Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2005

Chicago firefighters exam

In 1995, Chicago paid $5 million for an African-American consultant to work with a blue-ribbon panel to devise a race-neutral exam for promoting firefighters. Unfortunately, in the end result, whites were twice as likely to score “well-qualified” as blacks. In 2002, when it ran out of candidates who scored 89, Chicago stopped requiring that promoted firefighters score that high, and a federal district court has decided as a result that the test was racially discriminatory for the previous seven years. Chicago taxpayers may be on the hook for as much as an additional $80 million in back pay and front pay. (Glenn Jeffers, “Judge rules city fire exam biased”, Chicago Tribune, Mar. 23; AP/Chicago Sun-Times, Mar. 23; Fran Spielman, “Exam bias ruling may cost city $80 million in firefighter lawsuit”, Chicago Sun-Times, Mar. 24).

A question for readers: none of the press has mentioned it, but, in 2001, a labor arbitrator ruled that the city discriminates against whites when it promotes a lower-scoring minority over a white. (Fran Spielman, “City ordered to promote white firefighters”, Chicago Sun-Times, Apr. 14, 2001). In 2002, a federal jury found that the 1986 test was fair, and that the city discriminated by promoting lower-scoring minorities over whites, awarding millions. (AP, May 18, 2002). These would appear to put the city in an impossible position. Or has something happened in the interim that obviates these earlier rulings? As an experiment, I’ve opened comments; please restrict your remarks to this latter question, and please remain civil and respectful.

Update: the 2002 decision’s reverse-discrimination finding was affirmed in Biondo v. Chicago (7th Cir. Aug. 27, 2004), though the damages award was vacated. (Schrank blog discussion).

The decisions are arguably reconcilable: the two exams are different; Biondo involved an explicit quota. On the other hand, page 5 of the Biondo slip opinion explicitly endorsed the methodology used by Chicago that the district court condemned this week.

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Fieger Update: Gilbert v. Ferry

You may recall the $21 million verdict thrown out by the Michigan Supreme Court last year (Jul. 24) because of misconduct by Geoffrey Fieger at trial. (Gilbert v. DaimlerChrysler (Mich. 2004); parties’ briefs; Brian Dickerson, “Judges use Fieger tactics to rebuke him”, Detroit Free Press, Jul. 26; yclipse blog). Fieger had had a buddy “expert” social worker testify that the alleged harassment caused Gilbert’s pancreatitis, and told the jury that Gilbert was like a “Holocaust victim.”

After losing, Fieger responded by filing ethics complaints against the four justices who ruled against him, and, when that didn’t work, filed a civil rights lawsuit in federal court against the justices. This tactic, far more often seen performed by unstable pro se litigants than by prominent trial attorneys, was, as could have been expected, rejected by the trial court and then by the federal court of appeals. (Gilbert v. Ferry (6th Cir. Mar. 10, 2005), affirming 298 F. Supp. 2d 606 (E.D. Mich. 2004)) (via yclipse).

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“We’re having a midwife crisis”

Chambersburg, Pa., is losing its only independent certified nurse-midwife. Karen Brindle “had to close her practice because of liability issues with Keystone Women’s Care. The closing leaves more than 60 women due to deliver in the next few weeks scrambling to find someone to deliver their babies.” A new group calling itself “Mothers and Others for Midwifery-PA”, which will work to change the law, held a rally for Brindle. (Willa Jessee, “Over 100 people support midwife”, Carlisle Sentinel, Mar. 20). For more on midwives, see Mar. 15, 2004 and links from there, Aug. 1, and, on Point of Law, Mar. 6 of this year.

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Update: “Apprentice” suit settles

Donald Trump’s reality show The Apprentice has settled a discrimination suit brought by a disabled attorney in February (see Feb. 10). The producers will pay out no money, but “the online application for potential Apprentice contestants has been changed to encourage the disabled to apply”. (Charlie Amter, “‘Apprentice’ Discrimination Suit Settled”, EOnline, Mar. 9)(via George Lenard).

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Morgan Spurlock sued

Attorney Samuel Hirsch, who filed the first lawsuits blaming fast-food chains for his clients’ obesity, apparently isn’t happy over his unflattering portrayal in the documentary Super Size Me (see last Aug. 9). According to the New York Observer, Hirsch is suing filmmaker Morgan Spurlock and Samuel Goldwyn Films charging “Negligence, Unauthorized Use of Likeness, Disparagement to Reputation, and Defamation of Character, Fraudulent Inducement, False Misrepresentation, Damage to Business Reputation”; he’s seeking compensatory and punitive damages and “disgorgement of profits.” (Jake Brooks, “Spurlock’s Super Size Lawsuit”, New York Observer, Mar. 7)(likely to rotate off free site soon).

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Broken thermometer? Close down the school

When tiny amounts of hazardous materials get spilled, major disruptions can result: “Suppose Marshall University had responded to a dropped vial of phenol by asking a janitor to clean it up, cautiously. The school would have feared, and perhaps rightly so, junk-science lawsuits over mysterious symptoms that someone near the spill might claim mysteriously to have developed. Evacuating the med school and bringing in the moon-suit patrol might have been unnecessary, but it reduced the school’s tort exposure.” (Gregg Easterbrook, “Hazardous Waste”, The New Republic, Mar. 21).

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Quotable: absence of grace

From a column by Rob Asghar in the Ashland (Ore.) Daily Tidings on lawsuits over offensive remarks in the workplace (“Without a doubt, PC has gone too far”, Nov. 22):

The correlation between litigiousness and gracelessness is no accident. Within religious communities, the term “legalist” denotes a person who gives little grace to others if they transgress even the slightest religious commandment. (This is especially ironic when the religion is supposed to be about grace.)

For our hypersensitive secular society, we too have become legalists who feel that to sue is human and to forgive is a crime. And we are all poorer for this trend.

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Freedom of Information Act

Using it to request sensitive information about companies that do business with the government, and then selling that information to competitors, has become a “cottage industry” in Washington over the past twenty years, reports Legal Times (Tom Schoenberg, “Spy Game: Corporate Rivals Use FOIA as Weapon”, Mar. 16).

Ford and the Crystal City sweethearts, cont’d

Auto Connection (Mar. 14, scroll to “Ford Appeals Frontier Justice”) has some new material on the astounding $31 million verdict against Ford from Zavala County, Texas, last discussed in this space Mar. 7. A few snippets:

In the testimony that followed [a Feb. 22 mistrial motion by Ford], it was revealed that not only had [juror Diana] Palacios failed to acknowledge her romantic entanglement [with plaintiff’s attorney Jesse Gamez] during jury selection, but had previously been a client of Gamez in other litigation, had been an aunt by marriage of one of the plaintiffs and indeed had solicited the plaintiffs to sue Ford and Guerrero and hire Gamez as their lawyer….

Incredibly, Ford’s motions were denied, but Juror Palacios was removed.

The next day’s Express-News carried a story about the motions and denials.

But a mysterious man went around to all the distribution points in Crystal City, buying up all the papers before anyone could read them. The San Antonio newspaper management 130 miles away quickly got wind of this, replenished the newspapers and ran an editorial the following day denouncing the act as an attempt to keep Crystal Citians from learning of their local conflicts of interest. The miscreant was never identified.

The trial went on, plaintiffs maintaining that Ford was negligent, because if the Explorer had only been equipped with a type of laminated side glass used by less than one percent of the world’s vehicles, the ejections and injuries would not have occurred.

Ford plans an appeal. (More: May 13, May 16, May 29)

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UK: “£500,000 for youth injured in fall while trespassing”

Carl Murphy, 18, of Merseyside, England, has received £567,000 for injuries sustained while criminally trespassing on the roof of a private warehouse in 1996, from which he fell 40 feet, sustaining multiple injuries. Murphy, who has convictions for robbery, burglary and assault, “received his compensation after suing the company that owned the warehouse. He claimed that if the perimeter fence had not been in disrepair he would not have been able to gain entry and suffer his injuries.” Although groups representing victims of crime expressed anger at his getting a sum 50 times higher than a murder victim’s family could expect to receive from the Criminal Injuries Compensation Authority, Murphy was unapologetic about his windfall, saying he planned to buy “a few houses and a flash car”: “This money is mine now and I’ll do what I want.” Murphy “was expelled from two schools in just over two years after his recovery and his family blamed the fall for his bad behaviour.” And more: “His mother, Diane, and her partner, Kevin Parsons, both 36, are currently serving three years in prison for setting up a heroin and crack cocaine business from their council house.” (Daily Telegraph, Mar. 14; Peter Zimonjic, “I’ll buy houses and a flash car, says yob awarded £567,000”, Daily Telegraph, Mar. 20; Joanna Bale, “Trespasser who fell through roof wins payout of £567,000”, The Times, Mar. 14).

Among other lessons to be drawn from the case, it kind of casts doubt on the idea, often heard from trial lawyers on this side of the Atlantic, that people wouldn’t feel such a need to sue if they had UK-style socialized medicine to take care of their injuries for them. More: Ralph Reiland comments in the American Spectator (Nov. 30).

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