Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2004

Common Good “Five worst lawsuits of 2003”

Common Good, the organization founded by author/attorney Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and dedicated to “Reforming America’s Lawsuit Culture”, has announced its picks for Top 5 Ridiculous Lawsuits awards of 2003, in what is intended to be a continuing annual series. Two of the five have been written up previously on this site: Blair Hornstine’s suit demanding to be made sole valedictorian of her school in Moorestown, N.J. (see Aug. 21, Jul. 12 and links from there) and a jury’s award of $10 million against the state of Washington over an assault committed in part by two foster kids in the state’s foster care program (see Nov. 24). The other three:

* Perri v. Furma Restaurant, Inc. (Illinois Court of Appeals, Jan.): “Parents can sue Chinese restaurant for hot tea burn, even though a child from their family caused the burn by spinning the lazy susan.”

* Gary Dailey v. Board of Review, et. al (Supreme Court of Appeals of West Virginia, Nov.): “Truck driver, who lied about having driver?s license, wins suit to get unemployment benefits.”

* Ellen Hall v. Tim Henn, et. al (Illinois Supreme Court, Dec.)(unpublished opinion): “Woman who broke her arm on backyard snow luge can sue neighbor who invited her and other friends and neighbors to use the luge.” The court held that a state statute protecting landowners from liability for opening their land to the public did not apply to invited guests and that the luge could be “considered an ‘unnatural and dangerous condition’ even though the victim called and asked if she and her daughter could come over and use it.”

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No to the FMA

Drafted with the specific intent (at least on the part of two of its best-known framers) of banning a wide range of legislatively enacted “civil unions” as well as same-sex marriage, the ghastly Federal Marriage Amendment is anything but conservative: it would succeed in damaging both federalism and the principle of separation of powers. (Jacob Levy, “Law Breaker”, The New Republic Online, Feb. 18). See Alan Cooperman, “Little Consensus On Meaning Of Marriage Amendment”, Washington Post/Constitution Center, Feb. 14 (“principal drafters” Profs. Robert George and Gerard Bradley acknowledge that they intended to ban some forms of civil unions); letter from several libertarian/conservative law professors opposing FMA (Volokh Conspiracy, Sept. 11).

Yet more links: MarriageDebate.com (published by FMA supporters, but airing both sides); FamilyScholars.org (also a mix of views); Volokh Conspiracy (numerous posts, use search function); AndrewSullivan.com; LawfullyWedded.com; Jack Balkin, Feb. 14; Prof. Bainbridge, Jan. 21 (endeavoring to defend Bush stance); Three Years of Hell, Feb. 11 (arguing that FMA would merely curb judicial activism on civil unions); David Horowitz, “Wrong Idea, Wrong Time”, TechCentralStation.com, Nov. 24; David Brooks, “Give everyone access to the power of marriage”, New York Times/International Herald Tribune, Nov. 25.

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Brawl escalates into $1.3 M legal malpractice verdict

A Hinds County, Mississippi, jury has ordered the well-known law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz to pay $595,000 in compensatory and $750,000 in punitive damages to 34-year-old Jack Muirhead, Jr. The case began when Muirhead, who had been attending an employee meeting, got into a brawl in a hotel parking lot which resulted in a $2,900 jury verdict against him. An insurer for Muirhead’s employer denied coverage on the advice of the Baker, Donelson firm that the altercation was not employment-related, and Muirhead sued, first winning a $500,000 bad faith settlement against the insurer and then cooperating with it to sue the law firm. After the latest verdict, the attorney for Baker Donelson noted that the plaintiff “has gotten $1.845 million for a parking lot brawl. The guy who lost the fight got $2,900.” (Jimmie E. Gates, “‘Wrong’ advice nets damages”, Jackson Clarion-Ledger, Feb. 12; “Law firm hit with $595,000 judgment”, Feb. 11). Says an editorial in the Greenwood Commonwealth: “Pundits have argued that real tort reform will only come when the lawyers start suing the other lawyers…. that time has arrived.” (“Lawyers feel sting of absurd verdict”, Feb. 15)

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They came to stay

Careful about letting a friend or relative crash at your house: various Floridians found themselves in for legal complications when temporary guests decided they didn’t want to leave. Calling the sheriff doesn’t necessarily work, and it’s legally hazardous to have locks changed, cut off utilities or put the interloper’s possessions out on the street. (Marcus Franklin, “Law slanted in favor of unwelcome guests”, St. Petersburg Times, Feb. 17).

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John Edwards and the money power

“We are not going to lose the race for lack of funds”, said Dallas trial lawyer Fred Baron, finance co-chairman of the Edwards campaign (and poster boy for legal ethics) as the Wisconsin primary approached. (Rob Christensen and John Wagner, “Edwards sees no reason to surrender”, Raleigh News and Observer, Feb. 12). The challenge for Edwards’s fund-raising was spelled out by the Washington Post last month (Paul Farhi and Thomas B. Edsall, “Filling War Chests Key As Campaigns Progress”, Jan. 21): “The North Carolina senator has received a higher percentage of large donations than any other major candidate — 83 percent were between $1,000 and $2,000, the maximum allowed by law. Many of these donations came from plaintiffs’ attorneys, members of Edwards’s former profession. This means that many of Edwards’s donors have ‘maxed out’ and can give no more money. For Edwards to become fully competitive in the race for cash, he will have to find new contributors beyond his trial-lawyer base.” Why, even many of the paralegals, receptionists, bankrupt support staffers of law firms and their nonvoting husbands have maxed out (see Hill News, May 7, 2003). For more on Edwards’ fund-raising, see Feb. 3; Jan. 27; Jan. 23, 2004; Aug. 5 and Apr. 7-8, 2003; and Jul. 18 and May 1-2, 2002. More: Kerry press secretary Stephanie Cutter imprecisely describes Edwards campaign as “wholly funded by trial lawyers” (Adam Nagourney and David M. Halbfinger, “Kerry and Edwards Square Off as Dean Abandons Campaign”, New York Times, Feb. 19)

Edwards’s self-reinvention as the candidate of trade protectionism has provided another reason for sensible voters to steer clear of him. As Alex Tabarrok notes: “In his stump speech, John Edwards is fond of empathizing with the plight of a 10-year old girl ‘somewhere in America,’ who goes to bed ‘praying that tomorrow will not be as cold as today, because she doesn’t have the coat to keep her warm.’ Yet, as John Tierney points out, ‘clothing has become so cheap and plentiful (partly because of textile imports, which Mr. Edwards has proposed to limit) that there is a glut of second-hand clothing, and consequently most clothing donated to charity is shipped abroad. The second-hand children’s coats that remain in America typically sell for about $5 in thrift shops.’ (emphasis added)”. See “Nader Searches for His Roots”, New York Times, Feb. 15. To be sure, Edwards has some familiarity with the internationalization of markets: when the populist Senator and his wife left their Massachusetts Avenue mansion to trade up to a nicer mansion on P Street, they disposed of the old one “for $3 million to the Hungarian government for use as an embassy”. (Marc Fisher, “Regular Guys Who Live In Mansions”, Washington Post, Feb. 17). See also Byron York, “John Edwards Cares about YOU!”, Roll Call/National Review Online, Feb. 17. (& welcome WSJ “Best of the Web”, Andrew Sullivan, Mickey Kaus, and (thanks!) Steve Bainbridge readers)

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“My Big Fat” lawsuit threat

Fox, who was previously on the offense when its sister network Fox News complained about Al Franken’s use of “fair and balanced” (Nov. 22 and links therein), now finds itself subject to a demand letter from Gold Circle Films, who complains that the title “My Big Fat Obnoxious Fiancé,” a reality prank series that ends Monday, is too similar to the 2002 movie title “My Big Fat Greek Wedding.” (Sarah Hall, “Big Fat Stupid Lawsuit”, E! Online, Feb. 18). Neither the makers of the 1992 Swedish movie “My Big Fat Father” nor, to bring it full circle, Al Franken, who wrote the 1996 book “Rush Limbaugh is a Big Fat Idiot,” have commented.

This is not just a 21st-century issue. Urban legend has it that a movie studio complained that the movie “A Night in Casablanca” would be confused with the more memorable Humphrey Bogart movie “Casablanca”; Groucho Marx responded (perhaps as a publicity stunt) in a letter by noting that the Marx Brothers were brothers long before Warner Brothers was using the term. “I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try.” (Groucho Marx, 1946).

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Another idea: don’t accept rides from fugitives

In September 1997, Evanston, Ill. police sought to arrest Tracy Parham, who was wanted on charges including theft and narcotics. Parham led them on a high-speed chase that ended when he crashed his sport-utility vehicle into a building. Two teenagers in the back seat of Parham’s SUV were injured and sued the city of Evanston. In 2002 a jury awarded one of the teenagers, Salonica Prado, $11 million, in a verdict now on appeal; the other passenger’s suit is pending. Evanston says the verdict is likely to cut into the city’s services budget and that it may dip into the proceeds of a $9 million bond issuance to pay that and other lawsuit payouts. (Manya A. Brachear, “Lawsuits adding up, Evanston officials say”, Chicago Tribune, Feb. 18). Richard Ryan, attorney for Evanston, “said he felt frustrated because the jury had not been allowed to hear much of the City’s evidence.” (Mary Gavin and Alan Worley, “City Zapped with $11 Million Judgment in Lawsuit over Car Chase”, Evanston RoundTable, Jun. 19, 2002).

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Next stop for reparations

Despite a federal judge’s recent dismissal of one slavery-era suit (see Jan. 30), reparations advocates are hoping to score a comeback with a lawsuit demanding damages 82 years after the fact for a lethal rampage by white rioters against black residents of Tulsa, Oklahoma, in 1921. They’ll have to overcome both sovereign immunity and the statute of limitations, though. (Scott Gold, “Reparations Sought Decades After Race Riot”, Los Angeles Times, Feb. 13). And New York Life has agreed to hand over $20 million to settle claims arising under policies sold to ethnic Armenians in the former Ottoman Empire, many of whom were murdered during the rise of modern Turkey in “a deliberate, systematic and government-controlled genocide that began in April 1915,” according to a statement by California insurance commissioner John Garamendi, who announced the settlement (Armenian-Americans are a potent ethnic lobby in California.) Of the $20 million, $11 million will be set aside for heirs and $3 million for Armenian civic organizations, leaving somewhere around $6 million for lawyers who include Mark Geragos, William Shernoff and Brian Kabateck. According to the last-named of these, the settlement “is the result of a very personal campaign to bring attention to the history of the Armenian Genocide.” The news accounts do not reveal what if any role the court system and insurance law of present-day Turkey — the government of which rejects the genocide charge — might have been allowed to play in the disposition of the claims (“Calif. Commissioner Announces Settlement on Behalf of Survivors of Victims of Armenian Holocaust”, Insurance Journal, Jan. 28; AP/CBS News, Jan. 29; CNN, Feb. 17)(via Law.com)

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Man serving life sentence for theft of TV in 1970

How much punishment is enough? More than thirty years ago a jury convicted Junior Allen, a day laborer, of second-degree burglary “for stealing a $140 television set from a home in Johnston County. Judge James Pou Bailey sent Allen to prison for life.” He’s still serving that sentence, after a disciplinary record in prison that officials describe as about average for a maximum security inmate. Earlier this month, for the 26th year in a row, a parole board denied him parole. (“Justice Served? Man Serving Life Sentence For Stealing TV”, WRAL.com, Nov. 25; “Man Serving Life Sentence For Theft Of TV Seeks Freedom”, Nov. 28; “Junior Allen Denied Parole For 26th Straight Year”, Feb. 6) See TalkLeft, Feb. 16; Rooftop Report, Feb. 16.

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“Firebug demands insurance proceeds”

Manitoba, Canada: “A man convicted of torching his farm near Ste. Anne two years ago is taking his insurance company to court for its ‘high-handed’ treatment of him. Former municipal counsellor Raymond Michaud was convicted of arson last March …. When asked how a man convicted of burning down his own farm can expect his insurance company to honour his policy, [attorney Anthony] Dalmyn said: ‘That depends on whether the conviction stands on appeal.'” (David Schmeichel, “Flaming chutzpah”, Winnipeg Sun, Feb. 17).

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