August 2007 Archives

We've provided extensive coverage of the Kentucky fen-phen scandal, in which the lawyers who represented fen-phen plaintiffs were found in a civil suit to have misappropriated more than $64 million of their clients' money. The judge who heard the suit has now entered final judgment against the lawyers, which will allow the plaintiffs to start collection proceedings in 30 days, barring appeal by the lawyers. (The good news: to appeal, they would need to put up an appeals bond, which would make it easier for the plaintiffs to collect. It's not clear whether they're going to appeal; they may be too busy defending themselves against the criminal charges which have been filed against them.)

The lawyers' lawyer calls it a "travesty of justice," and offers an unusual defense to charges of defrauding clients:

"No one, including the judge, has acknowledged that the attorneys' fees were ordered by a judge or the fact that each and every client in the case received multiples, and I repeat multiples, of any amount that they would have received if they had not been represented by my clients -- Bill and Shirley."

Heck if I know what we're going to do with it, but that's the whole point of Web 2.0, right? Readers may now join the Official Overlawyered.com Facebook Group. (h/t A.T. for the post title)

The owner of the Longhorn Custom Bodyart Studio in Oshawa says the shop's sterilizer had a screw misaligned and as a result reached only 128 degrees C instead of the required 132. The regional health department urged patrons to get checkups, which have proved reassuring, with no indication that anyone caught anything. Oshawa resident Kaleb Beaulieu has nonetheless filed an intended class action demanding $C10 million, saying that tests take a while to prove conclusively negative and that in the mean time he lives in fear. (Carola Vyhnak, "Tattoo studio faces $10M lawsuit", Toronto Star, Aug. 22; Rosalyn Solomon, "More tattoo clients sue", Toronto Sun, Aug. 23).

This from Mike Frisch of Georgetown at Legal Profession Blog (Aug. 6):

The D. C. Court of Appeals disbarred [NB: should be "suspended for three years", as commenter Richard Harrison points out] an attorney last week. The case involved acts of dishonesty including forgery and would be unremarkable but for the amount of time it took to resolve the matter. The firm that had reported the misconduct did so in 1997. Disciplinary charges -- which were essentially uncontested -- were filed in February 1999. It took 8 1/2 years for the D.C. bar disciplinary system to work its magic -- and the lawyer was free to practice throughout that time. Most of the time was taken by the hearing committee (3 1/2 years) and the court (over three years from argument to disposition).

Professor Stephen Bainbridge springboards off of our August 24 post to take a cut in the Examiner at a principled distinction between banning dogfighting and foie gras.

As I've mentioned before, I'm quite happy with a state of the world where dogfighting is banned but foie gras isn't. But I'm not persuaded that the good professor has made the case for a principled distinction. Discussion of this (and of the almost entirely unrelated Larry Craig case) after the jump:

The only thing growing faster than the number of videos being shown on Youtube is the number of lawsuits arising from videos being shown on Youtube. The company itself has been sued by every media company in the known universe -- led by Viacom -- over copyright infringement by users of the website. And when Youtube isn't being sued, the people who post the offending or infringing clips are.

A few weeks ago, a couple of college students posted a juvenile rap video about their work in a supermarket produce department. They filmed the video in the A&P supermarket where they were employed stocking shelves, but they never mentioned or displayed the A&P name. No matter; someone figured it out, and they were fired.

That could have been the end of that... except that A&P got the brilliant idea to file a $1,000,000 lawsuit against the two, for defamation. (Just a guess, but unless A&P pays a lot better than I suspect, they may not be good for the money.) And, shockingly, the video, which had just 2,500 hits earlier this week before the lawsuit, now has been viewed 60,000 times. Wonder who thought that this lawsuit was a good idea.

"A German court has awarded 3,000 euros ($4,100) in damages to a man who had to have the top of his skull replaced with plastic because of a faulty hospital fridge." The plaintiff had sought 20,000 euros. [Reuters/MSNBC]

The Tennessee Supreme Court confirms that lawyers in that state may publish potentially defamatory material outside the courtroom provided they are acting in quest of an "identifiable prospective client". The case was filed by a screw maker against a law firm whose client-trolling website had asserted that the company's deck screws were "defectively manufactured". Without determining whether the phrase was defamatory, the court ruled that even if it was, the manufacturer would be afforded no legal remedy. (Day on Torts, Aug. 21; Simpson Strong-Tie Company v. Stewart, Estes, & Donnell, Aug. 20 (PDF)).

Litigation or its threat really does seem to wind up as the ultimate deciding weapon in all sorts of controversies, including whether the city of Santa Barbara can install a temporary public art project aimed at raising alarm about global warming. (Instapundit, quoting James Q. Wilson, Aug. 28; Steve Chawkins, "Property value worries sink Santa Barbara art project", Los Angeles Times, Aug. 26).

A commenter on Peter Lattman's blog catches Lerach using the line "This is the business we have chosen"—which, in an oddly appropriate swipe, is a line of the mobster Hyman Roth in The Godfather II. A shanda fur die goyim.

David Lat, er, profiles the marketing efforts of attorney and reggae musician Peter "P'Ta Mon" John, who calls himself "The Thugs [sic] Lawyer," and has a toll-free number with the five-letter combo "NOT ME."

Law.com reports in its summary:

Renowned plaintiffs attorney William Lerach, lead partner at Lerach Coughlin, announced Tuesday he's stepping down from the firm he started when he split off the West Coast offices of what is now Milberg Weiss. Lerach said he's planning to take some time off. That could include going to prison, or at least the U.S. Attorney's Office. Lerach is said to be nearing a deal with federal prosecutors related to legally questionable payments Milberg Weiss made to its lead plaintiffs and a former expert witness.

The WSJ Law Blog similarly reports that "Lerach has not been charged, but he is in advanced talks with prosecutors on a plea deal that could be announced in September and involve serving prison time, according to two people familiar with the investigation." It also has Lerach's departure memo to colleagues at the law firm that will now be known as Coughlin Stoia Geller Rudman & Robbins (cross-posted from Point of Law).

Yet another ethical run-in for bad boy Michigan lawyer Geoffrey Fieger, aside from all the ones we've told you about already including his recent campaign finance indictment: the Arizona Supreme Court has censured Fieger for holding himself out on letterhead as a member of the Arizona bar, and undertaking a matter to be tried in an Arizona court, even though he was under suspension at the time. The September issue of Arizona Attorney carries the following in its "Lawyer Regulation: Sanctioned Attorneys" column:

"We were issued a writ because, God bless America, if the toilet paper is not thick enough and you come out with a rash on your ass [you’ll get sued]." -- Scottish celebrity chef Gordon Ramsay, who is being sued over his upcoming reality-TV show "Kitchen Nightmares". Martin Hyde sued Ramsay and the show's producers after being fired during the filming of a “Nightmares” episode which depicted unsafe and unsanitary conditions at the Manhattan restaurant Hyde managed (which was closed by the city health board shortly after the taping); Hyde claims aspects of the show were staged, which Ramsay denies. (James Hibberd, "Ramsay Blasts 'Kitchen Nightmares' Lawsuit", TV Week, Aug. 28).

At least we can be sure that lawyers don't treat each other any better than they treat other parties in litigation. Texas Lawyer provides us with a story of how two plaintiffs lawyers, who started out on the same side of a class action suit, managed to turn a dispute amongst themselves over $28,000 in fees into an eleven year fight with an ultimate award of over $250,000.

Via Adam Liptak's (TimesSelect) column, Judge Dennis Jacobs has given an important speech (published in the Fordham Law Review), describing a problem we have noted here before:

I am not—I repeat, I am not—speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained—by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.

The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation—and the confidence and faith that these things produce the best results. It is an insidious bias, because it is hard to make out, in the vast maze of judicial work and outcomes, the statutes, doctrines, and precedents that are woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favor of the bar and lawyers: what they do; how they do it; and how they prosper in goods and influence.

Earlier: Apr. 3; June 2006.

Can a court really issue an injunction ordering someone to refrain from engaging in such disparagement in blog comments and other such public forums? A federal court did so in the case of Freecycle Network, Inc. v. Oey (Eugene Volokh, Aug. 14).

Perils of privacy laws, as discussed earlier here, here, here and here:

Fairfax County school officials determined that Seung Hui Cho suffered from an anxiety disorder so severe that they put him in special education and devised a plan to help, according to sources familiar with his history, but Virginia Tech was never told of the problem.

The disorder made Cho unable to speak in social settings and was deemed an emotional disability, the sources said. When he stopped getting the help that Fairfax was providing, Cho became even more isolated and suffered severe ridicule during his four years at Virginia Tech, experts suggested. In his senior year, Cho killed 32 students and faculty members and himself in the deadliest shooting by an individual in U.S. history....

Professors and school administrators at Virginia Tech could not have known of Cho's emotional disability -- Fairfax officials were forbidden from telling them. Federal privacy and disability laws prohibit high schools from sharing with colleges private information such as a student's special education coding or disability, according to high school and college guidance and admissions officials. Those laws also prohibit colleges from asking for such information.

The only way Virginia Tech officials would have known about Cho's anxiety and selective mutism would have been if Cho or his parents told them about it and asked for accommodations to help him, as he had received in Fairfax....

Although the only way college officials could have known about Cho's problem would have been from Cho, experts said that asking for help is an almost impossible task for someone with selective mutism.

(Brigid Schulte and Tim Craig, "Unknown to Va. Tech, Cho Had a Disorder", Washington Post, Aug. 27). More: Hans Bader at CEI's Open Market (Aug. 27).

In the August 27 Legal Times:

To the editor:

I appreciated the chance to speak with reporter Tony Mauro about Stoneridge v. Scientific-Atlanta, an upcoming Supreme Court case that will be discussed at an AEI panel on Oct. 5. Unfortunately, a sentence in his Aug. 20 article [“High Court Head Count at Issue,” Page 1] incorrectly implied that I thought the decision by the U.S. Court of Appeals for the 8th Circuit in the case was an “anti-investor ruling,” when that characterization is solely Mauro’s.

On the contrary, as I have written in The Wall Street Journal and told Mauro, I believe that the 8th Circuit’s dismissal of the case redounds to the benefit of investors in general and that the best result for investors (if not for trial lawyers) would be affirmance by the Supreme Court. And I say that even though I am a putative class member in Stoneridge.

Theodore H. Frank
Resident Fellow
American Enterprise Institute for Public Policy Research
Washington, D.C.

How can we not jump on the Nixon Peabody wagon? [Above the Law; NYT; Law Blog; TechDirt; many other links]

• More critics pile onto new Medicare "we won't pay for errors" policy [Orac, Chris Rangel, Universal Health, MedPundit; earlier; plus KevinMD]


• Wisconsin lawmaker wants to address perceived lawyer oversupply by cutting funding to the state's law school [NLJ]


• What would great authors of Britain's past have thought of pub smoking ban? [AN Wilson, Telegraph; one response; more]


• As Texas trial lawyer Mikal Watts gears up Senate run, his GOP critics turn for ammunition to a certain website [ChronBlog via Half Empty]


• Holder in due course? Pa. man has left fragrant ethical trail buying up bounced checks and demanding their payment in court [NJLJ]


• One reason for slow adoption of electronic medical records: docs' fear of wider malpractice exposure [Medical Economics via KevinMD]


• "He knows there is irony in a criminal defense attorney being driven out of the city because of crime" [Baltimore Sun]


• More evidence that Endangered Species Act perversely encourages landowners to make their habitat inhospitable [Adler @ Volokh]


• If you recognize one of your hospital patients as a wanted fugitive, don't let HIPAA keep you from calling cops [MedRants first, second post]


• Teenager may face year in jail for recording 20-second movie clip [Wired "Gadget Lab" via Harsanyi and Reynolds]


• Behind a judge's order that GM pay $1.2 billion over a drunk driver's crash [eight years ago at Overlawyered; case's eventual settlement]

Not such a swift idea if the people in the crashed vehicle are just going to tell on you:

Police arrested a 20-year-old woman Sunday for allegedly jumping into a car that collided with a police cruiser and possibly faking an injury....

Powell [Shava Shirlee-Sophia Powell, of Boynton Beach, Fla.] yelled in pain and claimed her back was hurt when firefighters and paramedics arrived, the report said. She deflected attention from rescuers trying to treat others injured in the collision, the report said. Powell was taken to Boca Raton Community Hospital where doctors found no evidence of injury. She tried to flee the hospital when she found out police were called in.

Catasha Adams, the driver of [the] Toyota that Powell jumped into, told police Powell wanted to use the accident for a lawsuit against the police department.

(Leon Fooksman, "Police accuse Boynton woman of faking crash injury", Fort Lauderdale Sun-Sentinel, Aug. 20)(via QuizLaw).

Check out this story about a man's alleged infidelity exposed after 1-800-FLOWERS mailed him a thank you note for flowers he purchased his girlfriend. His wife found the note, called the florist who faxed the receipt detailing the recipient.

So, she files for divorce and he sues 1-800-FLOWERS for breach of contract for revealing the relationship. Now, I don't suppose this claim has much jury appeal--a cheat asking for money? A million dollars? His attorney frames the issue this way:

Infidelity is one of the things that would qualify as a pendulum-swinger in a divorce case. And now the wife has cold, hard evidence, and it is solely because of 1-800-FLOWERS.

It may be the florist's fault she has the evidence but it's "solely because of" him that he did it. So much for personal responsibility. I wonder how many taxpayer dollars will be wasted in this litigation.

My guestblogging stint here is over, and I really enjoyed it! Thank you Walter Olson! I part with this quote, a compliment to the fine attorneys I have and continue to work with:

If I have seen further [than others] it is by standing on the shoulders of Giants.

Sir Isaac Newton 1642-1727

It's your fault for letting me go: "A man who wildly stabbed fellow passengers on board an Oslo tram three years ago is now seeking compensation from the state. He claims he never should have been released from psychiatric care just days before he went amok, and his victim's own mother agrees." (Nina Berglund, Aftenposten, Aug. 24).

The baseball star, who's threatening to sue people who say false and misleading things about him, has retained two Oakland, Calif. civil rights attorneys, including repeat Overlawyered mentionee John Burris (Jul. 5, 1999; Nov. 23, 2006) (Sports Law Blog, Aug. 14). More: Gwen Knapp @ SF Chronicle, Sports Illustrated, SF Weekly.

Longtime Overlawyered favorite Geoffrey Fieger, a fixture in Michigan politics and personal injury law for many years, and his law partner Vernon (Ven) Johnson were indicted by a federal grand jury on charges of unlawfully "conspiring to make more than $125,000 in illegal contributions to presidential candidate John Edwards' 2004 campaign". Fieger, who's being represented by Gerry Spence, says it's all a plot by Republicans in the U.S. Department of Justice. (Oakland Press; Detroit News, more; Detroit Free Press, more)(& Pattis).

Friend of Overlawyered Amber Taylor writes:

Pandagon:

I have my suspicions that when the Republicans talk up “tort reform” to stop “nuisance lawsuits”, they’re not exactly talking about stuff like this. [Short version: scientist posts negative reviews of a book on his blog, criticizing its new theory of developmental biology as having no basis in reality; the word "crackpot" was used. The author, a critic of "Darwinian orthodoxy," sues.]

Right. That would be why the tort reform proponents at Overlawyered covered the story days before Marcotte got around to it. That coverage was even noted at the website Marcotte quoted. But why acknowledge facts when inaccurate smears are available?

Buffalo attorney Matthew Kolken takes issue with our Aug. 7 post "...a classic American success story", which quotes him:

I am writing this in response to your article found at http://www.overlawyered.com/2007/08/a_classic_american_success_sto.html

It is no surprise that my characterization of the Levin family was taken out of context.

What the press and your article have failed to explain is that my characterization of the Levin family as a classic American success story was in reference to the hardships that the family endured prior to coming to the United States as refugees in the late 1970s.

The family left the Soviet Union with only $500.00 in their pockets, and their wedding bands, because all of their possessions and money were confiscated as property of the State.

Without even knowing the language, Mr. and Mrs. Levin worked from nothing to afford their children a better life. They did all of this within the confines of the law, and I am honored to be considered part of their family.

Unfortunately, their son made a tremendous error in judgment. He has paid for this error, and is forced to live with his regret.

Thankfully in this country the sins of the son are not the sins of the father, or of the family, and shame on you for casting derision without first knowing all of the facts.

Good day.

Matthew L. Kolken, Esq.

Paging Professor Volokh, Ronald Bailey, and other libertarian bloggers: On what principled grounds can one distinguish between a ban on foie gras and a ban on dogfighting? If one accepts limits on the libertarian principle for animal cruelty, does that not imply that a democratic society can rationally choose to bar production of foie gras? I'm happy to have dogfighting outlawed. I'd prefer not to outlaw foie gras. Do I have any argument for the distinction besides my personal preference? Is it just the intelligence difference between dogs and geese? If so, why do we allow bacon? (Or does Deuteronomy have that last question right?)

Update: I'm late to the discussion apparently. Jim Henley, Julian Sanchez (who takes the hard-line view), and Megan McArdle (and Part 2); McArdle points to vegetarian libertarian Robert Nozick's take.

Update from Alex Tabarrok: "After attending dogfights it's rumored that on some nights Michael Vick would continue his bloody activities by dining on cow's flesh. No word yet on whether prosecutors will be seeking additional prison time."

No matter how absurd a lawsuit is, the plaintiff usually has an elaborate, ingenuous theory to explain why he deserves to be compensated for injuries caused in some convoluted, indirect way by the nefarious defendant, and the obligatory disclaimer about the case "not being about the money" is usually tacked on. Usually. And then there's James Schlimpert, president of Oklahoma-based Garage Storage Cabinets LLC.

When asked why he brought a suit against a competitor (Don Mitchell/MGCS) for misappropriation of trade secrets and tortious interference with his company's dealer contracts, he explained, forthrightly:

When deposed, GSC President John Schlimpert testified that his company held no trade secrets, had no exclusive dealer contracts, and had filed the lawsuit for the sole purpose of putting MGCS out of business.

“I am amazed in some respects that the plaintiff said that, and he said it more than once, said his purpose was to put them out of business,” reads the court record issued by the District Court of Payne County, Honorable Larry Brooks, judge. “I think, under the plaintiff’s stated purpose, he was bringing it just to be vexatious to the defendants. I think it’s vexatious litigation.”

Because the complaint, on its face, seemingly stated legitimate causes of action, the only way for Mitchell to establish that the suit was frivolous was to conduct discovery and take the deposition of the plaintiff. Then Mitchell had to get lucky; if Schlimpert hadn't foolishly admitted the fraudulent nature of his suit, the court would almost certainly treated the suit as legitimate. (Mitchell could still have won, but wouldn't have gotten sanctions.) Once Mitchell got lucky, he had to make a motion to the court to have the case thrown out.

Then, after having the case thrown out, Mitchell had to make a separate application to the court for sanctions -- he actually botched this procedure, but the court let the issue slide -- and then had to participate in a hearing to try to establish how much those sanctions should be. All of that cost more money, more attorneys fees, with no guarantee that these costs would be recouped. Indeed, in this case Mitchell asked for $49,300, and the judge awarded only $31,500, because Schlimpert was successful in finding an expert witness to convince the judge that the lower number should have been sufficient to beat his frivolous case.

Moreover, the judge refused to penalize the plaintiff's lawyer, finding that just because Schlimpert was acting in bad faith didn't mean his lawyer was.

And then, after all that, Schlimpert appealed. Finally, this month, the appeals court upheld the trial court's decision. And now Mitchell has to go back to the trial court, after having spent another $8,000 on the appeal, and has to hope the judge will make him whole.

P.S. In case you were wondering: this suit was filed in May 2003. It took 17 months from the time the suit was filed until the time the judge ruled in favor of Mitchell. It took another 17 months for the judge to award sanctions to Mitchell. After Schlimpert appealed, it took yet another 17 months for the appeals court to rule. In other words, more than four years elapsed. But -- as mentioned -- it's still not over, because now Mitchell has to return to the trial court, to be awarded fees because of Schlimpert's appeal.

A popular blog meme is the Mingle blog rating (e.g. Bainbridge, Opinio Juris). You won't see it here: movie ratings are trademarked by the Motion Picture Association of America, and they come down like a hammer on those who use the trademarks, and this blog-meme not only uses the letter rating, but the actual MPAA symbol. Unfortunately, US trademark law forces the MPAA to take a heavy-handed approach, because of the alternative: forty years ago, they did not seek trademark protection for their new "X" rating and as a result, the rating became a generic symbol for hard-core pornography (and infantilized the commercial moviegoing public: because now most theaters and brick-and-mortar video stores refuse to offer anything rated harder than "R", we no longer get such movies, unlike the early 1970s when major studios would make X-rated movies with stars like Marlon Brando or Dustin Hoffman).

(And how well does the blog meme work? Well, the gizmo shares the MPAA's left-leaning sensibilities: we got bumped to a "PG" because of multiple uses of the word "gun.")

For all his newfound capitalist prowess, it seems Sen. John Edwards still isn't familiar with some fairly basic geopolitical facts on the ground:

"I'm going to be honest with you -- I don't know a lot about Cuba's healthcare system," Edwards, D-N.C., said at an event in Oskaloosa, Iowa. "Is it a government-run system?"

(ABCNews.com "Political Radar", Aug. 17)(via Weigel)(disclaimer).

That's one description of why some law firms have been reluctant to cross the psychological threshold of $1,000/hour fees for top lawyers' services. That doesn't mean they're not going ahead with the increase, though. (Debra Cassens Weiss, "Top Lawyers Bill $1,000 an Hour", Aug. 22; Althouse, Aug. 22; WSJ Law Blog, Aug. 22; Barry Leonardini, Aug. 22). It's still fairly paltry compared with some contingency fees, of course, as with the tobacco-Medicaid caper, where the Litigation Lobby successfully defeated as too chintzy a $20,000/hour cap and some estimates of fees obtained ran five times that high.

While they've agreed to let the fellow passenger off, they continue to sue US Airways and the Minneapolis airport commission. (Michelle Malkin, Aug. 22; Audrey Hudson, "Imams drop passenger from lawsuit", Washington Times, Aug. 22; Joseph Goldstein, "Imams Drop Fellow Passenger From Discrimination Lawsuit", New York Sun, Aug. 23; earlier).

My last post commented on Washington's Insurance Fair Conduct Act. The Act is up for public vote as Referendum 67. Check out the web sites advocating approval or rejection of the measure.

The "Approve 67" web site struck me as a bit demagogic--the main page shows a young girl clutching a teddy bear being comforted by (apparently) her father. The next shot is a man in a wheelchair, face cast sullenly downward. (Ostensibly suffering from insurance company malfeasance.) The final shot is a generic image of an emergency clinic. Then, under the "Take Action" column on your left there's a link to "Share Your Insurance Horror Story." (As of this writing there is a grand total of three "horror" stories.)

Under the endorsements tab, trial lawyers are notably absent--at least from the list. There are, however, multiple labor organizations as well as the Washington State Democratic Party. Under the "About Referendum 67" tab [with my comment]:

If an insurance company unfairly denies a legitimate claim, your only recourse is to sue. But if you win, the only thing they have to pay is the amount of the original claim [not true, just ask millionaire prankster dentist Robert Woo.] Referendum 67 creates an incentive [there already are incentives: coverage by waiver or estoppel, Olympic Steamship attorney fees and the Washington Consumer Protection Act (CPA)] to treat legitimate claims fairly by allowing the court to assess penalties if an insurance company illegally denies or delays payment of a legitimate claim.

Referendum 67 would help to ensure that the insurance industry honor their commitments to treat all policyholders honestly by making it against the law [it's already against the law, silly--see the existing RCW and WAC] to unreasonably delay or deny legitimate claims.

The News Tribune in its story Let’s not try to fix an insurance industry that’s not broken says:

That the system is working well is illustrated by a storm of a different sort: the windstorm that smashed into Western Washington earlier this year. Within less than four months of the event, according to a recent study, 90 percent of the 42,000 claims were settled, for $170 million in compensation. Most of the remaining claims remained unsettled due to lack of qualified contractors or the time needed to rebuild homes. Only three complaints were filed with the insurance commissioner’s office.

I don't know if I would characterize this legislation as a jackpot for trial lawyers, but it's probably unnecessary and will increase the frequency of litigated first party claims at the greater expense of the insurance paying public. It's up to Washington voters to get it right.

Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we've covered these suits extensively. (See, e.g. May 2006, Jun. 2006), Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted "stings" in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn't endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores' motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who "terrorize" the city and descriptions of guns as "Saturday Night Specials") and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn't think much more of these suits than we do.

Michael Delikat in the Wall Street Journal:

Sarbox's whistleblower provisions were intended "to prevent recurrences of the Enron debacle and similar threats to the nation's financial markets" by protecting those who report fraudulent activity that could damage innocent investors. That was the intent, at least. The reality is something else.

About 1,000 whistleblowing claims have been filed under Sarbox. Only 17 were determined after federal investigation to have merit and only six of this group have kept their wins after full evidentiary hearings before administrative law judges.

Nevertheless, the plaintiffs bar and others have ready answers for this extremely poor batting average. Critics assert that the 90-day statute of limitation for filing whistleblower claims is too short, the burden of proof placed on complaining employees is too high, that judges are reading the law too narrowly, or even that, as one law professor testified, the whistleblower provisions have "has failed to protect the vast majority of employees who file a Sarbanes-Oxley claim" because they rarely win.

None of these criticisms measure up. Sarbox whistleblowers rarely win because most claimants are using, or some might say, misusing, the law as a club in garden-variety workplace disputes.

Update: as does Professor Bainbridge: "Clearly, the whistle blower provisions significantly raised costs and created opportunities for employees to game the system."

I discuss in today's American.

(Earlier: Dec. 25 and Aug. 20).

"A 5-year-old girl bitten by a Rottweiler puppy in a Petco store cannot sue the pet supplies chain because it has a policy of allowing its customers to bring their pets into its stores, an acting New York Supreme Court justice has ruled, noting the policy reflects 'an industry-wide standard' designed for the benefit of pet store customers. The summary judgment ruling also exonerated the owner of the Rottweiler, finding he had no reason to suspect that the 8-month-old puppy had a 'vicious propensity.'" Plaintiffs say they're going to appeal, though. (Daniel Wise, "Bid Challenging Pet Supplies Retailer's Pet-Friendly Policy Fails", New York Law Journal, Aug. 8). Earlier: Dec. 14, 2003.

Among things you've missed if you haven't been keeping up with our sister site: law firm tells silicosis clients that "unfortunately" they've checked out healthy and don't have the disease after all; American Express pays $3 million, and class action objectors go away; Harvard's Larry Tribe apologizes to the widow of the late Prof. Bernard Siegan; French consumerist vows not to replicate U.S. folly on class actions; Madison County, Ill. courts due for upgrade to heckhole status?; Hillary bashes Obama for supporting class action reform; Deborah La Fetra concludes her week of guestblogging on premises liability, negligent security and other matters; and much, much more.

Ruth Marcus in today's WaPo:

I don't think it would much matter if Democrats were to live in The World According to Edwards, who has never taken lobbyist money. Nice symbolism, perhaps, but how does it make candidates any purer to disdain checks from lobbyists while avidly vacuuming up contributions from the various industries they represent?

Edwards is no less tainted by the trial-lawyer money he scoops up by the bucketful than he would be by lobbyist contributions.

Advice to Harvard professors: do not get into a battle of wits with Richard Epstein if you're showing up unarmed.

The Ninth Circuit, bound by California Supreme Court precedent, struck down a class-action waiver in an arbitration clause in a Cingular cell-phone contract. As I note to Business Week, forcing consumers to keep legal rights that they may not want ex ante raises prices: better to permit consumers and businesses the choice of how best to arrange their business affairs through freedom of contract. This is largely unpopular with the 17 commenters to the article.

In the mail, not read yet but looks amusing: The Party of the First Part: The Curious World of Legalese by Adam Freedman, "Legal Lingo" columnist for the New York Law Journal Magazine. Freedman observes that "For better or worse, the instruction manual for today's world is written by lawyers" and aims to reach an audience of "everyone befuddled, enraged or intrigued by legalese -- even lawyers." Freedman's website features a "Golden Gobbledygook" contest and "Legalese Hall of Shame"; you can order the book through Amazon here.

• Criminal charges dropped against Oregon 13-year-olds over fanny-swatting in school corridors [CBSNews.com, Malkin, KGW.com and AP; earlier]


• Elasticity of "medical error" concept: Medicare will stop paying hospitals for treatment of "reasonably preventable" injuries that happen in hospitals, such as patient falls -- we all know those are preventable given enough duct tape [NCPA, Right Side of the Rainbow; and before assuming that bed sores invariably result from negligent care, read this](more: Turkewitz)


• Yale University Press beats back libel suit in California court by Muslim charity over allegations in book scrutinizing terrorist group Hamas [Zincavage]


• Law firms, including Philadelphia's senatorially connected Kline & Specter, already advertising for clients following Mattel toy recall [Childs]


• First class action against RIAA over its scattershot anticopying suit campaign [P2PNet]


• Four Oklahoma inmates claim copyright to their own names, demand millions from warden for using those names without permission, then things really start getting wild [UK Telegraph and TechDirt via Coleman]


• UCLA's Lynn LoPucki, scourge of corporate bankruptcy bar, has another study out documenting soaring fees [WSJ Law Blog]


• Man who knifed school headmaster to death is expected to win right to remain in Britain on grounds deporting him would violate his human rights [Telegraph]


• Among targets of zero tolerance bans: jingle of ice cream trucks in NYC, screaming on Sacramento rollercoasters [ABCNews.com]


• Does California antidiscrimination law require doctors to provide artificial insemination to lesbian client against religious scruples? [The Recorder]


• Alabama tobacco farmers got $500,000 from national tobacco settlement, though fewer than 300 acres of tobacco are grown in Alabama [five years ago on Overlawyered]

The Washington Legislature recently passed and governor signed the “Insurance Fair Conduct Act” allowing first party claimants to recover treble (triple) damages and attorney fees for claims unreasonably denied. The Seattle Post Intelligencer’s story here lays out the pending battle between insurers and the trial bar. You see, the legislation is up for public vote in November and each side is scurrying to curry favor with the electorate.

Now, as an insurance consumer myself I expect high marks from my insurance company in the event of a loss. And, I have from time to time witnessed the recalcitrance of other insurers when tendering defense and indemnity to them (particularly in additional insured scenarios.) Few would disagree that insurers should promptly and cheerfully pay those claims they owe, period.

The debate sparked by David N.'s post of last week on the Don Imus defamation suit has drawn 62 reader comments so far, a veritably Althousian volume. As I've noted before, it seems the best way for me to enliven the site is to go off on vacation.

P.S. More at Beldar's.

Greetings! Thanks to Walter Olson for allowing me the opportunity to guest blog this week at Overlawyered. I am Jason Barney and have worked for self-insured corporations as a claims investigator, a mid-sized northwest-based insurer investigating casualty and property claims, and now a large, self-insured northwest municipality as a tort claims investigator. All told, I have nearly ten years of claims and litigation management experience.

First things first: I have significant and genuine respect for attorneys and other legal professionals. I don’t take this blog as an opportunity to bash lawyers, but to “[Chronicle] the high cost of our legal system.” And, as it turns out there is a lot of that to be had.

One story that recently caught my eye and has been covered in these pages of late is a Washington Supreme Court ruling that reversed an appeals court ruling in favor of a dentist’s insurer for refusing to defend him for a practical joke gone wrong. The court’s ruling was recently criticized by The Seattle Times here and the insured’s counsel responded via letter to the editor here (scroll down to fifth letter - "The justices get it".)

PZ Myers wrote two posts tearing to shreds Stuart Pivar's book, LifeCode: The Theory of Biological Self Organization as factually inaccurate. Now he reports on Boing-Boing that Pivar is suing him. (Boing Boing says that Pivar is suing for assault, but this isn't true: for whatever reason, the district court groups "assault, libel, and slander" in the same category when classifying complaints, and the complaint is just for libel.)

The complaint focuses on Myers's language calling Pivar "a classic crackpot." And we all know that the way to prove that one is not a classic crackpot is to sue a blogger for $15 million over a bad book review in a complaint that misspells "its" and the defendant's name and brags about the plaintiff's affiliation with Andy Warhol and Prince Charles. Pivar's attorney is Michael J. Little of New York.

Here is the complaint for your perusal.

Update: Jim Lippard comments, and also has a copy of the complaint. Also: Scientific American notes that Pivar has been a plaintiff 25 times in New York state court; Wired Science also comments.

We covered this case back in June 2005, and updated it July 27. Now, via Volokh, read Adam Scales on how a dentist assaulted a patient and won a million dollars, Part I and Part II. (Update: And further comment from our guest blogger, Jason Barney.)

Update: and excellent and lengthy analysis from David Rossmiller.

Kai Falkenberg's September 3 story in Forbes quotes me (though I promise I told the fact-checker that the Chung's legal bills were only $83,000) and Overlawyered guest-blogger Steve Hantler. The sidebar to the article lists a number of cases Overlawyered readers might be familiar with.

Before David Giacalone jumps down my throat, let me say that I had a lengthy interview with Falkenberg, detailing my views on pro se litigation, but only the throw-away anecdote about Roy Pearson's pants suit made it in. (Interestingly, the Supreme Court's decision this spring in Bell Atlantic v. Twombly helps resolve the problem I complained about in that December post.)

Update: Falkenberg writes to let me know that "Regarding the Chungs, the $100,000 references not just the $83,000 in legal fees but other costs associated with Pearson’s claim and was confirmed with their lawyer, Chris Manning." Fair enough (though I think Manning is including lost sales from Pearson's picketing the Chungs' shop, which one might argue does not really reflect legal costs). Let me clarify that I thought that Falkenberg wrote an excellent piece, especially given the limitations of space. Quote of note:

In a study of pro se suits brought between 1995 and 1999 in the federal district court in Manhattan, attorney Jonathan Rosenbloom found that a "disturbing" number of pro se cases were dismissed for asserting claims that were "delusional" or "wholly incredible." ... Rosenbloom also found a lot of frequent filers: Nearly half of the study's 765 pro se litigants filed at least one previous suit in that court, including one who filed 57 complaints in one year.

The Supreme Court issued the following order today:

The motion of Former SEC Commissioners for leave to file a brief as amici curiae out of time is granted. The motion of John Conyers, Jr. and Barney Frank for leave to file a brief as amici curiae out of time is granted. The Chief Justice and Justice Breyer took no part in the consideration or decision of these motions.

Full disclosure: As an unnamed class member, I am a plaintiff in Stoneridge, and would be entitled to some small amount of class recovery. Also, I hate hate hate respondent Scientific-Atlanta with a deep burning passion, not least because Scientific-Atlanta attorneys subjected me to a harassing subpoena. Nevertheless, a victory for petitioners would be disastrous.

The Federalist Society has posted a podcast of their recent panel:

Recently there has been growing discussion concerning the appropriate role of state Attorneys General. Some argue that state AGs have overstepped their boundary by prosecuting cases and negotiating settlements that have had extraterritorial effects, and sometimes even national effects. Others argue that state AGs are simply filling a vacuum left by the failure of others (for example, federal agencies) to attend to these issues. In light of this debate, the Federalist Society hosted a panel in Washington, D.C. featuring several state Attorneys General who discussed the proper role of state AGs.

Panelists included:

* Hon. Bob McDonnell, Attorney General of Virginia
* Hon. Donald Stenberg, former Attorney General of Nebraska; Erickson & Sederstrom
* Hon. John Suthers, Attorney General of Colorado
* Hon. J. B. Van Hollen, Attorney General of Wisconsin
* Ms. Peggy Little, Little & Little; Director, Federalist Society Pro Bono Center, Moderator

Two groups claiming to be American Indian tribes are offering membership for $50. The AP report (via Hit & Run) suggests that the memberships are being sold for purposes of evading immigration laws, but no one explores the affirmative action possibilities, though Dr. Seuss anticipated such a scheme in 1961. Alas, the two groups are not federally recognized Indian tribes, so the deal is just a scam.

So writes USA Today's Mark Crane in The American.

Via Rossmiller, more on Judge Murphy's libel suit:

Though [Judge] Murphy won his case against the Herald, he has not emerged unscathed. The Commission on Judicial Conduct filed charges last month with the Supreme Judicial Court alleging that Murphy sent letters to the Herald that constitute "willful misconduct which brings the judicial office into disrepute."

Murphy sent the letters to Purcell after the verdict, requesting a private meeting to discuss getting more money from the tabloid, according to the commission.

"You will bring to that meeting a cashiers check, payable to me, in the sum of $3,260,000," wrote Murphy in a handwritten letter on Superior Court stationery. "No check no meeting. You will give me that check and I shall put it in my pocket."

In another letter, Murphy wrote, "It would be a mistake, Pat, to show this letter to anyone other than the gentleman whose authorized signature will be affixed to the check in question. In fact, a BIG mistake." A date has not yet been set for Murphy's hearing on the misconduct charges.

Earlier this month, Governor Deval Patrick rejected an appeal by Murphy to retire early with a lucrative disability pension based on his contention that he has post-traumatic stress disorder as a result of the defamation case.

Bill Childs notes a Baylor Law Review study polling Texas judges on whether they think there are problems requiring tort reform based on what they see in their own courtroom.

I can't imagine why anyone thinks such a study will produce useful results. The study has typical issues, such as the typical anti-reform eliding of what "frivolous" means, ignoring that the state-law definition of "frivolous" differs from the common-sense meaning of the word used by many politicians. Another question asks whether judges have recently presided over cases where compensatory damages awarded were too high, but excludes cases where compensatory damages were required to be reduced by statutory limits, and the authors draw opinions from this intentionally biased question.

But there's a larger problem with the very nature of the study. Judges who correctly run their courtroom and follow the law are generally not going to have runaway juries, so they are likely to say (and even say correctly) that their juries generally don't produce outlandish results. The problem requiring reform are judges who are in the pocket of the plaintiffs' bar, and create judicial hellholes, and let Mikal Watts and Mark Lanier run wild. If such judges thought there was a problem requiring tort reform, they wouldn't let plaintiffs' attorneys get away with what they get away with. Most reasonable judges would find it problematic if a plaintiff loaned money to a juror and had phone conversations with them during trial when a jury came back with an implausible multi-million dollar verdict for an overweight 71-year-old man's second heart attack when he wasn't even taking Vioxx, but the Starr County judge in Garza v. Merck signed off on the judgment: of course he doesn't think anything's wrong with that if he's polled by professors, but that doesn't make him correct.

Polling judges in judicial hellholes to find out whether there is a need for legal reform is like polling O.J. Simpson to find out if there's a problem with domestic violence.

Nevertheless, expect to see the poll widely used by the litigation lobby and their academic water-carriers in upcoming months and years.

Post updated 10:30 PM to clarify nature of questioning.

Class action lawyers -- led by David Boies III, son of famed litigator David Boies -- continue to try to attack the alcohol industry the same way they did the tobacco industry, but with far less success. Back in June 2006 we reported that Boies the Younger had been racking up an impressive track record... of losing. His lawsuits are based on the marketing practices of the alcohol companies; the claim is that the advertising was aimed at (who else?) children. But the suits don't allege any actual harms suffered by, well, anybody. Instead, they claim that the marketing caused the plaintiffs' underage children to buy alcohol. Even with creative lawyering, the only damages that they could allege were that the kids spent their parents' money on the alcohol.

The lower courts have laughed these suits out of court, and last month, in response to Boies' appeals, the Sixth Circuit did the same (PDF), finding that the plaintiffs didn't even have standing to bring the suits. And when they did so, they gave a little civics reminder of how our legal system is supposed to work:

In any event, if outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

Above the Law calls opinions where judges criticize one another "benchslaps," and there's a doozy of one in West Virginia, made all the sweeter by the appropriateness of the facts for Overlawyered.

Robert Cleavenger and Marissa Strahin were lovers, but at some point the relationship ended. Strahin, pregnant with Cleavenger's child, moved in with Earl Sullivan in Braxton County, West Virginia. This perturbed Cleavenger, who decided to resolve the matter with a high-powered rifle. Thinking discretion the better of valor, Sullivan fled his property in a car, taking Strahin and her brother, Daniel Strahin, with him. Cleavenger pursued, and fired at the fleeing car, hitting Daniel in the arm.

Now the lawyers enter the picture. In 1999, Daniel Strahin and his parents sued Cleavenger and his parents, and also sued Sullivan on the grounds that it was foreseeable that Cleavenger would come after people on Sullivan's property. The Strahins demanded that Sullivan's insurers settle for insurance limits; they refused. The Strahins then conspired with Sullivan for the latter to assign a "bad-faith" claim to the plaintiffs in exchange for a covenant not to execute on any judgment against him. A sham of a trial took place, and a jury awarded over a million dollars to the Strahins, holding Cleavenger 70% responsible and Sullivan 30% responsible. The Strahins then went after Sullivan's insurers.

West Virginia is enough of a judicial hellhole that it affirmed Sullivan's liability (for which the insurers paid the $100,000 limit), even though there was no longer a case or controversy against him, but even West Virginia courts would not countenance the attempt to team up against the insurer for the bad-faith claim. After all, Sullivan's assets were never at risk because he already settled with the Strahins, so there was no harm from the insurer's refusal to settle, even if it were in bad faith.

Amazingly, Justice Larry Starcher dissented from this common-sense result. But none of the cases he cited supported his dissent. This prompted a concurrence, and the aforementioned benchslap:

"The complexity of the issue is quite evident in view of the fact that absolutely none of the fifteen string-cited cases in Mr. Strahin's brief is on point with the facts of his case. I should note that the dissenting opinion of Justice Starcher repeats Mr. Strahin's error, by citing to cases that are not on point with the fact pattern presented to and addressed by the majority opinion."

Think carefully before hitting that send button. The cost of having independent attorneys review 2500 documents (mostly internal emails) that Merck had claimed subject to the attorney-client privilege was $400,000. That $160/email expense is, of course, just the cost of the independent review, and does not include the cost of attorneys litigating whether the documents should be produced to the other side. Judge Eldon Fallon ruled some documents were privileged, and others must be produced; both sides claim victory in reporting by Ashby Jones at the WSJ Law Blog.

The explosion in document creation has caused a litigation explosion in document discovery. This has had multiple effects: first, it encourages the settlement of meritless claims, because of the expense of defending such claims when document discovery can take place. This in turn encourages the bringing of meritless claims, as their extortion value goes up if plaintiffs can force defendants to spend millions of dollars defending themselves.

Separately, the explosion in document discovery has caused a leap in the demand for attorneys, and, in my opinion, is a large part of the recent increase in law-firm associate salaries. And applications to top law schools would drop precipitously if incoming law students had any idea what percentage of high-paid associates' time is taken up on document discovery disputes over questions of attorney-client privilege.

Via Childs, PBS will be running a documentary on the vermiculite mine at Libby, Montana. For another perspective on the Libby incident that includes actual data, see the links in the Point of Law posts of May 8 and Jul. 19, 2006.

Josh Wright expands on my line “we all know darn well that many 'pro-business' legal rules favor consumers and employees as a group ex ante," and is even harsher with Chemerinsky than I was:

[W]hat gets me about this section is the heading: “Supreme Court favors businesses over consumers.” Is that really what these cases are about? I have read political accounts of the Supreme Court opinions in newspapers and periodicals or blogs that read this way (”The Roberts Court wants to stick it to the consumer — I can prove it: the Defendant won in all 4 cases this term”). But I’ve not heard law professors take this route too often, and never an antitrust commentator. In fact, a reasonable reading of the Court’s antitrust output this year suggests that the issues are much more nuanced than this oversimplified soundbite that pits business against consumers.

Is Leegin a pro-business and anti-consumer decision? I’m not sure I even know what that means in this context. ... Justice Kennedy’s opinion on behalf of the majority does allow manufacturers to engage in behavior that was previously constrained. Perhaps that is a sufficient condition for a pro-business label? On the other hand, the very reason the Court overturned the per se rule was the result of evidence that minimum resale price maintenance made consumers better off! Now, one might think that the Court got it wrong and that RPM actually harms consumers. ... But to argue that the Court got there by favoring business over consumers is not accurate, and obvious from reading the opinion.

You may recall the questionable $217 million verdict issued against Florida doctors for allegedly misdiagnosing a stroke after a CT-scan was negative. (Also: Oct. 7.) The attorney, Steve Yerrid, got a lot of publicity from promising to donate the $100 million punitive damages award to charity.

In March, we reported that the case settled, and promised a follow-up from the public-reporting system.

The trial bar's efforts to broadly expand the securities laws through judicial fiat is challenged in an amicus brief filed in Stoneridge v. Scientific-Atlanta (earlier: Jul. 31, etc.), including former SEC chairs Roderick Hills, Harvey Pitt and Harold Williams; and law professors Richard Epstein, Joseph Grundfest, Stephen Bainbridge, and Larry Ribstein.

Update: Not only has the Department of Justice come out in favor of affirmance (despite extensive lobbying by the plaintiffs' bar), but both major stock exchanges—who interests unquestionably parallel the interests of investors as a group—filed amicus briefs seeking affirmance. But watch the press portray this as "businesses versus investors" instead of "businesses and investors versus trial lawyers and government officials seeking donations from trial lawyers."

Update: Oral argument is October 9. AEI will hold a panel discussing the case October 5.

In an interview, Kip Viscusi reports that the efficiency of Superfund of money spent per case of cancer eliminated: $7 billion. Imagine if a fraction of Superfund money was instead spent on curing cancer. (via Tabarrok)

In April, Don Imus infamously called the Rutgers Unversity women's basketball team "nappy-headed hos." After a week of controversy, criticism, and grovelling apologies, he was fired from his job by CBS radio. Imus threatened a lawsuit, and yesterday he settled with CBS. That should have been the end of the story. But of course, if it were, then how would the poor trial lawyers feed their families? Now that Imus's settlement is final, he has money to burn. So, just a few hours after the settlement was announced, the first Rutgers player rushed to the courthouse to file suit against Imus and the other deep pockets:

"Imus lost four months of employment and gained $20 million and a new platform. But what about these young women? How does Imus' big payday affect their self-esteem?" said Vaughn's lawyer Richard Ancowitz.

The suit, which also named CBS, MSNBC and Imus sidekick Bernard McGuirk, did not ask for a dollar amount. There was no immediate comment from the defendants.

"The kind of sexist and bigoted attack these young women and Kia in particular suffered demands more than lip service," Ancowitz said. "She wants the court to recognize that Imus slandered her."

Update: AP provides the money quote from the complaint, and unless there's a lot more they failed to mention, it's exactly as frivolous as I expected:

The Vaughn suit claims that the comments were made in the context of a news or sports report and therefore Imus had certain standards to abide by but ignored them. The suit reprints the script from the "Imus in the Morning" show on which the comments were made.

"The ... false, defamatory, sexually denigrating and slanderous statements and comments against the women athletes of said basketball team were heard, believed and understood by millions of listeners ... as factual pronouncements concerning the character, chastity and reputation of the plaintiff," the lawsuit says.

Are you really surprised? The D.C. Court of Appeals' average time for appeal is 575 days, implying a wait until 2009 for a decision, but one would hope a simple case like this could be disposed of faster.

Evan Sparks on the governor's latest attack on federalism.

According to the liberal bloggers at New Year's Party, a component of any Democratic health-care plan should be tort reform, an issue to "take away from the GOP." This, of course, assumes that the Democrats are more than a political vehicle for trial lawyers.

Alvaro Vargos Llosa writes on the $25 million fine paid by Chiquita for funding the United Self-Defense Forces of Colombia:

Ultimately, this is a story about double standards—those applied by Colombia's institutions, which encouraged the AUC for many years by sanctifying the very rules of the game they now decry, and those applied by U.S. authorities, who did not hold Colombia to the same legal standards to which they held their own country.

Erwin Chemerinsky writes a not-especially honest review of the most recent Supreme Court term. He falsely characterizes the Roberts Court as "a solid conservative voting majority," notwithstanding the numerous decisions where conservatives were not in the majority, or where the majority decision fell far short of conservative ideals. He characterizes the divided Philip Morris v. Williams decision as "conservative," even though it was Breyer and Souter in the majority and Scalia and Thomas in the dissent. He complains that conservatives "defer to the government in the face of most claims of individual rights," but gives no mention of last term's Wisconsin Right to Life v. Federal Election Commission, where five conservative justices reasserted first amendment rights for political speech over the dissent of Breyer, Souter, Ginsburg, and Stevens, who wanted to preserve the government ban on speech. We'll ignore that Chemerinsky takes the typical liberal tactic of characterizing legal rules as favoring either businesses or consumers/employees—we all know darn well that many "pro-business" legal rules favor consumers and employees as a group ex ante.

Chemerinsky is entitled to his left-wing opinion, though one might justifiably complain that he's not entitled to his own facts. But what I certainly object to is the fact that this is being distributed and printed by the State Bar of California in the California Bar Journal, and advertised at the top of the State Bar of California website, since I am required to pay the California Bar hundreds of dollars a year, and have no way of getting a refund for the fishwrap mailed to me every month. This sort of partisan activity strikes me as a highly unethical use of my dues, and I hope someone in California is doing something about it.

(Earlier: Coleman; Bainbridge.)

Hoover Institution's Henry I. Miller:

Moreover, because Prop 65 is enforced entirely through litigation, it has created a system of legalized extortion. To initiate a lawsuit, a plaintiff need only show that a listed chemical is present in a consumer product and that the defendant business “knowingly” exposes Californians to that product without posting the warnings. Prior to filing the suit, the plaintiff must send the defendant a notice describing the exposure; 60 days thereafter, the plaintiff may sue. That notice may be the first inkling a retailer has that his products are exposing consumers to listed chemicals.

The latest chemical to run afoul of Prop 65 is di-isodecyl phthalate, or DIDP, an important and extremely useful additive used to soften hard vinyl plastic and found in dozens of common items, including shower curtains. It is also used to insulate the wires in the walls of homes across America. Safely used for more than 50 years, it is one of the most thoroughly tested products in the world and has been closely examined by numerous regulatory agencies throughout the United States and Europe. Through all that evaluation, no credible scientific review has found DIDP to be dangerous in normal use.

However, those favorable conclusions didn’t faze regulators at California’s Office of Environmental Health Hazard Assessment (OEHHA), who recently decided that DIDP may pose a risk of developmental harm in humans and, therefore, should be listed under Prop 65.

But the mere presence of something does not imply that it’s dangerous; one needs to know the dose, length of exposure, how the body disposes of it, and so forth. Prop 65 standards only look at the potential for risk as criteria for listing. Using that logic, since people regularly suffocate from a chunk of meat blocking their windpipe, maybe steaks should be listed too. (One hates to give the regulators ideas, however.)

Over at Point of Law, guest-blogger Deborah LaFetra discusses the case of Castaneda v. Olsher, where a owner of a mobile home park was sued by a victim of gang-warfare crossfire for permitting gang members to rent space on the lot. Of course, as Pacific Legal Foundation argued (and the court held), any alternative would run afoul of California anti-discrimination law, as well as the impossibility of obtaining information protected by California privacy law.

In two cases in the last few months, federal judges have ordered the government to pay the defense costs of failed health care fraud prosecutions.

In Nevada, Judge Robert C. Jones awarded about $300,000, about 30% of the defense costs, to an Idaho doctor, finding that the losing case was frivolous because, the American Medical News reports, the government's experts contradicted other experts in the case. (There is presumably more to the story than this, as the same is true in nearly every criminal trial involving expert testimony.) Half the claims were dismissed before trial, and the others were adjudged not guilty by a jury. The government has appealed. (Amy Lynn Sorrel, "Judge rules criminal fraud case against Idaho doctor is frivolous", Aug. 20) (h/t P.N.).

And, in Texas, Judge Lynn Hughes awarded $391,000 to an Oklahoma attorney to cover part of his defense costs after being wrongly prosecuted on 54 counts of health insurance fraud. The court criticized prosecutors for misleading the grand jury and a "reckless disregard for the truth." Again, the government will appeal. (AP/Tulsa World, "U.S. ordered to pay OKC attorney", Aug. 13).

• Tab Turner's Pearsonesque $2 billion lawsuit over Ford Explorer SUVs proceeds in California state court in Sacramento. [Sacramento Bee; earlier, June 18]
• West Va. judge holds hearing over YouTube videos disclosing plaintiff depositions. [AP/Insurance Journal; earlier, August 4]
• On Point has the complaint from Leroy Greer's suit against 1-800-Flowers for failing to do enough to keep his wife ignorant of his flower purchases for his mistress.

• Movable Type appears to have swallowed several comments from earlier this month (including at least one comment from me). Apologies to everyone affected.

"The court finds that there is a serious risk that the funds will be moved offshore and that with these funds at their disposal, the defendants will flee to a country with which the United States has no extradition treaty or otherwise disappear," U.S. District Judge William Bertelsman wrote in the Friday order sending Shirley Cunningham Jr., William Gallion, and Melbourne Mills Jr. to jail without bond until the January 7 trial date. (Jim Hannah, "Fen-phen lawyers are jailed", Cincinnati Enquirer, Aug. 11). We have lots of coverage of the Kentucky fen-phen lawyers, who have been found in a civil case, to have misappropriated $62 million of settlement funds by overcharging on attorneys' fees and other diversions. Cincinnati attorney Stan Chesley, who has not been criminally indicted, is also civilly liable on part of his $20 million fee for helping to negotiate the settlement, with the scope of liability yet to be determined; trial has been delayed while the criminal trial is pending.

I'll be taking time away from the site for the next week or so, leaving it in the able hands of Ted and David. See you the week of August 20.

From, among many other sites over the past week or two, the Freakonomics Blog, Stephen Bainbridge @ Andrew Sullivan's, Michelle Malkin, Dr. Wes, and (examine the links closely) Declan McCullagh.

• Resolving dispute over author Pearl Buck's lost manuscript was easier once we locked the lawyers out of the negotiating room, heirs say [Phila. Inquirer]


• After U.K.'s Channel 4 ran explosive show documenting pro-beheading, anti-Western rants at some leading mosques, government mulled race-incitement prosecution against... the network [Guardian via Reason "Hit and Run"]


• Breach-of-contract claim: 1-800-FLOWERS told his wife about the flowers he bought for his mistress, after promising not to [Lat, Houston Chronicle]


• "What are you going to do about lawyer jokes?" bar association demands of press-agent hopeful [Pittsburgh Post-Gazette]


• You can buy fake doctor's excuses on the web these days, not that anyone would ever abuse the Family and Medical Leave Act of course [Associated Press]


• Federal judge flays Qualcomm for "gross litigation misconduct" in defending patent suit, orders it to pay opponent's fees [WSJ Law Blog]


• Jersey regulators keen to shutter eatery whose cook was dealing cocaine without owner's knowledge, reminding Ralph Reiland of the fate of a restaurant whose manager "should have known" of sex harassment [Press of Atlantic City; Pittsburgh Tribune-Review]


• Dropped out of Congressional race after domestic-violence arrest, now suing former father-in-law for lost salary she'd have earned on Capitol Hill if elected [Dayton Daily News]


• New at Point of Law: Atul Gawande says our malpractice system's a "disaster"; Katrina canal-breach sense restored; Ohio Supreme Court rules against governor on product-liability veto; Paul Minor sentencing hearing (see also); and much more;


• Sacramento law firm that boasted of women's advancement was itself a den of sleazy male behavior, complainants say [The Recorder]


• Craigslist roommate classifieds tripped up by "fair housing" law [two years ago on Overlawyered]

Jeromy Jackson says he repeatedly told the McDonald's in Morgantown, W.V. that he needed his two Quarter Pounders without cheese, because he was allergic to cheese; "From this point forward, Mr. Jackson repeatedly asked as to the status of his food and whether it had no cheese, and took multiple preventive steps to assure his food did not contain cheese," his suit says. On biting into the sandwich, his suit alleges, he suffered a severe allergic reaction and had to be rushed to a hospital (Cara Bailey, "Man allergic to cheese seeks $10 million from McDonald's", West Virginia Record, Aug. 8).

James Taranto is not what you would call sympathetic toward the action (Aug. 9): "So apparently the 'multiple preventive steps' he took 'to assure his food did not contain cheese' did not include looking at the damn sandwich before eating it".

Overlawyered, August 5:

A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of (the trial lawyers') lobbying group. Indeed, John Edwards's finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates' debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty?

OLBERMANN: Senator Edwards, I have a question for you. You made your substantial fortune as a trial lawyer. Trial lawyers are now contributing significantly to your campaign. How is that any better than lobbyists?

Amber Taylor points us to this AP article:

A female airman says she faces a court-martial next month because she refused to testify against three male airmen she accused of rape.

The woman is charged with one count of committing indecent acts and one count of consuming alcohol as a minor. The defense says the charges involve the same men she accused of raping her.

Were you skeptical to keep seeing Sicko described as the "fourth-highest grossing documentary of all time"? I sure was, and looked into it for The American. I guess "twenty-second-highest grossing" doesn't quite have the same persuasive ring.

Yes, we've run several critical items on presidential fundraising lately (disclaimer), but this added bit seemed worthy of note:

...More than half of the Edwards donors who listed their occupations said they are attorneys, and they have given seven times more than any other profession, according to an Associated Press analysis of campaign finance data. ...

In the first six months of the year, Edwards raised $23 million. But without the roughly $7 million collected from donors identified as attorneys, his numbers would fall closer to that of lower-tier candidates, such as New Mexico Gov. Bill Richardson and Connecticut Sen. Chris Dodd.

It should be noted that "donors identified as attorneys" is a term of art. Many donations from, e.g., lawyers' family members or persons whose livelihood derives from litigation support services will not be so identified. Candidates Clinton and Obama have raised about one-sixth of their funds from donors identified as attorneys. (Mike Baker, "Attorneys still bankroll Edwards effort", AP/Seattle Post-Intelligencer, Aug. 1). More on Edwards' fund-raising here, here, here, here, here, etc.

P.S. I see the Times is also tackling the subject today: Leslie Wayne, "Lawyers’ Dollars? Not Just to Edwards", New York Times, Aug. 9. (& welcome readers of Prof. Bainbridge, guestblogging at Andrew Sullivan's).

No doubt: someone was negligent in the collapse of the Big Dig tunnel in Boston that killed one. The Latin phrase res ipsa loquitur comes to mind.

But it's hard to understand why Massachusetts officials are going after Powers Fasteners, Inc.

Powers received an order for standard-set epoxy to be used in the tunnel ceiling, and sold $1287 worth. The construction company then used a different, fast-set, epoxy that was not designed for such long-term use. As a result, ceiling panels fell, crushing a car and killing one person. But Massachusetts is indicting Powers. Given that the penalty is a $1000 fine, the only purpose of this use of taxpayer dollars is to carry water for trial lawyers—or, perhaps, to help spread blame in the eventual suit against the Massachusetts Turnpike Authority by having a criminal conviction in hand. (Pam Belluck, "Glue Maker for Big Dig Is Charged in ’06 Death", New York Times, Aug. 9).

As Bill Childs notes, attorneys predict a "big" settlement. Press coverage already indicates typical attorney 20/20 hindsight:

For instance, documents show that Big Dig managers at Bechtel/ Parsons Brinckerhoff and designers from Gannett Fleming cut by half the number of bolts they originally planned to use to hold up the ceiling, while significantly increasing the ceiling's weight by making it out of concrete. These moves made the ceiling cheaper, the lawyers said, but less safe.

While "the divers are still in the river looking":

Omar Jamal of the Somali Justice Advocacy Center in Minneapolis said he has received at least a dozen telephone calls from law firms, most of them local, since it became public knowledge that a pregnant Somali woman, Sadiya Sahal, and her 2-year-old daughter, Hanah Mohamed, were among those missing after the collapse.

The calls started coming about 4 p.m. Thursday, less than 24 hours after the collapse, and haven't stopped, Jamal said. Some of the attorneys have asked for telephone numbers and other personal information about Sahal's family, Jamal said.

"This is the worst form of ambulance-chasing," Jamal said. "The divers are still in the river looking, and the attorneys keep calling us."

(Chris Serres and Matt McKinney, "Question of liability rises", Minneapolis Star-Tribune, Aug. 8)(via Ambrogi who got it from Minnesota Lawyer Blog).

This Sunday's Boston Globe magazine had a long feature piece which addressed the burning question, "Do We Really Need A Law To Protect Fat Workers?" The "law" in question would be a law which forbid "discrimination against overweight and unusually short people." While I resemble that remark, you won't be surprised to find me answering the question, "No," in contrast to the politicians and activists who think it's a great idea. The problem they face? Too many people inconveniently think that being overweight is a choice; they need to convince these skeptics that weight and race are really the same thing.

Although some people worry that the law would lead to a flood of lawsuits, the supporters of the bill pooh-pooh that notion, based on implausible statistics about disability discrimination lawsuits. Besides, their goal (nudge-nudge, wink-wink) isn't really lawsuits at all:

Like the race laws, then, the weight-discrimination bill has a goal that extends beyond the legal system: to change the way we think. The idea is not to clog up the courts. Instead, it's to create a society where hundreds of lawsuits aren't needed, because there's not as much to sue over - a society of people who have the legal right to say hurtful things and the compassion to know better than to act on them.

Of course, even if Massachusetts does pass this law, it wouldn't be the worst; California already has far wackier anti-discrimination laws with its full-employment-for-lawyers Unruh Act. Unruh, despite listing the usual categories found in anti-discrimination laws (sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, and sexual orientation) actually has been interpreted by state courts to prohibit all "arbitrary" discrimination. As Cal Biz Lit explains:

In earlier cases, the courts have held the act to prohibit business discrimination based on :
• A customer’s association with a male with long hair and “unconventional” dress; 
• Having children; and
• Status as a police officer (when the ACLU tried to kick a cop out of a meeting).

1. Yet another Roy Pearson update: the Washington Post, confirming a previous rumor, reports that he's closer to losing his job. The Commission on Selection and Tenure of Administrative Law Judges (CSTALJ?) has voted to start the process of terminating him, by sending him a letter notifying him that he may not be reappointed to his job. Of course, the procedure alone makes the story a perfect fit for Overlawyered. Pearson can't just be fired; that would be too easy. First, his boss had to make a formal recommendation. Then, the Commission had to decide to send that letter. And now?

Pearson is not out of work yet. The letter is a key step, though, alerting him that his reappointment is in jeopardy. He has 15 days to file a rebuttal and could push for reappointment by appearing before the commission at its next meeting in September.

Apparently trying to destroy a business by using the legal system to extort millions from the owners isn't his big sin; his big sin is being rude to his boss:

Concerns about Pearson's temperament as an administrative law judge preceded the publicity about the lawsuit this spring. The letter from the commission focuses on those concerns, addressing the lawsuit only briefly.

In e-mails sent to his fellow judges and cited in the letter, Pearson's contempt for Chief Administrative Law Judge Tyrone T. Butler was evident. In one of the missives, he spoke of protecting himself from any attempt by Butler "to knife" him. In another, he questioned Butler's competence and integrity.

2. Updating a story from Mar. 25, a federal judge has banned the navy from using sonar in training exercises:

Cooper said it was never easy to balance the interests of wildlife with those of national security. But in this case, she said, environmental lawyers have made a persuasive case that the potential harm to whales and other marine life outweighs any harm to the Navy while the court case proceeds.

(Other whale-sonar lawsuit coverage: May 17, Jul. 2006)

3. Remember the Kentucky Fen-Phen scandal? The one in which the class action attorneys were accused of misplacing $60 million of their clients' money into their own pockets? (We've covered it May 20 and earlier) Well, a federal judge has now ruled that they need to repay $62.1 million to their clients. So far. Still to come: a ruling on punitive damages, a criminal trial, and the suit against Cincinnati attorney Stan Chesley, who's accused of the same wrongdoing. (AP/Forbes)

Mothers Against Drunk Driving (MADD), which is fairly described these days as neo-Prohibitionist, continues to promote the development of automobiles which will be mechanically inoperable in the presence of indicators of drunkenness. A new Nissan prototype includes alcohol sensors in both the driver and passenger seat. Passenger? (Classical Values, Aug. 4). Earlier: Aug. 19, 2005, May 28, 2006.

More from DUI Blog: "Imagine if even one of these gizmos malfunctions — at high speed."

From the comments to this July 30 post at KevinMD about defensive medicine:

"Spreading to paramedics?"

Doc, it's been prevalent in EMS for years. Virtually every EMS system in this country is designed specifically to serve less than 1% of its run volume - cardiac arrest patients.

We continue to spinally immobilize (now there's a misnomer!) trauma patients, despite the evidence that clinical exam criteria can safely clear these patients and other evidence that questions whether pre-hospital spinal immobilization is even beneficial.

We fly people on helicopters based on nothing more than mechanism of injury, despite the mounting number of fatal crashes and the fact that 95% of those patients flown to the ED were discharged home directly from the ED. That's right - we flew them on a $10,000 flight, and they weren't even sick enough to be admitted.

Prehospital care is a bastion of defensive medicine. Has been for some time.

In the new (Aug. 13) issue, the picture shows a dad in living room admonishing son: "We don't want you inviting friends over to play. There are liability issues."

More: reader James Fulford notes in comments:

This is visible online at at the New Yorker Store. You can buy a print or in some cases, the original art. In the same issue, there's defensive medicine: “I don’t like the look of these. I better send them up to legal.” (A doctor holding x-rays and a patient sitting on the examination table.)

And the criminal defense bar:“Make eye contact with the jury, but not homicidal-maniac eye contact.” (Lawyer to client.)

In Buffalo, a federal judge has sentenced Belarus native Maxim Levin to time served and ordered him to pay $334,000 restitution following a guilty plea over an extensive scheme of staging car crashes and submitting bogus insurance claims. The prosecution resulted in guilty pleas from roughly two dozen defendants, some of whom who were actually in Brooklyn at the time of claimed accidents hundreds of miles away in Buffalo. As part of a five-year program of supervised release, Levin is also supposed to finish his last semester at the University at Buffalo -- in what field of study we are not informed, but one 2004 account described him as a prelaw student. In operating his First Buffalo Medical Clinic, Levin employed a bogus doctor, Mark Nepokroeff, who treated patients for nine years on a forged Mexican medical school diploma and was sentenced to four months. (Michael Beebe, "Man gets time served for staging crashes", Jul. 7, and Dan Herbeck, "Ex-clinic head pleads guilty in phony claims from auto insurance", Mar. 5, Buffalo News pay-archive coverage; BH Times, Jul. 8; Buffalo FBI office 2005 and 2007 releases; Johnsville News, Nov. 24, 2004; NY State Insurance Dept., Feb.). Like Greedy Trial Lawyer (Jul. 8), I find the most piquant element of the case to be the character testimonial given by Levin's brother-in-law, trial lawyer Matthew L. Kolken, who wrote to Judge William M. Skretny asking leniency and describing the Levin family as "a classic American success story". P.S. Kolken responds here.

"An en banc Superior Court panel has ordered a new trial in a case in which a western Pennsylvania trial judge awarded $102.7 million in 2003 to one of the owners of a property company identified as being at the center of a mid-1980s Ponzi scheme." Two couples, Thomas and Barbara Reilly and Edward and Karen Krall, each jointly owned half the stock in Canterbury Village Inc., a property development that was oversold in what was later described as a Ponzi scheme that bilked thousands of investors. When Canterbury Village landed in bankruptcy proceedings, an Ernst & Young predecessor was called in to organize the books, which were in great disarray. According to a judge's footnote, "the male halves of Canterbury Village's two couple-owners pleaded guilty to criminal charges stemming from the Ponzi scheme." Mr. Reilly served about four years on fraud and tax evasion charges. The eventual reorganization plan approved by the court barred the Reillys and Kralls from any stake in the emerging business entity.

The Reillys then proceeded to sue Ernst & Young, alleging that its report had contained inaccuracies which had injured their business interests. When the Reillys filed requests for admissions in support of their allegations, Ernst first missed a deadline to respond and then, granted a do-over, omitted to include a required verification from its lawyer. The judge in response deemed Ernst to have agreed to all the requested admissions -- in effect, preventing the firm from contesting the key elements of the Reillys' case. A verdict was then entered on behalf of Barbara Reilly that "included $34 million for her ownership interest in Canterbury Village -- half of the $68 million appraised value -- plus an additional $50,945,222 in interest, based on a rate of 6 percent per annum beginning in 1986, for a total compensatory damage award of $84,018,989. Yeager also awarded her $18.17 million in punitive damages for a total verdict of $102,718,989." The appeals panel has now decided, however, that loss (in effect) of its right to mount a substantive defense is too harsh a sanction for Ernst's procedural fumblings, so a retrial is on its way. (Asher Hawkins, "Retrial Ordered in Nine-Figure Fraud Case", Legal Intelligencer, Jul. 27; Karen Kane, "Seven Fields developer faults Ernst & Young in lawsuit", Pittsburgh Post-Gazette, Aug. 25, 2002).

The second claim of John Lott's suit against Steven Levitt has been settled with a remarkable letter of apology by Levitt; Lott retains the right to appeal the larger claim, which had been thrown out, as we discussed in Part VIII.

Whether or not you reside in the U.K., the range of reading material available to you regarding the tangled banking relationships of the Middle East is being shaped and constrained by the London libel courts. (Gary Shapiro, "Libel Suit Leads to Destruction of Books", New York Sun, Aug. 2; Mark Steyn, "The vanishing jihad exposés", syndicated/Orange County Register, Aug. 5; earlier here and here).

• Patent suit by firm called Parallel Processing demands that all Sony PlayStation 3 consoles be impounded and destroyed [ArsTechnica, Slashdot]


• It's not all going to Edwards: a scorecard on presidential campaigns' law-firm fundraising [National Law Journal]


• Link roundup on Oregon criminal charges against fanny-swatting 13-year-olds [Right Side of the Rainbow; earlier]


• New at Point of Law: Spitzenfreude is mirth derived from ethical pratfall of NY's moralist governor; Florida's insurance fiasco; more on those "medical" bankruptcies; Alabama judge appoints special prosecutor in Dickie Scruggs affair after feds take a pass; and much more;


• One hurdle for court action by survivors of slain Middle East contractors against Blackwater: the four men had signed contracts agreeing not to sue their employer [Henley; W$J]


• Saying swim diaper should suffice, Akron mom and "fair housing" advocates sue condo that barred pre-potty-trained kids from pool [AP/FoxNews.com]


• Not only are those punitive new Virginia traffic laws unpopular, but a judge has just declared them unconstitutional as well [Washington Post; earlier here and here]


• Pepsi settles class actions over minute quantities of benzene that might form when soft drink ingredients combine [Reuters, Food Navigator, Journal-News]


• U.K. considers making it easier for unmarried cohabitators to go to court when their households break up [Times Online]


• Did a securities fraudster use protracted depositions to browbeat his victims? [Salt Lake City Tribune]


• "Victims' Rights Amendment" to U.S. Constitution, promoted as giving crime victims a fairer shake, is bad idea for lots of reasons [eight years ago on Overlawyered]

At YearlyKos, John Edwards and Barack Obama sought to distinguish themselves from Hillary Clinton by saying they didn't take money from registered lobbyists, and Clinton was booed for defending herself. (Also: Franke-Ruta.)

I found this curious: after all, Obama and Edwards showed up at the national convention of the lobbying group for the trial lawyers, the former Association of Trial Lawyers of America (who now call themselves the American Association of Justice). There, they gave speeches (as did Clinton, Biden, and Richardson). A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of that lobbying group. Indeed, John Edwards's finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates' debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty? Are any reporters going to ask that hard question, or will they let the two candidates demagogue from the high ground as they take millions from the most pernicious special interest group in America?

An article in the new American Journalism Review (Rachel Smolkin, "Justice Delayed", Aug./Sept.) lays out at length the sins of the media in covering the allegations of prosecutor Mike Nifong in the Duke lacrosse case. Leading offenders such as the Durham Herald-Sun, New York Times and TV's Nancy Grace all come in for their share of reproach, but of note also is this on Wendy Murphy, feminist lawprof and frequent broadcast commentator on the case:

One prominent guest on Grace's show and others was Wendy Murphy, an adjunct professor at the New England School of Law and a former assistant district attorney in Middlesex County, Massachusetts. On April 10, 2006, after defense attorneys announced that DNA results found no links to the athletes, Murphy told Grace, "Look, I think the real key here is that these guys, like so many rapists--and I'm going to say it because, at this point, she's entitled to the respect that she is a crime victim."

Emerging questions about the investigation did not prompt Murphy to reassess. Appearing on "CNN Live Today" on May 3, 2006, she posited, "I'd even go so far as to say I bet one or more of the players was, you know, molested or something as a child." On June 5, 2006, MSNBC's Tucker Carlson asserted, relying on a Duke committee report, that the lacrosse team was generally well-behaved. Rejoined Murphy: "Hitler never beat his wife either. So what?" She later added: "I never, ever met a false rape claim, by the way. My own statistics speak to the truth."

Asked to evaluate her commentary, Murphy said in an interview: "Lots of folks who voiced the prosecution position in the beginning gave up because they faced a lot of criticism, and that's never my style." She notes that she's invited on cable shows to argue for a particular side. "You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I'm assigned," she says. "So of course it's going to sound like I'm arguing in favor of 'guilty.' That's the opposite of what the defense pundit is doing, which is arguing that they're innocent."

The last passage prompts Mark Obbie at LawBeat (Jul. 18) to reflect: "Has there ever been a clearer argument for the utter show-biz meaninglessness of such 'debate' shows?"

On a different note, the much-anticipated book on the controversy by Stuart Taylor, Jr. and K.C. Johnson, "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case", is due out a month from now and is already selling well on Amazon. More: John Steele Gordon, "Racial Role Reversal", WSJ/OpinionJournal.com, Jun. 20.

We've earlier discussed Ramesh Ponnuru's expose of The Center for a Just Society, a trial lawyers organization that masquerades as conservatives; the article quoted both me and Walter. The Center has purchased a banner ad on our site, arguing for wide-ranging liability in the Enron litigation. We're happy to run the ad, because the debate is entirely one-sided. Readers will note how the idea of causation, or statutory requirements, or Supreme Court precedent, or long-term negative impact on investors from expanded liability, is entirely ignored in Conner's article, and the allegation of wrongdoing is entirely conclusory. Those interested in a more complete discussion of the issues in the Enron case may wish to review the expanded version of my Wall Street Journal op-ed available on the AEI website, or the opposition to certiorari by the defendants in the Enron litigation:

We earlier discussed the case of osteopath John King (who now calls himself Christopher Wallace Martin after surrendering his medical license in two states). We'll state up front: King was apparently deservedly fired for incompetence, and that undoubtedly includes some legitimate cases of malpractice. (Indeed, our original note was how West Virginia's Putnam County Hospital could have perhaps avoided hiring King had not liability concerns prevented his previous employers from communicating problems to the hospital.) Whether it's asbestos, fen-phen, or an incompetent osteopath, however, the legal system creates incentives for attorneys and plaintiffs to fake cases and free-ride off of the legitimately injured. A YouTube video documents some curious inconsistencies (which, to be frank, are not entirely persuasive to me for all six plaintiffs in the video). The judge has responded to the video by barring both sides from further communications with the media. (Lawrence Messina, AP/Lexington Herald Leader, Aug. 1; Chris Dickerson, West Virginia Record, Aug. 1; Turkewitz blog). The West Virginia Record calls for a prosecutorial investigation.

In this case, the accident-prone shopper's bad luck was that the store had just installed a surveillance camera. The report is from South Florida's CBS4.com.

Reader Jim Finkel writes:

Re your post from the New Orleans paper on the fine print in contracts. As I have turned off my cookies (the usual paranoia), to read your article, you have to answer questions and assent for each of the following two pages of the three page article. So even reading the article about click-through, you have to click through and read the fine print. There has to be a point here.

I was wondering when former class members represented by Milberg Weiss would take a speculative flyer to convince a court that Federal Rule of Civil Procedure 60(b) does not preclude relief and sue the law firm over its kickback scandal and Peter Lattman reports that that has happened. Alas for schadenfreude, I am utterly unpersuaded by the complaint, which makes no attempt to jump that procedural hurdle: Fed. R. Civ. Proc. 60(b) prohibits reopening even judgments procured by fraud more than a year after they close, and I'm unaware of courts permitting end-arounds of the rule through collateral lawsuits. But perhaps the plaintiffs have an undisclosed legal trick up their sleeve for when the motion to dismiss comes.

Lattman's blog posts on Milberg Weiss always attract an interesting flood of anonymous comments defending the firm, and this one is no different: one such comment suggests, perhaps libelously, that the suing law firm has its own history of kickbacks.

I think it's fair to say that serial spam litigation is less lucrative than serial ADA litigation. Walter discussed the setback suffered by plaintiff James Gordon (June 2007), in which a federal court ruled that Gordon, who makes his entire living using anti-spam laws to sue emailers, had no legitimate claims because he had not suffered any damages (and indeed, could not, since his only "business" was filing lawsuits for receiving spam).

The court was clearly disgusted by Gordon and his attempt to manipulate the CAN-SPAM act to extort millions of dollars from an emailer, because not only did it rule against him, but this week it awarded attorneys' fees to his victim. Now, regular readers of Overlawyered know that one of my pet peeves is that even when courts order sanctions, they often award mere token amounts which are inadequate to deter plaintiffs or reimburse defendants for their troubles. That wasn't the case here; the court awarded $110,440 in fees and costs to the victorious defendants. (This was actually significantly less than the defendants had requested -- half a million dollars -- but the court found that this was grossly inflated and not substantiated by the defense counsel's own billing records. Still, $110,000 is nothing to sneeze at.)

So this case provides lessons for both sides about being greedy:

• If you're going to try to become a professional plaintiff, try to suffer actual damages -- if possible, physical damages -- rather than demanding millions of dollars for receiving emails. If you insist on suing without having been injured, at least try to be a sympathetic plaintiff in a wheelchair who can't use public restrooms, rather than being a guy who sits around his living room in his pajamas looking at spam.
  
• If you're up against an unsympathetic professional plaintiff, don't squander the court's goodwill by demanding far more in legal fees than you're entitled to. And if you're going to pad your fee request to the court, at least make sure that the bills you submit to substantiate your demands actually match the numbers you've told the court. Judges don't like it when you claim that you spent 2,000 hours and your own records show that you've only spent 1,500 hours. The judge was so annoyed here that after he re-calculated the legitimate bills, he determined that they were grossly overinflated and slashed them by an additional 70%.

Serial ADA litigant (and Overlawyered repeat offender) Thomas Frankovich was profiled recently in SF Weekly. Overlawyered readers will be familiar with just about everything in there, from Frankovich's extortionate tactics to his collaboration with professional plaintiffs like Jarek Molski, to his use of front groups in an attempt to make his litigiousness seem like a public service. (Frankovich, incidentally, does not work in a wheelchair accessible office.)

Matthew Hirsch of LegalPad reports that Frankovich is attempting to rehabilitate his image before the Ninth Circuit rules on whether he, and his fellow traveler Molski, are vexatious litigants:

Starting this month, Frankovich and a major client are offering defendants a deal: “You make your [entrance] doorway accessible, and we will waive any and all claims — including money damages,” he said.

Frankovich said his clients who are affiliated with DREES will offer the front door deal if they are visiting only to check out the entrance. But if they spot a door that wheelchair users can’t open, then they go inside to shop and notice more problems, “that becomes something different,” Frankovich said, and the deal is off.

So claims Joshua Marquis, vice president of the National District Attorneys Association, commenting on the Nifong-Duke lacrosse case. (Adam Liptak, "Prosecutor Becomes Prosecuted", New York Times, Jun. 24). The reaction of Washington-based writer Carey Roberts: "Not by a long shot," as witness a list with familiar names on it like Wenatchee, Wash. and the Scheck/Neufeld Innocence Project, as well as investigations by the Pittsburgh Post-Gazette and Chicago Tribune, and more. ("The Nifong case - how rare?", Washington Times, Jul. 29).

The Craigslist ad doesn't mention that the opportunity would involve suing L.A.'s Patina Group over break-time violations. (Eater L.A., Aug. 2).

(AM post bumped for PM update.)

A judicial panel is still deciding whether the Great American Pants-Suit plaintiff will keep his job as an administrative judge. A delayed decision is expected early next week.

Update to the update: Marc Fisher is reporting that the decision will be to start the bureaucratic process of firing Pearson. Amazingly, the chief ALJ recommended reappointing Pearson&mdash:until Pearson showed his typical good judgment by blasting the chief ALJ in an internal email as "evil," causing his target to change his mind. Pearson will be entitled to a hearing (and who knows how many rounds of appeals) before he is officially fired; since April, he has been in a fully-paid no-work position as an "attorney-advisor."

Minutes after being shot several times, Ibrahim Sidibe and Nicholas Watson identified 16-year old Francesco Kelly as the shooter. Kelly was arrested for the Silver Spring bus stop attack and convicted of first-degree attempted murder in 2003. Maryland's high state court threw out the conviction on the grounds that Kelly's inability to call two witnesses after the judge ruled (without a state objection) that their testimony was inadmissible hearsay violated Kelly's rights. On retrial, a jury acquitted Kelly, to the dismay of Sidibe (who is paralyzed from the shooting) and Watson, who, perhaps implausibly, blames the shooting for his later criminal career. Kelly did not call the two witnesses whose testimony his attorneys previously claimed materially affected his ability to get a fair trial. The lawyers who made that argument to the Maryland Court of Appeals will suffer no consequences. (Ernesto Londoño, "As Suspect Is Acquitted, Shooting Victims Protest", Washington Post, Aug. 2).

In June 2003, there was a tragic porch collapse at an apartment building in Chicago; 13 people were killed and at least 50 more were injured. The quest for deep pockets began; as we discussed in August 2005, even though the porch was on private property, trial lawyers aimed their litigation guns at the city of Chicago, on the theory that Chicago taxpayers have more money than the building owner if city inspectors had done a better job, the accident wouldn't have happened.

A trial judge bought that argument, but yesterday, in a victory for taxpayers, an appellate court reversed that ruling, holding that, contrary to the theory of the trial lawyers, the city is not a guarantor that nothing bad will ever happen within its city limits. The mere fact that the city inspectors failed to issue violation notices for the porch construction does not make the city financially liable for the collapse; if it did, then the potential to extend liability to taxpayers would be limited only by the imagination of the trial lawyer. Police fail to stop a driver who's speeding, and he later hits you? Blame the city. Inspectors don't make your neighbor cut down the dead tree on his property, and it falls on your house during a storm? Blame the city. The possibilities are endless.

The victims of the accident do have a legitimate case -- but that legitimate case is against the building landlord, not taxpayers. But those deep pockets aren't quite deep enough, so the trial lawyers aren't satisfied with that answer:

But plaintiffs' lawyers said that was not enough.

Pappas and his companies have about $17 million in insurance coverage, said Terry Ekl, who represents the family of Robert Koranda, who died in the collapse.

"Without the City of Chicago in the case, these families are not going to get anywhere near fair compensation," Ekl said.

If the Appellate Court's ruling stands, the plaintiffs would take up the issue with state lawmakers, Murphy said.

"We're going to be having our clients go down to the legislature and say, 'You can't be letting this happen,' " Murphy said. "These children cannot have died or be injured in vain.'

In case you were wondering, the first trial lawyer Google ad soliciting clients relating to the Minneapolis bridge collapse is already up -- indeed, was up as of last night. Makes me proud to be a lawyer.

Arizona's East Valley Tribune looks at the question (considered here Jul. 28 first and second post) of whether the fugitive being chased by Phoenix police could be held legally responsible for the crash of two news copters observing the scene. An unrelated local case puts a twist on an otherwise familiar "felony murder" fact pattern:

In an ongoing case, a Phoenix woman faces murder charges in a 2004 robbery attempt at a Mesa check-cashing store following the death of her accomplice. The accomplice was shot and killed by the store’s clerk, who also shot Rhonda Wright multiple times.

Prosecutors reasoned that the clerk would not have pulled his weapon if the assailants had not entered his store.

(Dennis Welch, "Homicide charges in helicopter crash a tough call", East Valley Tribune, Jul. 29). More on felony murder and the Phoenix crash: Michelle Tsai, "News chopper down", Slate, Jul. 30.

More: Mike Cernovich identifies another culprit in the chopper crash (Jul. 30).

• Kind thanks to Oklahoma's largest newspaper, The Oklahoman, for an editorial recommending that readers "visit... on a regular basis" a certain website that "offers frequent updates on a legal climate gone wild. ...an amusing if sad reality check". ("Batting zero: Litigation reform strikes out" (editorial), Jul. 12; see also 100 Ideas Oklahoma, Jul. 23).


• All that fine print on contracts -- what sort of legal effect does it have, and should you feel obliged to read it? I'm quoted, as are legal bloggers David Rossmiller and Ron Coleman (Katherine Reynolds Lewis, New Orleans Times-Picayune, Jul. 29, and other Newhouse papers)


• Again with the guru business, and I can't even fold my legs properly (Joe Palazzolo, "Giuliani Burnishes Conservative Credentials With Choice of Legal Policy Advisers", Legal Times, Jul. 25)


• I'm quoted criticizing a federal lawsuit filed against the City of New York for its use of written tests to screen aspiring firefighters' reading and writing skills (Ari Paul, " Accuse UFA Head Of Racial Politics; Rip Support of Fire Test", The Chief/Civil Service Leader, Jul. 27 -- not yet available to nonsubscribers). Relevant links here, here, here, and here.

The strength of local animal rights sentiment is not the only reason the event takes place in Pamplona as opposed to Pompano Beach:

...Can you imagine if it were held in America, instead of Spain?

...The running of the bulls would be followed by the running of the plaintiffs lawyers, as they clamor to represent injured parties who, honest your honor, had no idea that such an event could be hazardous to their health. Surely those hold harmless agreements signed by the participants do not absolve public officials of their responsibility to protect people from putting themselves in harm's way, the class action lawsuit would allege.

(Paul D. Winston, "America not yet ready for running of the bulls", Business Insurance, Jul. 23).