich, "Jury rejects class-action suit over car repairs", St. Louis Post-Dispatch, Apr. 29).

Good news dept.: Although it's still very, very difficult to prevail in a case of malicious prosecution against someone who's wrongfully sued you, in California it's now slightly less difficult than it used to be. Last month "the state Supreme Court, in a case of first impression, ruled unanimously that lawyers could be sued for malicious prosecution if they continue to pursue a case after learning it isn't supported by probable cause." (Mike McKee, "Pursue a Bad Case, Risk Getting Sued for Malicious Prosecution", The Recorder, Apr. 21). George Wallace and David Giacalone comment, and the latter tells a personal war story.

Lyle Roberts notes that Milberg Weiss (see Feb. 4, Jan. 11, Jul. 1, Apr. 18, 2002, other earlier posts) has quietly completed its long-announced breakup. While one of the successor firms keeps a variant of the Milberg Weiss name, the milberg.com domain name is relegated to an announcement of the split. (Jonathan Birchall, "Tough kids split into two gangs", Financial Times, May 3). UPDATE: more press coverage links at The 10b-5 Daily.

"A 55-year-old man who died after falling out of a roller coaster shouldn't have been allowed on the ride because he was heavy and had cerebral palsy, his mother said Sunday." ("Family Says Man Shouldn't Have Been On Ride", NBC30.com, May 2). "Park officials said Mr. [Stanley J.] Mordarsky was able to board the roller coaster by himself, according to broadcast reports on Sunday. The park, under the federal Americans With Disabilities Act, must allow disabled people on rides if they can get in the rides by themselves, the officials said." ("Man Dies After Fall From Roller Coaster", AP/New York Times, May 3). (More: Boston Globe). For other instances in which amusement park patrons may have been killed by their rights, see Oct. 29, 2001 (obesity) and Aug. 31, 1999 (mental retardation).

In this campaign cycle, "once again, lawyers as a group are not only the largest donors of any single profession tracked, they are also the most consistent, campaign watchers say. As of March 1, when the latest Federal Election Commission figures were available, the legal profession had contributed more than $65 million to federal campaigns since Jan. 1, 2003, according to the nonpartisan Center for Responsive Politics. ... 'It looks like lawyers are making a strong effort to make up for the lack of soft money,' says CRP spokesman Steve Weiss." Washington, D.C., attorney William Canfield, who chairs the ABA’s Standing Committee on Election Law, explains that lawyers "are so much more civically engaged than most parts of society". (Susan Kostal, "Spreading the Money Around", ABA Journal, May).

A story already widely discussed on weblogs, but too crazy to let drop: Japan will not allow beef imports from the U.S. unless each animal is tested for mad cow, and Kentucky cattleman John Stewart of Creekstone Farm would be happy to oblige in order to sell his products there. The U.S. Department of Agriculture, however, supported by most of the beef industry, has ruled that he may not: the department does not intend to set up a testing program itself, and private testing is unlawful. "They've told us if we attempt to buy those test kits and use them, they are going to put me in jail," Stewart said. (David Kerley, "Mad Cow, Madder Cattleman", ABCNews.com, May 2 (aired on Apr. 18))

In Indianapolis, Raul Gonzalez IV, 16 and developmentally disabled, "died after he stuck his head out of a [school] bus window and struck a tree last fall. The bus driver was steering to avoid an injured raccoon". Now his mother, Irma Garcia, has filed a tort claim notice against the city and Perry Township schools on a variety of negligence theories. Her lawyer, Robert York, said in particular that the fatality could have been averted "if the bus's windows had been blocked from opening more than a few inches". The article makes no mention of what such a recommendation might mean for the safety of school bus passengers in other situations, such as emergency evacuations. (Vic Ryckaert, "Perry Schools may be sued in bus accident", Indianapolis Star, Apr. 16)(& letter to the editor, Jun. 22).

Despite objections from rival plaintiff's lawyers and others, state district judge Donald Floyd in Beaumont, Texas, has approved the settlement of a class action on behalf of consumers who own or owned recalled Firestone tires allegedly prone to tread separation. The settlement excludes anyone who has filed actual claims of personal or property injury related to the tires. Class members (other than 45 named plaintiffs who will receive $2,500 each) will get no monetary compensation, but will have the right to trade in the tires if they did not respond to the earlier recall, and Firestone has pledged another $65 million for education and safety programs. The class action lawyers, meanwhile, which include Beaumont's Provost Umphrey, will get $19 million. See our reports of Sept. 19 and Oct. 8. (Brenda Sapino Jeffreys, "Judge Approves $149 Million Firestone Tire Settlement", Texas Lawyer, Mar. 22).

In 2000, after a study raised concerns of a possible connection with hemorrhagic stroke, the Food and Drug Administration banned the use of phenylopropanolamine (PPA), a stimulant long widely used in over-the-counter decongestants like Alka-Seltzer Plus and Contac, as well as in appetite suppressants. Lawyers rushed to file suits blaming drugmakers for strokes and other ills suffered by persons who had used the once near-ubiquitous compound (see Apr. 6-8, 2001; Oct. 28, 2003). Earlier this spring the Los Angeles Times ran a long piece summarizing (and uncritically endorsing) the plaintiffs' case (Kevin Sack and Alicia Mundy, "A Dose of Denial", Mar. 28). However, juries thus far have found that case considerably less persuasive: last month a Philadelphia jury returned a defense verdict in a case against Glaxo SmithKline over its Contac 12 hour medication (representing the plaintiff: the senatorially well-connected Kline and Specter). In three trials so far, that leaves the score at 0-3 in favor of the defense. (Melissa Nann, "Defense Wins Pennsylvania's First PPA Verdict", The Legal Intelligencer, Apr. 6). Update Jan. 21, 2006: further setbacks to litigation.