June 2007 Archives

A "slam dunk" story for the day after the NBA Draft:

Dallas Mavericks owner Mark Cuban isn't shy about using multiple avenues to promote himself and his team. In what is likely an attempt to keep his name in the news, Cuban is suing Golden State Warriors head coach Don Nelson, who used to coach the Mavericks, for knowing the Mavericks personnel a little too well. This "inside" knowledge, claims Cuban, helped the eighth-seeded Warriors beat the #1 seed Mavericks in the first round of the NBA playoffs this year.

From the story:

Mavericks owner Mark Cuban believes Golden State's sizzling shooting alone didn't sink his basketball team in the most stunning playoff defeat in NBA history.

That's according to Don Nelson's attorney, John O'Connor, who said Cuban is suing Nelson, claiming the Warriors beat the Mavs in the first round because the Warriors' coach -- and former coach of the Mavs -- had "confidential information and he [Cuban] wants to enjoin Don from coaching against the Mavericks."

"There is no basis in our view," O'Connor said. "I suppose he [Nelson] knows [Dirk] Nowitzki likes to go right instead of left, but normally that's not a trade secret."

In an e-mail, Cuban acknowledged he and his lawyer have "claims" against Nelson, but is "not sure how we are handling them." Cuban offered a "no comment" when asked Thursday night for a description of "confidential information."

According to the story, when Nelson left the Mavericks, he signed a "non-compete" agreement with Cuban, which Nelson claims ended when he took the job with Golden State. Cuban contends that this agreement is still in effect, which should prohibit Nelson from being able to coach another team.

I've often wondered how this actually affects sports teams - for instance, when a baseball player is traded mid-season to a competitor. Does it do his new team any good to have his inside knowledge of how the other team works? Isn't it an advantage to know all the signals and shifts the other team can make, not to mention the personnel tendencies?

It's still up in the air, however, which is a more embarrassing move for a franchise: Cuban's lawsuit, or drafting a Chinese guy who may be lying about his age, refuses to work out against a human being, and has the Chinese government saying he will never play for your team. But I'm not bitter.

I smell class action:

Frequent N.H. Speeder Wants Limit Raised

DOVER, N.H. - A man with a penchant for speedy driving has come up with an unusual tactic for beating speeding tickets — raise the limit. So far this year, Larry Lemay has been ticketed four times for speeding.

Rather than slow down, Lemay is suing the state Department of Transportation to study traffic and speed limits across New Hampshire, to see whether limits could be raised. Lemay's lawsuit, filed in Strafford County Superior Court, also asks a judge to order the Transportation Department to pay for his legal fees and the cost of the study, an estimated $1,853.

Lemay said he believes many speed limits are set intentionally low so the state can cash in on drivers.

"The state is making a lot of money doing this, and I want it stopped," he said. "It's wrong."

Dave Hilts, the assistant attorney general representing the state, said Lemay's view that higher speed limits would lead to safer driving is shared on the Internet by many speed limit abolitionists, but is misguided.

"Common sense will tell you that going too slow is only a hazard when other people are going much faster," said Hilts. "It's kind of a weird case."

As for Lemay's suggestion that the state sets low speed limits just to catch people with tickets:

"It seems ridiculous to me. I don't know what incentive the state would have to do that," Hilts said. "I've not seen any evidence that that occurs. I don't believe it."

I'm not sure exactly what this lawsuit is meant to accomplish. So he wins, and a judge orders the state to do a "study" that it doesn't want to do? Want three guesses as to what the study is going to say?

On the other hand, I might have to give him a call to see if I can file an amicus brief. I have a lot of parking tickets that I think violate my right to park on the sidewalk.

This site was mentioned on FoxNews.com when I was interviewed about the Starburst fruit-chew case earlier discussed by Christian Schneider.

Add Dealbreaker's John Carney to the lawyers decidedly unimpressed with Dahlia Lithwick. Earlier: July 9, 2005; July 24, 2005. Also: Kerr.

Isn't it a tad ironic for the woman who hired Amanda Marcotte to be complaining about Ann Coulter's level of discourse?

Of course, there's a difference: Ann Coulter is to politics what pro wrestling is to sports, and intentionally acts the part of a clown. (It wasn't always so: at her best as an attorney for the Center for Individual Rights in the 1990s, Coulter successfully litigated against a whites-only scholarship in Alabama on behalf of an African-American, Jessie Thompkins, who was ineligible for the scholarship because of his race.) In contrast, Marcotte was explicitly chosen by the Edwards campaign to speak for it and the level of political discourse it wanted to produce.

And then there's John Edwards himself, and his level of discourse in the courtroom, where attorneys are ostensibly officers of the court with an obligation to be truthful. Of course, truth and fairness wouldn't have made John Edwards millions.

Update: my cousin Garance Franke-Ruta has a different take at the Guardian website that takes two Coulter attacks on Edwards out of context, and I'm not sure where "look like a cross between a Robert Palmer back-up dancer and an Edward Gorey drawing" fits on the Edwardsian scale of political discourse.

27-year old former nursing student Nicholas Perrino is suing Columbia University to overturn an "F" he received after missing an exam:

Nicholas Perrino was kicked out of the Ivy League institution's School of Nursing for missing an exam, and now he is suing to get back in.

"I should have went to Yale," moaned Perrino, who is representing himself in the case.

The 27-year-old Illinois native said he was working toward two master's degrees last summer, when his grandparents became gravely ill, forcing him to take a few days off.

He told his instructors he would be absent for a skills exam and tried to arrange a makeup, Perrino claims in documents filed June 15 in Manhattan Supreme Court.

Instead, he says, the school failed him in the course - part of a fast-track master's program. Without the test, the school wouldn't let him continue his nursing coursework.

Filing academic grievances and appealing to the Columbia provost got him nowhere, he said, and he was withdrawn from the School of Nursing.

"It's insane," Perrino said. "It's not like I killed someone."

Perrino, who says he spent $65,000 on tuition, did complete a master's degree in public policy. He says he had a nearly spotless academic record at the School of Nursing.

A Columbia spokesman said he could only confirm Perrino had been a nursing student, and cited privacy rules preventing him from discussing the case.

Perrino is asking a judge to remove the "F" from his transcript, reinstate him at the school and reimburse tuition costs for classes he has already taken.

Presumably, legal action against universities by disgruntled students is fairly common. However, two of Perrino's statements deserve scrutiny.

First, he claims he "told his instructors" he would be missing the exam. That is far different than getting permission to miss the exam. Had his instructors granted his request, he likely would have said so in the court documents. The more likely scenario is that on the way out the door, he e-mailed his professor to say "sorry, I have an emergency and can't make the exam," or something similar.

Secondly, he complains that "it's not like (he) killed someone." Actually, there's a much less compelling case against him had he actually killed someone and not missed the exam. If he ran over someone with his car and the professors flunked him as a result, he may actually have a case. But by missing an exam, he gave them every reason to fail him.

It's difficult to envision Columbia not having some sort of written policy on unexcused absences for student exams. The fact that Perrino is representing himself may be an indication of how he feels about his chances in court.

Whereas some might think prison is a place to teach inmates valuable lessons ("don't stab people," etc.), it appears more Swedish prisoners are learning the value of a good lawyer:

Court Upholds Prisoners' Right to Porn

STOCKHOLM, Sweden (AP) -- Convicted sex offenders in Sweden are free to read pornography in their cells following a court ruling that has angered the prison service.

The Supreme Administrative Court in Stockholm last week ruled that the Swedish Prison and Probation Service had no right to deny a rape convict access to his porn magazines.

Prison officials had argued that reading porn would interfere with the man's rehabilitation program. They also said the magazines posed a security problem for staff and other inmates because they could increase the risk of the man relapsing into criminal behavior.

But the court, whose ruling cannot be appealed, said the prison service failed to prove that the magazines could "jeopardize the security of the institution."

Prison officials said they had asked the government to change the law so that they could continue to ban porn magazines at the Nordic nation's prisons.

"It increases the risk of assault for other interns and it is provocative for personnel," Elisabeth Kwarnmark, a prison service psychologist, said about the ruling.

Kwarnmark said that other pornographic material, such as adult movies, channels and Web sites, are not permitted in Swedish prisons. Child and violent pornography are also banned.

On the bright side, he'll be blind when he's finally released.

Next time you feel like living on the edge, there's no need to go sky diving or ski jumping. Simply bite into a Starburst fruit chew, cross your fingers, and hang on for dear life...

Michigan Woman Claims Starburst Candies Are Dangerously Chewy in Lawsuit

Starburst Fruit Chews are exactly as their name would indicate: chewy. But one Michigan woman says the candies are so chewy, they should come with a warning label.

Victoria McArthur, of Romero, Mich., is suing Starbursts' parent company, Mars Inc., for more than $25,000 for "permanent personal injuries" she claims she sustained after biting into one of their yellow candy in 2005.

"I don't know, maybe about 3 chews and it literally locked my jaw … and it just literally pulled my jaw out of joint," she told MyFoxDetroit.com.

McArthur's lawyer, Brian Muawad, says the candies caused her to develop a condition known as temporal mandibular joint dysfunction. McArthur says she has had trouble chewing, talking and sleeping since the incident.

I think we need to take whatever steps necessary to keep this woman away from jawbreakers.

British businessman Dennis North's wife Jean left him 30 years ago after she began seeing another man. Their split became official in 1981, when they signed an agreement that granted Jean their house and income from rents on their various properties.

North went on to be a wildly successful businessman, while his ex-wife never worked. However, a judge has just ordered North to pay Jean a large lump-sum payment because she has "fallen on hard times" due to a number of money-losing investments:

Mr North, 70, has been ordered by a court to hand her another £202,000.

The order follows a series of big-money divorce cases which have swung the law against husbands and resulted in huge payments to ex-wives even after short childless marriages. The North case now threatens to make husbands pay large sums even decades after a split.

Three Appeal Court judges had heard Mr North's lawyers call for the payment to be stopped.

His barrister, Philip Moor QC, said 61-year-old Mrs North was trying to get "a second bite at the cherry".

He added: "The whole purpose of divorce is to disentangle people so they can lead independent lives.

"The changes in financial positions of the parties since 1981 and the differential between them that has arisen over the years cannot be relevant."

The court heard that Mrs North moved to Australia in 1999 and lost much of her money in "unfortunate" investments said to have been based on bad advice.

Mr Moor said it had been her decision to sell up and move to one of the most desirable and expensive areas of Sydney and live beyond her means in a country where she was not entitled to benefits.

Existing English law gives ex-spouses who are receiving maintenance payments the ability to request a lump-sum payment instead. Jean's attorneys believe she is entitled to this money, and state their case by responding to the odd "cherry" reference:

But Deborah Bangay, QC, for Mrs North, said: "This was not a second bite at the cherry but it is what are her reasonable needs. The court was entitled to take into account the obvious wealth of the former husband."

She said it was not Mrs North's fault that her investments had gone wrong. The district judge's award had been at the "bottom end of the spectrum".

So, to recap: This woman destroys her marriage, never gets a job, lives well beyond her means, loses a ton of money in bad investments, then gets a large cash payment for her trouble? Think there's a line of people willing to be her investment advisor?

As I have repeatedly noted, the only reason the Chungs can be said to have been vindicated is that Judge Roy Pearson is more delusional and less sinister than the typical trial-lawyer extortionist. Had Judge Pearson accepted the $12,000 settlement the Chungs felt forced to offer between the expense of litigation and the small risk of Pearson mounting a case that successfully resulted in the giant fines imposed by DC consumer-fraud law, Pearson would have had a five-digit profit, and the Chungs would be out tens of thousands of dollars in litigation and settlement expense without any hope of recoupment. As Michael Greve demonstrates in "Harm-Less Lawsuits", this is more than hypothetical: in consumer-fraud lawsuits alone, billions of dollars have been extracted from innocent defendants.

DMI's Kia Franklin's defense of her claim that the travesty of justice we have seen in Pearson shows that the system works? "Now, had Pearson collected the $12,000 settlement, we would have a whole new hypothetical and a whole new set of questions about the terms of the settlement (Would we have known the settlement amount? Would they have been able to publicize this? What were the lawyers' strategies?) and the consequences thereof. So we can't prematurely say that it would pay off for him." Franklin goes on to deny that trial lawyer abuse even exists—a perhaps necessary position for her to take, given that the top of any list of abusers would include the indicted law firm Milberg Weiss, which funds her fellowship, in part from the successful extortion of billions of dollars using the same in terrorem tactics as Pearson.

As Peter Nordberg notes in the Overlawyered comments, "If [Pearson] is indeed representative, there should be thousands of cases just like it, and we may as well get to discussing those." And indeed we should.

A Massachusetts inmate serving life in prison for murder is in court demanding the state pay for a sex-change operation:

The case of Michelle -- formerly Robert -- Kosilek is being closely watched across the country by advocates for other inmates who want to undergo a sex change. Transgender inmates in other states have sued prison officials, and not one has succeeded in persuading a judge to order a sex-change operation.

[...]

Kosilek, 58, was convicted of strangling his wife in 1990. He claimed he killed her in self-defense after she spilled boiling tea on his genitals.

Robert Kosilek legally changed his name to Michelle in 1993, and has sued the Correction Department twice, arguing that its refusal to allow a sex-change operation violates the Eighth Amendment protection against cruel and unusual punishment.

Naturally, expert witnesses are lining up to defend Kosilek, and a law firm is representing him pro bono:

Two other doctors retained and paid for by the department's outside health provider, the University of Massachusetts Correctional Health Program, at a cost of just under $19,000 said they believe the surgery is medically necessary for Kosilek. Two other doctors who work for the health provider agreed with that.

In addition, two psychiatrists who testified for Kosilek recommended the surgery. A Boston law firm representing Kosilek for free paid for those experts but would not disclose the cost.

Aside from the propriety of taxpayers paying for a sex change operation (which Kosilek may or may not have been able to pay for himself had he not been in prison), corrections officials are correct that having a (now) woman in a male prison could pose significant problems. It is almost a given that should the operation be performed, Kosilek would petition to be moved to a women's prison to protect his own safety.

Also, note the interesting correction at the bottom of the story:

(This version CORRECTS `himself' to `herself.')

Kosilek hasn't had the sex change yet, so technically he is still a man - apparently the newspaper thought so, too. It would be interesting to find out who compelled them to change the story to portray Kosilek as a female - and in the process perhaps avoid their own lawsuit.

As noted in the story, Wisconsin went through a similar situation in 2004 when inmate Scott (now Donna Dawn)Konitzer was denied genital gender reassignment surgery by the Department of Corrections and sued the state. Department policy had been to provide hormone therapy to those who had been receiving it for a year before their incarceration, but surgery was not provided as an option. As Kosilek now has, Konitzer claimed denial of the procedure constituted "cruel and unusual punishment" in violation of the Eighth Amendment to the U.S. Constitution.

As a result of Konitzer's lawsuit, the Wisconsin Legislature actually passed into law a ban on both hormone therapy and gender reassignment surgery. Naturally, that new law has been challenged in U.S. District Court in Milwaukee.

Although trademark law certainly has plenty of intricacies, the essence of trademarks is the protection of consumers from confusion in the marketplace. When one buys goods or services, one should be able to know the manufacturer of those goods or provider of those services. Except, of course, when lawyers get involved; then trademarks are just used by large businesses to stifle competition. Infoworld reports on how some companies are abusing trademarks to shut down smaller competitors on EBay. EBay, to avoid liability for trademark infringement by its sellers, is quick to shut down any auction when a trademark holder complains. And then makes it difficult for the seller to reverse the decision:

As she began the process of getting EBay to reinstate her account - which includes having to take a condescending online tutorial on intellectual property and swearing that you'll never be bad again - the reader also was able to contact with other EBay sellers whose Don Ed Hardy auctions had been taken down. "Some sellers who had not yet actually sold any Don Ed Hardy goods were told by the fraud department that 'test purchases' had proven their goods were counterfeit," the reader wrote. "Some were told that it didn't matter they could prove their merchandise was authentic - Don Ed Hardy would continue to take down their listings via VeRO by citing 'violation of a trade agreement' between the company and its distributors. And all were threatened as I was with trademark litigation that could result in treble damages, paying their legal costs, etc."

But the threat of running up legal fees with trademark lawsuits isn't just felt by individual EBay sellers; even large companies -- like ABC television -- are afraid to fight ridiculous claims of trademark infringement:

"Sam I Am" isn't—anymore.

The planned ABC fall comedy starring Christina Applegate has changed its name to "Samantha Be Good" after receiving a "cease-and-desist" letter from lawyers representing the rights-holder to Dr. Seuss characters, an attorney said Tuesday.

[...]

"We asserted a trademark infringement claim," in a May 17 letter to ABC, said Jonathan B. Sokol, an attorney representing San Diego-based Dr. Seuss Enterprises, LP.

"People worldwide associate those characters with Dr. Seuss books and ... Dr. Seuss vigilantly protects its trademark rights," Sokol said.

The TV show's original title might have confused people as to whether the company was sponsoring or otherwise involved with the program, Sokol said.

29-year old Russell Parrish decided he wanted to tell his life story through his tattoos. Unfortunately for him, his life story now contains a chapter on why he couldn't get a job because he's covered with tattoos. Naturally, he claims this is all a result of discrimination:

His tattoos cover his right and left arms and hands. There is a spider in a web crawling up his neck.

"It goes back to Sir Walter Scott, 'Oh, what a tangled web we weave when first we practice to deceive.' It reminds me not to lie," he explained.

On his left arm, the faces of old-school horror movies: Boris Karloff, Lon Cheny, Bela Legosi. Those were his father's favorites. When the fingers of his right and left hands intertwine, it spells 'Hound Dawg.'

"That's my nickname," the 29-year-old said proudly.

[...]

With a wife and dreams of kids on the way, he wants a career. He's looked at theme parks in Kissimmee, home improvement stores down the street in his hometown of Lake Wales, even straight-laced coat and tie jobs. Everywhere he went, he said, "I got a door shut in my face."

Russell says in the last two months he's applied for over 100 jobs. In almost half of them, he says he was denied because of his tattoos. He says that's discrimination.

Having tried the EEOC and the Department of Labor, Parrish is now lobbying state lawmakers for a new law that would protect him from discrimination against tattoos. In other words, he now needs the government to step in and bail him out of the bad lifestyle decisions he's made.

In June 2004, 21-year old Vermont resident Samantha Perreault went out drinking with a couple of friends, Norman Poulin and Justin Lawrence. After three rum and cokes each, they left; Lawrence hopped on one motorcycle, and Poulin and Perreault got on another and followed him. Although they may not have been legally drunk, they had had several drinks, it was night, and they were driving 70 mph. Lawrence lost control of his motorcycle and crashed. Poulin, attempting to avoid Lawrence, also lost control and crashed. Perreault, unfortunately, was killed.

Both Poulin and Lawrence were prosecuted for criminal negligence, but Lawrence, apparently, was not also charged with driving without a motorcycle license. Feeling that Lawrence's punishment was insufficient, Perreault's father has now filed a $21 million lawsuit. Did he sue Poulin? No; apparently he forgave Poulin. Did he sue Lawrence? Of course not; Lawrence doesn't have deep pockets. No; he sued the state of Vermont.

The Plainfield resident says officials in the Department of Public Safety and Office of the Attorney General showed disregard for his daughter and for the law by failing to fully prosecute a man involved with her death.

"I don't want anybody else to go through this," Perrault said Friday. "I think she deserved more than this."

[...]

"By the state not doing anything, they're saying it's okay for you to drive without a license," Perreault says. "I've gone through all the right channels, called the state police, called (the Office of the Attorney General). All I'm getting is blown off."

In addition to seeking monetary damages, Perreault is also demanding that Lawrence be charged and prosecuted for driving without a license.

As we've covered, Roy Pearson lost his $67 million lawsuit against his dry cleaners. Predictably, Bizarro-Overlawyered is trumpeting the outcome as evidence that the system works, that the "system has effective, built-in checks against such things." I doubt many Overlawyered readers buy into that spin, but just in case, here are a few reminders about this case that, to the extent it had any merit at all, should have been a small claims suit:

1. The Chungs offered Pearson $12,000 to drop this suit. If he had not been so greedy, they'd have been out that much money, plus a year's worth of legal costs. The fact that our legal system enables people to extort tens of thousands of undeserved dollars from others is not evidence that there are "effective, built-in checks" on frivolous litigation.

2. Putting aside any money issues, this lawsuit was filed on June 7, 2005; for more than two years, this case has been hanging over the Chungs' heads. That's two years of legal and financial uncertainty. Two years where they couldn't make any significant business decisions because they had the possibility of an eight figure liability hanging over their heads. The fact that someone can drag out a case almost too small to have been on Judge Judy for two years is not evidence that there are "effective, built-in checks" on frivolous litigation.

3. The Chungs "won" the case, but Pearson used the legal system to impose what was likely $100,000 in legal costs on them. Of course, there is a motion for sanctions pending against Pearson, but there are no guarantees here. Courts are very reluctant to impose sanctions, and even when they do (as the court probably will here) they very rarely impose sanctions sufficient to make the defendants whole. Note that sanctions are not automatic; the Chungs had to pay their attorney even more money to prepare a motion for sanctions. The fact that the Chungs have to endure two years of frivolous litigation and then cross their fingers and hope the judge awards them their legal fees is not evidence that there are "effective, built-in checks" on frivolous litigation.

4. Oh, one other problem: the Examiner reported, even before the decision, that Pearson's chances of keeping his job were slim. I think most reasonable people agree that Pearson hasn't quite demonstrated that he's fit to be a judge. But if he loses his job, the chances of the Chungs ever collecting any part of those sanctions drop from slim to none. (Their chances of recouping their losses are low to begin with -- is it likely Pearson has $100,000 sitting around?)

5. And let's not forget one other party to this case, also abused by Roy Pearson: the taxpayers of the District of Columbia, who have to pay for the legal system. And they have no chance to get reimbursed.

6. Finally, remember that the case is not necessarily over. It would be insane for Pearson to appeal, but that hasn't proved to be a limiting factor in his actions in the past. The worst that happens is that he gets slapped with more sanctions, which he'll never pay.

Perhaps one reason trial lawyers so frequently accuse reformers of manufacturing popular outrage is because such astroturfing is a common trial-lawyer tactic: Peter Lattman uncovers eight identical letters to the editor written at the behest of the Association of Trial Lawyers of America (now going by the AAJ misnomer), all on behalf of Bill Lerach's bogus Enron suit and criticizing the Bush administration officials who dare to stand up to the attempted extortion. Similar astroturfing regularly goes on in the comments section of the Lattman blog.

Yesterday's U.S. Supreme Court decision in FEC v. Wisconsin Right to Life is of special importance to those of us in Wisconsin, since we have watched the case unfold before our eyes since its inception. As you've probably heard by now, the Court, in a 5-4 vote, struck down a portion of the McCain-Feingold campaign finance law which prohibited so-called "issue advocacy" by unregistered groups in a period of 60 days before a general election. Wisconsin Right to Life had run advertisements critical of Senators Russ Feingold and Herb Kohl for their perceived role in holding up judicial appointments, but these ads were deemed to be illegal under McCain-Feingold, despite not advocating for the electoral defeat of either. Yesterday's decision upheld WRTL's right to run the ads, as the Court determined they were not "express advocacy."

The culture of speech restriction with regard to campaigns has been prevalent in Wisconsin for some time, and produces some fairly odd applications of the law. This was demonstrated during last November's elections, when the Wisconsin Democracy Campaign (a pro-campaign finance reform group) actually filed a complaint to bar a Catholic diocese from urging its parishoners to support a constitutional amendment to ban gay marriage. (Church Accused of Illegal Lobbying, Madison Capital Times, Oct. 18, 2006) At the same time they were attempting to use state law to block the Catholic Church's right to support the constitutional amendment, the WDC was actually publicly lobbying against the amendment - yet they didn't see their own activities as "express advocacy."

So while it is clear yesterday's decision represented a marginal victory for free speech rights at the federal level, there are steps states can take to ensure political speech isn't muzzled come election time. When churches break the law by teaching their beliefs, it should alert states to dangerous path campaign finance restrictions are taking us.

When showing your crack is outlawed, then only outlaws will be showing their crack:

Cajun Town Bans Saggy Pants (NYT, June 13)

DELCAMBRE, La. (AP) -- Sag your britches somewhere else, this Cajun-country town has decided. Mayor Carol Broussard said he would sign an ordinance the town council approved this week setting penalties of up to six months in jail and a $500 fine for being caught in pants that show undergarments or certain parts of the body.

Broussard said he has nothing against saggy pants but thinks people who wear them should use discretion. ''It's gotten way out of hand out here,'' he said.

Albert Roy, the councilman who introduced the ordinance, said he thought the fine was a little steep and should be more in the $25 range, but he still favored the measure.

''I don't know if it will do any good, but it won't hurt,'' Roy said. ''It's obvious, and anybody with common sense can see your parts when you wear sagging pants.''

Broussard's advice for people who like their pants to hang low: ''Just wear it properly. Cover your vital parts. I mean, if you expose your private parts, you'll get a fine. If you walk up and your pants drop, you get a fine. They're better off taking the pants off and just wearing a dress.''

I totally envision a Footloose-type of situation here where a spry young high schooler rolls into town and teaches all the townsfolk that butt cracks can be a perfectly beautiful and natural occurrence.

The downside of this ordinance, of course, is that it will drive all the plumbers out of town. Better get your sink fixed before it goes into effect. Oh, and as long as we're talking about plumbers, it gives me an excuse to show you this outstanding commercial. That is all.

You may have heard of condemned Texas death row inmate Patrick Knight, who has expressed his desire to tell a joke as his final statement tonight. (June 4)

From the story:

Knight acknowledges there’s nothing funny about his likely execution later this month for the fatal shooting of his neighbors, Walter and Mary Werner, almost 16 years ago outside Amarillo. But to help him come up with his final statement, Knight is accepting jokes mailed to him on Texas’ death row or e-mailed to a friend who has a Web site for him. The friend then mails him the jokes...

“I’m not trying to disrespect the Werners or anything like that,” he told The Associated Press from death row. “I’m not trying to say I don’t care what’s going on. I’m about to die. I’m not going to sit here and whine and cry and moan and everything like that when I’m facing the punishment I’ve been given.

He said he’s already received about 250 wisecracks.

“Lawyer jokes are real popular,” he said. “Some of them are a little on the edge. I’m not going to use any profanity if I can find the one I want, or any vulgar content. It wouldn’t be bad if it was a little bit on the edge. That would be cool.”

Thank goodness he is sparing lawyers from being subjected to an off-color joke. Good thing he's on their side - unfortunately, it's with everyone else that he gets a little "murdery." And I especially appreciate his concern for the feelings of the family. Here's a valuable tip when you want to show respect for a family - try to avoid shooting them to death. I read that in an etiquette book once, I think.

In Ontario, Canada, a 24 year-old man has been ordered not to have a girlfriend for the next three years - due to a violent argument he had with his girlfriend. From the story:

Mr. Justice Rhys Morgan told a 24-year-old, characterized as having a dependent personality disorder, yesterday he could not have a girlfriend for the next three years.

The unusual order was added to Steven Cranley’s probation order after he pleaded guilty to six charges relating to an argument he had with his former girlfriend and a roommate Jan. 17.

Reacting to the recent breakup of their relationship, Cranley began an argument with his girlfriend who he shared a home with, court heard. The argument began escalating and when his girlfriend tried to call the police, Cranley entered her room, cut her phone cord with wire cutters and began slapping and punching her, Crown attorney Shonagh Pickens said.

While this may seem like an unusual punishment, some of us have already had to suffer through similar periods of not having a girfriend. For me, it was a time period commonly known as "the 1990s." And I didn't even need a judge to mandate it. Fortunately, I now have an in-home judge that forbids me from having girlfriends. She is often referred to as "my wife."

There's no doubt this guy has mental problems. But as a result, he can now look forward to three years' worth of late nights watching Cinemax, praying to God he doesn't recognize any of the actresses' names in the opening credits.

Visitors to Rustico restaurant in Alexandria, VA may think they're merely enjoying an innocent Beersicle (video)- but state regulators seem to think they are practicing their own vigilante brand of thirst amelioration. The new "frozen beer on a stick" offering apparently violates a state law that requires beer be sold in its original container or served immediately after it is poured.

It would seem to me that the beersicle actually serves as a deterrent to consuming large amounts of beer as fast as possible. This isn't a good thing? Wouldn't the cops be a little better served by making sure terrorists aren't amassing a stockpile of bomb pops?

WSJ Law Blog has the (long) opinion and (short) judgment in the case. Professor Bainbridge notes the pertinence of the legal principle of "puffery", under which Pearson was no more justified in demanding the literal enforcement of the Chungs' "Satisfaction Guaranteed" sign than would other customers be justified in suing United Air Lines after a grumpy flight for not providing "friendly skies", Exxon for not putting a genuine "tiger in your tank", Fox News for being less than "fair and balanced", and so forth. Amygdala observes, of the $12,000 settlement offer that Pearson spurned from the Chungs:

Which is to say, if you're a lawyer, or just knowledgeable about legal phrasing and documents, and willing to spend a certain amount of time generating and mailing documents, you can wind up being offered $12,000 if you're sufficiently obnoxious and persistent, no matter how feeble, frivolous, and meretricious your claim is.

That's a well-known, old, story, to be sure, but still worthy of note now and again.

And the WSJ Law Blog has an earlier interview with the Chungs' lawyer, Christopher Manning, including this pertinent excerpt:

How’d all the publicity start?

A local neighborhood newspaper first picked up the story. Then WJLA – the local ABC affiliate — picked up the story, with me holding the pants. After that, Marc Fisher’s [Washington Post] column ran in late April which really set it off. [The story has since been featured on Today, Nightline, Good Morning America, MSNBC, Fox News, CNN and a host of other networks.]

Gosh. You mean the pants suit didn't become a big worldwide story, as some of our friends in the trial bar have hinted, just because those nefarious legal reformers were looking for a far-out case to publicize? Next you'll be telling us that Stella Liebeck's McDonald's hot-coffee award became a huge story because it was something the press found newsworthy and the public wanted to talk about, rather than because reformers plotted deep into the night to hype it.

The litigation-enforced "mainstreaming" of disruptive special-education students under the Individuals with Disabilities Education Act is not only adversely affecting general-education students, but increasing teacher turnover. (John Hechinger, "'Mainstreaming' Trend Tests Classroom Goals", Wall Street Journal, June 25). More: Another relevant investigative piece from the Journal: Robert Tomsho, "When Discipline Starts a Fight", Jul. 9.

It appears that I have won the Guestblogger Pageant (despite falling down and being booed by angry Mexicans), so here's a little bit about me. My name is Christian Schneider, and I work for the Wisconsin Policy Research Institute here in lovely Madison, Wisconsin. I run the WPRI blog, a little personal project called Atomic Trousers, and as a former legislative staffer, I blogged pseudonymously as Dennis York (a blog that could generously be described as humorous). I am originally from Alexandria, VA, and I have a master's degree in political science from the prestigious Marquette University in Milwaukee (which means I am qualified to read the newspaper). I also occasionally contribute commentaries to the show "Here and Now" on Wisconsin Public Television.

While I am not an attorney, I am a long time fan of Overlawyered.com. Plus, there's a reasonable chance Jessica Alba will be filing a restraining order against me sometime soon, so I thought it might be a good idea to familiarize myself with the legal community.

Here are a couple past posts that people seemed to find moderately inoffensive:

Scientists to Harvest Seniors for their Coupons
Keep Your Laws Out of My Pants (and a Follow-Up)
When Religions Lobby

So there's my resume. References available upon request.

I was a guest this hour on the BBC Radio 4 evening program "PM" with Eddie Mair, discussing the Roy Pearson lost-pants case. While most of our items on this site inevitably come from the USA, note that we have a page devoted to items from the UK as well.

A judge has ruled in favor of the defendant Chung family in the mishandled-dry-cleaning case, and awarded them (relatively minor) court costs. Pearson is expected to appeal; the Chungs' lawyer says the family expects to ask eventually that he also be made to pay their attorney fees, but D.C. law sets the bar for such a request relatively high, so it's by no means something they can count on. Coverage: Washington Post and its Marc Fisher and OFF/beat blogs, more. Earlier: here and here.

More: And here's word of a fundraiser for the Chungs' legal defense, next month in D.C., sponsored by the Chamber and ATRA.

We've had a record response to our call for guestblogging volunteers, and the first in a series of guests will be dropping by tomorrow to begin a week-long stint. If you've been meaning to volunteer but haven't, go ahead and drop us a line -- there may still be openings later in the summer.

No need to worry that greeters will be foisting cookies on returning soldiers at Bangor International Airport any more: "airport officials asked the greeters to stop serving food last month because of concern about liability and food safety. 'We just say, "We’re sorry, we can’t give out any cookies,"' said Bill Knight, a World War II veteran who founded the group." (Katie Zezima, "Airport Tries to Rein In Greeters’ Generosity Toward Troops", New York Times, Jun. 21). Other food menaces averted: Dec. 13, 1999 (homemade pies), Jan. 29, 2001 (school cookies, country fair pies and jams), Feb. 1-3, 2002, Jan. 18 and Apr. 28, 2007 (figurines in New Orleans king cake), Apr. 15, 2004 (potluck dinners), Jul. 18, 2006 (homemade baked goods in U.K. nursing home), and Apr. 28, 2007 (candy-wrapped toy).

Getting wide exposure on YouTube, and providing fodder for Lou Dobbs:

The video shows attorneys for Cohen & Grigsby, one of the largest law firms in Pittsburgh, explaining at a conference on immigration how to obey laws that require Americans be given top priority for jobs while still ensuring foreigners are hired.

“The goal here of course is to meet the requirements, number one, but also do so as inexpensively as possible, keeping in mind our goal. And our goal is clearly not to find a qualified and interested U.S. worker,” Lawrence Lebowitz, the firm’s vice president of marketing, told the audience in May.

("Pa. law firm's immigration talk hits YouTube; U.S. senator demands investigation", AP/Arizona Star, Jun. 23; Sister Toldjah; Doug Ross). More: Kim's Play Place says the lawyers were serving their clients' legitimate interests and that if they can arrange compliance with the letter of an irrational law there's no reason for them to show allegiance to its claimed spirit. Further: Gina Passarella, "Immigration Law Seminar Generates Unwanted Publicity for Firm", Legal Intelligencer, Jun. 25 (& welcome Opinionator readers).

Wait, you mean there's an ethical problem with that? More coverage of the Ross survey (Thomas W. Krause, "Ethics Survey Finds Lawyers Lower The Bar", Tampa Tribune, Jun. 24). Earlier: May 2.

A jury has convicted prominent attorney Stephen Yagman, who's prospered greatly filing police-misconduct and civil-rights lawsuits in Los Angeles, of 19 counts of attempted tax evasion, bankruptcy fraud and money laundering. Prosecutors said Yagman led a lavish lifestyle while declaring bankruptcy, hiding assets from creditors, and failing to pay payroll tax. ("Famed SoCal civil rights attorney found guilty of tax fraud", AP/Riverside Press-Enterprise, Jun. 22; Patterico, Jun. 22 and Jun. 23 (not sharing Duke lawprof Erwin Chemerinsky's somber view of the verdict)). Last year (Jul. 5, 2006) Yagman sued a retired police detective who in a letter expressed "glee and profound satisfaction" over the lawyer's indictment. For Yagman's other appearances on this site, see Feb. 23, 2000, Mar. 18, 2005, Apr. 3, 2006, and Nov. 4, 2006.

Meanwhile, the city attorney of Los Angeles, Rocky Delgadillo, who's figured in these columns a couple of times (grandstanding on Grand Theft Auto, Jan. 28 of last year; defending the city's $2.7 million settlement of the firefighter dog food case, Nov. 22) seems to have landed in an ethical spot of bother himself (more).

The police officer sued in the now-celebrated Madison County, Ill. case (Mar. 13, May 21) submits affidavits in his defense, pointing up some interesting angles that didn't emerge in earlier rounds of coverage:

A Troy police officer who was ordered to pay Edwardsville attorney Amanda Verett $311,700 for a shoulder injury claims he never even came into physical contact with her during an incident Feb. 12 at the Troy Pizza Hut.

Sworn affidavits and other court documents filed by Troy officials this week, including the police chief and assistant city administrator, claim the reason officer Clarence Jackson was at the Pizza Hut in the first place was because Verett and her male law partner were causing a disturbance. Jackson was responding to a 911 call.

Verett, a family attorney in Edwardsville, filed suit against Pizza Hut and Jackson alleging she was injured when walking out the door of the restaurant while holding open the door to allow herself and Jackson to exit.

Last month a judge issued a default judgment against Jackson, who now argues his actions were on behalf of the city of Troy and should be shielded by sovereign immunity. (Steve Gonzalez, "Police officer claims he never came in contact with Verett", Madison County Record, Jun. 21).

You can't win if you don't play: "A Dutch woman who claimed she suffered emotional damages due to not winning the lottery missed the jackpot in court too. Amsterdam District Court judges Wednesday rejected the claim of Helene de Gier, who said she was traumatized by not winning the country's National Postcode Lottery, which she didn't enter, while her neighbors did." DeGier said one lucky neighbor had rubbed in his good luck by showing off a new Porsche, and claimed lottery ads had engaged in "emotional blackmail" by suggesting that non-entrants like herself might be sorry afterward. (AP/IHT, Reuters).

Perhaps we shouldn't rush to conclusions about this filing by plaintiffs' counsel in Madison County, Ill., who are aiming a complaint under the federal RICO racketeering law against two lawyers and a Florida resident who had sought to block a $63.8 million class action settlement over the drug Paxil. After all, not all class action settlements are a bad deal for class members, some objections to such settlements are unmeritorious, and there are even some bad objectors out there who are more concerned with being paid to go away than with saving class members from a bad deal. Still, it may not take many treble-damage RICO suits before both types of objector, the helpful and the unhelpful alike, begin to reconsider showing up in court, will it? (Steve Gonzalez, "Plaintiffs in $63 million Paxil case claim 'objectors' violated RICO in new class action", Madison County Record, Jun. 9). Update Oct. 7: suit dismissed without prejudice.

Women in the other forty-nine states should not count on comparably remunerative results if it happens to them, this being a New York precedent only:

A woman arrested for exposing her breasts has accepted a $29,000 settlement from [New York City], her lawyer said.

Jill Coccaro, 27, was arrested on a topless stroll two years ago, despite a 1992 state appeals court ruling that concluded women should have the same right as men to take off their shirts. ...

"We hope the police learn a lesson and respect the rights of women to go topless," [her lawyer Jeffrey] Rothman said.

$54 million would pay for 216 years worth of claims for damaged pants on the Long Island Rail Road and the Metro-North Railroad combined.

Sun General Counsel Mike Dillon, writing about litigation, repeats something I've long said:

Litigation is costly. Incredibly costly. But it is not the expense that is the real issue, it's the diversion of resources. Time employees spend reviewing e-mails and documents, educating lawyers and preparing for depositions is time away from the business. That's the real cost of litigation.

Note that these costs are not included even in PRI's $865-billion/year estimate of the expense of jackpot justice, much less the trial-lawyer critiques of the PRI study, which is why that number, even with its problems, may well be an underestimate of the true expense.

While Sun's strategy of keeping quiet while litigation was pending may have made sense in this particular competitor-to-competitor litigation, I think it is a very large mistake in the context of trial lawyers and activists targeting companies.

Don Brunell, president of the Association of Washington Business, in the Daily Columbian (via Carter Wood):

There is a mistaken assumption that a small proprietor slapped with a lawsuit simply lets his insurance company handle it. Wrong. Many business owners shoulder the costs themselves out of fear of higher premiums or the risk that their insurance company will cancel their coverage. Some start-up businesses simply cannot afford liability insurance. In fact, the [Institute for Legal Reform] study shows that, in 2005, small business owners paid $20 billion out of their own pockets for court costs and out-of-court settlements.

Finally, the smallest businesses, those with revenues of less than $1 million, paid $31 billion in lawsuit-related costs. Let's put that in perspective. These businesses, which represent just 6 percent of total business revenues, paid more than 20 percent of the national tort tab. These lawsuits really do hit the "little guy" who struggles to make ends meet.

It's getting to be that season. Guest blogging for a week at Overlawyered is a great way to call attention to your blog (you do have one, don't you?) or dip your toe into blogging if you've written in other formats. Return guestbloggers are more than welcome too. If the idea appeals to you, drop me a line at editor - at - [this domain name] - dot - com.

• Okla. AG says scam artists are sending out bogus "you've won a class action settlement" notices that could hook unwary recipients [Consumer Affairs]


• Rough on marriages, jobs, and tempers: life as a juror on a thirteen-month trial [Times Online]


• "In some ways, that story represented everything about America: sex, money, and litigation." [Tina Brown on Anna Nicole saga]


• Baby steps toward consumer protection? When lawyers "go bare" without professional liability insurance, some in Calif. bar think clients should be told [The Recorder]


• Norwalk, Ct. cop who won reinstatement after snatching body part (Jan. 23) is back in the news, and not in a favorable way [Jeff Hall; Advocate, Citizen-News]


• Why RIAA probably needn't worry that its scattershot suit-filing will expose it to RICO liability [Ars Technica]


• Come to think of it, maybe shooting your husband is worse than serving beer to 16-year-olds [Bader @ WashPost; earlier]


• Michigan woman "slain in the Spirit" at Pentecostal religious service wins suit alleging church was negligent and broke promise by not providing usher to catch her as she fell; defamation claims also figured in suit [Lansing State Journal, Lawyers' Weekly; compare this case from Australia]


• "Backlash Forms Against 'Zero Tolerance'" -- well, we can hope [Associated Press]


• New at Point of Law: State Farm moves to disqualify Scruggs in Katrina litigation; honest expert witness spotted?; proposed federal habitat regulation might dwarf current wetlands and species laws; and much more;


• Auctioning off the right to handle a civil case... on eBay? [Five years ago on Overlawyered]

Pharmacist Cynthia Haddad, when she left the pharmacy unattended, allowed a technician to use her computer security code to issue prescriptions, including a fraudulent prescription for a painkiller, something that could have exposed Wal-Mart to enormous liability if someone had been injured by the illegally dispensed drugs. So Wal-Mart fired Haddad. Haddad sued, claiming that the real reason Wal-Mart fired her was because she had asked for a raise to a manager-level salary, though she did not perform manager-level duties such as budgeting, and that it was thus sex discrimination. (Haddad claims that Wal-Mart "never" fired a male manager for her infraction, which seems implausible at best; Wal-Mart says it did fire male pharmacists for this. Why is this even a factual dispute for decision for a jury? This seems like a matter that merits a partial summary disposition to prevent one side from out-and-out lying.) This somehow got to a jury, which awarded $2 million, including $1 million in punitive damages. Among the questionable procedures used to railroad Wal-Mart at trial was permitting Haddad to present an attorney to testify as an expert witness on human resources procedures. Wal-Mart indicated it disagrees with the jury's decision and is studying whether an appeal is worthwhile. Massachusetts courts are not a friendly place for defendants. Wal-Mart's attorney did not comment to the press, permitting the plaintiffs' lawyer to generate rather one-sided press coverage. [Berkshire Eagle June 19; Berkshire Eagle June 20; Reuters/USA Today; Massachusetts Lawyers Weekly]

Updating a few earlier stories we've discussed here...

• Two weeks ago we noted that a new online attorney rating site, Avvo.com, was being threatened with a lawsuit by John Henry Browne, a disgruntled Seattle criminal defense attorney. (Jun. 10). Well, whatever the merits or weaknesses of Browne as an attorney, one thing you can say about him is that he doesn't make idle threats; last week, he filed suit against Avvo. The suit, designated a class action, contends that Avvo's ratings are flawed. From all accounts, that's almost certainly true, but as I mentioned in my previous post, it's not clear that this presents a valid cause of action; Avvo is entitled to rank lawyers differently than John Henry Browne wants them to. In an attempt to get around this problem, the complaint trots out various "consumer protection" arguments using notoriously vague and broad statutes that don't require that the plaintiffs identify any consumers who have been harmed. (Illustrating perfectly the phenomenon Ted discussed on Jun. 18).

  Oh yes, and Browne also claims in the complaint that "at least two clients" of his fired him (in less than a week!) because of his "average" rating on Avvo. Let's just say I'm rather skeptical of Mr. Browne's ability to prove such a claim.

  The law firm handling this class action case? Overlawyered multiple repeat offender Hagens Berman. (Many links.)

• Remember that lawsuit where Illinois Chief Justice Robert Thomas sued the Kane County Chronicle for defamation? (Apr. 2, Nov. 2006) Well, when last we heard, the libel award -- originally an absurd $7 million -- had been reduced to $4 million by the trial judge. Not surprisingly, the Chronicle still is unsatisfied, and does not feel it can get a fair shake from the very Illinois court system headed by Thomas; it has now filed a federal lawsuit claiming its constitutional rights have been violated. Named in the suit are Thomas, the trial judge who heard the case, and the rest of Thomas's colleagues on the state Supreme Court.

• Kellogg's bows to threats of frivolous litigation coming from the Center for "Science" in the "Public Interest"; agrees to limit advertising of its cereals to children.

  Of course, this is portrayed as an issue of advertising, but as Michael Jacobson of CSPI admits, this litigation strategy is simply an attempt to drive products he disapproves of from the market. And now that Kellogg's has capitulated, certain politicians are trying to force other companies to do the same.

  Originally: Jan. 2006.

• We had previously reported (May 17) that the unfair competition lawsuit between Equal and Splenda had settled. Turns out that the two sides are still fighting, with each side accusing the other of reneging on the deal. (LI)

In two separate New Jersey cases, building contractors RSA Enterprises and WBG Builders are suing websites that carried consumer complaints about them; in a third case in Maryland, a suit by SCS Contracting Group names as defendant the well-known site Angie's List, which compiles user reviews of home-improvement services. (Truman Lewis, ConsumerAffairs.com, May 4). More: John Kelly, "Homeowner's Web Gripe Draws Contractor Lawsuit", Washington Post, Mar. 13 (SCS Contracting versus Angie's List); Eric Goldman, Apr. 25 (RSA Enterprises versus Rip-Off Report, and Google). P.S. Eric Goldman adds further details.

Behrouz Foroughi, 43, says he volunteered for the exclusion list at the Star City casino and was told he would be denied entry, but was admitted anyway and lost large sums due to his gambling compulsion. (Gemma Jones, Daily Telegraph, Jun. 19). Similar claims have been tried a number of times in the U.S. but without much success: see Apr. 28, 2004, Apr. 19, 2005, Nov. 22, 2005 (France), etc.

In 1981, Curtis Campbell (Campbell) was driving with his wife, Inez Preece Campbell, in Cache County, Utah. He decided to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching from the opposite direction. To avoid a head-on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Slusher. Ospital was killed, and Slusher was rendered permanently disabled. The Campbells escaped unscathed.

How many of you say Ospital?

How many of you say Slusher?

You're both wrong. The plaintiff with the biggest jury verdict was Curtis Campbell, whom a jury awarded an incredible $147.6 million.

Strangely missing from the blog ad about the book "Supreme Discomfort" is a link to the review by Edward Whelan. See also Matthew Franck and John A. Foster-Bey.

I'd like to make a correction. In my earlier post, I suggested that Milberg Weiss Justice Fellow Kia Franklin thought that Judge Roy Pearson's $67 million lawsuit over a pair of pants was frivolous. I appear to have been mistaken in attributing such a common-sense view to her. Franklin has a lengthy post protesting that, while she thinks Pearson's lawsuit is "ridiculous" and "crazy" (she has also called it "obscene"), she does not think it is "frivolous." We regret the error.

But it is a useful illustration: when those who oppose civil justice reform say they don't think frivolous litigation is a problem, it is because they define "frivolous litigation" so narrowly that even Roy Pearson's lawsuit is not frivolous in their eyes. Well, that's one way to make problems go away, by using doublespeak or narrow technical legal definitions to pretend they don't exist instead of suggesting that there is a problem with the narrow technical legal definition.

...and you have a blog or website of your own, please do consider linking us, especially among your permanent links. Thanks!

Now it's Australia where food writers are getting nervous: the country's High Court decided that Sydney Morning Herald critic Matthew Evans had defamed the Coco Roco restaurant in 2003 in a review:

The flavours of the limoncello oysters "jangled like a car crash", he wrote, while the sherry-scented apricot white sauce on a steak was a "wretched garnish".

Overall, he concluded that "more than half the dishes I've tried at Coco Roco are simply unpalatable".

The ruling does not however preclude the defendants from offering defenses as proceedings continue in the case. (Deborah Cameron and Helen Westerman, "Ruling leaves sour taste for food critics", Melbourne Age, Jun. 15; Barbara McMahon, "Review of meal that 'jangled like a car crash' deemed defamatory", The Guardian, Jun. 16). Eoin O'Dell at the Irish law site Cearta.ie has assembled a substantial links list on this and earlier restaurant-review lawsuits from various countries (Jun. 16). Previously at this site: Mar. 10, etc.

Unsolicited email is beginning to arrive in people's inboxes soliciting clients to sue over the Glaxo SmithKline diabetes drug, Avandia. Bill Childs has more, as does Eric Turkewitz, who observes that no law firm is named in the ad, and proposes a course of action:

Figuring out which law firms have hired the spammer should be easy for an enterprising citizen-journalist, simply by filling out the form at the website that TortsProf linked to and waiting to see who calls or emails in response. Then publish the names online for the world to see.

Things might not be that simple, however. As earlier cases of spam of this sort indicate, such emails are typically sent by a middleman who assembles "leads" and then offers them for sale to actual law firms. The middleman, not being a lawyer, will claim not to be bound by bar rules against solicitation, while the law firms that buy the leads (if confronted on the matter) may or may not disclaim any knowledge of how the leads were generated. They'll probably deny having hired an agent with instructions to send spam; but if someone happened to run a spam campaign just before selling them names, well, that's not their doing, is it? So the New York bar-ethics rules are circumvented in perfect safety by all concerned, or so it would seem. Earlier: Jan. 8, 2006, Jan. 5, 2005, Mar. 29-31, 2002.

The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the "fraud" that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)

Oh, sorry, it's not Roy Pearson, it's Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, "SUV rollovers put Ford's future in judge's hands", Sacramento Bee, May 24; official class notice from Sacramento County Court]

But because ATLA and Kia Franklin have condemned Roy Pearson's lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus "consumer fraud" legal theory that Pearson used. Of course, there's a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.

Our editor, Walter Olson, in today's Wall Street Journal:

A few observations:
• Phrases like "Do you realize I'm a lawyer?" uttered in the course of routine disputes with storekeepers, neighbors, school principals, etc., probably account for more of the legal profession's aggregate unpopularity than any number of scandals in the actual representation of clients.

• David and Goliath talk notwithstanding, legal action is often a powerful dis-equalizer of the playing field, as those who know how to work the system fleece the outsiders, the novices, the distracted and the trustful.

• Pretty much every other advanced country would have afforded the Chungs better protection against a lawsuit like this. Under proper "loser-pays" rules, the Chungs would be correctly construed as having won even if Mr. Pearson proves damages of, say, $1,000, since they would have prevailed on the actual issues in dispute. D.C. does have a weak "offer of judgment" rule that might let the Chungs recover some miscellaneous court costs -- but not their major expense, lawyers' fees -- if Mr. Pearson loses or wins but a token sum. So even if they win, they're bound to lose.

• The other source of Mr. Pearson's power -- his ability to hold the threat of huge penalties over the Chungs' heads -- arises from consumer laws that encourage complainants to multiply the stated penalty for a single infraction by the whole universe of a business's clientele, or by all the days in the calendar, with no need to prove actual injury.

This sort of mechanical damage-multiplication has been a key engine in shakedown scandals in California (where roving complainants have mass-mailed demand letters to small businesses over technical infractions); in "junk-fax" litigation demanding billions from hapless merchants in Texas, Illinois and elsewhere; and in important sectors of litigation aimed at bigger businesses, including claims against credit-card providers and purveyors of "light" cigarettes. Whole dockets'-worth of opportunistic litigation would dry up if we revised these laws so as to require a showing of actual injury. Doing so would require overcoming epic resistance from the litigation lobby.

It's nice to see that even the organized plaintiffs bar piously deplores Mr. Pearson's abuse of the law. It would be even nicer if they agreed to stop opposing reforms that would give the Chungs of the world a fighting chance the next time around.

Earlier: June 17; June 14; Apr. 26; et cetera.

Not just promotional and eye-catching, but creative and artistic too: "A New York lawyer who used a cartoon image of a heavily bandaged patient to advertise his personal injury practice may be entitled to copyright protection for the drawing, a federal judge has ruled." Richard P. Neimark of Rockland County (toll-free number: 1-888-PAL-RICH) had been using the picture of a bandaged patient lying in a hospital bed in Yellow Pages ads and on his website and had even gone so far as to register it with the U.S. Copyright Office in 1990, so you can imagine his annoyance when a personal injury firm with an office in nearby White Plains, Ronai and Ronai, adapted the drawing for its own ad, later saying it thought the drawing was in the public domain. A federal judge has urged the parties to settle, noting that the Ronai firm had pulled down the graphic immediately and that no evidence had been presented of any actual injury. (Anthony Lin, "Copyright Infringement Suit Over Lawyer's Advertising Cartoon Continues", New York Law Journal, Jun. 11).

Nicole Black is throwing a contest; thanks to the readers who nominated us (and the one who dissented was awfully nice about it too). P.S. We've made the finals and readers can vote through Jun. 25 (& discussion at QuizLaw).

Another new way to bring the idea of software patents into disrepute, per eWeek/SecurityWatch:

Security researchers, are you tired of handing your vulnerability discoveries over to your employer, as if that were what you're paid to do? Helping vendors securing their products—for free—so that their users won't be endangered by new vulnerabilities? Showing your hacking prowess off to your friends, groveling for security jobs or selling your raw discoveries to middlemen for a fraction—a pittance—of their real value?

Take heart, underappreciated, unremunerated vassals, for a new firm is offering to work with you on a vulnerability patch that they will then patent and go to court to defend. You'll split the profits with the firm, Intellectual Weapons, if they manage to sell the patch to the vendor. The firm may also try to patent any adaptations to an intrusion detection system or any other third-party software aimed at dealing with the vulnerability, so rest assured, there are many parties from which to potentially squeeze payoff.

Intellectual Weapons is offering to accept vulnerabilities you've discovered, as long as you haven't told anyone else, haven't discovered the vulnerability through illegal means or have any legal responsibility to tell a vendor about the vulnerability.

Also, the vulnerability has to be profitable—the product must be "highly valuable," according to the firm's site, "especially as a percentage of the vendor's revenue." The product can't be up for upcoming phaseout—after all, the system takes, on average, seven years to churn out a new patent. The vendor has to have deep pockets so it can pay damages, and your solution has to be simple enough to be explained to a jury. ...

The firm says it "fully [anticipates] major battles."

("New Firm Eager to Slap Patents on Security Patches", Jun. 7; Slashdot thread).

Second Milberg Weiss Justice Fellow, same as the first? Bizarro-Overlawyered twists itself into contortions over the infamous $54 million Judge Pearson pants-suit. Cyrus Dugger's replacement as Milberg Weiss Justice Fellow, Kia Franklin, recognizes that the anti-reform cause can't be seen endorsing the patently-ridiculous lawsuit that is the laughingstock of the world. So, she dances over the issue: yes, this case is frivolous, but frivolous cases are rare, so there are no lessons to learn from the fact that a small business was forced to pay tens of thousands of dollars litigating an overbroad consumer-fraud claim, to the point that it was willing to pay $12,000 over a pair of pants to make the lawsuit go away and stop the financial bleeding.

Her evidence is a Public Citizen study—but she ignores our 2006 post noting that Public Citizen got its math wrong, and even distorts the distorted statistic beyond what Public Citizen claimed. (Public Citizen gerrymandered its claim to falsely say businesses were 69% more likely to be sanctioned for frivolousness than individual tort plaintiffs, but Franklin misreads that to say individuals, which is false even by Public Citizen's numbers, which found by its own measure that individuals were sanctioned for frivolousness 86% more often than corporations. Note also the difference between the inaccurate "more likely" and "more often.")

The really funny thing is that, under the Public Citizen narrow definition of "frivolous lawsuit" used in its study, Judge Pearson's suit is not frivolous! When politicians speak of "frivolous" cases, they use it in the everyday English sense of "silly": they mean the meritless cases, where, because of far-fetched legal theories, junk science, or overbroad liability rules, plaintiffs seek or realize recovery far beyond what makes good social policy—cases like Roy Pearson's. Public Citizen's study, however, in a typical litigation-lobby bait-and-switch (see, e.g., the Kerry/Edwards malpractice reform plan), defines "frivolous" with the narrow technical legal definition so that it can conclude (like Franklin) that frivolous litigation is "rare" and thus not a problem. (Amazing how many problems disappear when you assume them away.) The definition is so narrow that Pearson's suit is outside of it: Pearson defeated motions to dismiss and for summary judgment, and received a $12,000 offer of judgment. (Pearson is apparently sufficiently emotionally troubled that he thinks he has a better shot seeking tens of millions from a couple of immigrant Korean dry cleaners than the thousands of dollars offered in settlement for a pair of pants, even though the judge who will be ruling on his case has given him plenty of hints that he has no hope of success.) The Pearson suit would have been excluded from Public Citizen's count of frivolous suits for a second reason: Public Citizen ignored pro se lawsuits brought by attorneys like Pearson in its count of frivolous suits, as it had to to deflate the number of sanctions issued against individual tort plaintiffs and falsely claim that corporations are sanctioned more often.

We're excited to see Franklin join the world of reformers and recognize that many more lawsuits are frivolous than what Public Citizen recognizes. We encourage her to read the data and arguments of those she mistakenly claims to oppose, and to scrutinize those she mistakenly thinks are her allies a bit more closely. Why is it alright for wealthy white trial lawyers to extort billions from big business using the same ad terrorem tactics (and even the same consumer-protection laws!) as a poor African-American pro se did to extort $12,000 from a small business? We encourage Franklin to examine the Association of Trial Lawyers of America's racial double-standard.

And since Franklin agrees that the Pearson lawsuit is frivolous, we are eager to hear how she would define a frivolous lawsuit, and hope that she uses that definition consistently for both the Milberg Weisses of the world as well as African-American city employees.

The Duke lacrosse prosecutor acted as a "minister of injustice", said State Bar prosecutor Douglas Brocker. The disciplinary committee wound up agreeing unanimously on nearly every element of the ethics charges against Nifong, who's agreed to quit as Durham prosecutor. (Aaron Beard, "N.C. Panel Disbars Duke Prosecutor", AP/Chattanooga Times Free Press, Jun. 16; "Nifong stripped of law license", Sports Network, Jun. 17). We've covered the case extensively from early on; K.C. Johnson at Durham in Wonderland, who's led the blog charge on the issue, notes that the New York Times's Duff Wilson is still slanting his coverage of the case (Jun. 16).

If you're not reading our sister site, you're missing posts about federal indictments in the Ky. fen-phen scandal; great moments in labor arbitration; a big embarrassment (and maybe even liability?) for Yale Law School; more cosmetics from John Edwards on med-mal; New Jersey and Missouri high courts rule against lead-paint nuisance suits; federal judge refers for possible prosecution criminal contempt charges against Pascagoula potentate Dickie Scruggs; lots of Stoneridge coverage; and much more.

Better late than never:

Virginia Tech has provided some of Seung Hui Cho's medical records to a panel investigating the April 16 massacre, after negotiating with family members to waive their privacy rights....

The records were released after weeks of frustration among the eight panel members over not being able to analyze Cho's mental health in the years leading to the massacre, the worst mass shooting by an individual in U.S. history....

...panel officials said Thursday that they will continue to press for additional records, which also are protected under state and federal privacy laws.

(Tim Craig, "Panel Given Some Medical Files on Cho", Washington Post, Jun. 15). And from a Thursday news report, also in the Post:

Authorities' abilities to identify potentially dangerous mentally ill people are crippled across the nation by the same kinds of conflicts in privacy laws that prevented state officials from being able to intervene before Seung Hui Cho went on his rampage at Virginia Tech, according to a federal report commissioned after the Blacksburg shootings that was presented to President Bush yesterday.

Because school administrators, doctors and police officials rarely share information about students and others who have mental illnesses, troubled people don't get the counseling they need, and authorities are often unable to prevent them from buying handguns, the report says.

(Chris L. Jenkins, "Confusion Over Laws Impedes Aid For Mentally Ill", Washington Post, Jun. 14). My writings on the topic from April are here, here and here.

Vienna, Va. attorney Thomas J. Fadoul, Jr., who represents twenty victim families, has threatened to sue unless a family representative is appointed to the panel investigating the massacre so as to help "steer" its proceedings; Virginia governor Tim Kaine has replied that the panel was chosen so as not to include parties involved, and noted that the panel does not include any representative of Virginia Tech itself.

That's what the Westchester County, N.Y. town has pledged as part of the settlement of a lawsuit charging that cops were overly aggressive in policing an area where Hispanic day laborers hung out to solicit work. Because it's not as if local police have any business concerning themselves with whether anyone's violating federal law, right? Or something like that. You can see why David Frum (Jun. 15) might get riled up (Jim Fitzgerald, "Hispanic day laborers, NY village reach tentative agreement over discrimination lawsuit", AP/Canton Repository, Jun. 11).

John Tierney is challenging some common environmentalist presumptions at his New York Times blog (Jun. 12).

...could soon be banned in Norway under pending animal welfare regulations. ("May ban caged birds", Aftenposten, Jun. 13).

The controversy over bathroom-graffiti postings at the law student site Autoadmit/xoxohth.com (May 3, May 20) has now developed into litigation:

two [unnamed] female Yale Law School students have sued Anthony Ciolli, the Web site’s former “chief educational director,” and more than two dozen others who allegedly used pseudonyms and posted the students’ photos as well as defamatory and threatening remarks about them on the online law-school discussion forum.

(Amir Efrati, WSJ Law Blog, Jun. 12). Lawprofs David N. Rosen (Yale) and Mark A. Lemley (Stanford) are assisting the plaintiffs, and Rosen told the WSJ Law Blog in an interview that the case was about "bringing the right to protect yourself against offensive words and images into the 21st century,” calling the postings “the scummiest kind of sexually offensive tripe.” Discussion: Eugene Volokh, Ann Althouse , Glenn Reynolds, David Lat, Patterico.

I'll be speaking at Federalist Society events Wednesday, June 20 in Austin and Thursday night, June 21 in Houston on the issue of contingent fees in class actions. Other speakers include the Charles Stuckey of State Farm, Brian Anderson of O'Melveny & Myers, and (one hopes) a plaintiffs' attorney to be named later. I hope to see lots of Overlawyered readers there.

Travis Corcoran gets an "angry and curt" call from an intellectual property lawyer over this practice, and reacts with some ferocity (TJIC, May 17).

Sheffield, U.K.: "Tony Turner, also known as Barney Baloney, will now stick to clowning and juggling after being refused insurance by several companies which feared youngsters might slip on the bubbles' residue." (Paul Stokes, "Safety mania bursts clown's bubbles", Daily Telegraph, Jun. 15). Earlier on clown liability, also from the U.K.: Apr. 9, 2001.

A study commissioned by the National Council for Community Behavioral Healthcare and Eli Lilly and Company found that "even when patients were responding well to their prescribed antipsychotic treatment, many requested a medication change because these drugs are featured in law firm advertisements. Other patients stopped taking their medication, often without telling their psychiatrist, for the same reason."

“Many of our patients already struggle with accepting their illness and staying on their prescribed treatment, and now they are experiencing new levels of fear due to the increasing incidence of these jarring advertisements,” said Dr. Ralph Aquila, assistant clinical professor of psychiatry, Columbia College of Physicians and Surgeons; director, residential community services, St Luke's-Roosevelt Hospital Center, New York, NY. “This irresponsible advertising is hindering the progress of therapy for many of these patients and disrupting the important relationship between them and their healthcare providers. Plaintiffs attorneys need to consider the consequences that these advertisements may have on patients.”

Twenty-six percent of relapses led to suicide attempts. "Thirty-one percent [of psychiatrists] found patient resistance to starting medication due to concerns generated by law firm advertisements challenging, while 28% are concerned about malpractice risk if they prescribe a drug that’s the focus of product liability litigation." (Cross-posted from Point of Law)

Famous excuses: "I didn't know it was loaded." "It's not mine; I was just holding it for a friend." "It was like that when I got here." "Nobody told me that fast food could make me fat." Oh, and this classic, beloved for millennia by authors, screenwriters, and trial lawyers alike: When I climbed upon the Girls Gone Wild tour bus and they filmed me taking my clothes off and having sex, I didn't think they were going to use the footage.

That last one is the excuse that two Florida women are using in the lawsuit they filed against Girls Gone Wild this week for using their sexual antics in one of its Spring Break videos. (Well, yes, they did take off their clothes for the camera, but they didn't think that GGW was going to sell the video. And they didn't consent. Well, maybe they did, but if they did, they revoked their consent. Besides, they were drunk. And that's the producers' fault, because they gave these women alcohol.)

It's not as if one should necessarily feel great sympathy for Girls Gone Wild -- its founder, Joe Francis, seems to be a less-than-upstanding individual. But who's more exploitive? The guy who films drunk people at spring break doing what drunk people at spring break always do? (And unlike in some cases of this type that we've covered, the plaintiffs were adults at the time of the filming.) Or the people who wait to see how much money he makes -- according to the story, the video in question was published back in 2003 -- and then charge to the courts to extract it from him with incredible claims?

(Previous Girls Gone Wild coverage: Aug. 2006 and links therein)

In 2002, a couple of Rottweilers attacked and seriously injured Marguene St. Juste, a woman in Delray Beach, Florida. Last week, the jury awarded this woman $3.76 million for her injuries. Routine -- if expensive -- dog bite case, right? The patented Overlawyered twist? The jury decided that the owner of the Rottweilers, who had allegedly repeatedly allowed the dogs to run free, was only 40% responsible for this tragedy. The other 60% of the blame -- no, not the dogs, or the victim, or the doctors who treated her, or anybody obvious like that. Rather, the majority of the responsibility was assigned to the city of Delray Beach, Florida.

(The allocation of fault might call into question the value of defense attorneys; the dogs' owner didn't even bother to defend herself, and defaulted in the case, while the city defended itself vigorously. And yet the city bore the brunt of the verdict. Of course, a plausible alternate explanation is that the plaintiff simply picked on the deepest pocket, and the jury went along out of sympathy.)

The city was blamed based on the theory that the city knew that the dogs were running loose -- the city disputed this, arguing that they never actually witnessed the dogs unsecured -- and failed to impound them, as its city ordinance required. But even if the allegations against the city are true, how can it make the city more liable than the owner?

More importantly, why should it make the city liable at all? It doesn't in other contexts; you can't sue the police for failing to arrest a dangerous criminal, for instance. (It's well-established that the police do not have a legal duty to protect you, absent special circumstances.) Once again, we see trial lawyers perversely arguing that an inconsistently-followed safety rule should make a defendant more liable than not having a safety rule at all. If Delray Beach had no animal control ordinance, it could not have been sued under these circumstances. But because it had one, taxpayers rare on the hook for up to $2.2 million. Now, we don't expect trial lawyers to care about the incentives that their lawsuits create; after all, they're just in this game for the money. But shouldn't our legal system factor in these public policy considerations?

(I should note that there is one circumstance in which it is logical to punish a defendant for not following its safety rules: when an injured party took an extra risk in reliance upon the safety policy, and then the defendant failed to follow that policy. But that's not the situation presented here. The victim wasn't attacked by the dogs because of the policy.)

The second day of the Roy Pearson pants trial happened yesterday; the Washington Post had another blog post from the scene of the trial. Highlight (or perhaps lowlight?):

It took more than 10 minutes and numerous attempts by both Manning and Judge Judith Bartnoff to get Pearson to answer a question about whether anyone has the right to walk into any cleaners and claim $1,150 simply by saying that their suit had been lost. Finally, Pearson said that the law requires that "The merchant would have an obligation to honor their demand."

"So your answer is Yes?" Manning asked.

"Yes," Pearson said.

The courtroom, in which it's hard to discern any support for Pearson except from his mother and her friend, broke up in laughter. Derisive laughter.

Manning pushed ahead: Does Pearson believe that people should interpret signs "in a reasonable way?"

"Depends on the circumstances," Pearson said.

Asked to answer yes or no, Pearson said, "No."

Keep in mind that the defendants apparently made a formal offer of judgment in the case, in the neighborhood of $12,000 or so. So if Pearson wins, but wins less than that amount, he may be on the hook for all of the defendants' legal fees over the last year and a half. Since those fees would amount to far more than the case was worth, it would be poetic justice.

Of course, nothing prevents Pearson from appealing! (Knock on wood.)

Update: Several readers have pointed out to me that the District of Columbia's Offer of Judgment rule is less generous than the one I'm most used to; while the plaintiffs can recover their costs, these costs do not include attorney's fees. Therefore, the Cleaners may be able to partly recover their expenses, but only partly.

• Encouraging kids' adoption is a great thing to do, but there are right and wrong ways of going about it [U.K. Daily Mail]


• Defensive medical testing: "Every day I work as a doctor, I must choose between committing malpractice and committing insurance fraud." [Dr. Paula Hartzell in Medical Economics]


• After serving 2+ years for consensual sex with fellow teen, Genarlow Wilson (Feb. 8, Mar. 6) may walk free, or maybe not [CNN; views of some Andrew Sullivan readers]


• "We need to eliminate nuisance lawsuits through 'loser-pays' provisions." [candidate Giuliani @ NRO]


• Boston Herald (May 11, etc.) pays $3.4 million to local judge to settle libel verdict [Globe]


• Blind squirrel finds acorn dept.: American Prospect weblog promotes a good idea, abolishing peremptory challenges [Tapped; more]


• Disciplinary hearing begins against Duke DA Nifong [ABCNews.com]; you'd think lacrosse player's out-of-town alibi might have raised a red flag [K. C. Johnson via Cernovich]


• Another flap, this time from Oklahoma, about a doc who vows to turn away malpractice-suit advocates as patients [Enid News & Eagle via KevinMD]


• No shock, Sherlock: mud-slinging, money-flinging found to be big problems in state high court races [AP]


• In that curious saga of Madison County, Ill.'s oft-suing Peach family (earlier posts here and here) Armettia Peach has settled her leaky-roof case against Granite City [M. C. Record]


• New York "plastic surgery addict" loses case claiming doctor should have counseled her against going under the knife so often [six years ago on Overlawyered]

And thanks to the TimesOnline for naming us one of the top three business legal blogs worldwide as part of its list of the top fifty business blogs. Here's a link to our coverage of UK issues, or read Walter's posts about Walter Olson's Times (UK) columns.

Reader J.B. points us to Tampa physician David Lubin writing in the Tampa Tribune June 11 on the Lucia med-mal verdict we discussed in May. The column is must-read:

It seems those Jim ("The Hammer") Shapiro TV ads (Feb. 6, Mar. 7, Apr. 9), in which the ethically-challenged former Rochester attorney rants in manic style as explosions and other violent footage roll in the background, have inspired parodies on YouTube. The one above, featuring "Jack (The Hammer) Shapiro", is from Canada-based DevoImprov; a second parody of a more homemade texture can be found here.

The piece's subtitle: "How greed, hubris and high-stakes lobbying laid waste to the $246 billion tobacco settlement". Without necessarily endorsing every point in the piece -- this is the ABA Journal, after all -- it's still striking how what was once a lonely critique of the settlement has now been accepted as history's verdict:

The only big winners in the litigation appear to be the tobacco companies, the state treasurers and the lawyers who represented both sides....

...$15 billion has been awarded to the private lawyers hired by the state attorneys general. That’s the largest attorney fee award in history. More than $100 million -- Big Tobacco won’t say precisely how much -- has been paid to the lawyers defending the companies.

“The tobacco litigation was a failure of historic proportions,” says Linda Eads, a law professor at Southern Methodist University’s Dedman School of Law in Dallas. “A complete and utter failure in every sense.”

(Mark Curriden, "Up in Smoke", ABA Journal, March).

Roy Pearson's $55 million pants lawsuit has begun; the Washington Post's Emil Steiner is liveblogging the trial. There is a series of about ten posts so far, starting with this 10:02 AM entry.

In case you were holding your breath waiting to find out: the case doesn't sound as if it has gotten any less frivolous. (Apparently Pearson has found a few dry cleaning customers who were also dissastisfied with their service. Well, I'm sold. He also somehow managed to invoke Godwin's Law.)

Like pretty much every big-city fire department, the one in Los Angeles has come under intense legal pressure to hire more female applicants, and in doing so to water down or eliminate whatever former prerequisites for hiring (such as physical tests calling for a show of upper-body strength) show "disparate impact" against women. And having been whipped up one side of the street on those grounds, it now gets whipped down the other side for having apparently responded in the most direct and practical way to the first set of legal pressures:

In the latest bizarre court case involving the Los Angeles Fire Department, a jury has awarded $3.75 million to a male fire captain who said he was retaliated against for not making training exercises easier for women.

Fire Capt. Frank Lima alleged in his lawsuit against the city that he was told by superiors that he shouldn't hold women to the same standards as men. The reason: The Fire Department was under pressure from City Hall to increase the number of women within its ranks.

Thursday's judgment in the 2 1/2 -week case in Los Angeles County Superior Court was notable because it involved $2.96 million in noneconomic damages — in other words, money for pain and suffering.

In his lawsuit, Lima alleged that he suffered heart problems and stress after the department tried to punish him and subsequently denied him certain assignments.

(Steve Hymon, "L.A. fire captain awarded $3.75 million", Los Angeles Times, Jul. 9). For more on the legal pressures on fire departments to relax performance standards that women have trouble meeting, see Jan. 18. For a related set of sued-if-you-do, sued-if-you-don't dilemmas for fire departments, see Mar. 24, 2005 (reverse discrimination suits by whites after Chicago altered rules to encourage black applicants). Finally, we covered (Dec. 5, 2006 and earlier posts) the saga of the $2.7 million settlement that the LAFD paid to a firefighter subjected to a prank in which he was tricked into eating dog food.

Amateur players seeking the chords for commonly played songs are out of luck these days, since the music publishers had a fit of intellectual-property-itis and sent takedown letters to a compilation site. That's just one of the entries in a compilation by mashable.com, "Death by Lawyer: Ten Cool Sites We Miss", which also answers the question of why the wonderful Pandora internet radio service is available only to U.S.-based computers (via Katherine Mangu-Ward, Reason "Hit and Run").

Updating earlier stories:

• The Judge Pearson consumer fraud suit starts today. It's exceedingly silly, but ATLA's attack on Judge Pearson is hypocritical: the only difference between this consumer fraud suit and the consumer fraud suits ATLA supports is that it's an African-American pro se going against a shallow pocket instead of a well-funded bunch of millionaires going against a deep pocket. The Fisher blog @ WaPo notes a publicity-stunt settlement offer. [via TaxProf blog]
• Wesley Snipes playing the race card in his tax evasion prosecution would have more resonance if his white co-defendant weren't still in jail while he's out on bail. [Tax Prof; earlier, Nov. 22]
• "Party mom host set for Virginia jail term" for daring to ensure high school students didn't drink and drive by providing a safe haven for underage drinking. Earlier: June 2005. [WaPo]
• Sorry, schadenfreude fans: Fred Baron settles with Baron & Budd. [Texas Lawyer; earlier Sep. 4]
• Blackmail-through-civil discovery lawyer Ted Roberts (Mar. 19 and links therein) seeks new trial. [Texas Lawyer]
• Second Circuit doesn't quite yet decide Ehrenfeld v. Bin Mahfouz libel tourism suit (Oct. 2003). [Bashman roundup of links]
• NFL drops claims to trademarking "The Big Game" as a euphemism for the trademarked "Super Bowl" (Jan. 31) [Lattman]
• More on the Supreme Court's "fake mental retardation to get out of the death penalty" decision, Atkins v. Virginia (Feb. 2005; Sep. 2003). [LA Times]

• What does Overlawyered favorite Rex deGeorge (Sep. 2004) have to do with The Apprentice? [Real Estalker]

If you're going to try to make a regular income out of suing commercial emailers alleging violations of the anti-spam laws, you may wish to be careful about your methods. Last month a federal court "threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo. ... Just as significantly, the judge also ruled the defendants can recover attorney fees." Judge John Coughenour of the Western District of Washington ruled that that headers and "from" lines on the emails in question were not unlawfully deceptive, as Gordon had argued; Gordon had sought more than $2.3 million in damages over tens of thousands of Virtumundo emails. (Ken Magill, "Judge Tosses Anti-Spam Suit Against Virtumundo", DirectMag, May 15; Venkat Balasubramani, "Can-Spam put to the test", News.com, May 22). According to Ken Magill of DirectMag:

Gordon opted in to receive the e-mails and failed to use the opt-out mechanisms supplied in the subsequent messages, according to court records.

Also, during the trial it came out that Gordon’s sole source of income is from commercial e-mail disputes and that he’s cutting his friends in on the gig....

Gordon has testified that in 2006 he received no income that was not the result of a settlement of a dispute. . ...He also admitted that his “clients” -- apparently people to whom he provides e-mail accounts -- supply him with e-mails they deem are spam for him to use in his disputes and that they get an unspecified percentage of the settlements.

("Man, Oh Man, What a Racket", May 22).

Also last month, a different federal court (Central District of California) resolved another CAN-SPAM case in a manner favorable to the defendant, Vonage; the court ruled that the emails sent by Vonage were probably not illegal under California law and that in any case such law would be pre-empted by the federal spam statute. Representing the plaintiffs: Seattle class-action firm and frequent Overlawyered mentionee Hagens Berman. ("The Tide Continues: Court Shoots Down Spam Class Action", SpamNotes, May 28). Earlier on CAN-SPAM and California anti-spam law here.

This list of "Five ways to avoid costly litigation", from the British site Human Law Mediation, is not exactly earth-shattering, but I did want to flag Carolyn Elefant's post linking to it at Law.com's Legal Blog Watch, which begins:

Of course, some lawyers want to encourage, rather than avoid, costly litigation, because that's how they boost their billables. But if your client can't afford a costly fight, or would rather focus its energy on building its business rather than embroiled in disputes, then take a look at this tips...

Here's a Hollywood-themed edition of our irregularly-scheduled roundups:

• When Sacha Baron Cohen accepted his Golden Globe award for Borat, he famously thanked all the Americans who hadn't sued him "so far." Subtract one person from that list; a New Yorker identifying himself as John Doe, who clever people quickly outed as businessman Jeffrey Lemerond, has now filed a lawsuit, claiming that he was humiliated by his appearance in the film. (Has anybody ever tried compiling a list of people who claimed they wanted privacy but filed lawsuits which exposed their secrets to a wide audience?) The Smoking Gun has the complaint. (Previous Borat suits: Dec. 2005, Nov. 9, 2006,Nov. 22, 2006)

• A Beverly Hills store has settled its lawsuit against Us Weekly for refusing to give it free publicity. (Previously: Sep. 12, 2006, Sep. 22, 2006)

• Carol Burnett's lawsuit against the Family Guy gets tossed. (AP) On Point has details and the judge's opinion. (Previously: Mar. 21.)

• Two for the price of one: A couple of weeks ago, attorney Debra Opri sued her former client, Anna Nicole Smith-impregnator Larry Birkhead, for unpaid legal fees. Opri was last seen on Overlawyered sending exceedingly large bills to Birkhead, including thousands of dollars in cell phone charges.

  Now, Birkhead is suing Opri for conversion, fraud and malpractice. He claims that she took at least $650,000 of money owed to him for various appearance fees and has refused to return it; he also claims that Opri told him she was going to represent him for free in exchange for the publicity she'd receive, and then turned around and billed him hundreds of thousands of dollars. No, I'm sure this won't turn into (yet another) media circus. (AP, TMZ.)

• Judd Apatow, director of the movie Knocked Up, is being sued for copyright infringment by a Canadian author who claims he stole her book for his screenplay.

  A few months in, Eckler says she’s worn out by the litigation. “Here’s what it comes down to: 1) Being a writer, especially a Canadian one, without access to an unlimited bank account, sucks. 2) Copyright infringement is highly technical and difficult to prove. 3) Universal/Apatow know they have resources I do not have, and that every time they simply do not return my lawyer’s phone call, it costs me money.

  She also complains about her treatment at the hands of her first lawyer, who was referred to her by Apatow's lawyer. (WSJ law blog; commentators at Volokh seem skeptical of the merits of her claims.)

• Eleven year old boy, Dominic Kay, who directed a 15-minute movie starring Kevin Bacon, settles lawsuit against his neighbor, who helped finance the movie. "Kanter met Kay when her son played with him on a soccer team." (L.A. Times)

Raise your hand if you had "two days" in the "How long before Avvo ran into legal difficulties?" pool. According to the Seattle Times' blog, on June 7 -- just two days after Avvo publicly launched as a lawyer rating service -- a local criminal defense lawyer, John Henry Browne, threw the lawyer's equivalent of a temper tantrum. An excerpt from his demand letter to Avvo:

I wanted to notify you that I have retained counsel and will be exploring a lawsuit against your corporation for the ridiculously low rating you gave my law practice and the practice of other well-known and competent attorneys. We have yet to determine whether it will be a class action lawsuit or not. However, your rating and the attendant publicity has damaged my law practice and will continue to do so. In an effort to limit damages, I request that you remove your profile of me from your website immediately.

We first mentioned Avvo on June 8. In the comments, Ted noted some problems with his ratings under Avvo's system -- but surprisingly, did not threaten to file a lawsuit. (Full disclosure: Avvo apparently hasn't yet figured out that I'm a lawyer. But I assure you that the state of New Jersey extracts annual dues from me right on schedule.)

The Connecticut substitute teacher was tried and convicted after her computer, probably owing to a malware bug, displayed smutty websites in students' presence (Jan. 20, Feb. 15, Mar. 14). The original trial, notes Glenn Reynolds (Jun. 7), "seemed like a grotesque miscarriage of justice"; prosecutors did not oppose a defense motion for a new trial. (Nate Anderson, "Substitute teacher spared sentencing for porn pop-ups, gets new trial", Ars Technica, Jun. 7).

The high-rolling Texas personal injury lawyer (Mar. 7, 2005; Feb. 16, 2006; May 13, 2005; Apr. 12-14, 2002; PoL Nov. 2, 2005 and various other posts) is considering challenging incumbent Republican John Cornyn for his seat in the U.S. Senate (Jaime Castillo, "Cornyn in for a fight in '08, but Dems don't have it sewn up", San Antonio Express-News, Jun. 3).

As we reported in April, trial lawyer John O'Quinn is subject to a potential contempt hearing for allegedly improperly withholding $18.9 million of settlement money from his breast implant clients. It turns out that this wasn't the first mention of the scandal in Overlawyered. In August 1999, Walter reported:

As one of the wealthiest and most successful plaintiff's lawyers ever, Houston's John O'Quinn has been known to call press conferences at which he's leveled charges highly damaging to his opponents' reputations, accusing them (for example) of conspiring to "remain silent, conceal or suppress information" about problems with their products and operations. So what happened June 4 when O'Quinn was himself sued by a group of unhappy former breast-implant clients seeking class-action status against him? As Brenda Jeffreys reported in the June 14 Texas Lawyer, O'Quinn "didn't hesitate before pummeling the class action lawyers with a libel suit" charging the lawyers with "encourag[ing] the news media to disseminate false, slanderous and libelous comments about Plaintiff" -- said encouragement consisting of their press release about the lawsuit, and the press conference they were planning that would have explained it further.

Had the lawyers challenging O'Quinn succeeded in holding their press conference, interesting questions might have been aired. Their suit charges that a group of women numbering at least 2,000 were wrongfully overcharged tens of millions of dollars in claimed expenses, and that the firm of O'Quinn and Laminack breached its fiduciary duty to them; it sought a fee forfeiture totaling $580 million. But O'Quinn's firm rushed to court to ask for a temporary restraining order to prevent the lawyers from holding a press event, and on June 7, while a judge was considering that motion, they agreed to a gag order and called off the conference they'd scheduled for that day. The whole process -- from the first public notice of the suit to the gag order in hand -- had taken only three days. "O'Quinn's quick action may have prevented a firestorm of public attention to the class action suit," writes the Texas Lawyer's Jeffreys. It is not recorded whether any of the defendants O'Quinn has sued have ever tried, let alone succeeded in, such a tactic against him.

The Houston Chronicle reports that the three Houston attorneys on the arbitration panel determined in March that O'Quinn's deduction was not authorized by his contracts with his clients, and that they are now deciding damages. The former clients, now represented by Joe Jamail, are asking for O'Quinn to completely disgorge all of his fees, a legitimate possibility under the Burrow v. Arce decision, which would be over half a billion dollars. Arbitration decisions are generally not appealable. It's unclear what has happened to O'Quinn's countersuit against his clients alleging libel. (Mary Flood, "O'Quinn's law clients win round against him", Houston Chronicle, Jun. 9 (h/t W.F.)).

Arbitration is generally quicker than litigation, but O'Quinn seems to have successfully stalled this case for over seven years, not to mention avoid any publicity from it. To date, we are the only media source that has even mentioned the contempt hearing.

Avvo.com offers aid to those checking out lawyers, but it may still have some kinks to work out. (Declan McCullagh, "Lawyer ratings site not without objections", News.com, Jun. 5; Elefant; Ambrogi).

The San Francisco Chronicle columnist quotes me on the lawsuit (Jun. 1) filed by Linda Carlson against the online matchmaking service eHarmony.com because it won't fix her up with a gal. I'm quoted saying that "Diversity in theory is the enemy of diversity in practice" and that although existing dating services catering to lesbians would be far likelier to get the plaintiff what she's looking for, nowadays "It's not just that you get the choices you want, but also choices you don't approve of have to be taken away." Also, a new nickname for Overlawyered: eDisharmony.com. (At some point the paper will presumably get around to correcting the misrendering of my name.) Among others quoted as commenting on the suit:

Mark Brooks, spokesman for the gay online matchmaking service myPartnerPerfect.com, said of eHarmony, "I think they're having a bit of an unfair time of it. I think it's their right to have a niche focus, but they've not quite said the right thing, and their underlying tone has riled people up."

The best line comes when Saunders brings up the earlier case (Mar. 29, 2006) of the attorney who sued eHarmony because it wouldn't let married guys like him look for dates: "Married and litigious -- what a catch, girls." ("Disharmony: The new tolerance", Jun. 7). More: Rick Sincere, John Corvino.

• Litigation as foreign policy? Bill authorizing U.S. government to sue OPEC passes House, and is already contributing to friction with Russia [AP; Reuters; Steffy, Houston Chronicle; earlier here, here, and here]


• Albany prosecutors charge boxing champion's family with staging 23 car crashes, but a jury acquits [Obscure Store; Times-Union; North Country Gazette]


• New at Point of Law: Bill Lerach may retire; Abe Lincoln's legal practice; Philip Howard on getting weak cases thrown out; "Year of the Trial Lawyer" in Colorado; and much more;


• Multiple partygoers bouncing on a trampoline not an "open and obvious" risk, says Ohio appeals court approving suit [Wilmington News-Journal]


• Skadden and its allies were said to be representing Chinatown restaurant workers pro bono -- then came the successful $1 million fee request, bigger than the damages themselves [NYLJ]


• Who will cure the epidemic of public health meddling? [Sullum, Reason]


• Turn those credit slips into gold, cont'd: lawsuits burgeon over retail receipts that print out too much data [NJLJ; earlier]


• Lawprof Howard Wasserman has further discussion of the Josh Hancock case (Cardinals baseball player crashes while speeding, drunk and using cellphone) [Sports Law Blog; earlier]


• "Women prisoners in a Swedish jail are demanding the 'human right' to wear bikinis so they can get a decent tan." [Telegraph, U.K.]


• Disbarred Miami lawyer Louis Robles, who prosecutors say stole at least $13 million from clients, detained as flight risk after mysterious "Ms. Wiki" informs [DBR; earlier at PoL]


• Indiana courts reject motorist's claim that Cingular should pay for crash because its customer was talking on cellphone while driving [three years ago on Overlawyered]

Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork's slip and fall suit against the Yale Club embarrassingly silly. The Wall Street Journal has the complaint. Judge Bork, speaking at the Yale Club, attempted to climb a raised dais that had no stairs or handrail; the 79-year-old failed to do so, and fell back, and hurt himself severely. I sympathize with Judge Bork's serious injuries, but it's beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the "unreasonable" height that the complaint alleges it to be.

(Bork used to be a fellow at AEI; and Walter and I have dined at the Yale Club.)

Update: Bloomberg has some relevant (and some not-so-relevant) quotes from Bork.

Update: More from David Bernstein. (The "Olson" quoted is Ted Olson, not Walter.)

Last week, the California Supreme Court handed down yet another victory for abusive "antidiscrimination" litigation, ruling in favor of a California attorney who makes a business out of suing legitimate businesses for violations of California's absurdly broad Unruh antidiscrimination law. Marc Angelucci and three of his fellow travelers sued the Century Supper Club, a nightclub, for charging women less than men on several occasions in 2002; although two lower courts found reasons to rule against them, the California Supreme Court ruled that their claims had merit. (Court decision: PDF)

Unfortunately, as a matter of law the Court is right. The Unruh law is written ridiculously, and it has no exception for bogus plaintiffs. (What's the big deal? Just this: Unruh provides for a minimum of $4,000 damages, plus attorney's fees, for successful plaintiffs, thus providing an incentive for Angelucci to turn an anti-Ladies' Night crusade into a career. Even the California court recognized that its interpretation of the law improperly rewarded "professional plaintiffs and bounty-hunting attorneys," but it (correctly) held that rewriting laws is for the legislature, not the courts.

Oh, and one of the plaintiffs' lawyers in this case? Our old friend, Morse Mehrban. (Most recently covered: Apr. 17, and see links therein.) Mehrban and Angelucci have teamed up on these cases many times before.

Many of the frivolous suits we cover here on Overlawyered are laugh-out-loud outrageous; but (as the plaintiff's bar will trumpet in self-defense) these represent only a small fraction of lawsuits. (Of course, even at a small percentage, there's enough of them for us to blog about them nearly every day.) Most of the suits that make up the "high cost of our legal system" are much more mundane -- though not necessarily any less legally ridiculous or less costly. Take a decision handed down last month by the Fourth Circuit Court of Appeals involving a lawsuit against Nissan. (PDF)

In August 1997 -- note the date here -- a bunch of high school kids were driving around after school in a 1987 Nissan Sentra. The driver, who may or may not have been "speeding and driving recklessly," depending on who you believe, lost control of the car. The car flipped over, and one of the passengers, Troy Boss (who, by the way, wasn't wearing a seat belt), ended up paralyzed.

Thus endeth the tragic story, and thus beginneth Boss's quest for deep pockets. (Which was also tragic, but only for Boss's victims.) First, Boss settled his claims against the person actually responsible for the accident -- Stacy Harmon, the driver of the car. Then, hunting around, Boss and his attorney decided that the only truly deep pocket they could find was Nissan, which somehow was responsible for a teenager crashing a 10-year old car. So, in February 2002 -- five years after the accident -- he filed a $50 million suit in Baltimore against Nissan, Jiffy Lube (which had done an oil change on the car), a company called Eberle Enterprises (which had done the state auto inspection when Harmon bought the car), and a woman named Elizabeth Aldridge (who had sold the used car to Harmon several months earlier for $750). The theory that Boss came up with? That Nissan manufactured the car defectively, in such a way that "particles" in the power steering fluid mysteriously jammed the steering mechanism in some way, causing the car to swerve.

But if that was Boss's theory, you might wonder why Boss sued all those other defendants. What does an oil change have to do with power steering fluid? What does the prior owner of the car have to do with power steering fluid? What does a routine car inspection -- which does not, by state law, involve power steering fluid -- have to do with anything? The answer to all three questions? Nothing at all. So why were they in the case? One reason, and one reason only: by fraudulently joining them as defendants, Boss hoped to keep the case in state court, to destroy diversity. Under federal law, once the case has been in state court for a year, regardless of how fraudulent the reasons are, the case can't be removed to federal court -- and there was testimony in the case that Boss's attorney had admitted he was deliberately stalling to get beyond the one year mark.

A reader writes: "Am I wrong to believe that businesses and consumers are natural enemies in that their economic interests are diametrically opposed?"

Yes, you're wrong. Transactions don't occur unless both parties are better off. Businesses thus only profit if they can create consumer surplus—the ability to sell a product at a price that is less than what a consumer values the good or service. Businesses' interests are thus aligned with consumers who seek consumer surplus. Businesses more often prosper by creating satisfied consumers who become repeat customers who promote the business's reputation rather than trying to extract every last ounce of wealth from them in a single transaction. This is why brand names and advertising are so important, because they are market signals of long-term commitment to customer satisfaction. It's not profitable to invest in creating a brand name if one intends on having a bad reputation. (Note the key word "intends" there; no doubt one can intend to have good customer service and fail to achieve it, and I'm looking at you, Comcast.) And one will note that businesses that tend not to have repeat customers or rely on word of mouth are more likely businesses that have reputations of indifference about customer satisfaction: tourist traps, traveling carnivals, etc.

This is why it's frequently a mistake to characterize pro-plaintiff actions as "pro-consumer" actions. This is not a zero-sum game, and making businesses worse off can quite often also make consumers worse off. Even if consumers come out ahead retroactively in one particular transaction because they got a coupon in a class action that they wouldn't have otherwise, or because one consumer realized a jackpot award for their misuse of a product, consumers can be losers in the long term in litigation because of higher prices and fewer choices, and this is true even if corporations don't entirely pass the higher costs on to consumers and force the widows and orphans who are their shareholders to suffer reduced profits as well.

I support reforms that make consumers better off. I oppose the ones that don't.

Updating our Apr. 9 item about the New Orleans federal judge who sealed the division of fees in the settlement of a class action:

Five attorneys who served on a closed-door committee that helped U.S. Judge Ivan Lemelle decide how to divvy up $6.6 million in legal fees in a settled federal lawsuit over tainted gasoline steered nearly half the money to their own firms, court records unsealed this week show.

Of 32 plaintiff's attorneys and law firms involved in the case over fuel-gauge damage caused by contaminated gas made at Shell-Motiva refinery in Norco, the four top fee recipients -- set to collect between $480,000 and $1.1 million -- each had a member on the five-lawyer team that Lemelle formed last fall to recommend how much to pay the 79 lawyers who worked on the case. ...

Dane Ciolino, a Loyola Law School ethics professor who petitioned the court to unseal the records on behalf of attorneys who claimed they were shortchanged, said Tuesday he was intrigued by the money roster.

"I think it's very interesting that of five attorneys on the fee committee -- those five out of the 32 firms (in the case) -- managed to get roughly half the fees," he said. "Being on the fee committee apparently is good work."

The New Orleans Times-Picayune had also petitioned to unseal the records. (Michelle Krupa, "Lawyers steered settlement money to own firms", New Orleans Times-Picayune, Jun. 5).

"Accusing tobacco companies of preying on black people, a Miami attorney is seeking $1 billion in damages on behalf of a Coral Springs, Fla., woman whose mother and grandmother both died of smoking-related health problems." Reporter Forrest Norman of the Daily Business Review, the south Florida legal paper, quotes me expressing skeptical opinions about the suit. In Florida's earlier Engle tobacco litigation, plaintiff's lawyer Stanley Rosenblatt came in for sharp criticism at the appeals level for the way he demagogued the racial angle; I covered the case here, here and here. This week's case was brought by solo practitioner J.B. Harris, who said of the tobacco-company defendants, "If I could, I'd try to have them charged with genocide." ("Suit Accuses Tobacco Firms of Targeting Black Consumers, Seeks $1 Billion in Damages", Jun. 6).

A New York man has sued Novartis, maker of the health drink Boost Plus, saying he woke up the morning after drinking the concoction with a case of priapism -- involuntary male sexual arousal -- that landed him in the hospital. "The company would not comment, but its website "describes the drink as 'a great tasting, high calorie, nutritionally complete oral supplement for people who require extra energy and protein in a limited volume,' in vanilla, chocolate and strawberry." Reader Michael McK. suggests that word of the lawsuit may serve to increase the drink's sales. ("Man Sues Over Long-Lasting Erection", AP/Breitbart, Jun. 5).

As if to demonstrate that their website is simply reflexively anti-reform rather than anything to do with the justice they supposedly aspire to, one of their trolling bloggers attacks the American Justice Partnership for seeking predictability in the law (and does so by quoting a positively deranged anonymous blogger). Of course, predictability—that like cases are treated alike—is a fundamental component of the definition of justice. The social benefits of the rule of law are so obvious that it should hardly be necessary to list them, but, aside from issues of fundamental fairness enshrined in our Constitution in the ex post facto clause among other places, predictability has other advantages. If a result is predictable, settlement is easier: there's little point in continuing to litigate on either side, because additional money spent on lawyers cannot change the result. If a result is predictable, one can more easily conform conduct to be law-abiding. Corporations aren't incentivized to break contracts with one another to see whether they can get a better deal in the courts; individuals and corporations know where the line is in dealing with the public and won't step over it. And as I noted last year,

In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of "justice." If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.

Since when is predictability a component of justice?

Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.

Two manufacturers of digital rights management (DRM) systems, Media Rights Technologies (MRT) and BlueBeat.com, "have issued cease and desist letters against Apple, Microsoft Real and Adobe for not including their technological protection measures in products like Windows, iPod and Flash Player." (TechnoLlama, May 12; Louisville Music News, May 16, whose headline we have borrowed). Explains Podcasting News (May 12):

The companies are using an unusual interpretation of the Digital Millenium Copyright Act (DMCA) to make their case. The DMCA, signed into law by President Clinton in 1998, makes prohibits the manufacture of any product or technology that is designed for the purpose of circumventing a technological measure which effectively controls access to a copyrighted work or which protects the rights of copyright owners. According to the firms, mere avoidance of an effective copyright protection solution is a violation of the DMCA.

Freedom to Tinker (May 15) says that if you believe the companies' legal claim is sound, "I have a bridge to sell you — and let me assure you that you’re legally compelled to buy it."

A 19-year-old Australian who fell from a tree and was left quadriplegic after a failed suicide attempt has failed in his effort to lay legal blame on a mental hospital that had discharged him eleven days earlier. Timothy Walker "sued the Sydney West Health Service for negligence, claiming not enough was done to care for him prior to the accident. He claimed the hospital should have prescribed him anti-depressant or anti-psychotic medication, counselled him and detained him as an involuntary patient for at least two weeks for assessment." However, a judge found that the health service had not rendered substandard care, that it properly declined to prescribe antidepressants because Walker would not promise to stay off liquor, and that it had followed up with home visits after Walker's discharge, during which he reported feeling better. Walker will, at least notionally, be liable for the hospital's legal expenses under the rule that costs follow the event (sometimes known as the "everywhere-but-America rule"). (Alyssa Braithwaite, "Would-be suicider fails in hospital sue bid", AAP/Daily Telegraph, May 25). Earlier: May 9.

Roy Pearson, the DC administrative law judge who made abusive litigation famous by suing his dry cleaner for $67 million over a pair of pants, has apparently heard all the public criticism he has received and taken it to heart. No longer is he asking for that kind of money over an article of clothing, according to the Examiner:

A customer who believes he was mistreated by a dry cleaner has dropped the pants from his suit.

Roy L. Pearson, who filed a $67 million lawsuit against the dry cleaning business that lost his pants, has lowered his demand. Now, he's only asking for $54 million.

[...]

He is now focusing his claims on signs in the shop that have since been removed. The suit alleges that the three defendants, Jin Nam Chung, Soo Chung and their son, Ki Chung, committed fraud and misled consumers with signs that claimed "Satisfaction Guaranteed" and "Same Day Service."

For all of you eagerly awaiting the outcome of this case, it is scheduled for trial on June 11.

• Everyone's got an opinion on Dr. Flea's trial-blogging fiasco [Beldar, Childs, Adler @ Volokh (lively comments including Ted), Turkewitz (who also provides huge link roundups here and here), KevinMD]


• Sidebar: some other doctor-bloggers have shut down or curtailed posting lately amid pressures from disapproving employers and patient-privacy legal worries [KevinMD first, second posts; Distractible Mind, Blogaholic]


• Amusement park unwisely allows "extremely large" woman to occupy two seats on the roller coaster, and everyone lands with a thump in court [Morris County, N.J. Daily Record via Childs]


• Prosecutors all over are trying to live down the "Duke effect" [NLJ]; how to prevent the next such debacle [Cernovich]


• Bad for their image: trial lawyers' AAJ (formerly ATLA) files ethics complaint against Judge Roy Pearson Jr., of $65 million lost-pants-suit infamy [Legal Times]


• More suits assert rights to "virtual property" in Second Life, World of Warcraft online simulations [Parloff]


• Plea deals and immunity in the Conrad Black affair [Steyn, OC Register]


• Another round in case of local blog sent nastygram for allegedly defaming the city of Pomona, Calif. [Foothill Cities; earlier]


• "There once was a guy named Lerach..." -- Milberg prosecution has reached the limerick stage [WSJ Law Blog comments]


• Government of India plans to fight Americans' claims of intellectual property over yoga postures [Times Online; earlier here and here]


• After car-deer collision, lawyer goes after local residents who allegedly made accident more likely by feeding the creatures [seven years ago on Overlawyered]

Is it, or isn't it?

• It is: "Hopefully this means a better life," says the energy company employee who won a $40 million judgment (almost half of it punitives) against Qwest Communications after the telephone pole he was working on collapsed and injured him. He was lucky; had he worked for the phone company, he likely would have been barred from suing by worker's comp laws.

  "I could hear my heart pounding, pulsing faster and faster, and I tried keeping calm, but when they started reading the verdict I was in a state of shock," he said. "It's justice."

• It isn't: "The lawsuit wasn't about money, he said." That's New Hampshire resident Joseph Hewett, the rejected applicant for The Apprentice who settled his age discrimination lawsuit against Donald Trump and the producers of the show.

  "This was never about a disgruntled applicant trying to get back at (Trump's) organization, it just gave me an opportunity to advocate on behalf of a protected class," he said. "This was about the fact that I believe an entire class was aggrieved."

  His evidence that age was what kept him off the show was a slam dunk; after all, he "claimed he was qualified for the show because he graduated magna cum laude from college and because of his 'many years of experience maintaining large commercial properties.'"

• Well, maybe it is: Human rights advocacy groups have been (mis)using the Alien Tort Claims Act for years to litigate foreign events in American courts, but those advocacy groups were motivated primarily by ideology. Now class action law firms, sensing an opportunity, are getting in on the action. Overlawyered repeat offender Motley Rice (many links) is suing officials of the United Arab Emirates on behalf of boys from South Asia and Africa who claim to have been kidnapped and enslaved as camel jockeys in the UAE; the case has no connection whatsoever to the U.S.

  The human rights movement isn't thrilled because they figure that these lawyers are really in it for the money and not the cause; conservative tort reformers aren't thrilled because they see it as just another example of entrepreneurial lawyering by trial lawyers.

  John M. Eubanks, a lawyer with Motley Rice who represents the former jockeys, disputed both points.

  “We’re trying to right wrongs that have been committed,” Mr. Eubanks said. “It’s not about money. It’s about exacting some form of justice.”

  Uh, yeah:

  Pressed, Mr. Eubanks conceded that the case was at least partly about money. “There is a contingency fee,” he said. “These cases do cost a lot of money. We don’t get paid unless we collect.”

If you see Birmingham, Alabama lawyer Darrell L. Cartwright walking down the street, you might want to see if you can find some spare change in your pockets to give to him. He obviously must be hard up for money, because how else to explain the lawsuit he filed a couple of weeks ago?

On Monday, May 21, 2007, XM Satellite Radio suffered a satellite problem that caused partial or total service outages for parts of two days, lasting about 24 hours total. By late Tuesday, the problem was resolved, and XM announced that it would offer a two-day credit, worth about 87¢ -- yes, 87¢ -- to any customer who requested it. Problem solved. Everything right with the world, no?

No. You've forgotten about poor Mr. Cartwright. On Wednesday, May 23 -- the day after XM promised a refund to all its customers -- Mr. Cartwright found two neighbors of his who had subscribed to XM radio, slapped their names on a lawsuit, called it a class action suit, and demanded damages sustained by all its customers, in an unspecified amount of at least $5 million. (Via the Consumerist, which helpfully posted a copy of the complaint, which from the looks of things, took about 7 1/2 minutes of time to draft, typos and all: PDF.)

Now, you may wonder what benefit consumers get from this litigation, but to be fair, the lawsuit also demanded that the court issue an injunction to prohibit XM from suffering from technical problems in the future.

Sadly, it apparently isn't sanctionable conduct, as the James Frey case we've discussed (Jun. 2, May 21, and earlier links therein) illustrates, for trial lawyers to file lawsuits demanding refunds that companies have already offered to their customers.

We didn't note it at the time, but in December, Valentina Chambers won $945 thousand in her suit against DC police from a Washington DC jury. You see, a scofflaw was leading police on a car chase, and hit Chambers' car, injuring her, and, like trial lawyers want, the deep pocket was liable for not simply letting the criminal get away—though at least not liable for the $100 million Chambers sought. (Henri Cauvin, "D.C. Ordered to Pay in Police Chase", Washington Post, Dec. 14). Such liability concerns cause DC to have the strictest police chase policy in the country, something we've noted has expensive consequences for the non-criminal element of the city.

Tonya Bell, who some say is a temporary worker for Marion Barry, was driving in Southeast D.C. Saturday night, apparently after a full day of smoking crack. She rear-ended a police car at 7:15 pm, and drove away instead of stopping: sure enough, DC police followed the trial-lawyer-driven policy and broke off the chase. Bell rewarded the officers' diligence by laughingly driving her Volvo through a crowd of people at a street-fair a half hour later, injuring at least forty, before police threw a couple of motorbikes under her vehicle to stop it. Thank the lawyers for yet another wonderful contribution to public safety, though we won't see any class actions against the trial bar for this one. (Robert E. Pierre, Sue Anne Pressley Montes and Yolanda Woodlee, "Driver Used Crack Before Festival Crash, D.C. Police Say", Washington Post, Jun. 4).

More things that it's really inadvisable to do if you're a lawyer:

• Tell a judge to her face in open court that you consider her "a few French fries short of a Happy Meal" (William Smith of McDermott Will & Emery LLP, facing possible exclusion from the right to practice in the bankruptcy court in question; Crain's Chicago Business);


• Show up in a hospital room to recruit as client a heavily medicated crash victim, then discourage him from going after the other driver's personal assets in the case, without mentioning that the other driver is your own wife's grandfather (Jeffrey Hark of Cherry Hill, N.J., referred for a state-bar ethical investigation although a legal-malpractice claim against him failed for lack of a showing of damages; NJLJ);


• As part of a $59 million settlement of Benlate fungicide-damage cases, accept a secret $6 million side payment from defendant duPont in exchange for (among other services) agreeing to file no more cases (Roland R. St. Louis Jr. and Francisco R. Rodriguez of Miami, disbarred and given a two-year suspension respectively; NLJ, Elefant).

Resting the wrong way in the U.K. Midlands:

...the men and women of the Greater Manchester fire service have been told they can only rest in prescribed reclining chairs - and only after they have been trained to use them.

Now, however, three experienced firemen are facing disciplinary action over "involvement in the use of unauthorised rest facilities". ...

Many fire stations have already been transformed by health and safety rules with the disappearance of the traditional fireman's pole, deemed too dangerous to use.

(James Tozer, "Firemen feel the heat from health and safety for sleeping on the floor", Daily Mail, Jun. 1).

"Last month, we were hit with two new patent troll cases. With each, there was no warning, no offer to license - just a lawsuit." Sun Microsystems general counsel Mike Dillon doesn't hold back (May 14).

Experienced defense counsel Beck and Herrmann have a must-read post summarizing the lifecycle of a mass tort., touching on many of the themes Walter and I have covered in the past: the at-best parasitic irrelevance of the plaintiffs' bar to the safety of the product (at worst, trial lawyers are counterproductive); the feeding frenzy of peripheral litigation and ambulance-chasing to sign up clients; the irrelevancies of game-show style trials to the ultimate issues of the case, much less public safety.

Beck and Herrmann's model could certainly use some expansion; if anything, they understate the absurdity of the status quo. There's no mention of the peripheral "consumer-fraud" class actions on behalf of the customers who have suffered no injury; the expense and harassment of discovery; the jockeying of the plaintiffs' bar to plant misleading stories in the press to taint the jury; the efforts to use taxpayer resources of various trial-lawyer-friendly state attorney generals to harass the defendant; the lobbying by the plaintiffs' bar to force the defendant to settle before plaintiffs have to test their complaints' theories in the judicial system; the mass fraud by trial lawyers that almost invariably accompanies the mass tort.

For a brief period in 2004, Jessica Cutler was the hottest story in Washington. Cutler was the Senate aide who blogged at Washingtonienne about her sexual experiences with various Beltway insiders. After being exposed (pun intended), Cutler parlayed her notoriety into a six-figure book deal and Playboy photo shoot.

Unfortunately for Cutler, she had provided enough details in her blog for people to deduce the identity of some of her sexual partners. One of those, Robert Steinbuch, decided to sue her for $20 million for public disclosure of private facts (i.e., "invasion of privacy") -- thereby becoming only one of many recent examples of someone complaining about publicity... by filing a lawsuit that publicizes the acts he allegedly wants to keep secret.

In any case, Cutler began running into problems with her lawyers -- namely, that they wanted her to pay them, and she had a different idea. We covered this in June 2006 (and see the Wonkette link in the comments). Now Cutler has filed for bankruptcy. Of course, we don't know where all of her money went, but we know a good chunk of it went to her attorneys. Good luck collecting that $20 million, Mr. Steinbuch.

(As for collecting, Steinbuch had added some deep pockets to one of his lawsuits against Cutler -- Hyperion Press (which published Cutler's book), Disney (which owns Hyperion), HBO (which purchased the television rights to her story), and Time Warner (which owns HBO) -- but that lawsuit, which Steinbuch filed in Arkansas, was dismissed in February on the grounds that it didn't belong in Arkansas. Steinbuch has appealed, but his chances of success appear low, and his claims against HBO, Time Warner, and Disney are completely meritless anyway.)

David Giacalone has some thoughts on now-notorious Atlanta personal injury lawyer Andrew J. Speaker, who doesn't seem to have lived up very well to the Lakoff-prescribed billing of "public protection attorney" (Jun. 1). But see: Elizabeth Whelan, in the New York Post, thinks the pillorying of Speaker's decision to fly home has been overdone ("Free Andrew! Hysteria and the TB Case", Jun. 2). Updates: Jul. 8 (some passengers sue Speaker), Dec. 2 (no one flying with him caught TB).

With Random House having agreed to pay off lawyers who sued over the bogus memoir, Boston Globe columnist Alex Beam is wondering what other ways there might be to shake the class-action money tree over whoppers in the publishing world ("A Million Little Lawsuits", May 28). Earlier: May 21, etc.

Victor M. Diaz, Jr., who has served as vice-chair of ATLA's aviation section among other honors in representing the plaintiff's bar, writes in Florida's Daily Business Review taking issue with some of his colleagues' doomsaying about the Class Action Fairness Act, which he says has proved "no calamity after all":

More than two years after President Bush signed CAFA into law, these concerns are proving to be greatly exaggerated. CAFA should not be feared by the plaintiffs bar.

While the days of cases filed in remote, plaintiff-friendly state court venues may be over, CAFA has led to better representation of classes by plaintiffs attorneys and better outcomes for class members. On the whole, the potential shift of nearly all class actions to federal court has elevated the class action bar and meant better quality judicial review of corporate class-wide abuses.

As with Congress's earlier reform of shareholder suits, the major effect seems to be not to choke off litigation, but to improve its average quality (cross-posted from Point of Law).

The German government, like others around the world, is being pressed by public health specialists to get into the business of reshaping citizens' diets and hectoring the populace over its indulgent eating habits. However, reports The Scotsman, there are some distinctive obstacles to this happening, even aside from Chancellor Angela Merkel's fondness for baking a cake at home every weekend:

...the legacy of Germany's Nazi past is forcing the Bundesregierung, or federal government, to forget TV adverts giving millions advice on avoiding fatty foods and taking exercise.

The government is banned from buying advertising space on TV by the country's own constitution, which was framed in the wake of the Second World War. Those who drew up the laws remembered how the Nazis were masters of using the cinema for propaganda and feared giving any government the same kind of power. They were also nervous that governments might use advertising leverage to put pressure on broadcasters.

One insider quipped: "The last time we had a non-smoking vegetarian who wanted to tell us what to do, it wasn't a happy experience."

(Murdo MacLeod, "German fatties fear the wurst", The Scotsman, May 13).

According to litigation filed by giant gardening-supplies company Scotts Miracle-Gro, the package on the right infringes the "trade dress" of the package on the left. Comments reader/blogger Amy Alkon: "Terracycle's package looks like Scotts' like Betty White looks like Shaquille O'Neill." TerraCycle has set up a website called SuedByScotts.com, and bad publicity for the larger firm has been ubiquitous. A sampling: Inc. magazine, Sustainable is Good, Consumerist, 10,000 Marshmallows.

The online dating service eHarmony promises to match its customers up based on 29 Dimensions of Compatibility. Apparently one dimension they didn't think about was how litigation-happy some people might be. Now eHarmony is being sued for "sexual orientation discrimination" in California by a woman named Linda Carlson who claims she was "denied access" to eHarmony because she's a lesbian. She's seeking class action status plus unspecified damages, and wants the court to order eHarmony to change its policies.

Ronald Coleman of Likelihood of Success points out that the claim being made by the plaintiffs is not a traditional discrimination claim; the plaintiff is not claiming that eHarmony refused to accept her as a customer. Rather, her complaint is that the site simply doesn't provide services that same sex couples want:

The plaintiffs here are actually arguing that eHarmony is obligated not just to open up its existing service to people of all sexual predilections. It is requiring eHarmony to actually provide new services that it claims neither an interest nor any degree of expertise in, and which may require an outlay of millions of dollars. Let’s not even get into the moral preferences of the owners and management, which are presumed irrelevant by laws which outlaw discrimination against homosexuals or, in this case, may mandate the provision of special services to them.

Readers of Overlawyered may remember that this is not the first time eHarmony has been sued; in March 2006 we covered a suit filed in California by (who else) a lawyer, who was denied service by eHarmony because he was still married and claimed this was "marital status discrimination."