Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for June, 2007

Your Prisoner Sex Change Update

A Massachusetts inmate serving life in prison for murder is in court demanding the state pay for a sex-change operation:

The case of Michelle — formerly Robert — Kosilek is being closely watched across the country by advocates for other inmates who want to undergo a sex change.

[…]

Kosilek, 58, was convicted of strangling his wife in 1990. He claimed he killed her in self-defense after she spilled boiling tea on his genitals.
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Naturally, expert witnesses are lining up to defend Kosilek, and a law firm is representing him pro bono:

Two other doctors retained and paid for by the department’s outside health provider, the University of Massachusetts Correctional Health Program, at a cost of just under $19,000 said they believe the surgery is medically necessary for Kosilek. Two other doctors who work for the health provider agreed with that.

In addition, two psychiatrists who testified for Kosilek recommended the surgery. A Boston law firm representing Kosilek for free paid for those experts but would not disclose the cost.

Aside from the propriety of taxpayers paying for a sex change operation (which Kosilek may or may not have been able to pay for himself had he not been in prison), corrections officials are correct that having a (now) woman in a male prison could pose significant problems. It is almost a given that should the operation be performed, Kosilek would petition to be moved to a women’s prison to protect his own safety.

Also, note the interesting correction at the bottom of the story:

(This version CORRECTS `himself’ to `herself.’)

Kosilek hasn’t had the sex change yet, so technically he is still a man – apparently the newspaper thought so, too. It would be interesting to find out who compelled them to change the story to portray Kosilek as a female – and in the process perhaps avoid their own lawsuit.

As noted in the story, Wisconsin went through a similar situation in 2004 when inmate Scott (now Donna Dawn) Konitzer was denied genital gender reassignment surgery by the Department of Corrections and sued the state. Department policy had been to provide hormone therapy to those who had been receiving it for a year before their incarceration, but surgery was not provided as an option. As Kosilek now has, Konitzer claimed denial of the procedure constituted “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution.

As a result of Konitzer’s lawsuit, the Wisconsin Legislature actually passed into law a ban on both hormone therapy and gender reassignment surgery. Naturally, that new law has been challenged in U.S. District Court in Milwaukee.

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Trademark abuses of the month

Although trademark law certainly has plenty of intricacies, the essence of trademarks is the protection of consumers from confusion in the marketplace. When one buys goods or services, one should be able to know the manufacturer of those goods or provider of those services. Except, of course, when lawyers get involved; then trademarks are just used by large businesses to stifle competition. Infoworld reports on how some companies are abusing trademarks to shut down smaller competitors on EBay. EBay, to avoid liability for trademark infringement by its sellers, is quick to shut down any auction when a trademark holder complains. And then makes it difficult for the seller to reverse the decision:

As she began the process of getting EBay to reinstate her account – which includes having to take a condescending online tutorial on intellectual property and swearing that you’ll never be bad again – the reader also was able to contact with other EBay sellers whose Don Ed Hardy auctions had been taken down. “Some sellers who had not yet actually sold any Don Ed Hardy goods were told by the fraud department that ‘test purchases’ had proven their goods were counterfeit,” the reader wrote. “Some were told that it didn’t matter they could prove their merchandise was authentic – Don Ed Hardy would continue to take down their listings via VeRO by citing ‘violation of a trade agreement’ between the company and its distributors. And all were threatened as I was with trademark litigation that could result in treble damages, paying their legal costs, etc.”

But the threat of running up legal fees with trademark lawsuits isn’t just felt by individual EBay sellers; even large companies — like ABC television — are afraid to fight ridiculous claims of trademark infringement:

“Sam I Am” isn’t—anymore.

The planned ABC fall comedy starring Christina Applegate has changed its name to “Samantha Be Good” after receiving a “cease-and-desist” letter from lawyers representing the rights-holder to Dr. Seuss characters, an attorney said Tuesday.

[…]

“We asserted a trademark infringement claim,” in a May 17 letter to ABC, said Jonathan B. Sokol, an attorney representing San Diego-based Dr. Seuss Enterprises, LP.

“People worldwide associate those characters with Dr. Seuss books and … Dr. Seuss vigilantly protects its trademark rights,” Sokol said.

The TV show’s original title might have confused people as to whether the company was sponsoring or otherwise involved with the program, Sokol said.

This is just a guess, but it’s unlikely that someone watching a sitcom in which Christina Applegate has amnesia is going to confuse it with Green Eggs And Ham, a book in which a cartoon character tries to entice another cartoon character to eat unkosher food with classic lines like “Could you, would you, with a goat?”

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Tattoos Now a Civil Right?

29-year old Russell Parrish decided he wanted to tell his life story through his tattoos. Unfortunately for him, his life story now contains a chapter on why he couldn’t get a job because he’s covered with tattoos. Naturally, he claims this is all a result of discrimination:

His tattoos cover his right and left arms and hands. There is a spider in a web crawling up his neck.
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Russell says in the last two months he’s applied for over 100 jobs. In almost half of them, he says he was denied because of his tattoos. He says that’s discrimination.

Having tried the EEOC and the Department of Labor, Parrish is now lobbying state lawmakers for a new law that would protect him from discrimination against tattoos. In other words, he now needs the government to step in and bail him out of the bad lifestyle decisions he’s made.

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$21 million lawsuit for negligent prosecution

In June 2004, 21-year old Vermont resident Samantha Perreault went out drinking with a couple of friends, Norman Poulin and Justin Lawrence. After three rum and cokes each, they left; Lawrence hopped on one motorcycle, and Poulin and Perreault got on another and followed him. Although they may not have been legally drunk, they had had several drinks, it was night, and they were driving 70 mph. Lawrence lost control of his motorcycle and crashed. Poulin, attempting to avoid Lawrence, also lost control and crashed. Perreault, unfortunately, was killed.

Both Poulin and Lawrence were prosecuted for criminal negligence, but Lawrence, apparently, was not also charged with driving without a motorcycle license. Feeling that Lawrence’s punishment was insufficient, Perreault’s father has now filed a $21 million lawsuit. Did he sue Poulin? No; apparently he forgave Poulin. Did he sue Lawrence? Of course not; Lawrence doesn’t have deep pockets. No; he sued the state of Vermont.

The Plainfield resident says officials in the Department of Public Safety and Office of the Attorney General showed disregard for his daughter and for the law by failing to fully prosecute a man involved with her death.

“I don’t want anybody else to go through this,” Perrault said Friday. “I think she deserved more than this.”

[…]

“By the state not doing anything, they’re saying it’s okay for you to drive without a license,” Perreault says. “I’ve gone through all the right channels, called the state police, called (the Office of the Attorney General). All I’m getting is blown off.”

In addition to seeking monetary damages, Perreault is also demanding that Lawrence be charged and prosecuted for driving without a license.

Of course, it’s hard not to feel sympathy for someone whose daughter is killed. And the lawsuit isn’t likely to succeed, as the article notes; the state is probably immune, and “failure to prosecute” isn’t a cause of action anyway. But that doesn’t alter the fact that the lawsuit reflects an all-too common mindset that picking a random big number out of a hat and filing a lawsuit against someone with deep pockets is the right approach whenever one is annoyed. (No, the case probably won’t last as long, and cost taxpayers as much, as the Roy Pearson pants lawsuit, but it certainly won’t be free, and will contribute to congestion in the courts which slows down — and thus raises the cost of — legitimate lawsuits.)

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The significance of Roy Pearson

As we’ve covered, Roy Pearson lost his $67 million lawsuit against his dry cleaners. Predictably, Bizarro-Overlawyered is trumpeting the outcome as evidence that the system works, that the “system has effective, built-in checks against such things.” I doubt many Overlawyered readers buy into that spin, but just in case, here are a few reminders about this case that, to the extent it had any merit at all, should have been a small claims suit:

  1. The Chungs offered Pearson $12,000 to drop this suit. If he had not been so greedy, they’d have been out that much money, plus a year’s worth of legal costs. The fact that our legal system enables people to extort tens of thousands of undeserved dollars from others is not evidence that there are “effective, built-in checks” on frivolous litigation.

  2. Putting aside any money issues, this lawsuit was filed on June 7, 2005; for more than two years, this case has been hanging over the Chungs’ heads. That’s two years of legal and financial uncertainty. Two years where they couldn’t make any significant business decisions because they had the possibility of an eight figure liability hanging over their heads. The fact that someone can drag out a case almost too small to have been on Judge Judy for two years is not evidence that there are “effective, built-in checks” on frivolous litigation.

  3. The Chungs “won” the case, but Pearson used the legal system to impose what was likely $100,000 in legal costs on them. Of course, there is a motion for sanctions pending against Pearson, but there are no guarantees here. Courts are very reluctant to impose sanctions, and even when they do (as the court probably will here) they very rarely impose sanctions sufficient to make the defendants whole. Note that sanctions are not automatic; the Chungs had to pay their attorney even more money to prepare a motion for sanctions. The fact that the Chungs have to endure two years of frivolous litigation and then cross their fingers and hope the judge awards them their legal fees is not evidence that there are “effective, built-in checks” on frivolous litigation.

  4. Oh, one other problem: the Examiner reported, even before the decision, that Pearson’s chances of keeping his job were slim. I think most reasonable people agree that Pearson hasn’t quite demonstrated that he’s fit to be a judge. But if he loses his job, the chances of the Chungs ever collecting any part of those sanctions drop from slim to none. (Their chances of recouping their losses are low to begin with — is it likely Pearson has $100,000 sitting around?)

  5. And let’s not forget one other party to this case, also abused by Roy Pearson: the taxpayers of the District of Columbia, who have to pay for the legal system. And they have no chance to get reimbursed.

  6. Finally, remember that the case is not necessarily over. It would be insane for Pearson to appeal, but that hasn’t proved to be a limiting factor in his actions in the past. The worst that happens is that he gets slapped with more sanctions, which he’ll never pay.

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Oops!

Perhaps one reason trial lawyers so frequently accuse reformers of manufacturing popular outrage is because such astroturfing is a common trial-lawyer tactic: Peter Lattman uncovers eight identical letters to the editor written at the behest of the Association of Trial Lawyers of America (now going by the AAJ misnomer), all on behalf of Bill Lerach’s bogus Enron suit and criticizing the Bush administration officials who dare to stand up to the attempted extortion. Similar astroturfing regularly goes on in the comments section of the Lattman blog.

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FEC v. WRTL

Yesterday’s U.S. Supreme Court decision in FEC v. Wisconsin Right to Life is of special importance to those of us in Wisconsin, since we have watched the case unfold before our eyes since its inception. As you’ve probably heard by now, the Court, in a 5-4 vote, struck down a portion of the McCain-Feingold campaign finance law which prohibited so-called “issue advocacy” by unregistered groups in a period of 60 days before a general election. Wisconsin Right to Life had run advertisements critical of Senators Russ Feingold and Herb Kohl for their perceived role in holding up judicial appointments, but these ads were deemed to be illegal under McCain-Feingold, despite not advocating for the electoral defeat of either. Yesterday’s decision upheld WRTL’s right to run the ads, as the Court determined they were not “express advocacy.”

The culture of speech restriction with regard to campaigns has been prevalent in Wisconsin for some time, and produces some fairly odd applications of the law. This was demonstrated during last November’s elections, when the Wisconsin Democracy Campaign (a pro-campaign finance reform group) actually filed a complaint to bar a Catholic diocese from urging its parishoners to support a constitutional amendment to ban gay marriage. (Church Accused of Illegal Lobbying, Madison Capital Times, Oct. 18, 2006) At the same time they were attempting to use state law to block the Catholic Church’s right to support the constitutional amendment, the WDC was actually publicly lobbying against the amendment – yet they didn’t see their own activities as “express advocacy.”

So while it is clear yesterday’s decision represented a marginal victory for free speech rights at the federal level, there are steps states can take to ensure political speech isn’t muzzled come election time. When churches break the law by teaching their beliefs, it should alert states to dangerous path campaign finance restrictions are taking us.

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Louisiana Town “Cracking” Down

When showing your crack is outlawed, then only outlaws will be showing their crack:

Cajun Town Bans Saggy Pants (NYT, June 13)

DELCAMBRE, La. (AP) — Sag your britches somewhere else, this Cajun-country town has decided. Mayor Carol Broussard said he would sign an ordinance the town council approved this week setting penalties of up to six months in jail and a $500 fine for being caught in pants that show undergarments or certain parts of the body.
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I totally envision a Footloose-type of situation here where a spry young high schooler rolls into town and teaches all the townsfolk that butt cracks can be a perfectly beautiful and natural occurrence.

The downside of this ordinance, of course, is that it will drive all the plumbers out of town. Better get your sink fixed before it goes into effect. Oh, and as long as we’re talking about plumbers, it gives me an excuse to show you this outstanding commercial. That is all.

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A Comedian Who ACTUALLY Kills

You may have heard of condemned Texas death row inmate Patrick Knight, who has expressed his desire to tell a joke as his final statement tonight. (June 4)

From the story:

Knight acknowledges there’s nothing funny about his likely execution later this month for the fatal shooting of his neighbors, Walter and Mary Werner, almost 16 years ago outside Amarillo. But to help him come up with his final statement, Knight is accepting jokes mailed to him on Texas’ death row or e-mailed to a friend who has a Web site for him. The friend then mails him the jokes…

He said he’s already received about 250 wisecracks.

“Lawyer jokes are real popular,” he said. “Some of them are a little on the edge. I’m not going to use any profanity if I can find the one I want, or any vulgar content. It wouldn’t be bad if it was a little bit on the edge. That would be cool.”

Thank goodness he is sparing lawyers from being subjected to an off-color joke. Good thing he’s on their side – unfortunately, it’s with everyone else that he gets a little “murdery.” And I especially appreciate his concern for the feelings of the family. Here’s a valuable tip when you want to show respect for a family – try to avoid shooting them to death. I read that in an etiquette book once, I think.

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Court-Ordered Loneliness

In Ontario, Canada, a 24 year-old man has been ordered not to have a girlfriend for the next three years – due to a violent argument he had with his girlfriend. From the story:

Mr. Justice Rhys Morgan told a 24-year-old, characterized as having a dependent personality disorder, yesterday he could not have a girlfriend for the next three years.

The unusual order was added to Steven Cranley’s probation order after he pleaded guilty to six charges relating to an argument he had with his former girlfriend and a roommate Jan. 17.
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While this may seem like an unusual punishment, some of us have already had to suffer through similar periods of not having a girfriend. For me, it was a time period commonly known as “the 1990s.” And I didn’t even need a judge to mandate it. Fortunately, I now have an in-home judge that forbids me from having girlfriends. She is often referred to as “my wife.”

There’s no doubt this guy has mental problems. But as a result, he can now look forward to three years’ worth of late nights watching Cinemax, praying to God he doesn’t recognize any of the actresses’ names in the opening credits.

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