March 9-11 — Push him into a bedroom, hand him a script. “A group of lawyers that includes Hugh Rodham, the brother-in-law of former President Bill Clinton, submitted a videotaped tribute from Mr. Clinton about its role in tobacco-related lawsuits to help support a fee request of up to $3.4 billion.” “The way I understand it, they pushed him into a bedroom during a fund-raiser, gave him a script and shot the tape,” said a local official with the American Lung Association, the once estimable but now litigation-infatuated public health group that gave the lawyers an award. The Castano Group lawyers haven’t won their own cases, but are now trying to claim credit for having created an atmosphere in which the state AGs could win theirs, or something like that. Anyway, they want several billion. (Barry Meier, “Rodham and Group Seeking Legal Fees Uses Clinton Testimonial”, New York Times, March 8) (& see Oct. 25, 1999).
March 9-11 — “Panel backs deaf patron’s claim against club”. “The Ohio Civil Rights Commission is tentatively supporting a deaf West Toledo woman’s claim that a local comedy club discriminated against her when it refused to provide an interpreter at one of its shows. Rebecca M. Bisesi, 23, contends the club violated state law when it did not agree to supply an interpreter.” (David Patch, Toledo Blade, Mar. 6).
March 9-11 — Narrow escape from ergonomic regs. We sure were lucky Congress ditched those awful new rules, for reasons that Tama Starr’s op-ed makes clear (“Getting Older? The Government Says Blame Your Boss”, Wall Street Journal, Mar. 8, reprinted at Dynamist.com; Helen Dewar and Cindy Skrzycki, Washington Post, Mar. 6; “House Scraps Ergonomic Regulation”, Mar. 8).
MORE: John Tierney, “Best Incentive for Job Safety – Money”, New York Times, March 9 (reg); “Developing a Framework for Sensible Regulation: Lessons from OSHA’s Proposed Ergonomics Rule,” by Robert W. Hahn and Petrea R. Moyle, AEI-Brookings Joint Center Regulatory Analysis, March 2000 (PDF); “Bad Economics, Not Good Ergonomics,” by Robert W. Hahn, AEI-Brookings Joint Center Policy Matters, December 1999; Karlyn H. Bowman (AEI), “Ergonomic Standards,” Roll Call, Dec. 2, 1999.
March 9-11 — Trial lawyer president? North Carolina trial-lawyer-turned Senator John Edwards (D) is “consistently mentioned as a likely presidential candidate” and turned up in Iowa to give a speech at Drake Law School. (Jennifer Dukes Lee, “Campaign 2004: Iowa visits begin”, Des Moines Register, March 3; Emily Graham, “Senator says money skews justice”, March 4) (via WSJ OpinionJournal.com) (& see Aug. 15, 2000).
March 7-8 — Show your diversity commitment, or don’t bother applying. In Pennsylvania, Bucks County Community College gives job applicants a questionnaire in which it requires them to describe their “commitment to diversity.” The Foundation for Individual Rights in Education, challenging the policy, says it tends to screen out applicants with insufficiently progressive opinions on multicultural controversies, much as universities in the 1950s weeded out Communist professors by way of loyalty oaths. A college official says the question is not meant to enforce any orthodoxy. (Robin Wilson, “Diversity Question on College’s Job Application Amounts to ‘Loyalty Oath,’ Group Contends”, Chronicle of Higher Education, Feb. 21, reprinted at FIRE site).
March 7-8 — “Painting the town — with lawsuits”. Oakland and San Francisco have joined other California localities in suing companies that once made lead paint, pushing the sort of tobacco- and gun-style “recoupment” claim that “flies in the face of centuries of Anglo-American common law”, writes George Mason University law professor Michael Krauss. Krauss says the California cities “allege that a conspiracy of lead paint manufacturers hid the truth from them until 1999, so they couldn’t sue before then”, an “astounding” claim since by the 1950s an official of the Lead Industry Association was vigorously publicizing the dangers of flaking lead paint in dilapidated housing. “In 1999, a Maryland court dismissed a conspiracy suit against paint companies with the finding that there was ‘no evidence whatsoever’ that manufacturers ‘concealed any studies, altered any documents or misrepresented any finding.’ Where have California cities been these last 50 years?” (Michael I. Krauss, “Painting the Town — With Lawsuits”, Independent Institute, Jan. 30).
March 7-8 — Can you own common words? “In one of the broadest crackdowns ever issued against a domain name holder, a federal judge has ordered eReferee.com to stop using the word ‘referee’ in all of its domain names. … In issuing the court ruling, Wisconsin federal [j]udge C.N. Clevert sided with Referee magazine, a periodical holding the trademark to the word ‘referee’ for the purposes of publication.” David Post, an associate professor of law at Temple, called the ruling “unbelievable”, saying that regardless of whether eReferee.com had violated trademark law, as was alleged, by using a logo confusingly similar to its rival’s, “You just don’t want to let someone own the word ‘referee'”. (Lisa M. Bowman, “Judge approves domain name penalty on eReferee”, CNet, Feb. 16; Gretchen Schuldt, “Referee Enterprises Seeks to Halt Competitor from Using ‘Referee’ in Web Name”, Milwaukee Journal Sentinel/Corporate Intelligence.com, Feb. 23).
March 6 — “EEOC sued for age bias”. “As a regional attorney for the [Atlanta office of the] Equal Employment Opportunity Commission, William D. Snapp’s job was to ensure workers weren’t discriminated against because of race, gender, or age. But he alleges he was told to get rid of senior attorneys and replace them with younger staffers. Now, the EEOC is being sued for discrimination by attorneys who led the agency’s civil actions against private employers throughout Georgia.” Among those suing is 25-year veteran attorney Maureen Malone, who says it was an inside joke among her fellow EEOC trial lawyers that the agency “would require us to hold an employer to the line … when we were the biggest violators of all.” The agency’s management denies the charges. (R. Robin McDonald, Fulton County Daily Report, Mar. 2). According to the Wall Street Journal OpinionJournal.com‘s “Best of the Web”, which picked up this item, EEOC may stand for “Expel Every Old Codger”.
March 6 — Tendency of elastic items to recoil well known. “A federal judge in Pennsylvania dismissed a products liability suit brought by a man who seriously injured his eye when the elastic cord on the hood of his jacket recoiled. ‘This court assumes,’ the judge wrote, ‘that the average ordinary consumer is well acquainted with the propensity of all manner of elastic items to recoil after they have been extended and released.'” (Shannon P. Duffy, “Jacket’s Recoil Danger Well Known, Says Judge, Dismissing Liability Case”, The Legal Intelligencer (Philadelphia), Mar. 2).
March 5 — Watch what you call me. An Indiana death-row inmate has sued jail officials for discrimination and religious persecution, saying they fail to call him by the name Zolo Agona Azania, which he legally adopted in 1991, and instead go on addressing him by the name he was given at birth, Rufus Averhart, which he terms his “slave name”. Sheriff Jim Herman said jail employees use the older name because that’s the one under which charges were filed, besides which: “No one can pronounce his new name.” “Azania, 46, was sentenced to death for the 1981 murder of a Gary police officer during a bank robbery. … [He] has filed at least 27 other lawsuits against various officials since 1980. ‘I imagine it’s not going to end,’ Herman said, ‘until Rufus is executed or becomes a free man.'” “Inmate on Death Row Sues Jailers For Using His ‘Slave Name'”, AP/Fox News, Mar. 1).
March 5 — “Lawyers get tobacco fees early”. Last month, “[i]n an unprecedented financial transaction, a group of plaintiff’s lawyers who participated in the 1998 settlement against the tobacco industry … converted nearly $1 billion in legal fees that would have been paid over 12 years into $308.1 million in cash.” The transaction, arranged with the help of investment bankers, covers only a portion of the total fees that lawyers collectively expect from the tobacco caper; if it serves as a model for further conversion of the fee stream to immediate dollars, the attorneys could soon be looking at cash-in-hand exceeding $3 billion.
“With the tobacco victory behind them, some of the trial lawyers said they plan to expand their legal activities into new areas. Richard ‘Dickie’ Scruggs, one of the leading plaintiff’s lawyers, said he intends to file suit against government contractors, especially shipbuilders in the Mississippi port of Pascagoula.” The qui tam (“whistleblower”) provisions of federal law allow for triple-damage suits against government contractors alleged to have overbilled, and lawyers can collect a sizable portion of that sum (see Jan. 18, 2000). (Thomas Edsall, “Lawyers Get Tobacco Fees Early”, Washington Post, Feb. 14, fee-based archives).
March 2-4 — Securities law: time for loser-pays. Congress’ 1995 round of securities-law reform has been mostly ineffective in quelling meritless class actions. While judges are dismissing more complaints, “[t]he marginal cost of drafting additional complaints is small (it is not uncommon for ‘cookie cutter’ complaints to erroneously contain the names of defendants from previous cases filed by the law firm), while the potential rewards are large.” Existing sanctions provisions are almost completely ineffective, which means it’s time for Congress to put plaintiff’s lawyers at risk of a fee shift when cases are dismissed for failure to state a legal claim, argues attorney Lyle Roberts of the northern Virginia office of San Jose-based Wilson Sonsini Goodrich and Rosati, which represents defendants in these cases (“Losers Weepers”, Legal Times, Feb. 5).
March 2-4 — Mold wars, cont’d. Dampness, water intrusion and the consequent appearance of mold and mildew in buildings are as old as shelter itself, but it certainly makes it scarier, and more than enough reason to call a lawyer, when you relabel the problem as “toxic mold” (see Oct. 10). Los Angeles attorney Alex Robertson claims to be representing 1,000 individuals on mold claims in California alone. Melinda Ballard, whose nationally publicized case against Farmers Insurance is slated to go to trial in Texas momentarily, says she has collected a database of 9,000 mold-related lawsuits around the country, most filed within the last two years. Ballard and her family are accusing Farmers, in part, “of failing to inform them about the dangers of [the mold] Stachybotrys, which ultimately drove them out of their 22-room mansion, located just west of Austin in the aptly named town of Dripping Springs. The Ballards are seeking $100 million in civil damages.” Dallas journalist Joanna Windham, meanwhile, believes mold in her apartment is responsible for her dog’s getting cancer. (Rose Farley, “Attack of the black mold”, Dallas Observer, Feb. 22).
MORE: “Mold: A Health Alert”, USA Weekend, Dec. 5, 1999; Catherine Tapia and Constance Parten, “Mold in Buildings”, Insurance Journal of Texas, Nov. 20; Kerri Ginis, “Tulare workers sue county over mold”, Fresno Bee, Oct. 27. Attorney Robertson “said that his IAQ [indoor air quality] litigation cases have seen a decided shift from building furnishings’ VOCs [volatile organic chemicals] to mold in buildings.”: John N. McNamara, “IAQ Seminar Fact or Fiction: A Paradigm of Perspectives”, Industrial Hygiene News website, July.
March 2-4 — Trial lawyer heads Family Research Council. You might not have guessed that Washington’s most visible religious right organization would be able to boast endorsements for its incoming president from such figures as former Association of Trial Lawyers of America president Michael Maher, Democratic Florida Attorney General (and tobacco-lawyer benefactor) Robert Butterworth, and American Bar Association president Martha Barnett, as well as John Ashcroft, Jeb Bush and James Gwartney (more). But that’s what happened when the Family Research Council picked as its new president plaintiff’s lawyer Kenneth L. Connor, who made his fortune suing nursing homes in the Sunshine State (see June 20) and has been a tenacious advocate of the interests of the litigation community in that state’s politics. According to one of his fans, Mr. Connor “filibustered” to keep a state advisory panel on nursing homes from endorsing liability reforms, as most of his fellow panelists wished to do (aradvocate.com). And in October Connor was quoted in the press, identified as FRC president, as criticizing efforts to replace Florida’s elective judgeships with an appointive “merit selection” system; the system of judicial elections has aroused unease because of the propensity of interest groups, led by lawyers, to shovel money into judges’ campaigns (“Judges’ Selection in Hands of Voters” (editorial), St. Petersburg Times, October 30, 2000, no longer online, summarized at NYU Brennan Center). In an interview with National Journal, Connor says “I don’t engage in personal attacks or attacks against classes of people,” which must have made it hard for him to run a legal practice demanding punitive damages from nursing-home operators, no? (Shawn Zeller, “New Advocate on the Religious Right”, National Journal, Feb. 10, not online).
March 2-4 — Debate on Microsoft case. Tom Hazlett vs. Ken Auletta, on (Microsoft’s) Slate (“Dialogue”, Feb. 28 and after).
March 19-20 — “Kava tea drinker alleges bias in FedEx firing”. Taufui Piutau of San Bruno, Calif., a native of Tonga, was pulled over by a California highway patrolman in 1999 and charged with driving while impaired. It turned out he’d downed dozens of cups of kava tea, a popular Pacific Islander beverage widely regarded as having relaxing medicinal effects. A jury last November deadlocked on whether to convict him and prosecutors decided to drop the case, but by then Federal Express, Piutau’s employer, had suspended him without pay from his driving job over the off-duty incident. Now he’s suing the company for — guess the theory — religious discrimination, saying enjoyment of the beverage is a custom of a religious nature. (Ann E. Marimow, San Jose Mercury-News, Mar. 14).
March 19-20 — Scientologists vs. Slashdot. “In the face of legal threats from the Church of Scientology, Slashdot pulled down an anonymous posting that quoted a copyrighted church tract, known as Operating Thetan, Section III (OT III). ‘It’s an open forum, but as of today it’s a little less open than it was yesterday,’ says Robin Miller, the editorial director of Slashdot’s parent, the Open Source Development Network. ‘And we’re not happy about that.'” (Roger Parloff, “Threat of Scientologists’ Legal Wrath Prompts Slashdot to Censor a Posting”, Inside.com, March 16; Slashdot thread; Church of Scientology; some of its critics (“Operation Clambake“); Declan McCullagh, “Xenu Do, But Not on Slashdot”, Wired News, Mar. 17).
March 19-20 — Why they seize. “Kansas law enforcement officials on Monday strongly opposed a reform forfeiture bill that would send money seized in drug cases to education. Currently, law enforcement agencies can keep most of the money once it is legally confiscated. Law enforcement officials told the House Judiciary Committee that if their agencies were not allowed to keep drug money, forfeitures could become extinct in Kansas”. Kind of confirms what critics have said about the motivations for forfeiture law, doesn’t it? (Karen Dillon, “Kansas law enforcement officials oppose reform forfeiture bill”, Kansas City Star, Mar. 12; see May 25, 2000).
March 19-20 — Microdonation update. Amazon’s new micropayment “Honor System” for small and nonprofit websites has had at least one big success so far, as you may have heard: Andrew Sullivan’s personal site has taken in an envy-inducing $6,000 from his fans. That’s way ahead of most other popular sites: for example, the well-thought-of ModernHumorist.com says that as of March 9 it had received $509.99 from 209 readers, according to its “Tip Jar” account. Reason editor-at-large Virginia Postrel writes that her weblog/commentary “The Scene” “is pulling in about 500 page views a day — the poor woman’s approximation of visitors — and in the last month has netted contributions of $457.38 via Amazon and, in the last week, $27.50 via PayPal.”
So how’re we doing at Overlawyered.com, comparatively? As of Sunday evening we’d taken in about $404.50, from sixty readers, for an average donation of about $6.50. That’s not shabby at all. But we do notice that our readers are showing a far lower rate of participation than Virginia’s: we’ve been getting around 3,500 page views per weekday lately, so if our readers were as generous as hers we’d have raised a kitty that was seven times as high instead of a little lower. Another way of looking at it is that although it takes many thousands of regular readers to get us up to that 3,500-page daily volume, only an average of two of those readers a day actually throw coins in the hat. (No wonder Amazon calls it the Honor System.) We’ve just installed, on our PayPage, a new feature where you can watch donations climb and see your own added to the total. Thanks (again) for your support!
March 16-18 — Coupon settlement? Pay the lawyers in coupons. In a “blistering” 27-page ruling, Broward County, Fla. circuit judge Robert Lance Andrews has slashed a $1.4 million class-action legal-fee request by the New York law firm Zwerling Schachter & Zwerling to about $294,000, and “ordered that a quarter of the fees be paid in $10 to $60 travel vouchers — the same vouchers awarded to the 80,000 plaintiffs in the suit”. The suit had accused Renaissance Cruises Inc. of padding port charges. “Too often, [Judge Andrews] wrote in the ruling, lawyers use class actions as cash cows that ultimately don’t yield much for plaintiffs. … ‘Essentially, these vouchers have no value whatsoever,’ said [Edwin H.] Moore, president and chief executive of the James Madison Institute, a Tallahassee, Fla., think tank. ‘It’s kind of absurd, taking a cruise for hundreds of dollars and getting $10 off.'”
The judge further accused the lawyers of engaging in “fuzzy math” and said they had piggybacked on enforcement efforts by the Florida Attorney General, who had investigated cruise lines’ practice of passing on “port charges” to vacationers greater than those actually incurred. “Andrews said he considered denying plaintiffs’ lawyers any legal fees, ‘on the basis of their blatant disregard of their ethical obligations to the class and to the court.’ In fact, before ruling on legal fees, Andrews rebuffed 13 law firms that claimed to have had a hand in the class action.” Zwerling Schachter says it expects to appeal. “(Tom Collins, “Florida Judge Slashes Fee Request, Blasts Attorneys Suing Cruise Lines”, Miami Daily Business Review, Mar. 15).
March 16-18 — Compulsive grooming as protected disability. Last month a three-judge panel of the Ninth Circuit U.S. Court of Appeals, reversing a lower court, ruled that medical transcriber Carolyn Humphrey can proceed with her claim that her firing by a Modesto, Calif. hospital was unlawful. Humphrey, “an otherwise excellent employee, compiled a history of tardiness and absenteeism because of grooming and dressing rituals that took hours, sometimes all day. … [Her suit claims] the obsessive trait that drove her relentless primping had not been accommodated, as required by the Americans With Disabilities Act.” (Denny Walsh, “Compulsive grooming a true disability? Perhaps”, Sacramento Bee, March 14).
March 16-18 — Wife: hubby’s tooth discovery deprived me of companionship. Ronald Cheeley of Alamance County, N.C. “is suing Hardee’s, claiming he found a tooth in a biscuit from a one of the chain’s Burlington restaurants. … The lawsuit does not say whether Cheeley actually put the tooth in his mouth. … Cheeley’s wife, Queen Williamson Cheeley, is also named as a plaintiff in the lawsuit, which claims the incident has deprived her of companionship.” (Bill Cresenzo, “Tooth found: Man sues Hardee’s”, Burlington (N.C.) Times-News, Feb. 15) (via Obscure Store)
March 15 — Reclaiming the tobacco loot. If the Bush administration has its way, the politically connected lawyers who helped themselves to billions for representing the states in the great tobacco shakedown may soon have to turn a large share of that booty over to their clients, the fifty states (see our earlier coverage of the fees, the settlement and the lawyers). “President Bush proposed during the campaign to apply to lawyers in mass tort cases the Internal Revenue Code provisions that govern fiduciary breaches of duty by pension fund trustees, foundation executives, and employees of 501(c)(3) non-profits. Under this so-called Jim and Tammy Faye Bakker provision of the 1996 Taxpayer Bill of Rights, overreaching fiduciaries have the ‘choice’ of refunding their excess payments or paying a federal tax of $2 for every dollar they keep.” Contrary to some early reports that President Bush had dropped this plan, “[p]age 80 of the president’s budget contains this terse and, to taxpayers, cheering sentence: ‘The budget also assumes additional public health resources for the States from the President’s proposal to extend fiduciary responsibilities to the representatives of States in tobacco lawsuits.'” (Michael Horowitz, “Can Tort Law Be Ethical?”, Weekly Standard, Mar. 19; Ramesh Ponnuru, “A Good Tobacco Tax”, National Review Online, Mar. 14). And hurrah for the U.S. Chamber of Commerce, which has just filed Freedom of Information Act requests to obtain information from 21 states about the magnitude of fees paid to the tobacco lawyers, which it says may exceed $100,000 an hour (U.S. Chamber release; the Chamber’s Institute for Legal Reform; “Group Targets ‘Outrageous’ Legal Fees in Tobacco Case”, Yahoo/Reuters, Mar. 14).
March 15 — No more Indian team names? “The U.S. Commission on Civil Rights will vote next month on a statement that would condemn sports teams or mascots named after American Indians as violations of the 1964 Civil Rights Act. If adopted and widely accepted, the statement could eventually lead to a cutoff in federal funding for schools that cling to traditions like the University of North Dakota Fighting Sioux or the University of Illinois’ mascot Chief Illiniwek.” (Catherine Donaldson-Evans, “Civil Rights Commission Considers Condemning Sports Teams Named After American Indians”, FoxNews.com, Mar. 13 (related story and links, right column, includes this page); John J. Miller & Ramesh Ponnuru, “Home of the Braves”, National Review Online, March 9) (& see letter to the editor, April 16).
March 13-14 — Hypnotist sued by entranced spectator. During a show by mesmerist Travis Fox at the Puyallup Fair last September, fairgoer Joshua Harris of Tacoma agreed to participate but “felt such a threat from a space alien mask that he broke his hand trying to ward off the extra-terrestrial. And now he’s suing. … ‘If people get up there and participate, you have to make sure it’s safe,’ said Harris’ attorney, George Christnacht.” (Karen Hucks, “Entertainment hypnotist being sued for negligence”, Tacoma News-Tribune, March 8).
March 13-14 — Judge throws out Hollywood- violence suit. Citing the First Amendment’s guarantee of free speech, Louisiana state judge Bob Morrison on Monday “threw out a lawsuit against director Oliver Stone that claimed his movie ‘Natural Born Killers’ led to a young couple’s bloody crime spree.” (“Judge Throws Out Movie Lawsuit”, AP/FindLaw, March 12). “It’s depressing that a suit that should have been thrown out on the first pass could result in such a waste of time, energy and money. We’ve created a new legal hell where everyone is entitled and no one is responsible,” said Stone (“Notable Quotes”, Reuters/Yahoo, March 13).
March 13-14 — “Nursing homes a gold mine for lawyers”. Week-long series in the Orlando Sentinel and South Florida Sun-Sentinel (series overview) examines mounting crisis in Florida nursing homes, where lawsuits have multiplied several-fold in recent years as lawyers have learned to deploy a liberal “Resident’s Rights” law that allows them to recover damages without proving negligence. Even the Lutheran Haven home, which hasn’t been sued in its 52 years, faces a liability insurance bill of $175,690 a year. (Diane C. Lade, “Money remains root of nursing homes’ woes”, March 6; Bob LaMendola and Greg Groeller, “Nursing homes a gold mine for lawyers”, March 4; Jeff Kunerth, “Even never-sued home feels insurance’s squeeze”, March 5). “Nursing homes are often in a Catch-22 when it comes to restraining patients. One tenet of the state’s nursing-home residents’ bill of rights guarantees residents the right to safety. Another tenet guarantees their freedom from ‘physical and chemical restraints.'” (Diane C. Lade and Greg Groeller, “Bedsores, falls make homes ripe for suing”, March 4; Jeff Kunerth, “Broken bones ended in lawsuit”, March 6; Jeff Kunerth, “A rarity: Lake lawsuit went to trial”, March 4).
As frequently happens with these newspaper group efforts, the tone is weirdly inconsistent, with one of the lead reporters buying much of the pro-litigation side of the story (Greg Groeller, “Elderly care put to test”, March 4) while many of the other installments in the series tend to document the need for curbs on suing (“Collapse of care” (editorial), March 11). Both nursing home operators and trial lawyers have been pouring money into Tallahassee, where lawmakers are considering such curbs. Among the attorneys opening their wallets is “Jim Wilkes, a sharp and politically connected nursing-home litigator from Tampa who said he probably gave at least $1 million of his own money to campaigns in the last election cycle. ‘If you took the national and state money that my firm has contributed to campaigns, I could have probably retired on the money,” Wilkes said.” Mark Hollis, “Nursing homes, lawyers plan fight in capital”, March 6). Six of eight publicly held for-profit home operators are now operating in bankruptcy, and a plaintiff’s lawyer concedes the possibility that “[t]he entire industry would end up being regulated through the bankruptcy courts.” (Lade, “Money remains”, March 6). Update: the National Law Journal‘s Margaret Cronin Fisk reports on the trend (“Juries Treat Nursing Home Industry With Multimillion Dollar Verdicts”, Apr. 23): “In the past 12 months, there have been verdicts of $312 million and $82 million in Texas, $5 million in California, $20 million in Florida and $3 million in Arkansas. … One Florida-based law firm, Tampa’s Wilkes & McHugh, has about 1,000 cases pending.”
March 12 — We have some to send you. The level of litigation in Japan is still minuscule by U.S. standards, but it has doubled over the past decade, and rural areas experience a perceived lawyer shortage. “Japan has set a goal of reaching France’s level of one lawyer per 1,900 people. That compares with its current level of about one per 7,155 people and America’s world-beating one lawyer per 295 people.” “One unfortunate side effect [of the obstacles to litigation in Japan] has been a social dependence on organized crime for help in settling thorny disputes,” according to the head of the American Chamber of Commerce in the island country. (Mark Magnier, “No Joke: Send More Lawyers”, Los Angeles Times, Mar. 9).
March 12 — More Tourette’s discrimination suits. John Miller is suing Gold’s Gym in Totowa, N.J., saying it terminated his membership because of the involuntary tics caused by his Tourette’s Syndrome. ‘I want these people to realize . . . I guess I do want them to be hurt a little — to realize what they’ve done to me,” he said. The Bergen Record also reports that in October, “a jury in New York City awarded $750,000 to the Metropolitan Museum of Art’s former assistant banquet manager after finding the museum’s food contractor had fired him illegally because of the disorder.” (Jennifer V. Hughes, Bergen County Record, Feb. 9) (earlier Tourette’s cases: August 21 and July 26, 2000).
March 12 — Welcome National Review Online readers. The pseudonymous author, described as an officer of the Los Angeles Police Department, writes: “The Soviet menace may have faded into the history of another era, but the American legal profession, with its standing army of some half-million attorneys, presents as grave a threat to western civilization as has ever existed. For proof of this, I recommend to the strong of heart a visit to Overlawyered.com, a website that will at once amuse, bemuse, and horrify.” We’re headed toward a banner day for traffic, testimony to NR Online‘s popularity. (“Jack Dunphy”, “Disorder in the Court”, March 12).
March 30-April 1 — Gary to Gannett: pay up for that investigative reporting. In December 1998 the Pensacola, Fla. News Journal published a investigative series alleging that a Lake City business by the name of Anderson Columbia pulled political strings to evade environmental and other rules while obtaining lucrative state road contracts. Now noted plaintiff’s lawyer Willie Gary (key cases: Loewen, Disney, Coke, reparations 1, 2) has been retained by Anderson Columbia and is demanding $1.5 billion, which far exceeds the value of the newspaper itself, in a libel suit against the News Journal and its parent Gannett. The suit, filed downstate in Fort Lauderdale, “also cites two 1990 stories reporting allegations of environmental damage and poor-quality work and an editorial that last year criticized Escambia County commissioners for their dealings with Anderson Columbia.” (Bill Kaczor, “Gary client sues newspaper, Gannet [sic] Co. for libel, seeks $1.5 billion”, Mar. 23) In other pending cases, Gary is representing bias plaintiffs against Microsoft “and is seeking a $2.5 billion breach-of-contract judgment against beer giant Anheuser-Busch on behalf of the family of former home run king Roger Maris.” The Stuart, Fla. lawyer’s choice of clients in the past has not always matched his populist image: for example, he’s represented Florida’s “fabulously rich” Fanjul family in the defense of a suit charging that its mostly black sugar cane cutters were underpaid. (Harris Meyer, “Willie Gary’s Sugar Daddies”, New Times Broward/Palm Beach, Mar. 25, 1999)
March 30-April 1 — Dangers of complaining about lawyers. “Beware: Accusing your lawyer of wrongdoing soon could be even more intimidating. It could land you in court, running up a legal bill to defend yourself against a defamation lawsuit.” A pending change in Georgia rules would open clients and others who talk to lawyer-discipline authorities to defamation suits from the lawyers they criticize — even if the charges against the lawyer are upheld, and even if the statements are made in private to only a few investigators. Critics say the prospect of being sued for defamation, win or lose, would chill legitimate complaints, while bar official David Lipscomb says it’s a difference between two philosophies: “One is you allow a few lies to encourage people to file complaints,” he says. “And the other is you should hold people to a standard of truth, and if that chills some of the complaints, then that’s a price we are willing to pay.” Hmmm … when that same philosophical dispute comes up concerning litigation itself, doesn’t our legal establishment usually favor bending over backwards to keep from chilling dubious complaints? And isn’t it only fair to ask them to live with the same culture of easy accusation that so often results? (Lucy Soto, “Complain about a lawyer at your own risk of peril”, Atlanta Journal-Constitution, Mar. 26).
March 30-April 1 — No cause to be frightened. An Iowa court of appeals has ruled that a man who entered a convenience store at 4:30 a.m. wearing a disguise and ordered a clerk to empty the cash register did not commit robbery for legal purposes. James Edward Heard came in to a Davenport, Ia. Coastal Mart store “wearing a paper bag over his head and athletic socks on his hands” and, according to court records, “greeted cashier Aimee Hahn by saying either ‘Happy Halloween’ or ‘Trick or treat’ and then, in a soft voice, asked her to give him ‘the money.'” (The date was May, not October). After Ms. Hahn complied, he ordered her to lie down and fled. Mr. Heard admitted the facts of the case and was convicted of second-degree robbery, but the appeals court overturned his conviction, ruling that Heard’s actions did not imply a threat of “serious injury” as defined by law. The district attorney called the ruling “terrible”. (Clark Kauffman, “Court rules no threat, no robbery”, Des Moines Register, March 15) (via Jerry Lerman’s Bonehead of the Day Award).
March 29 — Putting the “special” in special sauce. A Toronto family claims its nine-year-old daughter found a severed rat’s head in her sandwich and wants C$17.5 million (U.S. $11.2 million) from McDonald’s Canada. According to her family’s lawyer, Ayan Abdi Jama, “having been enticed by McDonald’s pervasive child-focused advertising”, ordered a Big Mac which was “served in a paper wrapper bearing the Disney ‘Tarzan’ logo”, and proceeded to “partially ingest” the bewhiskered rodent portion, suffering as a result extensive psychiatric damage. Her mom was so shocked by the event that she can no longer carry on normal daily activities or earn a living, the suit further alleges, and her sister will quite likely be similarly affected when she grows up, so they deserve lots of money too. The complaint further alleges that “customers should be warned to inspect sandwiches prior to consumption” and that McDonald’s was negligent for not issuing such a warning. (“Alleged rat’s head in Big Mac triggers lawsuit”, CBC News, Mar. 27; “McDonald’s Canada lawsuit claims rat head in burger”, Reuters/FindLaw, Mar. 28; complaint in PDF format (very long), courtesy FindLaw).
March 29 — “Workers win more lawsuits, awards”. “Employees who claim they’ve been harassed or discriminated against are winning many of their cases, and the financial awards they’re receiving often far eclipse those of years past.” The new spate of layoffs is likely to push those numbers higher, and companies that have gone off chasing youthful New Economy workforces invite costly age-bias claims, according to our editor, who is quoted. (Stephanie Armour, USA Today, March 27).
March 28 — The malaria drug made him do it. Last week federal prosecutors indicted former Congressman Ed Mezvinsky on 66 counts of fraud, saying he bilked banks and investors out of more than $10 million trying to make up his losses after himself falling victim to an African advance-fee scam. Mezvinsky now says his errant conduct arose from psychiatric side effects of the anti-malaria medication Lariam, which he took while on his business trips to Africa, and he’s suing the giant drugmaker Roche, along with Philadelphia’s Presbyterian Medical Center, his physician and a pharmacy, saying they should reimburse the losses of the people who entrusted their money to him and also pay him damages. “Clearly the responsibility lies with the manufacturers,” said his lawyer, Michael F. Barrett. (“Mezvinsky files suit over drug”, AP/Philadelphia Daily News, Mar. 24; Jim Smith, “$10M classic swindle”, Philadelphia Daily News, Mar. 23)(more on advance-fee scams). (DURABLE LINK)
March 28 — Ideological pro bono. We should be grateful to lawyers for the idealistic work they do free (“pro bono“) on behalf of worthy causes, right? Well, that may depend on what causes you find worthy. A new Federalist Society survey confirms that pro bono work at the nation’s biggest law firms tilts heavily toward liberal-left causes, such as gun control and racial preferences, as opposed to conservative or libertarian ones. (Pro Bono Activity at the AmLaw 100; Peter Roff, “Pro Bono, Pro Liberal”, National Review Online, March 14).
March 27 — Junk-fax bonanza. An Augusta, Ga. jury has found that the Hooters restaurant chain unlawfully allowed an ad agency to send unsolicited ad faxes offering lunch coupons to businesses and individuals in the Augusta area. Because the Telephone Consumer Protection Act (TCPA) specifies that each sending of an improper fax incurs a $500 fine, which is tripled if the offense is willful, “attorney- turned-plaintiff Sam G. Nicholson and 1,320 class members … stand to share an estimated $4 million to $12 million from a suit Nicholson filed in 1995.” Each recipient of the six unsolicited faxes will be entitled to a minimum of $3,000 for the inconvenience, and $9,000 if damages are tripled. Hooters says its local manager signed up for a fax-ad service without realizing that its services were illegal or that federal law made advertisers as well as fax-senders liable for violations. (Janet L. Conley, “Just the Fax, Ma’am: Unsolicited Ad Spree May Cost Hooters Millions”, Fulton County Daily Report, Mar. 26). For earlier stages in the junk-fax saga, see Oct. 22, 1999 and Mar. 3, 2000.
March 27 — Shot, then sued. Batavia, Ill. police officer Chris Graver won numerous awards and accolades for bravery after surviving a shootout with a gunman in which he was critically injured and the gunman killed. He’s relieved that the gunman’s survivors have now finally agreed to drop their lawsuit against him. The legal action “was kind of aggravating. You get three bullets in you, almost die, and there’s still lawyers lining up to file a lawsuit against you.”(Sean D. Hamill, “Lawsuit dropped, but officer still tormented by shooting”, (suburban Chicago) Daily Herald, Mar. 23).
March 26 — “Teacher sues parent over handshake”. “A Utah elementary school teacher is suing a parent for allegedly shaking her hand so hard during a parent-teacher conference that she has had to wear a hand brace, undergo surgery and drop out of advanced teaching classes.” The suit, by teacher Traci R. England, says that parent Glenda Smith was irate and charges Smith with “vigorously pumping [England’s] arm up and down,” with the result that England “missed work, incurred medical expenses of more than $3,000 and dropped a university class, making her ineligible for a pay raise of $2,000 per year. Her attorney, Michael T. McCoy, is seeking damages for his client, including pain and suffering, in excess of $250,000.” (Dawn House, Salt Lake Tribune, Mar. 23).
Update: we received the following email in November 2005:
I am the teacher in your post. The injury occurred November 20, 2000. Five years later, I have had 7 (yes, seven) surgeries. Each surgery resulted in a loss of 3 weeks of teaching. Over the years, I have suffered from the irresponsible choice an angry parent made over her son’s grades. My students were affected as a result of multiple and lengthy absences. I continue to take medication for inflammation and pain. I have ugly scars on my forearm, wrist, and palm. Did I receive the $250,000 originally asked for in the claim? Not even 10%. How’s that for justice? My lawsuit was never superfluous, nor was it irresponsible. I resent my name and litigation information being present on your site. Please remove it. It does not belong there. You have not done your homework. — Traci England
For our reply, see letters column of Nov. 18, 2005.
March 26 — California electricity linkfest. We’ve neglected this one, what with being on the other coast and all, but here are some catch-up highlights: “California policymakers … froze the retail price of electricity and utilities lost so much money as to face bankruptcy. They barred utilities from signing long-term supply contracts and saw spot prices soar. They dragged their feet on new power-plant construction and found electricity in short supply. They ignored the need for more long-distance transmission lines and then couldn’t import enough power to meet demand. They shielded consumers from higher utility bills and gave them rolling blackouts instead.” And with each round of failure they propose to push the state further into the power business. (William Kucewicz, “California’s Dreaming”, GeoInvestor.com, Feb. 12). The “major crisis could have been averted” had the state last summer allowed utilities to enter long-term contracts with slightly higher rates, but “it’s clear that [Gov. Gray] Davis didn’t act last summer because he was afraid. He feared that long-term contracts could have been criticized if power prices dropped in the future, and that even a minor increase in rates would bring fire from consumer activists.” (Dan Walters, “Crisis also one of leadership”, Capitol Alert/Sacramento Bee, March 25) (via Kausfiles). Pennsylvania, Texas and Ohio all show promising models of genuine deregulation, as opposed to the fake version paassed off by Golden State lawmakers (“California Dreamin'” (editorial), Christian Science Monitor, Jan. 19).
As for the supply side: “In the last decade the population [of California] has climbed 14%, to 34 million”, while peak demand for electricity has climbed 19%. “The number of big power plants built since 1990: zero.” (Lynn Cook, “My Kingdom for a Building Permit,” Forbes.com, Feb. 19). “In the 1970s California’s power regulators got all excited about renewables. The state is now littered with high-cost, low-efficiency wind and solar facilities that produce limited amounts of unreliable power, for which ratepayers have overpaid by at least $25 billion in the intervening years. In 1996 the regulators were persuaded by a cabal of efficiency mavens and end-of-growth pundits that demand for electrons was leveling off and would soon decline, while supply was plentiful and would soon become a glut. They regulated accordingly.” (Peter Huber, “Insights: The Kilowatt Casino”, Forbes.com, Feb. 19)(see also Oct. 11)
And we all knew the trial lawyers would manage to get into it somehow, didn’t we? Not long ago San Francisco launched what is apparently the first “affirmative litigation” office meant to turn suing businesses into an ongoing profit center for the city in partnership with private law firms (see Oct. 5). The political leadership of that city having been a voice for the worst possible policies at each step along the way to where we are now, now City Attorney Louise Renne has sued 13 energy producers for supposedly conspiring to create the crisis. “Joining the lawsuit as co-counsel is attorney Patrick Coughlin of Milberg Weiss Bershad Hynes & Lerach in San Francisco. Coughlin worked with the city in its successful litigation against the tobacco industry.” (Dennis Opatrny, “San Francisco City Attorney Lays Energy Crisis at Feet of Power Companies”, The Recorder, Jan. 22; Paul Pringle, “Power struggle: Finger-pointing intensifies as California woes grow”, Dallas Morning News, Jan. 29).
MORE: Victor Davis Hanson, “Paradise Lost”, Wall Street Journal/OpinionJournal.com, March 21; Gregg Easterbrook, “Brown and Out”, The New Republic, Feb. 19; Robert J. Michaels (California State Fullerton), “California’s Electrical Mess: The Deregulation That Wasn’t,” National Center for Policy Analysis Brief Analysis No. 348, Feb. 14; Paul Van Slambrouck, “How California lost its power”, Christian Science Monitor, Jan. 19 (“California actually has been a pioneer in energy conservation and is one of the most energy-efficient states in the nation, according to conservation experts like Ralph Cavanagh of the New York-based Natural Resources Defense Council”; so much for that proposed cure); Reason Public Policy Institute; Cato; NCPA.
March 23-25 — Non-gun control. “Two second-graders playing cops and robbers with a paper gun were charged with making terrorist threats. The boys’ parents said the situation should have been resolved in the principal’s office, but [Irvington, N.J.] Police Chief Steven Palamara on Wednesday defended school officials and the district’s zero-tolerance policy.” (“Second-graders face charges for paper gun”, AP/CNN, Mar. 21). And earlier this year Rep. Ed Towns (N.Y.) “introduced bill H.R. 215, a measure to ban ‘toys which in size, shape or overall appearance resemble real handguns,'” part of a spate of anti-toy-gun legislation in various jurisdictions. (Lance Jonn Romanoff, “Someone call the National Toy Rifle Association”, Liberzine, Feb. 19).
Meanwhile Ross Clark of the estimable Spectator of London notes in his regular column, “Banned wagon: a list of the things which our rulers wish to prohibit”, that a Labor MP has proposed banning the carrying of bottles and glasses on the street, because they are capable of use as offensive weapons in altercations: “It was never likely that our legislators would be happy banning just items purposely designed for killing people, such as handguns and samurai swords. There are some who will not be satisfied until the human environment is constructed entirely from soft substances which cannot conceivably be used as weapons” (Feb. 10).
March 23-25 — Brockovich a heroine? Julia really can act. One of the most entertaining aspects of that entertaining movie, “Erin Brockovich“, is the pretense that its script has more than a nodding acquaintance with the real-life history of the Hinkley case (Michael Fumento, “Erin Go Away!”, National Review Online, March 21)(our take: Reason, October).
March 23-25 — Guest editorial: ABA’s judicial role. “Good riddance to the American Bar Association’s judge-vetters. Who elected them? Now they can criticize and praise judicial nominees like any other lobby or trade association.” (Mickey Kaus, “Hit Parade”, Kausfiles.com, March 22; see David Stout, “Bush Ends A.B.A.’s Quasi-official Role in Helping to Pick Judges”, New York Times, Mar. 22).
March 23-25 — “Fired Transsexual Dancers Out for Justice”. “Two transsexuals say they were given walking papers from their go-go dancing jobs at a trendy Chelsea club because the nightspot decided they wanted to hire ‘real girls.'” Amanda Lepore and Sophia LaMar, post-operative transsexuals who used to dance at Twilo, are suing the West 27th Street club for $100,000, charging wrongful firing. “This was just a case of out-and-out discrimination,” said their lawyer, Tom Shanahan. The nightclub denies that it discriminates against gals who used to be guys. (Dareh Gregorian, New York Post, March 22). In other news, a “judge has peeled away more than half of stripper Vanessa Steele Inman’s $2.5 million verdict against a Georgia nightclub, the Pink Pony, and its owner.” (Richmond Eustis, “$1.6M Punitives Award Peeled From Stripper’s Legal Victory”, Fulton County Daily Report, March 8; see July 26, 2000). Update Apr. 17, 2004: court of appeals overturns Inman’s verdict (more exotic-dancer litigation: Dec. 4, Aug. 14, May 23, Jan. 28, 2000)
March 21-22 — Hostage-taker sues victims. “Richard Gable Stevens’ hostage-taking rampage at Santa Clara’s National Shooting Club 18 months ago will cost him the next 50 years of his life behind bars in state prison,” Judge Kevin Murphy ruled earlier this month. “Stevens, 23, was convicted of kidnapping, robbery, false imprisonment, threats and assault with a deadly weapon in connection with the July 5, 1999 incident. … Murphy questioned the sincerity of Stevens’ remorse, noting that he has filed a lawsuit for monetary damages against the very people he was convicted of having wronged.” (Bill Romano, “Man gets 50 years for rampage at gun club “, San Jose Mercury News, March 10 (search fee-based archive on “Richard Gable Stevens”, retrieval $1.95) The incident ended when Stevens was shot and wounded by one of his intended victims. According to columnist Vin Suprynowicz, police found a note in which Stevens told his parents he would get revenge on them because they would be bankrupted by lawsuits from the survivors of his intended victims (Vin Suprynowicz, “No serial killings this week in Santa Clara”, Las Vegas Review-Journal, July 11, 1999). (DURABLE LINK)
March 21-22 — Reparations-fest: give us Toronto. Among the latest claimant groups to attract notice with demands for reparations: descendants of early New Mexico settlers asserting land claims that predate the 1848 Treaty of Guadalupe Hidalgo, under which Mexico ceded much of its northern territory to the U.S. (Christian Science Monitor, March 6). In Canada, the Indian Claims Commission, a federal agency, “says it is handling roughly 480 land-claims cases. There are dozens more in the courts. ” Nearly 200 years after the fact, a band of Mississaugas “are seeking retroactive compensation from Ottawa for the Toronto Purchase, a quarter-million acres covering the whole of Toronto and into the suburbs. … Last summer, the Squamish Indians settled their claim to some prime real estate in North Vancouver for nearly C$92.5 (US$58) million.” (Ruth Walker, “Indian land claims flood Ottawa”, Christian Science Monitor, March 20).
At National Review Online, Jonah Goldberg wonders whether it might not after all be worth paying trillions if it actually got the racial-spoils lobby to cool it once and for all on preferences, quotas, set-asides and the rest of the list — as if it would ever do that (“Reparations Now”, March 19). And reparations lawyers in California have neatly arranged for their targets and the state’s taxpayers to conduct a lot of their research for them: “California Gov. Gray Davis this month signed the Slaveholder Insurance Policy law, which requires all insurers whose businesses date to the 19th Century to review their archives and make public the names of insured slaves and the slaveholders through the state’s insurance commissioner. … Davis also signed the University of California Slavery Colloquium law directing college officials to assemble a team of scholars to research slavery and report how some current California businesses benefited.” (V. Dion Haynes, “California Tells Insurers: Open Slave Records”, Chicago Tribune, Oct. 20.) See also Jeffrey Ghannam, “Repairing the Past”, ABA Journal , Nov.).
March 21-22 — (Another) “Monster Fee Award for Tobacco Fighters”. “New York’s Milberg Weiss Bershad Hynes & Lerach and San Francisco’s Lieff, Cabraser, Heimann & Bernstein are among 10 firms that will share $637.5 million in fees for their role in helping California cities and counties capture their share of a $206 billion settlement agreement with the tobacco industry. The Tobacco Fee Arbitration Panel announced Tuesday that private lawyers in California should be awarded the fees for the more than 130,000 hours they [say they — ed.] worked in helping cities and counties grab half the $25 billion awarded California in the master settlement agreement. The state takes the other half. That works out to approximately $4,904 per hour for the lawyers.” (Kirsten Andelman, The Recorder, March 9).
March 21-22 — Welcome visitors. We’ve noticed this site being mentioned or linked to lately on weblogs Pie in the Sky (Mar. 17: “As a soon-to-be-lawyer, Overlawyered.com is going on my permanent bookmark list. Don’t worry, I’m going to be a transactional attorney- I won’t be doing any litigation (like the kind in the site linked to, or any other).”) and AFireInside; on the NetCool Users Group disclaimer; and on pages including Russell Shaw’s, Univ. of Calif. Libertarians, Swanson Group, LeaveThePackBehind.org (tobacco-Canadian), PelicanPolitics.com, UtterlyStupid.com, FoldingJonah, TheRightTrack.org (“Alaska’s Conservative Digest”), and Dave and Holly’s.