“The Georgia Court of Appeals has revived a junk fax case that involves 73,500 faxes and potential fines of $110 million.” The ruling revives a lawsuit against a metro Atlanta car wash, Carnett’s Inc., for paying an ad agency $3,200 to send faxes to what it says it thought would be a “clean” list of recipients who didn’t object to receiving them. A federal law provides for automatic $500 to $1500 fines for each fax sent without permission. (Rachel Tobin Ramos, “Appeals Court Revives Hope for Junk Fax Class Action”, Fulton County Daily Report, Jul. 2) (more on junk-fax litigation: Oct. 22, 1999; Jul. 24, 2001 and links from there; Aug. 26, 2002)
Archive for July, 2003
Say It Ain’t So, Ko
A Colorado DA has gone ahead and charged LA Laker star Kobe Bryant with third-degree sexual assault. (“Kobe Bryant Charged With Sexual Assault,” AP, Jul. 18). He’s already admitted to committing adultery (which would still keep him near the top of the “NBA’s Most Noble Stars” list). But given the severity of this charge — it’s borderline rape, if not rape itself — there’s not going to be a wrist-slap plea like in the Chris Webber perjury case. (“Webber’s Guilty Plea Ends Michigan Probe,” AP, Jul. 15).
The statements made today by the DA in Kobe’s case are troubling, particularly his claim that “[these charges] did not come easily.” (ESPN, Jul. 18). My friend Ananda Gupta pointed out that a cynic would believe the DA would want to press charges — after all, Marcia Clark is a household name even almost a decade post-OJ. On the other side, if the DA has a case, where’s the difficulty? (If you want another OJ reference: “If there was a fight, you must indict.”)
Yes, the DA has prosecutorial discretion as to what cases to bring, but if, in his words, he believes he “can prove this case beyond a reasonable doubt,” the decision should be a mechanical one. There are few exceptions to this (especially in sexual assault cases), and the popularity of the would-be defendant and related fall-out isn’t on the list of loopholes. Or at least it shouldn’t be.
Newsletter; new topic categories
Rather belatedly, we’ve sent out our periodic newsletter with highlights from the site, the first since our format change last month. If you’d like to get on the mailing list (currently 2400 strong!) to receive this, it’s easy; go to this page and sign up via the Topica service.
We’ve also used the format change as an opportunity to introduce new topic pages collecting items with a single theme. There are now separate pages on Australia and the United Kingdom to go with our previous page on Canada. And there’s a new page on sports law (Dan Lewis is doing a great job of filling it up with content) as well as crime and punishment. One regret is that we’re not equipped to go back and index items published in the pre-June 2003 format that belong in these categories.
“Once a C-section, always a C-section” policy blamed on legal risks
Oregon: “Women who have delivered a baby by Caesarean section must deliver their next child the same way if they give birth at Merle West Medical Center. The hospital’s board of directors today announced a new policy that supports a decision by local obstetricians to not deliver a baby vaginally if the mother has had a previous Caesarean section, a surgical procedure that delivers the baby by making an incision in the abdomen and uterus. The decision is based more on legal implications related to the potentially high-risk procedure than on medical statistics, said Dr. Rick Zwartverwer, vice president for medical affairs at Merle West Medical Center.” (Marcia McGonigle, “Hospital alters C-section policy”, Klamath Falls (Ore.) Herald & News, Jul. 8)(see Feb. 5, 2001). Update Nov. 29, 2004: New York Times covers the story.
Rose Gets Nullified
The mock Pete Rose trial ESPN just had on TV had interesting results. 11 jurors believed Rose bet on baseball, which carries with it an automatic banishment. But of those 11, seven voted to allow Rose onto the Hall of Fame ballot.
I, for one, think Rose’s permanent expulsion should be just that — permanent. But that’s a post for a different website. What’s interesting about the faux ESPN trial is that Alan Dershowitz, the pseudo-prosecutor, asked judge Catherine Crier to charge the jury with two questions: first, did Rose gamble, and if so, shoud he be given the ole’ heave-ho? Johnnie Cochran, the defense attorney (why is this starting to sound like the lead up to a bad punchline?), objected, saying Dershowitz was changing the rules. But Dershowitz’s strategy was clear — he wanted the jury to have to reconcile their factual finding of guilt with their desire to acquit. Crier ruled in favor of Cochran.
If this were a real criminal trial, the charge wouldn’t be anything like the one here. The jury would be asked to determine simply if Rose gambled, and if they did beyond a reasonable doubt, they’d be instructed to find Rose guilty. The jury would have the power to acquit Rose; they’d simply not be told about it.
While I, and many (although admitedly a small minority) would agree with the outcome where nullification is not an option, I hope it’s clear to the thousands of people who watched this Rose trial that taking that power from the jury would make the moot court truly moot. If you ever need an example on why nullification is a proper and arguably necessary instruction, just look to this case. If the only question is “Did Pete Rose gamble on baseball,” there’s not much to debate. (Unless you’re Bill James.) But there’s certainly a debate going on, as there should be, and if it comes out in favor of the accused, let the jury set him free.
Newsflash: Judge Has Sense of Humor
The law school meme of the moment is this order by a magistrate judge (link via Volokh.com, but trust me, it’s going around). Read the whole page and a half when you get a second. It’s a .pdf file, but Eugene Volokh has it as plain text on their site. And remember, the judge has a sense of humor, but it’s not necessarily a good one. You have to turn that in when you take the LSAT.
Suing over H-E-Double Hockey Sticks
The big silliness of the day? A reverend, presiding at a funeral, allegedly said that the recently deceased man of the hour “was “living in sin,” “lukewarm in his faith” and that “the Lord vomited people like Ben out of his mouth to hell.” The survivors, of course, are suing for emotional and physical suffering. Now, say what you will about the emotional claim — I’m sure most would agree with me and shake their heads in disbelief — but physical harm? There are no allegations that the reverend dropped the casket on anyone’s foot. But hey, it could get even more ridiculous. Writes Ted Frank: “Clearly the plaintiffs aren’t thinking ambitiously enough. If their concern is the emotional distress from townspeople thinking that their father is in hell, they should be demanding injunctive relief to place their father in the appropriate afterlife.” Or perhaps a restraining order against Satan, ordering him to keep a distance no less than three ethereal planes from the soul in question? (Zelle Pollon, Reuters, Jul. 17). Other commentary: See the Volokh Conspiracy, OpinionJournal’s Best of the Web Today (last item).
Arizona wants less zeal
David Giacalone is posting more interesting stuff at his new EthicalEsq? blog than we can hope to keep up with, particularly on the topic of excessive contingency fees (on which he challenges Public Citizen to amend its not-exactly-pro-consumer stance). One state that has taken a step in the right direction lately is Arizona, whose Supreme Court in June adopted new Rules of Professional Conduct that come down harder on overreaching fees than do the rules of the American Bar Association (Jun. 30).
In recent years Arizona has made itself into something of a laboratory for legal innovation. Of particular interest to us (see Jul. 7 commentary) is a seemingly minor one-word change to the state’s Rules of Professional Conduct (Jun. 6). To quote the court system’s press release, the change “removed the obligation of an attorney to be a ‘zealous’ advocate of his/her client and substituted to ‘act honorably’ in the furtherance of a client?s interests. According to Arizona Supreme Court Vice-Chief Justice Ruth McGregor, ‘Arizona is the first state in the country to make this crucial rule change.’ … ‘We are advised that this definitional change will also be considered by the American Bar Association,’ says McGregor. ‘This change may appear to be subtle,’ explains Chief Justice [Charles E.] Jones, ‘but in fact, it’s a very significant foundational change in the Rules of the Court, and one that is designed to send a distinct message to attorneys.’ The term ‘zealous’ was eliminated from the preamble, because it was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent, according to one committee member. ‘Jones explains that the State Bar committee’s recommendation … harkens back to a time when lawyers were closely identified as officers of the court. As such, they were duty bound to represent their clients with personal and professional ethics and integrity in mind.'”
We’re impressed. Time and again, in our experience, the putative obligation to represent clients in a “zealous” fashion has proved the last resort of the scoundrel litigator and ethical edge-skater. Yes, in principle there can also arise dangers when lawyers aren’t zealous enough, but no sane observer could imagine that the big problem with American litigation is that lawyers care so much for honor that they aren’t combative enough. We’ll be watching with interest to see whether the change produces any felt difference in Arizona litigation practice.
Morales pleads guilty
Former Texas Attorney General and key tobacco-suit figure Dan Morales, long a focus of scrutiny on this page, has withdrawn his former plea of innocent and has agreed to a four-year prison term, pleading guilty to one count each of mail and tax fraud; he will also pay fines of up to $1.25 million (Ken Herman & David Hafetz, “Morales pleads guilty to mail fraud, tax evasion”, Austin American Statesman, Jul. 17; more stories). The mail fraud charge relates to a backdated contract in which Morales purported to bestow a chunk of the state’s tobacco-settlement booty on his friend Marc Murr (see Jun. 26 and links from there). Our big question — our only question, really — is: does this mean he’ll talk?
I Quit! Now Pay Me!
Eric Gregg’s lawsuit has been delayed yet again. Gregg, a former National League umpire, was one of 22 who (a) resigned in 1999 and (b) were shocked (shocked!) that the league actually made them stay resigned. Now he wants his severance package as if he were fired. (AP, Jul. 14; link via How Appealing).
Gregg’s case is a hysterical blend of personal responsibility — Gregg resigned out of principle, and wasn’t given his job back — and dumb luck, given his lackluster record as an ump. The story: Gregg claims that he wasn’t fired for cause: “There is no doubt that they are discriminating against me because of my weight.” (“Interview with the Umpire,” Philadephia City Paper, Aug./Sept. 1999). Ignore the fact that he resigned as part of a ploy to get MLB to choose between paying severance pay (why they’d have to pay out in cases of resignation is beyond me). But the reality is that a 1998 survey of players, coaches, and managers (run by the Players’ Association) rated Gregg as the second-to-worst ump in the NL; as Doug Pappas pointed out, “[n]o one needs statistics to conclude that the likes of Ken Kaiser and Eric Gregg don’t belong in the majors. (Pappas’ site, 1999). He was also rated one of baseball’s five worst umpires in a 1998 Baseball Weekly survery.
While his weight was made to be an issue — he was fined $5,000 in 1999 for being too fat — there could be a reason for that. It may have affected his on-field abilities. Never mind that he’d have to run into position to make a call. In 1978, Gregg bumped into a catcher trying to make a throw and called interference on himself. Almost two decades later, he was granted a leave of absence to enter a weight-loss program. (Thanks to Baseball Library for the background info.)