Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2004

Shhhh! He’s got a lawyer!

In 1996 Frank Sulloway had a publishing hit with Born To Rebel, a book arguing that birth order is an important influence on individuals’ destinies (supposedly, first-born children grow up conservative, later-borns want to rock the boat). There were doubters, however, and a critique has now appeared claiming that Sulloway’s data does not back up his conclusions. According to a summary of the situation by Alex Tabarrok (Mar. 20), the appearance of this critique in print was drastically delayed by Sulloway’s threats to sue the journal’s publisher and editor over defamation and other alleged wrongs. The journal’s publisher declined to publish even a debate on the book unless assured that it would not be sued, with the result that editor Gary Johnson and his association wound up publishing it independently, after nearly five years of delay. Tabarrok has much more detail about the story, which he finds “shocking” and “disturbing”.

Lawyers for author John Gray (Men are From Mars…) threatened a libel suit after a weblog said rude things about his on-first-glance-impressive educational credentials. That ensured more attention to the embarrassment, as Instapundit (Mar. 22) points out in a post with many links. (Plus: J.B. Howard Jr. has more on the case, Mar. 25). And the Michigan Court of Appeals has “dismissed a lawsuit in which the Michigan Education Association claimed the Mackinac Center, a free market think tank that has been at odds with the union on issues such as charter schools and education vouchers, had violated the privacy of MEA President Luigi Battaglieri by quoting him in a fund-raising letter. The court concluded that the letter ‘falls squarely within the protection of the First Amendment for discourse on matters of public interest.'” (Jacob Sullum, Reason “Hit and Run”, Mar. 22)(Mackinac Center, Mar. 19) More: John E. Kramer, “Calling the Bully’s Bluff”, Liberty and Law (Institute for Justice), Jun. (more on media and free speech suits)

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Rail union head got FELA kickbacks

“The president of the United Transportation Union pleaded guilty to a racketeering conspiracy on Thursday, admitting that he solicited bribes from lawyers trying to get access to lucrative legal work for rail workers.” In a scheme that dated back to 1995, Byron Boyd and three other officials of the Cleveland-based union “solicited cash from lawyers who wished to represent injured rail workers in personal injury lawsuits against rail employers. Those are potentially very lucrative suits since there is no limit to legal damages under federal law. … The men got at least $477,000 in cash”. (“Transportation Union Chief Admits to Racketeering”, Reuters, Mar. 12). “U.S. Attorney Michael Shelby said a scheme like the one Boyd was involved in is not uncommon in labor unions and the federal government will continue to investigate such schemes. … The case was handled out of Texas because five of the lawyers that paid money as part of the scheme were from the Houston area and they cooperated with prosecutors, Shelby said.” (Juan Lozano, “Union president pleads guilty to labor racketeering”, AP/Fort Worth Star-Telegram, Mar. 11). Railway workers are covered by the Federal Employers Liability Act (FELA), which affords more lucrative recoveries than does workers’ compensation law; they have also been major filers of asbestos claims.

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Irvine Federalist speech Wednesday

This Wed., March 24 (6:00 reception, 6:30 program) I’ll be in Southern California, speaking to the Orange County chapter of the Federalist Society. The event will be held at the offices of Knobbe Martens Olson (no relation) & Bear in Irvine. Details and RSVP here. Plus: for those who will be in the Boulder, Colo. area Apr. 5-9, the Conference on World Affairs has now posted the schedule of panels I’ll be on.

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Does tort reform affect insurance rates?

In my radio interview last week, I was asked about the Wisconsin Association of Trial Lawyers’ claim that tort reform measures have no effect on medical insurance rates. ATLA’s “fact sheet” on medical malpractice reform makes the same claim. A 2003 HHS compilation of studies on the matter, linked on our old medical page, refutes that proposition. (HHS, “Confronting the New Health Care Crisis”, Mar. 3, 2003 at Tables 6 and 7).

Read On…

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Sarbanes/Oxley as subsidized discovery

Jane Galt’s pseudonymous co-blogger, “Mindles H. Dreck”, has a link-filled commentary on recent developments in financial and corporate law Mar. 14) with too many interesting contents to enumerate here. It begins: “I submit to you that regulators of commerce in the United States are gradually: Subsidizing discovery for both public and private litigants; Substituting subjective standards of fraud and misbehavior for specific guidelines”. Among recent regulatory initiatives aimed at “creating a paper trail for litigators” are requirements for: “permanent retention and storage of internal and external email in non-alterable, third-party maintained media; substantial, sworn disclosure of procedures and safeguards (via Sarbanes-Oxley, for instance); the identification of key individuals that should become the focus of any government or litigation action (via designation of key officers and departments, and the Sarbanes-Oxley mechanism of written representations)”. The result of these rules will predictably be to accelerate the spread of various defensive practices through the corporate and financial world, such as more discussion of business matters on a strictly verbal basis with nothing committed to writing. Equally interesting is the question of who definitely does not have to maintain a discovery trail to facilitate outside scrutiny: “I recently had a billing dispute with a securities lawyer. I referred to an email he had written some months before estimating charges for the assignment. He informed me that his firm’s policy is to permanently destroy all email over three months old in order to protect the firm and its clients. Given the requirements for email retention in the financial industry (interpreting which his firm makes a pretty penny), I found this hysterically funny.”

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Prosecuting the innocent, without consequences

Yesterday’s (Sunday’s) New York Post ran my review of Dorothy Rabinowitz’s just-out-in-softcover No Greater Tyrannies, about abuse-hysteria prosecutions. An excerpt: “In 1696, four years after the Salem executions, the Massachusetts colony held a day of contrition and collective soul-searching. Today, the persecutors seldom apologize; instead they tend to rise upward. Scott Harshbarger, D.A. in the Amirault case, went on to become attorney general of his state and now heads Common Cause, in which capacity he lectures the rest of us on ethics and good government.” (Walter Olson, “Salem Is Still With Us”, New York Post, Mar. 21). The New York Times reports that wrongful convictions, even when serious prosecutorial error or misconduct is involved and even when the accused was evidently innocent, seldom result in any career consequences for local prosecutors (Andrea Elliott and Benjamin Weiser, “When Prosecutors Err, Others Pay the Price”, New York Times, Mar. 21). And the Wall Street Journal has reprinted Ms. Rabinowitz’s column about the amazing ordeal gastroenterologist Patrick Griffin went through on charges of sexually abusing a patient, which culminated in his eventual acquittal on retrial — though by that point his medical license had been yanked and his practice was in ruins (“The Doctor’s Story”, Wall Street Journal, May 24, 2000). (via GruntDoc) (see also Jan. 8, Sept. 1)

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Authors: sue us, please

“Paradoxically, a lawsuit, especially a flimsy one, can be a boon to a book’s fortunes. And increasingly, some writers and publishers admit to hoping they’ll attract one.” Humorist Al Franken was widely envied by other authors when Fox News filed its much-derided suit against his book title (see Nov. 22), and just this past week a small publisher, Soft Skull Press, got a windfall of coverage when publisher HarperCollins sent a cease and desist order (from which it soon retreated) suggesting that the title of one of its new books, “How to Get Stupid White Men Out of Office” was too close to the title of Michael Moore’s “Stupid White Men”. Of course, things can get sticky fast if the legal complaint really does have merit. (Christopher Dreher, “So sue me… please!”, Boston Globe, Mar. 21) (via Tyler Cowen, Volokh).

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Hot Illinois Supreme Court race

Expect a hard-fought battle over the vacant seat on the Illinois Supreme Court for the Fifth District, which includes fabled Madison County (Jan. 5 and links from there) as well as 36 other counties in the southern part of the state. The race pits Democratic candidate Gordon Maag, heavily backed by trial lawyers and himself formerly of the Lakin Law Firm of Wood River, against Republican Lloyd Karmeier (site), who’s garnering support from business and lawsuit-reform backers such as the Illinois Civil Justice League. (Sanford J. Schmidt, “Tort reform takes on political edge”, Alton Telegraph, Feb. 28; Kevin McDermott, “Tort reform is key issue in race”, St. Louis Post-Dispatch, Feb. 2). Both men currently serve as judges; the Illinois State Bar Association deems Karmeier “highly qualified” and Maag “qualified” for the high court post. (Jeff Smyth, “State Bar Releases Supreme Court Candidate Evaluations”, The Southern Illinoisan, Jan. 29).

One reason the race will be closely watched: under Illinois’s unusual system of judicial selection, the supreme court justice for the district appoints judges to vacancies on the lower courts within the 37 counties. Karmeier starts as an underdog: “No Republican has won the 5th District seat since 1969. Since then, every occupant has been a resident of Madison County. Karmeier lives in Washington County.” (Michael J. Berens, “Business running in judicial contest”, Chicago Tribune, Mar. 8). In the 1997 case of Best v. Taylor Machine Works, the Illinois Supreme Court struck down what had been one of the most wide-ranging liability reform measures enacted by a state legislature. (Richard E. Anderson, “When Judges Run Amok”, at Doctor’s Company site).

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Appeals court throws out keys-in-reach negligence verdict

“The Kentucky Court of Appeals yesterday ordered the dismissal of claims against a woman who had been found negligent for leaving her car keys within reach of an allegedly drunken friend who crashed her car.” After a night of drinking, Tina Cox had retired to bed while a friend stayed up. He then took her car keys from her purse and went for a drive, where he struck a pickup driven by Joseph Waits. Waits sued Cox (whether he sued the driver as well is not clear) and a judge ruled her 40 percent responsible for the resulting verdict, which consisted of roughly $220,000 in compensatory damages and $50,000 in punitive damages. According to the judge, Cox, knowing that her friend had previous DUI convictions, was negligent to have left her purse with the keys on a coffee table where he could get at it. The appeals court disagreed, noting Cox’s testimony that her friend had never previously driven her car without her permission. (Bruce Schreiner, “Court orders claims to be dropped in Shelby suit”, AP/Louisville Courier-Journal, Mar. 6).

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Tort reform opponents play race card

Apparently lacking in meritorious arguments, opponents of tort reform have resorted to a strategy of accusing tort reform advocates of racism. According to the “Center for Justice and Democracy,” “racial prejudice lurks behind the ‘tort reform’ movement.” Among the out-and-out lies in the press release: “‘Tort reform’ laws weaken the only available forum, in some cases, for holding perpetrators of hate groups and hate groups accountable.” But not even the scare paper supports this.

The report suggests that volunteer immunity laws are really a Trojan horse to provide protection for “volunteers for the Ku Klux Klan.” (You may recall that the American Trial Lawyers Association recently falsely suggested that those very same volunteer immunity laws refuted the premise of a recent Newsweek cover story. (see Jan. 9; Dec. 12).)

Evidence? Well, none whatsoever. The CJD cites successful lawsuits against the Klan and Aryan Nations for assaults, a murder, and a church burning, but no tort reformer has suggested that civil liability be limited for those who commit violent crimes or intentional torts. Certainly, the Volunteer Protection Act of 1997 does not; aside from the exclusion in the law for hate groups, the supposed “loophole” that permits states to provide additional protections for volunteers would have no effect on a federal suit for deprivation of civil rights.

Read On…

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