December 2007 Archives

Jacob Sullum (of the often excellent Reason Magazine) makes note of a prosecutor in Arizona who places DUI offenders' names, mug shots and BAC levels online. Sullum concludes that the prosecutor is "imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent."

Publicizing records that are, by nature, public is normally fine by me. But the prosecutor seems to have created, in a sense, a DUI offender registry. Appearance on sex offender registries is a matter determined by law, not the whim of prosecutors. Also, Mothers Against Drunk Driving won't endorse the idea:

"Some parts of the Web site are good because they are informational and trying to provide the victim's perspective," said Misty Moyse, the spokeswoman for the group. However, she said, "M.A.D.D. would not want to be involved in calling out offenders. We are interested in research- and science-based activities proven to stop drunk driving."

(crossposted at catallaxy.net)

"Half Moon Bay is wrestling with unpleasant options for responding to a court ruling that officials say threatens the 'very existence of our city government' - a $36.8 million judgment against the city for turning a proposed housing development site into wetlands." The town's annual budget is $10 million. The property in question had become unbuildable when protected wetlands appeared on it, as a result, the owner contended, of negligent town policies affecting water flow and retention. The plaintiff had bought the property in 1993 for $1 million. "Under the worst-case scenario, officials say, Half Moon Bay would become the first Bay Area city forced to dissolve, and the coastal town's land would become an unincorporated part of San Mateo County." (John Coté, San Francisco Chronicle, Dec. 18).

The city's lawyer unsuccessfully argued that Sheldon Stewart had changed his story about what exactly he'd slipped on in his injurious descent down a subway staircase in the Bronx. The NYC transit authority plans to appeal the jury's verdict. (AFP/Yahoo, Dec. 24; Denise Buffa, "Poop and $coop", New York Post, Dec. 24).

Perhaps emboldened by the success of New York City's Operation Lucky Bag (Dec. 7), Columbus, Ohio police are now generating new sex-offense cases by deploying a topless female sunbather to tempt passing men. (Marcus Baram, "Topless Woman Lured Perverts in Police Sting", ABCNews.com, Dec. 28).

To the Editor:

Re “Two Candidates, Two Fortunes, Two Distinct Views of Wealth” (front page, Dec. 23):

There is a critical distinction between Mitt Romney’s and John Edwards’s wealth. Mr. Romney, as a businessman, made investments that created wealth. Mr. Edwards, as a trial lawyer, made his money through lawsuits that merely took from one pocket and gave to another, and probably destroyed wealth in the process. (Mr. Edwards’s multimillion-dollar medical malpractice verdicts almost certainly hurt the quality of health care in North Carolina.)

Little wonder that Mr. Romney understands that to improve the economy, one needs to expand the pie, while Mr. Edwards’s policy proposals focus entirely on the redistribution of the existing pie without thought for the future adverse consequences to the size of the pie.

Theodore H. Frank
Washington, Dec. 23, 2007
The writer is a resident fellow at the American Enterprise Institute for Public Policy Research.

More on the question of pie-sharing and pie-growing at SSRN. More on John Edwards's trial-lawyer record: the Valerie Lakey trial; Edwards on the failure to warn; Edwards on stacking juries; and Edwards's cerebral palsy cases (also: April 11 and links therein).

The Alliance for a New America is an "independent" campaign organization running television ads in Iowa on behalf of John Edwards—whose ability to spend money himself in Iowa is restricted because he is taking taxpayer money as campaign funds (all while bashing other candidates for taking money from "lobbyists", even as he takes millions from trial lawyers and his finance chair is the former head of lobbying group ATLA).

Via Kaus, though Paul Krugman calls the Alliance for a New America a "labor 527", it turns out that a third of its money comes from Rachel Mellon, of the Mellon family fortune. (Though one wonders why Krugman is willing to defend the 527 as a labor 527. It's not like SEIU, which also heavily funds the Alliance for a New America, doesn't lobby the government for special-interest legislation. If, as Edwards says, lobbyists are bad, they don't suddenly become good because you agree with them. And if lobbyists you do agree with are good, then why isn't the issue the underlying policy proposal rather than the fact of the lobbying, as Edwards tries to demagogue?)

Here's the thing: Mellon is 96 years old. There are certainly competent 96-year-olds out there, and it's possible that Mellon really likes John Edwards. But what we do know is that a New York trust attorney who holds the power of attorney for Mellon and the Mellon-related LLC that is fronting the money is a big fund-raiser for Edwards. Does Mellon know that she's funnelling hundreds of thousands of dollars to John Edwards through her attorney through multiple 527s? Or is there something else going on? One expects Obama to complain:

According to the available records, which go back to 1980, she has never donated to a political candidate until a contribution was made in her name to John Edwards this year. Mellon's involvement in the decision to donate to the Edwards campaign is unknown. The Washington Post reported yesterday that Alexander Forger, who has power for attorney for Mrs. Mellon, is a major supporter of John Edwards’ candidacy. Crain's Business Journal reported in February that Forger and "a group of prominent New York lawyers" hosted a fund-raiser for Edwards at Essex House -- the Central Park South address where his office is located. Forger has also personally donated $4,600 to Edwards' campaign, according to FEC records. This is not the first time Forger has used Oak Springs Farms to support Edwards; in 2006, he made a $250,000 contribution to Edwards’ One America 527 group.

And even Daily Kos is asking questions.

(If there is something fishy, it wouldn't be the first time lawyers have engaged in campaign finance shenanigans for John Edwards. See the case of Tab Turner. There's the pending Fieger indictment, though Edwards and Fieger profess innocence. And Edwards still hasn't returned all of the Milberg Weiss money, despite several guilty pleas and a pending indictment.)

Speaking of Edwards and demagoguery: he's dropped references to the Mellons from his stump talks.

The action was "in protest at a possible reform that could cut them out of many divorce cases." Notaries public would be authorized to handle many divorces involving mutual consent, at a large likely savings to divorcing couples. (AP/IHT, Dec. 19).

First the giant retail chain sent a nastygram to an improvisational troupe that staged an unannounced performance at one of its stores and then sold parody T-shirts that imitated the retailer's graphics. Then it sent a nastygram to a blog that had reported on the incident. Then, as p.r. disaster loomed, it apologized for sending the nastygram -- the second one, at least, the one to the blogger. (Laughing Squid, Dec. 12)(via Turkewitz).

In a setback for the conduct of foreign policy by way of entrepreneurial private lawsuits, President Bush, exercising his pocket veto, has

rejected the defense spending bill passed by Congress earlier this month.

The president has concerns over a provision that would let victims of Saddam Hussein's regime with legal claims in U.S. courts seek compensation from the Iraqi government....

If enacted, the White House said, the act would have permitted "plaintiff's lawyers immediately to freeze Iraqi funds and would expose Iraq to massive liability in lawsuits concerning the misdeeds of the Saddam Hussein regime.

The provision in question would have reactivated litigation, disapproved by a federal appeals court, by which 17 former American POWs from the Gulf War had demanded $959 million from the post-Saddam Iraq regime over their treatment. "They were opposed by the Bush administration, which argued Iraq has reformed and needs the money to rebuild." (" Defense spending bill to die without becoming law", CNN, Dec. 28).

Sen. Frank Lautenberg (D-N.J.), who inserted the provision, says its language is not specifically tailored to Iraq but would instead sweep more widely in empowering lawyers to go after foreign sovereign governments' commercial assets in suits charging past support for terrorism. The proposal has had support from a few Republicans as well as Democrats. (Politico "Crypt", Dec. 28).

Was the litigation a factor? The UK's Daily Mail is reporting that Apple is developing a way for future iPods and iPhones to turn down volumes automatically after a certain period of use to protect users from endangering their hearing. One columnist predicts that the feature if implemented "will be hacked in a matter of minutes" by users who don't want the protection. (Christopher Breen, "Auto-volume may be a turn-off for some", MacWorld, Dec. 26).

Under the proposed law, backed by Supreme Council of Antiquities chief Zahi Hawass, persons around the world would be forbidden to make copies, even for private use, of the country's famous monuments, scarabs and other Pharaonic survivals. "His comments came only a few days after an Egyptian opposition newspaper, Al-Wafd, published a report complaining that many more tourists each year travelled to the pyramid-shaped Luxor hotel in Las Vegas than to Luxor itself. The newspaper proposed that the US hotel should pay some of its profits to Luxor city." However, Hawass said that copies of pyramids and other objects that were less than "exact" might escape a royalty obligation, which might get the back of the U.S. one dollar bill off the hook. (Rory McCarthy, "Egypt to copyright the pyramids and antiquities", Guardian, Dec. 27; "Egypt to copyright pyramids", AFP/Google, Dec. 26; AP/IHT). More: Coleman.

60-year-old David J. Pfahler of Allentown, Pa., has filed suit in Denver "claiming Scott Swimm, then 7, was skiing fast and recklessly when they collided in January" at Beaver Creek. Pfahler wants upwards of $75,000 over a torn shoulder tendon which necessitated "physical therapy, vacation time, nursing and medical services provided by Pfahler's wife, and other expenses". Scott's mother says he weighs 48 pounds "and couldn't have been going more than 10 mph. 'Who in the world sues a child?' she said. 'It just boggles my mind every day.'" ("Man, 60, sues boy, 8, over ski collision", AP/Boston Globe, Dec. 20; Steve Lynn, "Boy, 8, sued in Beaver Creek ski collision", Vail Daily, Dec. 19).

Following widespread public anger, the plaintiffs say they have been subjected to harassment in what their lawyer, Jim Chalat, calls an "electronic tar and feathering" ("Couple that sued Eagle-Vail boy hears complaints", Vail Daily, Dec. 26; letters, Dec. 24; more coverage, Dec. 27 and Mark Wolf's Rocky Mountain News blog; Obscure Store).

Prof. Gail Heriot didn't much care for the course, obligatory under California law, which "turned out to be an annoying piece of propaganda." (The Right Coast, Dec. 23) (via Bader). Earlier: Aug. 4, Sept. 8, Oct. 6 and Oct. 18, 2005; and other links on our harassment page, all the way back to here.

A jury has ordered the owners of an Oklahoma charter bus to pay $2.8 million to country singer Toby Keith and other members of his family after a 2001 accident in which Keith's father, H.K. Covel, was killed after his truck crossed the median on Interstate 35 into the path of the bus. The family's lawyer had produced an expert witness to testify that the bus's brakes should have been in better repair and that the driver should have been better trained. Covel's truck had been bumped by another vehicle and the family said it filed the suit to establish that the accident wasn't his fault. ("Jury rules Toby Keith's father not at fault in crash that killed him", AP/KTEN, Dec. 24).

Earlier this month a spectacular tanker accident burned down several houses in the Boston suburb of Everett, Mass. Ten-year-old Peter-Anthony Hereu of Wellesley felt sorry for the nine kids who'd been burned out of their homes and collected Christmas toys for them. But Everett Mayor John F. Hanlon vetoed the idea, citing recent toy recalls: "If you trip on ice, trip on a stair, trip on a present, we’re going to get sued. I don’t know what to do with the toys. We’re holding on to them until next year." The story took a happier turn, though, when the Salvation Army volunteered to distribute the presents and shoulder liability if necessary. (Laurel J. Sweet, "‘Insane’ red tape reins in lil’ Santa’s gift sleigh for Everett victims", Boston Herald, Dec. 24; "’Army’ comes to big-hearted toy boy’s rescue", Dec. 25)(& welcome WizBang readers; while you're here, why not help put us back in first place as Best General Legal Blog?).

Steve Chapman:

This spectacle has brought forth recriminations from politicians who picture the lenders as James Bond villains, cackling at the chance to toss hard-working families out on the street. In fact, this course is almost as bad a deal for lenders as it is for borrowers. They typically lose up to half the value of the mortgage on foreclosures.

From listening to the critics, you'd never guess that. Barack Obama denounces "predatory lenders" for "driving low-income families into financial ruin." Barney Frank (D-Mass.), who chairs the House Financial Services Committee, blames everything on an epidemic of "abusive lending."

But lenders who made bad decisions are already paying the price. Many mortgage companies have gone bankrupt. And if these loans are so unconscionable, the question is not why the foreclosure rate is so high but why it's so low. ...

The remedies urged by Hillary Clinton, John Edwards and the like include placing a moratorium on foreclosures, freezing teaser rates for five years or more, and forcing lenders to reduce loan amounts to reflect deflated home values. These options are conspicuous for a couple major defects.

The first is that they punish lenders for the failings of borrowers. Why should someone who has kept the terms of a contract be penalized for the benefit of the party that didn't? A lot of people took a calculated gamble on interest rates and home prices. Had they bet right, they'd be reaping the rewards. Since they bet wrong, they are entitled to bear the consequences.

Merry Christmas! The Supreme Court has agreed to hear the "most politically divisive case since Bush v. Gore" in 2000.

The simple question is whether we, as voters, can be constitutionally compelled to presented government-issued ID in order to vote.

Stephen Colbert's ThreatDown recently included a law firm's ad that included, yes, bears. In the ad, a bear is holding a small child, as if to suggest that the firm has struck the right balance between, I suppose, bloodthirst and coddling. The fair and balanced ad critique from a WSJ law blog reader:

“As long as Bingham is allowed to advertise with a bear holding a baby, personal-injury lawyers should be able to do whatever they want.”

Clever as the ad is, it really is no different than the woman who morphs into a tiger for an ad I've seen in Louisville. It's not much different from the ads featuring another local plaintiff's attorney lifting a car. That ad, I believe, is syndicated among dozens of lawyers across the country.

I wonder, though, if Bingham thought to include the standard disclaimer at the bottom of its ad, "Not an actual client. Also, bear is not a member of the bar."

(crossposted at catallaxy.net)

The old joke goes something like this: If you go to law school, graduate, sue the school for providing a poor education, represent yourself and then win the case ... did you really deserve to win?

The cases detailed here may not be quite as clear cut.

A group of students filed a $120 million class action against the American Justice School of Law in Paducah, Ky., on Nov. 17, citing allegations that include tax fraud, false representation to the American Bar Association, racketeering, scheming to defraud students and obstruction of justice. Rust v. American Justice School of Law, No. 5:07CV-191-R (W.D. Ky.).

Late last month, Adam Key, a second-year law student, sued Regent University School of Law, a private Christian school in Virginia Beach, Va., claiming violations of his right to free speech and religion after getting expelled for posting a critique in an online university forum. Key v. Regent University, No. 4:07-CV-04060 (S.D. Texas).

On Nov. 14, John Valente, a second-year student at University of Dayton School of Law in Ohio, filed a complaint against his school, citing negligence in dealing with exam software. Valente v. University of Dayton Law School of Law, No. 07-9593 (Montgomery Co., Ohio, Ct. C.P.).

It's far from being a trend (yet!), but shouldn't we expect a more costly legal education to generate demands from those students who slog it out to be chosen from an ever-increasing pool of applicants?

Law school tuition has been increasing at a considerable clip. And if you don't graduate, it doesn't matter to you if the value of the degree has risen twice as fast. You're not a lawyer. ("Don't Like Your Grade? Sue Your Law School," The National Law Journal, Dec. 18, 2007.)

Update: I'm not a lawyer, either.

(crossposted at catallaxy.net)

Stephanie Mencimer jumps on the Jamie Leigh Jones bandwagon against arbitration (Dec. 12, Dec. 20) and carefully makes a misleading case:

Employment lawyer Cathy Ventrell-Monsees testified before Congress in October that AAA data show that between January 2003 and March 31, 2007, of the 39 Halliburton cases that went all the way to a decision, Halliburton won 32, a win rate of 82 percent. Plaintiffs in employment litigation face a high bar in court trials as well, but even so, that figure is very high. Employers win about 64 percent of all employment cases at trial in federal court and about half in state court, according to data from the Justice Department's Bureau of Justice Statistics (BJS).

Mencimer also repeats the canard that arbitration is problematic because it is "secretive," though her ability to retell the case of Jamie Jones refutes that. I also note that earlier this week, I sent a request to Jones's attorney, Todd Kelly, for a copy of her arbitration filings. (Recall that Jones moved for summary judgment in the arbitration, and only filed in court after helping to choose an arbitrator and spending fifteen months of discovery litigating the arbitration.) He hasn't responded. If Jones's arbitration is secret, it's because she has chosen to make it so.

...at Kevin O'Keefe's site Real Lawyers Have Blogs (and this is probably a good place for a reminder that I am not in fact a lawyer)(cross-posted from Point of Law).

As I suspected, the Jamie Leigh Jones testimony on the Hill quickly devolved away from the Department of Justice's alleged failures in investigating a rape (the ostensible reason for the hearing) to the completely unrelated issue of her arbitration agreement with KBR and her attempt to conflate KBR with Halliburton, something welcomed by the litigation-lobby blogs that did the same thing. (KBR wasn't invited to send a representative to the hearing.) Jones misrepresented the arbitration as "secret," though the arbitration proceeding is just as public as a court proceeding to the extent either party wishes it to be. To that end, I invite Ms. Jones to send me the summary judgment briefs from her pending arbitration proceeding against KBR that led her attorneys to file a second action in court making new allegations against Halliburton, and I will happily post them and provide free publicity analyzing them. From the KBR briefs:

Jones has admitted that she is a party to an arbitration agreement and has invoked and
benefited from the terms of the DRP by participating in a pending arbitration proceeding
involving the same claims. She made a demand for arbitration more than a year before filing this
lawsuit, participated in the selection of an arbitrator, exchanged discovery and even moved for
summary judgment.

QuizLaw, down in the ABA Blawg vote, has resorted to negative campaigning, perhaps recognizing that the site proprietors are unlikely to sue for libel:

And here’s the God’s honest: Walter Olsen [sic] and Ted Frank, the purveyors of legal smut over on Overlawyered, are robots. Yes. You heard me right. Built by the IBM Corp. sometime in the late 90s and given fake, prestigious resumes (like a University of Chicago graduate would actually blog! ha!), Walter and Ted were programmed to spit out thoughtful, sometimes amusing legal analysis (and relevant links) about cases that actually matter in the world of law, which as we all know defies every tenet of the blogosphere.

A guestblogger will be joining us momentarily, and I'll be posting less over the holidays. Meanwhile, my pipeline is still backed up with items from the past year that deserve a more serious treatment than a hurried roundup mention permits. Here are four of them:

• More docs moving to Texas? Watch out, they must be quacks! After the New York Times reported that doctors seemed to be showing fresh interest in practicing in Texas since its enactment of litigation reforms, our frequent sparring partner Eric Turkewitz of New York Personal Injury Law Blog quickly countered by noting that disciplinary actions in the state are way up, and -- quite a jump here -- concluded with a suggestion that the newly arriving docs must be causing quality problems. Among bloggers who took this idea and ran with it: Phillip Martin of Burnt Orange Report. Then Prof. Childs had to spoil the fun by asking whether the doctors being disciplined were in fact newcomers to the state and found that, to judge by an initial sampling, no, they're not. And the medical blogs then knocked the remaining props out from under the reform-made-care-worse theory by linking to coverage documenting how the increase in disciplinary actions reflected the Texas medical board's concerted recent effort to get tough on doctors -- too tough, said many critics. In other words, the Texas medical profession was doing exactly what many skeptics demanded it do -- submit to stricter oversight in exchange for liability reform -- and now that very submission was being cited as if it proved that standards of care were slipping.
• Uninjured car owners can sue GM over seatbacks. No class members claim to have been injured, but Maryland appeals court allows class action over cost of replacing allegedly weak seatbacks in GM cars. [DLA Piper; opinion, PDF; Maryland Courts Watcher]
• The litigious stylings of Jonathan Lee Riches. We mostly ignore litigants who file handwritten pleadings from prison cells complaining of obviously hallucinated events, but there's no getting around it: the South Carolina convict has become a pop culture phenomenon with his scores of lawsuits against sports figures, President Bush, Perez Hilton, William Lerach and Elvis Presley over a host of imagined legal injuries. Some of the coverage: The Smoking Gun, Dreadnaught, Deadspin, Justia, Above the Law. He even has several Facebook fan groups.
• Taxpayers and vaccine-compensation lawyers. Under the federally enacted vaccine-compensation program, notes Kathleen Seidel, "a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful." (Forget about loser-pays; this ensures that taxpayer-defendants can win but pay the other side's fees anyway.) What sorts of bills do you think attorneys file for reimbursement under those circumstances? Yep, very optimistic bills, in which they expect taxpayers to shell out for their attendance at "advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs". In this case, HHS successfully appealed (PDF) an order that it pay the fees. Seidel's Neurodiversity blog offers a remarkable trove of insight into litigation relating to autism causation theories, vaccines and thimerosal, and this post is no exception. (Updated to include links.)

The Institute for Legal Reform has a new website, I Am Lawsuit Abuse, with some really high-quality production values. At the moment, the site highlights four stories of lawsuit abuse (including the infamously unfortunate defendant Chung Dry Cleaners), with videos for each story, and a smattering of links to news articles about wacky lawsuits. No link to Overlawyered, though.

ATRA's remarkably successful annual Judicial Hellholes report highlighting the high and low points of several jurisdictions' legal systems is out. (PDF) Regular readers will recognize many of the stories and jurisdictions (and an op-ed I wrote even gets a shout-out), but the report is a handy summary of the year in tort reform and lawsuit abuse. Lots of news coverage (AP/Fool.com; National Law Journal; the Examiner; others) and blog coverage (Lattman; Bader; Torts Prof; NAM; NAF; Murnane; Pharmalot).

In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we're in trouble.

Edited to add: For some reason, multiple commenters who haven't read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn't going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.

Some commenters appear not to have seen this, so it is worth recounting in updated fashion:

For readers who haven't figured this out on their own:

• When we post on Overlawyered about a real or potential lawsuit, it doesn't necessarily mean we think the case is without merit. We regularly discuss meritorious cases.
• Not infrequently lawsuits we discuss are well founded on existing law, but that existing law is ill-conceived and deserves to be reconsidered. Or both law and lawsuit may make perfect sense, but the level of damages demanded may be excessive or implausible. Or the combatants on one side or both may pursue dubious tactics and theories. Or the media coverage of the case may have been credulous or one-sided. You get the idea.
• Sometimes it's not clear what if anything either side did wrong in pursuing a dispute, but the case still stands as a monument to the high cost of resolving things through legal process. A recurring example: the family feud over a legacy that ends by consuming the estate in litigation costs.
• We also discuss a certain number of cases that are just plain interesting: they raise novel or non-obvious legal issues, or they shed light on human nature as it manifests itself in legal disputes. And, yes, it does happen on occasion that I take note of a case without being sure what I myself think of it.
• Finally, Walter, Ted, and David are three different people and don't always agree amongst themselves.

Sorry if this introduces complexity where people were expecting to find simplicity.

An actual license agreement nicely satirizing clickwrap licenses. Not that there's anything wrong with clickwrap licenses, though the California courts, as is their wont, are adding legal uncertainty to the game.

Along with the piece of steak she'd brought to eat:

“She did not use it inappropriately. She did not threaten anyone with it. She didn’t pull it out and brandish it. Nothing of that nature,” explained Marion County [Ocala, Fla.] School Spokesman Kevin Christian.

The girl is now facing felony charges. ("Knife At Lunch Gets 10-Year-Old Girl Arrested At School", WFTV, Dec. 14; Never Yet Melted, Dec. 18).

The brutalist-modern Third Church of Christ Scientist is one of the most widely disliked buildings in Washington, D.C., not least by its own congregation, which groans at the impracticalities of maintaining the concrete monstrosity: "According to one church official, you've got to build scaffolding just to reach some of the [light] bulbs [to change them]." But Washington's local architectural-preservation authorities forbid the congregants from replacing the building, which dates all the way back to 1971. (Charles Paul Freund, "A Brutalist Bargain", American Spectator, Dec. 18).

Thank you, OpinionJournal.com, which has now published a free link for my Saturday op-ed laying out some of the story of the Scruggs indictments.

Three years ago we prematurely reported that sanity had (as of that point) prevailed in the New Mexico case where firefighters and emergency medical personnel, otherwise uninjured, were seeking to sue El Paso Natural Gas over the emotional trauma of witnessing the disaster scene after a 2000 pipeline explosion. Earlier this month, however, the New Mexico Supreme Court ruled the other way, poking a big hole in the "firefighters' rule" which traditionally barred recovery by rescuers against those who cause accidents. Chief Justice Edward Chavez wrote that to throw out the emotional-distress suits would be to "reward reckless or intentional acts". The suits now head to trial. (Stella Davis, "Responders can sue in pipeline explosion", Carlsbad Current Argus, Dec. 5).

Philadelphia authorities have indicted Center City lawyer D. Allen Litt and 14 others over what they say was a quarter-century-old scheme of bogus personal injury claims employing 100 runners and working with about ten physicians. Slip-falls were a favorite: "He would send his runners to look for cracks in sidewalks in front of businesses large and small, supermarkets, large drugstore chains, mom-and-pop stores, any commercial business whatsoever," said Philadelphia D.A. Lynne Abraham. "The imposters would obtain medical care from physicians selected by Litt and rack up inflated medical bills via numerous visits to the Litt-selected doctors, the grand jury charged," per the Legal Intelligencer. Some claimants had genuine injuries incurred elsewhere which they brought to the scene of the intended staging. "Abraham said Litt would pay people fees ranging from a couple of hundred to a thousand dollars to find the sites and stage the fake accidents. The lawsuits would yield thousands of dollars for Litt, officials said." (Vernon Clark, "Lawyer charged with running 25-year fraud", Philadelphia Inquirer, Dec. 12; Amaris Elliott-Engel, "Pa. Attorney Charged in Insurance Fraud Case", The Legal Intelligencer, Dec. 13).

Amid deep and growing divisions among Senate Democrats, Senate Majority Leader Harry M. Reid (D-Nev.) last night abruptly withdrew [the Foreign Intelligence Surveillance Act that would have also] granted the nation's telecommunications companies retroactive immunity from lawsuits charging they had violated privacy rights.

Update: Were the government's actions were illegal? Maybe, though reasonable minds can differ. But the question is different from the one of the dynamic consequences of finding private liability here. If corporations are held liable every time they agree to cooperate with the government on a national-security issue that is potentially ambiguous, they just won't cooperate at all without a court order. Perhaps that is the rule we want going forward. But if so, that policy choice should be the decision of Congress, not of unaccountable trial lawyers—and if it is the rule Congress wants, they should state it explicitly, so voters can hold them accountable for the consequences, rather than hiding behind trial-lawyer surrogates that later reward them for the earmarks to the trial bar. Should trial lawyers make terrorism policy?

• "Of all the body parts to Xerox!" Another round of stories on efforts to reduce liabilities from office holiday parties [ABA Journal, Above the Law, and relatedly Megan McArdle]
• New edition of Tillinghast/Towers Perrin study on insurance costs of liability system finds they went down last year, which doesn't happen often [2007 update, PDF]
• Vermont student sues Burger King over indelicate object found in his sandwich; one wonders whether he's ruled out it being a latex finger cot, sometimes used by bakery workers [AP/FoxNews.com]
• Good discussions of "human rights commission" complaints against columnist Mark Steyn in Canada [Volokh, David Warren and again @ RCP, Dan Gardner; for a contrasting view, see Wise Law Blog]
• Having trousered $60-odd million in fees suing Microsoft in Minnesota and Iowa antitrust cases, Zelle Hofmann now upset after judge says $4 million in fees should suffice for Wisconsin me-too action [Star-Tribune, PheistyBlog]
• Australian rail operator will appeal order to pay $A600,000 to man who illegally jumped tracks, spat at ticket inspectors, hurt himself fleeing when detained [Herald Sun]
• Lawyers' fees in Kia brake class action (Oct. 29, Oct. 30) defended by judge who assails honesty of chief defense witness [Legal Intelligencer]
• Who deserves credit for founding Facebook? Question is headed for court [02138 mag]
• Yes, jury verdicts do sometimes bankrupt defendants, as did this $8 million class action award against a Kansas City car dealer [KC Star, KC Business Journal]
• Dispute over Burt Neuborne's Holocaust fees is finally over, he'll get $3.1 million [NY Sun]
• So long as we're only fifty votes behind in the race for this "best general legal blog" honor, we're going to keep nagging you to vote for Overlawyered [if you haven't already]

Always worth pointing out this time of year: if you use our Amazon bookstore to buy holiday presents, a portion of your shopping outlays go to support the work of this site. Better yet, why not buy your friends (or yourself?) some food for thought in the form of books and other products related to our themes here? Not to be excessively self-promotional, but my book The Rule of Lawyers of not long ago is once again relevant to current headlines in a big way, given the close look it takes at Mississippi's Richard (Dickie) Scruggs and the tobacco and asbestos lawsuits that made his fortune. If you check the right-hand column of our front page, you'll also see ShopThisBlog.com, which offers a thoughtfully designed and easy to use guide to buying many books mentioned in this space.

Another book we've had occasion to mention here (well before its publisher bought an ad!) is Adam Freedman's well-received The Party of the First Part, on the oddities of the language we sometimes call "legalese" (Aug. 22). And don't forget the much-acclaimed DVD A Lawyer Walks Into a Bar (Sept. 28), which includes me as an interviewee in the bonus material.

After a press inquiry, the New Jersey Turnpike Authority abruptly changed its mind about suing the Ryan and Christmas families, who between them lost four family members in an August 2006 crash. (Kieran Crowley, "NJ Adds Insult to Injury", New York Post, Dec. 17).

What if you hurt yourself? "One customer's misfortune inspired an unnecessary rule at the expense of 10,000 others who aren't clumsy and litigious." (Ben McConnell, Church of the Customer blog, Dec. 17).

The United States is in possession of a 90-minute "consensual recording" of four of the five defendants -- it would appear that Timothy Balducci wore a mike into a meeting -- as well as 124 intercepted phone conversations (Lotus/folo, WSJ law blog, Rossmiller).

A New Yorker is back in the news with his attempts to shut down the sex-based discounts at drinking spots. (Gothamist, Dec. 17). See Jul. 29, etc., etc.

I've got a piece in Saturday's Wall Street Journal on the indictment of perhaps the nation's most successful tort lawyer and four colleagues on charges of attempted judicial bribery. The tag line the Journal's editors give the piece: "Dickie Scruggs's mistake may have been to stiff another lawyer." (Walter Olson, Wall Street Journal, Dec. 15)(sub-only). For new readers who'd like much more detail about the indictments and their aftermath, check out my regular updates at this site and also those of David Rossmiller at Insurance Coverage Blog. I've been covering Mr. Scruggs's doings in tobacco, asbestos, product liability, reparations, HMO, and hospital litigation pretty steadily since this site got its start in 1999 (newer/older posts). (Bumped Monday a.m. for those who didn't see it over the weekend).

Two noteworthy stories in the Mississippi press: Anita Lee of the Biloxi Sun-Herald takes a look at "Dickie Scruggs' $50 million man: What did P.L. Blake do to earn all that money?" (Dec. 16; some earlier Blake discussion).

Blake will earn $50 million, court records show, for clipping newspaper articles and alerting Scruggs to maneuvering in political "cloakrooms," as Scruggs put it, from Mississippi to Washington. ...

Accounts of how Blake earned the money are vague and contradictory.

Even more surprising, Blake and Scruggs were unable to say whether they sealed their business agreement with a handshake or in writing.

A few points brought out in the article: "Scruggs said Tom Anderson, who then worked in Lott's office, referred Blake to Scruggs." Attorney General Mike Moore, nominally Scruggs's public client after hiring him to advance the state's interests in the tobacco litigation, was aware that Blake was being paid, though he professes surprise at how much. And Scruggs routed the $10 million in initial tobacco payments to Blake through attorney Joey Langston as intermediary. (more discussion)

The assignment of steady continuing payments to Blake over the life of the tobacco settlement distinctly resembles a gesture toward diverting a share of the tobacco proceeds (a contingency share, as it were) to reward and incentivize Blake, or perhaps Blake-and-others-too, to work for the success of the deal. [corrected 12:24 on proofreading after posting; I mistakenly used a wrong surname in place of "Blake" here and below.]

If reporters or others at some point succeed in reaching and questioning Blake, who is said to have moved to Alabama, presumably one of the questions worth asking him will be: is he really the final recipient and ultimate beneficiary of all that impressive cash flow -- declaring it on his income tax, having all the funds available for his personal use, and so forth -- or does he pass/has he passed some of the money along to anyone else? If he keeps it all, it's no wonder the questions will keep re-echoing about whether his services could really have been worth that much. If it turns out he is passing/has passed some of it along to another actor or actors, why would things have been arranged that way? One possibility -- though not the only one, of course -- is that such further beneficiary or beneficiaries might not wish to be known publicly as holding a share in the payouts of the great tobacco project. (Update: a Monday article by Anita Lee in the Sun-Herald ("Blake's information 'right-on'", Dec. 17) quotes Moore saying that Blake seemed to have accurate intelligence in what was going on in tobacco-industry and Republican circles.)

The other noteworthy story is by Jerry Mitchell in the Jackson Clarion-Ledger ("Feds probe Hinds case under scrutiny", Dec. 16). It confirms that one of the "bodies buried" that Balducci told federal agents about relates to the Luckey/Wilson asbestos fee matter, which was eventually split into two legal proceedings, both hard-fought, with Luckey faring better than Wilson in the legal battle against Scruggs. In addition, the search warrant for the Langston law firm sought documents relating to the Wilson case "as well as documents regarding payments to Jackson lawyer Ed Peters, who played no known role in the case. In 2001, Peters retired as Hinds County district attorney."

An active comment thread at Lotus/folo includes additional information about Peters, among other topics, and also passes along details about some of non-wannabe Timothy Balducci's past involvements in high-stakes litigation, from his own promotional material. A sampling:

In 2006, Tim was Lead Counsel in Mississippi’s successful prosecution of securities fraud claims against Citigroup in Federal District Court in New York. His success in representing the state in so many complex litigations was a major factor which contributed to his selection by the Commonwealth of Kentucky to prosecute an action on its behalf to recover over $1 Billion dollars in government funds from a major chemical manufacturer. Also, the United States District Court in Charleston, South Carolina, selected Tim to serve on the National Leadership Committee for the ReNu contact lens solution litigation against Bausch & Lomb.

Notes a commenter: "it’s amazing how much lawyering these tiny law firms seem to get done. It’s just as amazing that he gets it done with *no reported decisions.* Pretty strange."

Alan Lange at Y'All Politics is back with a synopsis of Scruggs's current troubles, and as always don't miss the David Rossmiller updates (Dec. 15 and Dec. 16).

George Will in today's WaPo:

Speaking ill of lenders began when homo sapiens acquired language, hence it is unsurprising that many people who until recently were criticizing lenders for not making money available to marginally qualified borrowers are now caustic about lenders who complied.

For example, a study published in the Dispute Resolution Journal compared 125 employment discrimination lawsuits filed in the Southern District of New York, with 186 arbitration claims involving employment disputes in the securities industry. The data showed that employee claimants prevailed 46% of the time in arbitration compared to 34% in federal court. The median monetary award amount was slightly higher in arbitration, and the median time from filing to judgment was 16.5 months in arbitration compared to 25 months in litigation.

Also, a 1998 comparison of arbitration and litigation published in the Columbia Human Rights Law Review noted that
employees prevailed over employers in 63% of employment arbitration cases filed with the American Arbitration Association between 1993 and 1995. To compare, only 14.9% of employees who brought cases to federal district court in 1994 prevailed in their litigation. The average duration of an arbitrated claim was 8.6 months, compared to 2.5 years in litigation.

California data shows that when consumers bring arbitration claims against businesses, the consumers prevail in 65.5% of cases that reach a decision. To compare, buyer plaintiffs litigating contract claims in the 75 largest American counties prevailed 61.5% of the time overall, and 60.9% of the time in cases decided by bench trials. When businesses bring arbitration claims against California consumers, the businesses prevail in 77.7% of cases that reach a decision. To compare, seller plaintiffs litigating contract cases in the largest 75 counties prevail 76.8% of the time overall and 78.9% of the time in cases decided by bench trial.

These results show that the win rates for consumers and businesses bringing claims in arbitration are within just a few percentage points – and, sometimes, just fractions of a percentage point – of the win rates of individuals and businesses bringing contract claims in court.

Update, Dec. 17: The National Arbitration blog has more links, and the blog appears to be chock-full of resources. For other Overlawyered posts on arbitration, see our new arbitration section.

Injury law firms in St. Louis and Seattle run promotional blogs for which they've been generating content as follows: a post summarizes (presumably from police or news reports) a recent local road fatality or injury naming the victim and other persons involved, towns, roads and other identifying information. Then it adds a bit of discussion of the accident, and advises that the law firm can assist the victims in filing claims. Often the killed, maimed or comatose person's name appears prominently in the post title, which aids in search engine visibility to reach families searching for their own names or the names of witnesses or other parties involved in the accident. The law firms have had no previous involvement whatsoever in most of the incidents, nor have they been invited onto the scene by any of the persons they name or their survivors.

Isn't legal marketing wonderful? In years to come when you go online in quest of remembrances of your loved ones, paging through their school reunion pages, club involvements and professional achievements, you can look forward to confronting the equivalents of giant if outdated lawyer billboards along the way. Kevin O'Keefe at Real Lawyers Have Blogs blasts the practice as "a cheap stunt" and "the stuff that gives plaintiff's lawyers a bad name" (Dec. 11), "unseemly" and "wrong" (Dec. 14), "shameless" and "sleazy" (Dec. 15). Eric Turkewitz adds his voice in condemnation (Dec. 13). Peter Lattman's link at the WSJ law blog (Dec. 14) draws out numerous posters who appear to approve of the idea, though.

Earlier this week, we quoted an Australian newspaper that Michael Flatley had won an "$11 million settlement" in his lawsuit against Tyna Marie Robertson, a woman who had falsely accused him of rape and tried to extort him through the threat of litigation, and speculated that Robertson's other romantic shenanigans with the wealthy may permit her to pay it. Alas, other press coverage reveals that this was not a settlement, but a default judgment, which suggests the inability to pay for a lawyer to defend herself as well as to pay Flatley. On Point's report of the default judgment notes that Robertson's child support litigation claims she has $6 to her name. Flatley did come to an undisclosed financial settlement with D. Dean Mauro, the attorney who handled Robertson's claim, so there will be some justice done.

Let us imagine a writer for a left-wing magazine, we'll call her Mephanie Stencimer, who wants to buy a car. But she has particular tastes: she doesn't just want any old car. She wants a three-wheeled vehicle, perhaps because the feng shui is better, perhaps because she wants to spend less money on tires forced upon her by Big Rubber. She goes from car-dealer to car-dealer around town, but every single one of the dastardly businessmen insist that her only choice is a four-wheeled vehicle. She patiently explains the aesthetics of the triangular approach, but they shrug their shoulders and tell her it's out of their hands and she has to have a four-wheeled car or nothing. Finally, she surrenders her preference for the three-wheeled vehicle, and takes a model with the extra wheel.

If you were to take seriously the arguments of Stephanie Mencimer at Mother Jones and the commenters there, and perhaps the occasional judge, this is an outrageous "contract of adhesion" that should be outlawed: Stencimer didn't have a choice, didn't have the bargaining power to make the auto-dealer sell her a three-wheeled car, and was forced to buy an extra wheel. But is this really a problematic failure of the market that requires government intervention?

A few odds and ends:

Two rumors previously passed along in this space have been denied by relevant parties. The attorney for indictee Sidney Backstrom specifically denies that his client is considering a plea deal with prosecutors, contradicting speculation from Scott Horton that we passed along the other day (more). We also cited Sid Salter of the Jackson Clarion-Ledger on reports that federal agents searched attorney Joey Langston's home as well as law offices, but Salter talked with Langston's mother who says that isn't so (more).

Lotus/folo has some speculation on what it might mean, as to the way the investigation developed, that the dates in the indictment switch back and forth between "on or about" and precise dates. Also on the timeline of the investigation and prosecution, Alan Lange at Y'All Politics has further thoughts on the post-election surfacing of the prosecution's case.

Finally, former AG Mike Moore, a longtime mentionee on this site and deeply connected with Scruggs through the tobacco episode among other involvements, had at first been considered a likely candidate for the Lott Senate seat, but has now changed his mind and prefers to spend time with his family (Y'All Politics).

P.S.: As for the question, "why would a lawyer so rich do such a thing?", Great Red Spot is reminded of a cynical quote from Monty Burns of The Simpsons: "I would trade it all ... for a little more."

David Rossmiller details an employment discrimination suit with scandalous allegations against Scruggs Katrina Group member Nutt & McAllister, including a violation of the Acker protective order. Of course, bad publicity is always a strategy of the plaintiffs' bar, even when they're suing other trial attorneys, so the allegations may not be true.

• This tale of a class-action settlement over male, uh, enhancement products sure looks like a parody, and yet.... Please let it be a parody [Magill/DirectMag, Levine/CircleID, LEMSettlement.com]
• Big law firm partners say million a year really isn't enough to keep up social status in Manhattan or Silicon Valley [ABA Journal]
• Clerical error results in Disney characters' getting subpoenaed in Italian criminal case [USA Today]
• We've slipped to second place in this Blawg 100 contest thing, don't you like us? [vote here]
• Update on Miami's fire-fee scandal (Sept. 19): law firm of Adorno & Yoss, which once sought $2 million fee, will now pay taxpayers $1.6 million; bar probe continues [Miami Herald, Florida Masochist]
• Wife had begged him not to go kite-surfing in Long Island Sound in winter, but still sues town over its failure to warn against taking such risks [Conn. Post]
• "I don't do any medmal," lawyer hastens to make known as he's being stitched up in ER [GruntDoc]
• Very expensive speech: "beyond cruel" shock-jock comments ridiculing Albany, N.Y. burn victim end in $1 million settlement, spoliation also raised as issue [ABA Journal]
• Hassle of dealing with regs in charming Old Town Alexandria is one that only chain outlets may be up to shouldering [Balko, Reason]
• Turkish lawyer sues Italian soccer team, deems its "Crusader-style" red crosses "offensive to Muslim sensibilities" [Times Online, UK]
• Plaintiff's lawyers tend to throw the most opulent holiday parties in Texas, but our readers knew that already [Houston Chronicle via Lat]
• Two men shot in suspected drug deal win $1.7 million in negligent-security suit against hotel [eight years ago on Overlawyered]

Michigan Lawsuit Abuse Watch (M-LAW) is out with its latest annual Wacky Warning Label awards. "Danger: Avoid Death" appeared on a small tractor, while second place went to one in a longtime favorite genre of ours, the do-not-iron-garments-while-wearing warning. Third place? A "label on a baby stroller featuring a small storage pouch that warns: 'Do not put child in bag.'" Also important to know: "The Vanishing Fabric Marker should not be used as a writing instrument for signing checks or any legal documents." (Ron Vample, "'Avoid Death' is wacky warning winner", AP/USA Today, Dec. 12). Coverage of earlier years: 2006, 2005, 2004, 2003, earlier.

You must bear in mind, though, in considering the suit by bitten ex-housekeeper Zamfira Sfara, that this is one very wealthy pooch. (Elizabeth Hays, New York Daily News, Dec. 9).

Often much deadlier than the one who was (White Coat Rants, Nov. 21)(via KevinMD).

Organizers of a pantomime show in Norfolk say they are forbidding the bewigged Dame from throwing sweets out to kids in the audience, a cherished part of the Christmas tradition, lest someone get bonked on the noggin and sue. ("Panto stars banned from throwing sweets into the audience in case children get hit on the head", Daily Mail, Dec. 6). To avoid an increase in its insurance premiums, a club in the West Midlands has been obliged to fit out Santa's sleigh with a seat belt ("Health and safety killjoys force Santa to wear a seatbelt in his 5mph sleigh", Daily Mail, Nov. 29). And: "The 'snaps' have had to be removed from more than 650 Christmas crackers being sent to soldiers in Iraq and Afghanistan because of regulations on the carriage of 'explosives'. ... 'The troops will just have to go 'bang' themselves when they pull them,'" said an official. ("'Bang' goes cracker fun for troops", Daily Telegraph, Dec. 12). Earlier similarly: candles carried in cathedral, workplace decorations, torchlight processions, carolers, puddings, pantomime themes, lighting displays.

"This was ordinary conduct that lawyers do," said Roberts defense lawyer Alan Brown: "The only thing not ordinary is it was about sex." Mary Roberts would arrange trysts with men, and then her husband Ted, who is also an attorney and has also been convicted, would demand cash from the men on threat of litigation, extracting $155,000 from four such victims, including one $70,000 check made out to the poignantly named Roberts Foundation for Children. (Mary Alice Robbins, "Solo Convicted in Sex Scam", Texas Lawyer, Dec. 12). Earlier: Jun. 13, 2004, etc., most recently Dec. 7.

I've appended a minor, but material, correction to my December 1 post on Lawrence.

Yes, it seems there were wiretaps. Defendants will be seeing evidence from the prosecution momentarily which might (or might not) be the trigger for further flipping and early plea deals, if such there will be.

There is enormous curiosity (e.g.) about P.L. Blake, to whom Scruggs says he paid $10 million (and tens of millions more in future payments) for vaguely described intelligence services aimed at swaying political influentials during the tobacco caper. Per a 1997 account posted at Y'All Politics, "Blake pleaded 'no contest' in 1988 to a federal charge that he conspired to bribe officials of the now-defunct Mississippi Bank to secure favorable loan terms." The same article, citing reporting in the Jackson Clarion-Ledger, reports that Blake was in close phone contact between 1994 and 1996 with eventually-disgraced state Auditor Steve Patterson, who after leaving office went into partnership with Timothy Balducci and is one of the five indicted in the current Scruggs affair. Per AP, "Patterson was a banker at Mississippi Bank before his 1984-1987 tenure as head of the Mississippi Democratic Party."

David Rossmiller, as so often, is out front with a report filling in background on two other controversies involving Blake. One arose from a venture into the grain storage business which landed him in a Texas dispute in which his attorney was none other than Fred Thompson, later a Tennessee senator and presidential candidate. The other arose from his cordial dealings with a former chief of staff to Sen. Trent Lott (R-Mississippi).

Harper's blogger Scott Horton has now published his take, as is his wont heavily dependent on hush-hush (but no doubt wholly trustworthy) confidential sources who float all sorts of theories about scoundrelly doings by the highly placed. He winds up with a theory that would pull Sen. Lott into it (though with no allegation of criminality) by way of the Acker contempt matter, as distinct from either the Balducci/Lackey bribery attempt or, say, the Paul Minor affair. Of Horton's many anonymously sourced speculations, the one that caught my eye was tucked into a footnote: "A law enforcement official I interviewed, who for professional reasons asked to remain anonymous, told me that Scruggs’s junior partner Sidney Backstrom might take the same road as Balducci." Now that is news a rumor (more). (Update Tues. evening: Backstrom's attorney Frank Trapp flatly denies that anything of the sort is in the works: Patsy R. Brumfield, "Backstrom firm on innocence, his attorney says", Northeast Mississippi Daily Journal, Dec. 12.)

This is probably a good place to apprise readers who aren't aware of it that 25-odd years ago, while first gaining a footing in the policy world, I worked briefly on Capitol Hill drafting research papers for a committee then headed by Mr. Lott. We only talked a couple of times, I had never set foot in the state of Mississippi at the time, and I'm pretty sure he wouldn't recognize me on the street, but if you're a conspiracy theorist about such matters, there you have it.

At Y'All Politics, commenter "lawdoctor1960" has some speculation as to why the remarkable deposition of Scruggs in the Luckey case didn't get more media or political attention at the time.

Welcome Andrew Sullivan, David Rossmiller, Y'All Politics readers.

Attorney Tim Balducci's role as deputized lawyer for the state of Mississippi in the MCI and Zyprexa cases is drawing public scrutiny, and may result in pressure for reform of AG outside contracting.

We've started a new "Scandals" category for readers who want quick access to coverage of the Mississippi mess, also stocked with some earlier links to coverage of such earlier blow-ups as Milberg Weiss/Lerach, Kentucky fen-phen, the Paul Minor affair, etc. For those who are following Scruggs posts in sequence, be aware that yesterday's first and second posts fell outside the numbering scheme.

(Update, December 16: And welcome, Consumerist readers. For more on the anti-consumer campaign against arbitration, see the Overlawyered arbitration section. Consumerist's headline "Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free" is entirely false. Aside from the fact that it does not appear the alleged rapists worked for Halliburton, the issue of whether Jones is contractually obligated to arbitrate her employment dispute with her employer is entirely unrelated to whether the government underinvestigated a criminal complaint against rapists. They are two entirely separate issues. It's not the first time that Consumerist has reprinted misleading arguments against arbitration—a shame, because mandatory binding arbitration helps consumers, and Consumerist should care more about consumers than the trial lawyers who are lobbying for an anti-consumer law.)

In February 2006, Jamie Leigh Jones filed an arbitration complaint, complaining that, for her administrative assistant job with KBR in the Iraq Green Zone, she was placed in an all-male dorm for living arrangements, and a co-worker sexually assaulted her. (KBR says the co-worker claimed the sex was consensual, though Jones claims physical injuries, such as burst breast implants and torn pectoral muscles, that are plainly not consistent with consensual sex. The EEOC's Letter of Determination credited the allegation of sexual assault.)

Fifteen months later, after extensive discovery in the arbitration, Jones, who lives in Houston, and whose lawyer is based in Houston, and who worked for KBR in Houston, sued KBR and a bunch of other entities (including Halliburton, for whom she never worked, and the United States), in federal court in Beaumont, Texas. The claims were suddenly of much more outrageous conduct: the original allegation of a single he-said/she-said sexual assault was now an allegation of gang rape by several unknown John Doe rapists who worked as firemen (though she did make a claim of multiple rape to the EEOC, though it is unclear when that claim was made); she claims that after she reported the rape, "Halliburton locked her in a container" (the EEOC found that KBR provided immediate medical treatment and safety and shipped her home immediately) and she threw in an allegation that a "sexual favor" she provided a supervisor in Houston was the result of improper "influence." (But she no longer makes the implausible claim that she was living in an all-male dorm in Iraq.)

The US got the claim dismissed quickly (Jones hasn't yet followed the appropriate administrative claims procedure); the case was transferred back to Houston where it belonged (the trial lawyer's ludicrous brief in opposition didn't help). But the fact that the defendants are pointing out that the lawsuit over a pending arbitration violates 28 U.S.C. § 1927 and are asking for the court to mandate only one single proceeding in arbitration rather than a multiplicity of parallel proceedings, is now being treated as a cause célèbre by the left-wing blogosphere in its campaign against the contractual freedom to arbitrate. (Note that two elements explicitly designed to arouse the ire and inflame the passions of the left—Halliburton and gang-rape—only came about after Jones switched attorneys.)

The Public Citizen blog complains that "the allegations of corporate and governmental misconduct will never see the light of day" in arbitration. Which is absurd:

1) For crying out loud, her case is on 20/20, which, as is its ken, happily unquestioningly gives the plaintiffs' opening statement in handy manipulative video newsertainment form without mentioning any of the counterevidence. That sort of widespread publicity is hardly the lack of "light of day." (Update, Dec. 15: the KBR arbitration procedure provides a transcript without confidentiality restrictions, permitting exactly the same publicity as an open court proceeding.)
2) If the government fails to offer Jones an adequate settlement for their alleged bungling of the criminal investigation, she has recourse under the Federal Tort Claims Act against the federal government—though she likely will not have any more recourse against them than any other criminal victim does when the government fails to protect them against crime or prosecute the criminal.
3) If the court system is about having recourse for injuries, she has that recourse. The judicial system is not for public storytelling; if you want to send a message, use Western Union (or ABC News, as the case may be).

20/20 also adds the claim (absent in the arbitration and in the otherwise-lurid civil complaint) that Jones was threatened that she would be fired if she sought medical treatment.

Felix Salmon fisks lawyer Sean Olender thoroughly.

In Lawrence v. Graubard Miller (Dec. 1), an 83-year-old widow appears to have been spectacularly imposed upon by her fee-seeking lawyers, nor is it clear that the courts will afford her any remedy. David Giacalone wonders why so few legal bloggers have taken an interest in the case (Dec. 11).

Rockville, Maryland: "A Montgomery County jury has rejected a negligence lawsuit brought by a woman who claimed she was attacked by a Canada goose while at a shopping center in 2004, causing her to fall and break her hip." Suzanne Webster's attorney said "the store made the situation worse by letting employees feed the geese." (AP/WJZ.com, Dec. 10).

Anucha Browne Sanders will get $11.5 million, including $4 million in legal fees, to settle her claim of misconduct by Isiah Thomas and others. The Garden did not keep quiet about its view of the result, calling it a "travesty of justice". (Richard Sandomir, "Garden Settles Harassment Case for $11.5 Million", New York Times, Dec. 11). Earlier: Oct. 2, Oct. 4.

A major early theme of the Dickie Scruggs defense has been that fortyish attorney Timothy Balducci, who was "flipped" by the feds and is cooperating with prosecutors, and who has spoken of sharing with Scruggs knowledge of where there are various "bodies buried", is a clueless newbie, a mere Timmy Tiptoes who sought to impress his elders in hopes of someday being admitted to their inner circle. Scruggs attorney John Keker used the "wannabe" epithet the other day, saying he didn't think Scruggs and Balducci "were close at all", and it had earlier come to mind as I sought to convey the tone of the WSJ's Oxford Christmas party quotes. Let's review, then, some of the revelations of recent days:

• As a former principal in the Langston law firm, one of the state's best known, Balducci had been appointed individually to represent the state of Mississippi as a Special Assistant Attorney General in two high-stakes and politically sensitive matters, the MCI tax dispute and the litigation against drugmaker Lilly seeking reimbursement for outlays on the psychiatric drug Zyprexa.
• According to Alan Lange at Y'All Politics, the agreement from AG Hood's office in the MCI case retaining the Langston Law Firm refers to "its principal members, Joseph C. Langston and Timothy R. Balducci", and Langston's own advertising at the time referred to the firm as being "anchored by longterm partners Langston and Tim Balducci".
• Scruggs retained Balducci to represent him in the highly sensitive Jones lawsuit, which aside from demanding millions of dollars carried the prospect of laying open the financial arrangements of the Scruggs Katrina Group to a curious world.
• Earlier, Scruggs retained Balducci to represent him in the long-running and highly sensitive Alwyn Luckey fee lawsuit, which per the Times culminated in an eventual $17 million payout to Luckey. The opposing attorney who handled that case for Luckey, Charles M. Merkel, Jr., told the New York Times: "Balducci made part of the closing arguments in one of my cases, and they sat at the same table. When I was negotiating with them, it was generally with Balducci.”
• In the Luckey case, when Scruggs sat for the fantastically sensitive 2004 deposition in which he was obliged to unveil explosive details of how he spread around money to advance the tobacco-Medicaid litigation -- the episode that made his national reputation and brought him plus-or-minus a billion in fees -- the lawyer on hand representing him, and peppering the proceedings with continual objections, was Balducci.
• After Balducci struck out with former state auditor Steve Patterson to form an independent practice, his firm listed of counsel political and legal notables that included a former governor of the state of Mississippi and the former DA of the county that includes most of Jackson.

P.S. For those unacquainted with the Beatrix Potter reference, the eponymous gray squirrel in her story gets into trouble with his fellows: "Timmy rolled over and over, and then turned tail and fled towards his nest, followed by a crowd of squirrels shouting -- 'Who's-been digging-up my-nuts?'"

The Massachusetts Supreme Judicial Court has held that a doctor may, in some circumstances, be liable for a patient's auto accident if the plaintiff can prove that he failed to adequately warn his patient about the risks of driving under medication. (Coombes v. Florio; Childs; Klein blog; update: also Liz Kowalczyk, "SJC ruling adds to doctor liability", Boston Globe, Dec. 11 via Childs).

The obvious dynamic result from this gigantic expansion of liability, unnoted by the majority: doctors will simply overwarn, and tell all of their patients not to drive. (After all, patients can't sue their doctors for the damages caused by their being unable to drive.) Some patients will routinely ignore the advice because they won't be able to distinguish the legitimate warnings from the defensive warnings; other patients will stop taking medication that they should be taking because of the additional unnecessary personal costs; still other patients who could have driven safely will impose huge costs because they obey the defensive warning. None of these indirect expenses caused by the expansion of liability will be measured in accounts of the costs of the tort system.

When you dial 911 from some new Verizon Wireless phones, it seems the phone itself emits an audible alarm. The telecom provider says it installed the feature to comply with federal law requiring that phone services be made "accessible and usable by individuals with disabilities". Unfortunately, it has a disconcerting effect on users like a nondisabled Austin, Texas woman who dialed 911 because she feared she was about to have a close encounter with vandals on a vacant property she owned. The FCC says it does not require specific ways of meeting the accessibility mandate and that other methods besides audible tones might be found. (Clara Tuma, "Verizon customer calls phone alarm 'dangerous'", KVUE, Nov. 9). Reader L.S. writes that the story reminds him of the "Neckbelts" article in The Onion. We noted some years ago that strobe-light-equipped fire alarms, being pressed on government standards-writers as a way to alert deaf persons to emergencies, might prove dangerous to persons with photosensitive epilepsy, many of whom risk being sent into seizures by brightly flashing lights.

Turning the tables on an accuser: "Dance star Michael Flatley has won an $11 million settlement in the United States from a woman who falsely accused him of sexual assault and attempted to extort money from him, he said in a statement." ("Michael Flatley floors floozy for fortune", Brisbane Times, Dec. 10). We covered the original $35 million suit against the "Riverdance" impresario, and his later countersuit, on Sept. 14, 2004, Jul. 30, 1006, and Aug. 22, 2006. Needless to say, very few wrongful accusers are likely to have this kind of money on hand to pay over in response to countersuits; but per syndicated columnist Stacy Jenel Smith, the woman who charged Flatley with assault, Tyna Marie Robertson, "had dated other wealthy and well-known men through the years - relationships that sometimes ended in litigation". ("Dark Side of Fame: Becoming A Target for Sex Charges, Lawsuits", undated). More, including information on Robertson's lawyer, D. Dean Mauro, at ABA Journal. Update/clarification Dec. 15: notwithstanding the erroneous use of the term "settlement" in last week's press reports, OnPoint News makes clear that what Flatley actually got was a default judgment, and that Robertson is unlikely to have means to pay.

Yesterday's sensational developments are covered at the Jackson Clarion-Ledger, Rossmiller, and AP/FoxNews.com. The Northeast Mississippi Daily Journal quotes attorney Tony Farese, who among other connections to the principals represents Zach Scruggs, as asserting that the files taken relate to former Langston firm attorney Tim Balducci. However, some other reports, such as Sid Salter's Clarion-Ledger blog, are indicating that the federal agents also removed files from Langston's residence. (Update Dec. 12: Langston's mother says these reports are erroneous, per Salter). Discussions are in progress at Y'AllPolitics and Lotus/folo.

Langston, a prominent figure on the Mississippi litigation scene, has been among lawyers representing Dickie Scruggs following his criminal indictment; the Sun-Herald notes that he also (with Balducci) represented Scruggs in the Alwyn Luckey fee dispute, known to be a topic of interest to federal prosecutors. Readers of this site may also remember Langston from the Foradori v. Captain D's case two years ago, and more recently from the controversy over the MCI contigency-fee tax-negotiation case.

Watch what you say about lawyers, a continuing feature: the blog Troll Tracker has been critical of firms that make a practice of buying up patent rights to sue on them. Now co-founder Ray Niro of the Chicago plaintiffs firm Niro, Scavone, Haller & Niro is threatening to sue Troll Tracker for alleged infringement of a patent on a technique sometimes used in web graphics, JPEG decompression. (If a website posts graphics at all, there is a good chance that it is in similar violation of this asserted patent.) Niro also wants the anonymous blawger's identity unmasked and is offering a bounty toward that end. (TrollTracker, Dec. 4; John Bringardner, "A Bounty of $5,000 to Name Troll Tracker", IP Law & Business, Dec. 4; via Ambrogi, who appends an extensive list of blogs commenting on the story).

• Joe Nocera's recent column on the Vioxx settlement infuriated loyalists of the plaintiff's bar, and they won't like his new one on lead paint litigation much better [NY Times]
• Trial of Overlawyered favorite Jack Thompson over ethical charges leveled by Florida bar wraps up, but judge won't rule right away [GamePolitics earlier, more recent posts]
• Two joggers hit by driver alongside Pacific Coast Highway will share $49 million from city of Dana Point -- allegedly the bike lane was too wide -- so now here come the concrete barriers [LA Times]
• Do makers of anti-PC documentary "Indoctrinate U." owe cash to Indiana U. for infringing on its logo? [Maloney, OpinionJournal, Coleman] Update Dec. 11: settled.
• Casselberry, Fla. cop who sued parents after boy's near-drowning in pool has now lost her job following public outcry over the incident [Orlando Sentinel; earlier]
• Lawyer who says he was defamed by commenters on DontDateHimGirl.com is back in court [Pittsburgh Post-Gazette, Ambrogi, On Point; earlier here, here, etc.]
• Outspoken blog of BU prof Dr. Michael Siegel ticks off "tobacco control" activists [Beam, Globe]
• Warning label alert: old Sesame Street episodes unsafe for children? [Stier, Wash. Times]
• Furor mounts in and out of Canada over "human rights" complaint against Maclean's over Mark Steyn book excerpt [Wente, Globe and Mail; Eteraz, UK Guardian; Steyn, NRO; Kimball]
• Judge rejects lawsuit by animal rights group challenging UCSF animal testing [SF Chronicle]
• New at Point of Law: How do all those big cases wind up in Judge Jack Weinstein's court, anyway?; latest Richard Epstein podcast is on antitrust, Microsoft, AT&T, etc.; abuse of the Family and Medical Leave Act; welcome new contributor Marie Gryphon; Yale Law clinic sues Yale-New Haven Hospital; bar official dismisses concerns about cy pres slush funds; breastfeeding accommodation on the job, via lawsuit?; just what New York needs, a new state law school at Binghamton; and much more.

A report in today's New York Times advances the ball on a number of fronts:

• Per an unidentified official, "federal prosecutors have asked the Justice Department’s Public Integrity Section to examine whether Mr. Scruggs has engaged in multiple bribery attempts of local judges." DoJ is said to have sent lawyers to Mississippi to check out leads along these lines, and is also said to be interested in possible misconduct by Scruggs in the Alwyn Luckey fee dispute.
• The Times interviews Clarksdale, Miss. attorney Charles M. Merkel Jr., who spent more than a decade in court fighting Scruggs in the Luckey dispute:

  “It’s scorched earth with Dickie Scruggs,” says Mr. Merkel, sitting in a wood-paneled office featuring duck-hunting memorabilia and two framed checks representing about $17 million in payments that Mr. Scruggs had to disgorge to Mr. Merkel’s client -- a lawyer named Alwyn Luckey who argued that Mr. Scruggs shortchanged him for work he performed on asbestos cases that made Mr. Scruggs rich.

  Mr. Merkel and prosecutors say that the Luckey case foreshadowed some of Mr. Scruggs’ woes in the current bribery case. “As far as whether he’s guilty, I can’t say,” Mr. Merkel concedes. “But I’m not surprised, because he’s willing to use any means to an end. And it irks the hell out of me when Scruggs skates on the edge and makes the profession look bad.”

• Keker, as predicted, is labeling Timothy Balducci a "wannabe" and says, of him and Scruggs: "I don’t think they’re close at all." Merkel, for one, isn't buying that: “He’s a lot closer to Scruggs than Scruggs would like to portray now,” Mr. Merkel says. “Balducci made part of the closing arguments in one of my cases, and they sat at the same table. When I was negotiating with them, it was generally with Balducci.”
• The Times also picks up on Scruggs's liberal dispensing of resources to sway Mississippi political influence-holders during the tobacco caper:

  In his deposition with Mr. Merkel in 2004, he discussed some $10 million in payments he made to P. L. Blake, a onetime college football star in Mississippi. After running into financial troubles, Mr. Blake became a political consultant for Mr. Scruggs, helping his boss navigate the back rooms of state politics and tobacco litigation.

  In the deposition, where he was represented by Mr. Balducci, Mr. Scruggs praised Mr. Blake for keeping “his ear to the ground politically in this state and in the South generally, and he has been extremely helpful in keeping me apprised of that type activity.” Mr. Blake could not be reached for comment.

  When Mr. Merkel further pressed Mr. Scruggs about Mr. Blake’s services, Mr. Scruggs elaborated: “He has numerous connections -- in terms -- when I say connections, I don’t mean that in a sinister way, I mean he just has a lot -- he knows an awful lot of people in the political realm. And he -- depending on the stage of tobacco litigation proceedings was keeping his ear to the ground, prying, checking. I mean, I never asked who or what or all that.”

David Rossmiller takes note of a letter by Balducci dated August 1 over a regulatory matter which in its cocksure and sarcastic tone suggests that Balducci had not yet been confronted and "flipped" by federal investigators as of that date. This morning he adds a document and link roundup.

The Jackson Clarion-Ledger quotes Jackson attorney Dennis Sweet, who partnered with Scruggs on slavery reparations, as saying he "had a hard time believing that Dickie would involve his son in anything like this," a comment that perhaps is open to close reading.

At Y'AllPolitics, two commenters discuss how conspiracy investigations logically develop over their life cycle. David Sanders notes that when the timing is up to them, federal investigators prefer not to uncover operations and reveal informants until they are satisfied they've caught all the targets in their net, which raises the question of whether they had developed what they considered to be the best evidence they were going to get, or whether some development forced their hand into closing the net before that point. "LawDoctor1960" observes that the indictees will soon get a look at the prosecution's case, which if damning could induce one or more to join Balducci in "flipping" with resulting further revelations and perhaps further indictments.

The WSJ law blog has some answers to the question put the other day: Where is Mr. Keker?

Folo wonders: does the Scruggs firm (as opposed to Scruggs Katrina) really not have a website, and if so, isn't that exceedingly strange? Don't they want to encourage potential clients to approach them?

Finally, for those who are wondering whether there's any pro-Scruggs blogging to be found, we can report that we've spotted a reasonable facsimile at Cotton Mouth and at Pensacola Beach Blog.

Earlier coverage: here, here, here, etc.

Breaking Monday afternoon: FBI agents search offices of another leading Mississippi plaintiff's attorney, Joey Langston, who has been representing Scruggs in his indictment, and has had many other past dealings with him.

• John Edwards's support for wacky warnings.

• Author's suit: Penguin labeled my book "black interest."

• Kentucky fen-phen litigation heats up—or, at least, the critical fee documentation did when the attorneys burned it.

• Not a huge surprise: environmental lawsuits hurt environment.

• I wasn't impressed by a trial lawyer's claim of "forgiveness" at the punitive damages stage.

• Best or worst? Miscellaneous time-wasting spats with Bizarro-Overlawyered: medical malpractice; constitutional history; affluence, accidents and ad hominems; rollover economics.

Soliciting nominations for topics you'd like us to write about. Let us know here or, if you don't want to wait for the hassle of comment moderation, on Facebook.

• As governor, Huckabee signed a good tort reform package capping punitive and non-economic damages, and reforming joint and several liability and venue law, but the rest of his economic record is big-government. And David Harsanyi is critical of Huckabee's claimed opposition to nanny-statism. [Insurance Journal; Human Events; Harsanyi; RCP; Michael Tanner @ FoxNews]
• Update to the popular Bridezilla flowers lawsuit; florist files opposition. Lots of comments ensue. [Lattman]
• South Dakota Supreme Court: no, you can't sue a pharmacy for being a "drug dealer" when plaintiff steals prescription medicine for a disabled friend and injures himself OD'ing on it. [On Point]

• Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
• Atkins fallout in Texas and California, as professional anti-death-penalty experts there happily minimize subject IQs to call their intelligent clients retarded. Earlier: Feb. 2005; Sep. 2003. [Science Evidence blog; and again]
• Heartbalm tort of alienation of affection withstand constitutional challenge in Mississippi. Earlier: Jul. 5; Nov. 2006, etc. [Torts Prof]
• Bob Woodruff biography: I would have died if my injury happened in the United States because of fear of liability. [Murnane]
• I've updated my paper on Thomas Geoghegan's new book. [SSRN]
• Overlawyered holds slim lead at ABA Blawg 100 popularity contest. But why aren't any of you voting for Point of Law? [ABA Journal]

Curious goings-on in North Carolina:

Kristin Wallace bought some very wet land as an investment. Eight acres of it, all underneath Lake Lynn.

The Cary woman bought the land for $12,500 last year at a public auction of property with delinquent taxes. Now she is suing to try to force the city of Raleigh or Wake County to buy the soggy land from her or drain it.

"It's extremely valuable to me," Wallace said, "dry."

City and county officials say Wallace, who started investing in real estate less than two years ago, knew the land was lake bottom when she bought it, something she doesn't dispute.

"It's bought as is," said Shelley Eason with the County Attorney's Office.

(Sarah Ovaska, "Pull the plug on Lake Lynn, suit demands", Raleigh News & Observer, Dec. 6).

With the criminal case itself not furnishing many new developments over the past day or two, attention is turning to the question of what the "buried bodies" might be of which Tim Balducci claimed knowledge (and which prosecutors might wish him to sing about), and also to the possibly overlapping topic of Scruggs's earlier run-ins with lawyers and other professionals over the splitting of fees. (Balducci represented Scruggs in some fee disputes, as did the Jones firm that later sued him over fees.) Also drawing much attention is the question of whether an intensified ethical searchlight will make life hot for the Mississippi political figures who've participated most extensively in Scruggs's litigation campaigns over the years, namely former Attorney General Mike Moore and present AG Jim Hood.

The U.S. Chamber-backed stable of publications that includes Legal NewsLine has been digging into these topics. At the SE Texas Record, Steve Korris relates details of Scruggs's lengthy and bitter dispute over asbestos fees with attorneys William Roberts Wilson Jr. and Alwyn Luckey, in which Scruggs was represented by John Griffin Jones. Jones's associate Steve Funderburg in March of this year confronted Scruggs in dramatic fashion in an email over his sense of having been done out of Katrina fees:

"I have looked in the mirror all weekend and tried to figure out how I could be so stupid," he wrote. "John and I DEFENDED you in fee dispute litigation for God's sake."

He wrote, "We DEFENDED you when people said you were greedy, or were a back stabber, or a liar, or anything else."

He wrote, "You have developed a good routine. It worked. But go to your grave knowing that you have shaken my belief in everything I hold dear."

He wrote, "I did not believe that people like you really existed. I am ashamed and will always be ashamed of having defended you and protected you."

See also Y'All Politics for discussion.

Find a wallet, go to jail? New York undercover cops have been leaving wallets and purses around in public spots in the city, then arresting anyone who picks them up and doesn't present them to a nearby uniformed officer. Some arrestees have otherwise clean records and say they intended to use ID inside the bags to notify the rightful owners. Putting money inside the bags didn't lead to serious enough charges, in the coppers' view, so they began salting them with live American Express cards so that the finders could be charged with grand larceny, with four years behind bars. (N.Y. Daily News, more, N.Y. Times, Fox News, ABC News, Gothamist).

School districts have learned that they cannot discipline students for abusive Internet postings they make off-campus. Layshack v. Hermitage Area School District, No. 074465 (pending 3d Cir.); Dwyer v. OceanPort School District No. 03-6005 (D. N.J.) ($117,500 settlement to student suspended over web site). "Lawyers say school districts are in a legal quandary: If they punish a student for something they did off school grounds, they could get hit with a freedom of speech claim. If they do nothing, they could get hit with failure to act litigation." (Tresa Baldas, "As 'cyber-bullying' grows, so do lawsuits", National Law Journal, Dec. 10).

• Speaking of privacy, consider what happens when lawyers get a hold of your email. (When will we see law professors eager to create new causes of action consider the privacy-destroying implications of ediscovery?) [Fulton County Daily Report/law.com; Toronto Globe & Mail; Point of Law] Earlier: Jan. 9 and links therein.
• Speaking of privacy and reputation, Mary Roberts goes to trial, but Above the Law doesn't mention our coverage (June 2004; Sep. 2005; Feb. 6; Mar. 19; May 17), and misses the juicy details.

• Oy: "Woman who 'lost count after drinking 14 vodkas' awarded £7,000 over New Year fall from bridge." News from the compensation culture not entirely bad: damages were reasonable, and the court did hold the woman 80% responsible, the exact opposite of the McDonald's coffee case. [Scotsman.com]
• No good deed goes unpunished: Sperm donor liable for child support, judge rules. [Newsday/Seattle Times]
• Bad attorney gets fired, sues DLA Piper for discrimination, represents herself pro se, demonstrates firsthand why she got fired: law firm wins on summary judgment. [ABA Journal; update: also New York Law Journal]

• Romney on tort reform; McCain on medmal. [Torts Prof Blog; Torts Prof Blog]

• Another day, another Borat lawsuit. I'm still waiting for the consumer fraud lawsuit from moviegoers upset that it was not actually a Kazakh documentary. [Reuters; earlier]

Daniel Solove's solution to the potential problem of damning information on the Internet is to open up the libel laws and to remove the Communications Decency Act safe-harbor for site owners. As Amber Taylor points out in a provocative review, one could take this chain more seriously if Solove more directly considered the real-world consequences of such a rule, and the amount of true speech it would shut down because of the potential legal expense of defending speech in the absence of bright-line rules. Eric Turkewitz's review finds his blogger identity trumping his plaintiffs' attorney identity to also oppose the expanded litigation that Solove proposes. David Giacalone is more favorable, though also unwilling to endorse Solove's policy prescriptions.

Plenty of news today, and some links to commentary:

As part of Timothy Balducci's guilty plea, the feds confirm that Balducci has been "substantially" assisting them in their case against the other defendants. Per the sub-only WSJ: "People familiar with the case said the government has recordings of Mr. Scruggs that include evidence beyond that alluded to in the indictment." Paul Kiel at TPM Muckraker observes that the feds might have interviewed Balducci on any number of other matters, such as where "there are bodies buried," in his own memorable phrase.

A Jan. 22 trial date has been set in the case.

Where's John Keker? wonders Folo: "[Billy] Quin was sure doing all the talking for Team Scruggs yesterday".

David Rossmiller employs the verb "to Scruggs", and numerous commentators read the lawyer's withdrawal from representation of Katrina cases as a step he would not have taken had the new criminal charges not loomed very seriously indeed.

Y'All Politics keeps wondering where AG Jim Hood is. It also notices that former Mississippi AG Mike Moore, a figure well known to longterm readers of this site, seems to be involved with the doings of the now Scruggs-less Scruggs Katrina Group. Martin Grace finds irony in that lawyer consortium's approach to its own issues of "emergency management", as well as in its solicitation of whistleblowers.

X Curmudgeon notes Scruggs's long history of skating close to the edge on use of confidential informants: "some lawyers would argue [that] his success has depended heavily on his willingness to break the rules, or to play outside the rules." Regarding John Grisham's statement that his friend Scruggs would not have gotten involved in a "boneheaded bribery scam that is not in the least bit sophisticated".

Isn't it great having friends like John Grisham? In other words, if it had been a SOPHISTICATED bribery scheme, then, yeah, sure, he could see Dickie doing that. But not a boneheaded scam.

White Collar Crime Prof speculates about the shape of a Scruggs defense based on the twin themes of "it's too boneheaded for smart guys like us", and hanging Balducci out to dry.

Not to mention hoping that the tape recordings aren't too damning.

Update: A new post from David Rossmiller ties together several loose threads mentioned above relating to Katrina litigation, confidential informants, the Renfroe documents and AG Hood. Our earlier coverage, by the way, can be reached by links from here.

The state of Texas recently enacted legislation requiring that all non-working fire hydrants, defined as those pumping less than 250 gallons of water per minute, be painted black so that firefighters do not waste time during emergencies hooking up to futile sources (and presumably so that nearby homeowners can also assess their risk before a fire). Alas, the new law has had an unintended consequence, according to this Sept. 18 press release (PDF) from the State Firemen’s and Fire Marshals’ Association of Texas:

Unfortunately, some water utilities in Smith County have over-reacted to the legislation by painting all fire hydrants black, most of which are functioning hydrants that pump well over 250gpm. “The utilities are painting all hydrants black to protect against liability,” said, Cody Crawford, Fire Chief of Chapel Hill Fire Department. “While this makes sense to the lawyers, it doesn’t make good common sense and it puts homeowners at risk.”

Crawford goes on to give his opinion that the practice "creates more liability than it removes"; presumably the water utilities' lawyers disagree with that assessment (h/t reader Eric Bainter).

Meatpacker Hormel has met with defeat in its courtroom attempt to invalidate the registration of the trademark SpamArrest for an email-screening service (Ron Coleman (Nov. 27; TTABlog, Nov. 28). Our earlier coverage: Jul. 9, 2003 and Apr. 19, 2007.

Roger Parloff at Fortune Legal Pad is out with some informative analysis based on an interview with attorney John Griffin Jones, who filed the fee suit against Scruggs. Among the questions explored: how high were the stakes in that suit, and why might the defendants have been keen on an arbitration order? Relating to the latter point, Parloff writes:

Scruggs’s lead counsel, John Keker of Keker & Van Nest, adds that the notion that Scruggs might have wanted to keep the case out of public view by putting it into arbitration is “absurd as a motive” for a bribe, since the case “was certainly going into arbitration” and that was “the only place it could possibly be.”

Which raises the question: if an order for arbitration was a foregone conclusion, why are Scruggs chums floating the theory that attorney Timothy Balducci thought he could impress Scruggs by getting such an order from Judge Lackey?

The WSJ law blog reports that Balducci was arraigned Tuesday and has asked to withdraw his law license. On the location of his arraignment, see Mississippi blogger Folo (earlier). (Update: Whoops, actually Mississippi expatriate, see comments.) Balducci was named to represent himself, drawing many puzzled reactions. (Update: NE Mississippi Daily Journal has more on Balducci's arraignment and likely cooperation, via Folo.) Also, the WSJ law blog interviews David Rossmiller (who himself has several new posts up) and reports that the Scruggs firm may be withdrawing from Scruggs Katrina Group cases after all. (Update: confirmed in this Sun-Herald story).

This Sunday profile of Judge Lackey in the Sun-Herald notes that he's "a deacon at First Baptist Church and a member of a state commission charged with ensuring judicial integrity," which as several commentators note might indicate that he was a risky one to approach with a proposal for corruption.

A commenter at David Rossmiller notes whose interests are served by the pre-emptive "character assassination of Balducci" in recent coverage and also writes:

Patterson resigned Oct. 18, 1996 after pleading guilty to filing false documents to avoid paying taxes on a Range Rover. And Grisham thinks these folks are super sophisticated, why?...

And how bad does the spin from last week look? The FBI did not find "the document" and Scruggs is not withdrawing from Katrina cases, and then a few days later he is withdrawing. By the way, the FBI removed computer data which is most likely being analyzed right now, so who the heck knows what they have found. Maybe "dead bodies"? ...

Earlier coverage of the indictment here, here, here, and here.

• Fear of "retribution" and "legal action" among reasons docs don't report hazardous colleagues and conditions [WaPo on new Annals of Internal Medicine study]
• Judge rips Milberg for high Chiron fee proposal, questions Skadden's conflict [The Recorder]
• Felony murder rule is an American exception with results that can be hard to defend [Liptak, NYT]
• UK: "Man broke girlfriend's leg in damages fraud" [Times Online]
• Often driven by defensive medicine, CAT scans may pose their own risks to patients who undergo them [Newsday on NEJM study]
• Commentator is glad post offices are lawyering up their Operation Santa gift programs [McDonough, CalLaw LegalPad; earlier; possibly related]
• Quebec judge nixes suit by Concordia University mass murderer against former colleagues [Canadian Press]
• Update on Kennewick man and Indian-remains legislation [WashTimes; earlier]
• Magic of compound interest? Uncollected 1977 award for victim of Evel Knievel attack said to have mounted by now to $100 million [AP/Yahoo]
• School discipline now a heavily lawyer-driven affair [Charleston Post & Courier courtesy Common Good]
• Complaint: Cleveland housing authority should have done more renovations to accommodate extremely obese tenant [four years ago on Overlawyered]

I've been blogging a bit less in the last few months because in September, the National Legal Center for the Public Interest merged into AEI and I've been heading up the combined AEI Legal Center for the Public Interest ever since. Tonight, AEI continues the NLCPI's long tradition of the Gauer Distinguished Lecture in Law and Public Policy when SEC Chair Christopher Cox speaks tonight on government investment in the private market. In today's American, I discuss the history of the NLCPI.

The WSJ law blog's Peter Lattman is now reporting from Scruggs hometown Oxford, Miss. and (with co-reporter Paolo Prada) is in today's paper with "It's Party Time For Dickie Scruggs In Oxford, Miss." (WSJ, Dec. 4, sub-only). Among its newsy items: "People familiar with the investigation" confirm what was widely surmised, that attorney Timothy Balducci "began cooperating with prosecutors at some point after offering the judge money". Balducci's whereabouts are not immediately apparent and a "neighbor said no one had been [at his home] for a more than a week." How much heat is attorney Balducci getting for his role in the case? The WSJ-on-paper quotes Deborah Patterson, wife of Balducci's business partner and co-defendant Steven Patterson, as saying of Balducci: "He's a short midget...and he has some sort of complex." In the online version of the article this quote is shortened (so to speak) to "He has some sort of complex," but with no correction or other explanation of whether the midget reference was repertorial error or what, exactly.

As emerges fairly clearly in the piece, the Scruggs camp is encouraging a line of defense that portrays Balducci, who has worked extensively with Scruggs in the past and has represented him in earlier lawsuits charging unfair fee division, as a clueless wannabe who pursued the bribe scheme on his own in hopes of impressing the senior lawyer -- "a young man wanting to endear himself to Dickie Scruggs", as one Scruggs intimate is quoted as saying. Famed novelist and Scruggs buddy John Grisham is quoted in the article (and in a separate WSJ blog interview) as saying that the scheme "doesn't sound like the Dickie Scruggs that I know," Mr. Grisham said yesterday. "When you know Dickie, and how successful he has been, you could not believe he would be involved in such a boneheaded bribery scam that is not in the least bit sophisticated." But this is to assume that the payments starkly presented by the indictment as cash-for-the-judge were not intended to be dressed up in some more sophisticated guise, such as eventually forgiven loans routed through some fellow lawyer's office, made to a relative of the judge, or both. That was the way things were handled in the Paul Minor cash-for-judges affair, in which Scruggs himself was involved, and one should not assume that no such overlay of sophistication would not have been poured over the Lackey payments.

You remember last year, when the Association of Trial Lawyers of America tried to hide their identity and changed their name to the considerably less accurate American Association for Justice. (Aug. 2006; July 2006, etc.) Well, a new organization, led by J. Keith Givens, a former partner of the late Johnnie Cochran, has attempted to usurp the old acronym with an organization called The American Trial Lawyers Association, arguing that ATLA abandoned the name. "The name defines who we are and what we do," which is very similar to the remark made by AAJ when they surrendered the Trial Lawyer title. Litigation, of course, ensued. (Jeffrey H. Birnbaum, "A Case of Trial Lawyers v. Trial Lawyers", Washington Post, Nov. 30; commentary from Murnane, Lattman, Adler @ Volokh, Scheuerman). The Association of Trial Lawyers of America surrendered the American Trial Lawyers Association name decades ago when the American College of Trial Lawyers complained it was too similar, and the ACTL is also unhappy with the new ATLA's use of the name. The fact that the previous sentence is so confusing suggests that the plaintiffs have a point.

Retailer TJX (Marshall's, Bob's, TJ Maxx, etc.), facing lawsuits following its exposure of more than 45 million customer records in a gigantic credit-card security breach, has agreed with class-action lawyers to a settlement that includes, among other concessions, the holding of "Customer Appreciation" sale events at its stores. Ten state attorneys general have now objected to the deal, pointing out that store sale events can and routinely do work to the benefit of the retailer and not just the buyer. Massachusetts AG Martha Coakley's "objection was not so much with the sale itself, but with having it included as a part of the official settlement. The difference? If it's in the official settlement, it increases how much money the consumer lawyers involved in the case get for their fee." (Evan Schuman, "Massachusetts AG Slams TJX Consumer Settlement Sale", EWeek, Nov. 19; Mark Jewell, "Coakley not excited about TJX’s plan for repayment", AP/Worcester Telegram, Nov. 21; John O'Brien, "Ten AGs don't want class action attorneys fees boosted by sale", LegalNewsLine, Nov. 20; Keith Regan, "TJX to Shell Out $41M in Data Breach Settlement", E-Commerce Times, Nov. 30).

Practically everyone likes the Do Not Call list, which instructs pesky telemarketers to stay away. Why can't we sign up for a list of people who don't want to be included in class actions? (Owen Lam/Blended Musings, Dec. 2).

"A feud involving the man who sang 'Grandma Got Run Over By a Reindeer' could wind up in court, just in time for Christmas. Elmo Shropshire was sued for breach of contract Monday by a company that claims he interfered in a $1 million-plus deal to sell musical trucks, bobblehead dolls, snow globes and cookie jars featuring characters from an animated show based on the novelty song." (AP/San Mateo County Times, Nov. 28).

• Drunk driving by St. Louis Blues hockey player Rob Ramage killed his passenger in a Toronto crash, and now Missouri verdict puts car rental company on hook for $9.5 million [Post-Dispatch]
• Consumers trust lawyer ads in phone book, or at least so say the Yellow Pages people [WV Record]
• Latest flip in marine-mammal litigation: Ninth Circuit orders curbs on Navy's sub-hunting sonar [L.A. Times; earlier coverage]
• More on colorful Judith Regan suit against News Corp. [Carr, NYT]
• Lesson for law-firm "foreclosure mills": don't file the action before your client actually acquires the instrument being sued on [ABA Journal]
• John Fund on Salvation Army and English in the workplace litigation [WSJ/OpinionJournal; earlier]
• Comstock Act for the web is one of departed Rep. Hyde's less happy legacies [McCullagh, CNet]
• A view from Boston on Lone Star State med-mal reforms [Globe]
• Shaker abstinence, cont'd: FDA mulls petition to crack down on salt in foods, and AMA has joined busybody brigade [L.A. Times; earlier, see also]
• Texas tort tycoon John O'Quinn probably isn't winning prizes these days from historic preservationists [ABA Journal]
• Run for your lives! Toxic chocolate! [six years ago on Overlawyered]

Speculation continues to mount that central bribery-scandal figure Timothy Balducci may be cooperating with prosecutors, and perhaps has been doing so for some time; Balducci had not yet been arraigned as of this weekend, and the indictment quotes extensively from conversations he held with other defendants, in addition to those that took place in Judge Lackey's bugged chambers. (Peter Lattman and Ashby Jones, "In Scruggs Probe, Focus Turns to Another Lawyer", WSJ, Dec. 1)(sub-only). In the latest of his extensive posts on the case, David Rossmiller adds to the picture: "From the verbatim quotes by Balducci given in the indictment, one logically can surmise that investigators had substantial recorded evidence that would have given them tremendous leverage over Balducci in obtaining his cooperation against the others." In addition, certain elements in the indictment's description of Balducci's actions suggest that by mid-October, presumably flipped by investigators, he had begun taking steps that could be used to document targets' knowing participation in the conspiracy (in particular, his return to Dickie Scruggs to finance a purported second-round bribe, and his statement in the presence of Zach Scruggs and Sidney Backstrom that "we paid for this ruling").

Rossmiller also analyzes the underlying Jones v. Scruggs dispute over legal fees, in which the Jones firm, formerly one of the five participants in the Scruggs Katrina Group (SKG), alleges that it was "frozen out" and ejected by the remaining four firms, allotted only token fees after shouldering the substantial work of case briefing. Why would it have been advantageous to the Scruggs firm to have Judge Lackey shunt this dispute into arbitration? One key reason is that proceeding with a court battle, even if successful, might have risked exposing to the public many of the internal workings of SKG and perhaps also of Scruggs's own firm. (Having read the Jones complaint, I would note that Jones was alleging that Scruggs had made a common practice of squeezing collaborating lawyers out of their fee shares in earlier, unrelated litigation during his career. The evidence put forth to support such an allegation, apart from whether it turned out to support a claim for punitive damages, might result in public airing of all sorts of messy and embarrassing episodes from the past.)

John Jones and Steve Funderberg, the lawyers whose firm sued Scruggs et al in the underlying Jones v. Scruggs suit, have given an interview to the Mississippi press; Jones says he knows Scruggs well and has represented him in court, but that the relationship changed drastically "when the money hit the table"; of go-between Balducci, Funderberg said, "Knowing Tim Balducci as I do, I am utterly flabbergasted that he would ever be a part of something like that or believe he could ever get away with something like that". (Jon Kalahar, "Former Scruggs Colleague Says Money Changed Him", WTOK, Nov. 30).

At Y'AllPolitics, Alan Lange traces many of the recurring connections between the dramatis personae and notes that the "whole crowd" was deeply involved in the much-criticized MCI contingency-fee back taxes negotiation, which we posted on at the time at Point of Law. "Attorney General Jim Hood allowed his largest campaign contributor, Joey Langston, to be the plaintiff lawyer and also appointed Tim Balducci as a Special Assistant Attorney General in that case". Langston, for whom Balducci used to work, is now among lawyers representing Scruggs.

Some noteworthy reactions to the indictments: "This is maybe the worst day of my life," says longtime Scruggs friend Don Barrett, quoted in an Associated Press piece that also rounds up some of the high points of Scruggs' career (Michael Kunzelman, "Scruggs' career in jeopardy", AP/Hattiesburg American, Dec. 1). "I'm disappointed in him," Katrina client Lyman Cumbest of Pascagoula, who's suing State Farm, said of Scruggs. "With all the money he had, he didn't have to bribe a judge. He's got more money than he could ever spend." ("FBI probe in judicial bribe case to continue", Jackson Clarion-Ledger, Nov. 30). Byron Steir at Mass Tort Litigation Blog comments (Nov. 30):

If true, all of these allegations suggest remarkable hubris in at least some of the top plaintiffs' lawyers. One wonders about the effect of a lifestyle of private jets and multiple wins of multiple millions (or tens of millions) in fees. One also wonders about the effect of high-risk, winner-take-all, contingency fee litigation. Brash and aggressive personalities seem to thrive in such an environment -- but they too must keep in mind that lawyers ultimately serve the client (not the other way around) and that no one (especially not the lawyer) is above the law.

And more: "It just boggles the mind," said Biloxi trial lawyer Jack Denton. "Here is a man who has had an enormous amount of success, who reached a level very few attorneys, if any, have reached. Why would he risk everything over a legal dispute over attorneys' fees?" David Rossmiller, quoted in the same story, has one possible reply, which is that people may begin reevaluating "how this amazingly successful man got to be so amazingly successful." (Richard Fausset and Jenny Jarvie, "Katrina lawyer at the eye of a storm", Los Angeles Times, Nov. 30)(& welcome Tom Kirkendall readers).

• Remember that ludicrous case where the Florida driver fell asleep, crashed his Ford Explorer, his passenger was killed, and a jury blamed Ford to the tune of $61 million? (See also Sep. 10.) A Florida court got around to reversing it, though only to grant a new trial under a variety of erroneous evidentiary rulings that prejudiced Ford, rather than because the suit was too silly to ever conceivably win in a just society. The remand goes back to the same judge that let the suit go forward and committed multiple reversible errors in favor of the plaintiff. [Ford Motor v. Hall-Edwards (Fla. App. Nov. 7, 2007); Krauss @ Point of Law; Daily Business Review; Bloomberg/Boston Globe]

• Not really a man-bites-dog story, but Geoffrey Fieger (Aug. 25 and rather often otherwise) speaks. [ABA Journal]

• Uh-oh: Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
• The real NatWest Three deal. [Kirkendall; July 2006 in Overlawyered]
• Homeowners fined $347,000 for trimming trees without a permit—after the Glendale Fire Department sent them a notice telling them to trim their trees for being a fire hazard. (h/t Slim) [Consumerist]
• Disclaimers at children's birthday parties (h/t BC) [Publishers Weekly]

• British Christmas parades handcuffed by litigation fears. (h/t F.R.) [Telegraph]
• Underlawyered in Saudi Arabia: A "19-year-old Saudi gang-rape victim was recently sentenced to 200 lashes and six months in jail for being in a car with an unrelated male when the attack occurred. Last week, her lawyer was disbarred for objecting too vociferously." [Weekly Standard]
• Don't forget to vote for us at the ABA Journal Blawg 100.

None of them caught tuberculosis. (Molly McDonough, "Tests Reveal Lawyer’s Fellow Air Travelers Free of TB", ABA Journal, Nov. 28). Earlier: Jun. 2, Jul. 8.

Alice Lawrence had timely paid $18 million over 22 years to Graubard Miller in a lengthy dispute over her husband's estate. The law firm had billed her on an hourly basis—until there was a $60 million settlement offer on the table, at which point it suddenly renegotiated its retainer agreement to be a 40% "contingent fee", though there was obviously nothing contingent about the award, and the firm wasn't offering to repay the money it had already billed. Five months later, there was a $105 million settlement—and Graubard Miller claimed as its fee for the five months of work $42 million of the $45 million additional money that it had negotiated, for a total of $60 million for the case. Lawrence asked the New York courts to protect her, but a 4-1 majority of the Appellate Division upheld the decision (via Lattman). The New York Times article (not to mention Bizarro-Overlawyered, which unsurprisingly doesn't care much about fraud and rip-offs when they're occasioned by attorneys against widows) doesn't even begin to mention the fact that the "contingent fee" didn't provide any risk for the law firm: the retainer agreement had a floor whereby Graubard Miller got to charge an hourly rate for the first year of trial even if it didn't collect anything, guaranteeing it another $1.2 million on top of the $18 million it had already collected. The best coverage in the New York Law Journal, which notes that Graubard Miller schnorred another $7.8 million in gifts and gift taxes from Lawrence, whose total payment thus totaled nearly $68 million. (Anthony Lin, "Late 40 Percent Retainer Pact Survives Widow's Dismissal Bid", Nov. 29; Anthony Lin, "Widow's Suit Seeks Return of $50M in 'Excessive' Fees and Gifts", Sep. 16, 2005).

Unfortunately for Lawrence's case, she did negotiate the Graubard Miller firm down from its original 50% (!) contingent-fee proposal, so in one sense she wasn't completely the unwitting pawn of the firm, even though Graubard Miller failed to suggest that she consult independent counsel about the multi-million dollar negotiation. The question becomes whether the attorney-client relationship is at all fiduciary, or whether it's purely contractual—in which case, one wonders why there is such an elaborate screening mechanism to permit prospective attorneys to participate in the guild in the first place.

It's nice that the New York courts are so respectful of contracts that they dismiss cases at an early stage of the litigation. One hopes that they do that in situations other than those involving the fiduciary duties of attorneys.

Reminding us once again that our neighbor to the north lacks a First Amendment-strength guarantee of free speech, and stands in very great need of one: Canada's largest non-profit Islamic body, the Canadian Islamic Congress, has launched human rights complaints against the prominent magazine Maclean's and its editor-in-chief over a book excerpt from Mark Steyn, the well-known conservative columnist. "Complaints were submitted to Human Rights Commissions in B.C. and Ontario on the grounds that 'the article subjects Canadian Muslims to hatred and contempt,' according to a CIC press release. In the release, the CIC labels Steyn's article as 'flagrantly Islamophobic.'" (Kate Lunau, "Canadian Islamic Congress launches human rights complaints against Maclean's", Maclean's, Nov. 30)(& welcome visitors from Steyn's own SteynOnline).

The high-profile Los Angeles attorney, who's made frequent appearances in these pages, is headed to federal prison following his conviction for tax evasion, money laundering and bankruptcy fraud (see Jun. 24). U.S. District Judge Stephen V. Wilson chided Yagman for testimony "so transparently untrue in so many areas." (Scott Glover, "Attorney Yagman sentenced to 3 years for tax evasion, fraud", Los Angeles Times, Nov. 28). Best known for his lawsuits against police departments, the much-criticized Yagman has also represented the principals in a famous Americans with Disabilities Act filing mill that launches mass complaints against small businesses and settles them for cash (Mar. 18, 2005; Nov. 4, 2006). According to the L.A. Times account, he "twice was suspended by the state bar for charging clients 'unconscionable' fees." When a retired police sergeant sent him a letter expressing "glee" over his indictment, Yagman promptly sued him (Jan. 5, 2006). Norm Pattis (Nov. 29) reflects: "I wonder whether Yagman became a Leona Helmsley-type figure. The law is for little people, he appears to have thought."