Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for September, 2006

Pelman v. McDonald’s going forward

The infamous class action litigation seeking to blame McDonald’s for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, “N.Y. Judge Rebuffs McDonald’s Motion to Dismiss Deceptive Ad Claims”, New York Law Journal, Sep. 22). Judge Sweet’s opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald’s can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald’s if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.

Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as “pure hype” because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It’s a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Point of Law.

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Pro se suits: don’t blame lawyers, right?

Every so often someone suggests that poorly conceived pro se (self-represented without a lawyer) lawsuits can’t count as a symptom of an overlawyered society, since lawyers aren’t involved in them, right? I left a comment at Evan Schaeffer’s site the other day about this question and reproduce it here:

I agree that it’s fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant.

I don’t agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.

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“Aborigines given ownership of Perth by judge”

In Australia, at least, it seems this whole land claims and reparations business is getting rather serious. “The judgment will not affect homes or businesses, as the Australian courts have ruled that native title does not apply to land owned on a freehold or long-lease basis.” However, if the judgment is upheld against an expected appeal by the state of Western Australia, descendents of natives may win the right to convert public lands in the city (such as urban parks) into permanent encampments, and boaters worry that control over the right to use waterways may also be affected. (Kathy Marks, The Independent (U.K.), Sept. 21; “Native title could lock up parks: Ruddock”, AAP/The Australian, Sept. 22; Chris Merritt and Patricia Karvelas, “Title win boosts capital city claims”, The Australian, Sept. 21). Perth is a city of 1.5 million. A native claim over land in Melbourne and its environs is expected next. (Ben Packham, “Native title claim looms”, Herald-Sun, Sept. 21).

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U.K.: “Hair salons offered a cut of solicitors’ fees”

In Salisbury, England, a “firm of solicitors is offering hairdressers cash to refer customers who reveal that they have marital problems. But one hairdresser has criticised the idea as unethical and refuses to help.” The law firm of Trethowans says there is nothing in violation of Law Society rules in its offer of £75 to salon stylists who steer distraught spouses its way, the fee “payable when the courts grant a decree nisi or upon the agreement of a separation deed.” The law firm’s director describes the payments as “just a different sort of advertising” and says he has heard of firms in other geographic areas doing the same thing. (The Times (U.K.), Sept. 1). Alex Wade comments (“‘Short back and sides? How’s your marriage, by the way?'”, The Times (U.K.), Sept. 15).

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Defamation suits for the deceased

Truly bad ideas from legal academia, part 2038 of a series: GWU lawprof Jonathan Turley wants to get rid of the common-law rule that you can’t sue someone for injuring the reputation of a dead person. (“Give the Dead Their Due”, Washington Post, Sept. 17). At Volokh Conspiracy, commenter elChato writes,

I for one look forward to the descendants of the original Hatfields and McCoys settling in court who was responsible for starting and perpetuating their long-ago feud. The OK Corral battle can live again. Any descendants of Boss Tweed should be able to sue bookwriters who claim he stole $200 million (where’s the proof?), Huey Long’s descendants should be able to sue anyone who said he engaged in bribery and corruption (he was never convicted- where’s the proof?), and on and on and on.

Yes indeed, a great use for the time and energies of the court system which is otherwise sitting idle because there simply are not enough disputes among the living to keep judges busy.

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Deaf sue to force closed-captioning of Redskin football

“The National Association of the Deaf has filed a lawsuit against the Washington Redskins to get team officials to offer closed-captioning for the deaf and hearing-impaired at FedEx Field.” The lawsuit cites the Americans with Disabilities Act. (Hamil R. Harris, “Hearing-Impaired Fans Sue for Access to Closed-Captioning”, Washington Post, Sept. 20). Related: Feb. 19 and Aug. 1, 2000 (movie theaters); Mar. 9-11, 2001 (comedy club, sign interpreters)

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British hot coffee: Bogle v. McDonald’s

If you can stand one more post about the McDonald’s coffee case, this 2002 opinion in the High Court of Justice, Queens Bench Division, is extraordinarily sensible. Most notably, coffee served at 65 C (a mere 150 degrees Fahrenheit), will cause a full-thickness burn in 2 seconds, so the court rejected the claim that McDonald’s could have avoided injury by serving not-so-hot coffee, refuting the claims regularly made by the plaintiffs’ bar that a few degrees’ difference could have avoided injury. (Bogle v. McDonald’s Restaurants Ltd., Neutral Citation [2002] EWHC 490 (QB), Case No: HQ0005713.)

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No trackbacks

Following a long period in which we battled trackback spam, the entire trackback function just seemed to stop functioning a while back. Since it has been some months now since any legitimate trackback has registered, I’ve turned the whole function off rather than potentially mislead newcomers about its availability. Technorati remains the most convenient way of seeing whether we’ve been linked lately on other sites.

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