Archive for April, 2008

Great moments in forfeiture law

First-time marijuana-possession offenders are typically not punished very severely, and it appears that retiree Luther Ricks of Lima, Ohio, and his wife Meredith aren’t going to face charges at all. So aside from the confiscation of their $400,000 in life savings, they should come out of it just fine (Greg Sowinski, “Man wants his $400K back from the FBI”, Lima News, Dec. 18; Radley Balko, Dec. 21 and Mar. 21; “Forfeiture Folly”, Reason, April).

Activist sues Canadian conservative blogs

We told you it was dangerous to criticize Ottawa lawyer and “human rights” commission enthusiast Richard Warman, and we were right: he’s now sued four leading conservative bloggers in Canada and one website, Ezra Levant, Jonathan Kay/National Post, Kate McMillan/Small Dead Animals, Kathy Shaidle/Five Feet of Fury, and Free Dominion. Lawsuit target Ezra Levant has details, as does Michelle Malkin, not yet a target perhaps because she is American. [2010 update: Patterico, Ken at Popehat]

In related news, the Ontario Human Rights Commission has decided not to pursue a complaint against Maclean’s, the country’s best-known magazine, for publishing a book excerpt by well-known writer Mark Steyn. (Press release via Small Dead Animals, SteynOnline).

A NYT school-bullying story comes under scrutiny

Last month the New York Times ran a front-page story about the plight of a Fayetteville, Ark. high school student named Billy Wolfe, who had been “a target of bullies for years”, physically and verbally brutalized by fellow students despite his family’s repeated pleas to a seemingly heedless school district for his protection. (Dan Barry, “A Boy the Bullies Love to Beat Up, Repeatedly”, Mar. 24). Billy’s parents had sued teens they said had harassed their son, and were also considering legal action against the school district.

The article generated a big reaction, especially after young Wolfe himself appeared on the Today show to discuss his plight. Most observers seemed to agree that the harrowing tale lent credence to the whole idea of using lawsuits as a way of responding to bullying in schoolyards, Facebook, etc. — an idea that, coincidentally or otherwise, is the subject of an increasingly visible campaign these days. Even as level-headed an educational observer as Joanne Jacobs wrote on her blog, “Normally, I’m anti-lawsuit, but this may be the only way to bully the bullies and the principal to crack down.” Huffington Post writer Jonathan Fast cited the article as evidence that schools should adopt “zero tolerance” policies on bullying. Some of the many other blog reactions are assembled here (e.g.: Marcotte, Greenfield, DadTalk, The Common Room).

Could there be another side of the story, you may wonder? Well, as a matter of fact, there is. To find it you need to consult the local paper, the Northwest Arkansas Times (Scott F. Davis and Dustin Tracy, “Who’s the bully?: Police, school records raise questions about claims made by Fayetteville High student”, Apr. 3)(via Childs). One may argue about whether Wolfe’s own alleged exploits in victimizing other kids, as catalogued in the NWAT article, will or should affect the disposition of his family’s legal claims. What seems beyond dispute is that the NYT’s story would have been very different in the emotional reactions it evoked — and much less effective in promoting the particular “cause” it was advancing — had it included that other side of the story.

More/updates: Word Around the Net, Val’s Bien, Pennywit @ Likelihood of Success, Joanne Jacobs, Crime & Consequences, Kierkegaard Lives. The Arkansas Democrat-Gazette notes that Arkansas already has an unusually strong anti-“cyberbullying” law which “requires school districts to adopt discipline policies banning harmful and disruptive online behavior”, despite misgivings from civil libertarians about official penalties based on students’ out-of-school speech: Evie Blad, “School bullies move online; rules tricky to write, enforce”, Apr. 6. And Scott Greenfield minces no words:

…what is the New York Times thinking? To have its knees cut off by its Northwest Arkansas namesake is humiliating, but to be shown up as deceptive fundamentally undermines its credibility. Without credibility, the Times is just a dog-trainers best friend and a tree’s worst nightmare. …

The failure of the New York Times to present a full and accurate account of the Billy Wolfe story is disgraceful and unacceptable. … If you’re going to put an article on the front page with a big picture, don’t blow it. The Times did. They should be ashamed.

And in our comments section, Ole Miss lawprof Paul Secunda provides the Wolfe family’s response to the NWAT coverage. Update Apr. 24: Jay Greene weighs in.

Worst places to get sued, cont’d

William Pentland’s Forbes article (see yesterday’s post) has sparked a fair bit of coverage, including: NAM “Shop Floor”, Mark Obbie’s LawBeat, Law and More, the Baton Rouge Advocate, Philadelphia personal injury firm Pomerantz Perlberger & Lewis LLP (proud of their city’s reputation as bad news for libel defendants), and KGBT (Harlingen, Tex.).

“Ansonia Smoking Lawsuit Is Settled”

A company’s donation of air purifiers helped end the legal squabble between the Manhattan neighbors (Feb. 9); smoker Galila Huff has also agreed to use a smokeless ashtray, say Jonathan and Jenny Selbin, the husband-and-wife litigators. Jonathan Selbin, of Lieff Cabraser, evidently feels much put upon by press accounts linking his name with the epithet “bully”; one of Selbin’s earlier letters to Huff observed, “As you may not be aware, we are both lawyers and both litigators, for whom the usual barriers to litigation are minimal.” (Anemona Hartocollis, New York Times, Apr. 7; Greenfield, Apr. 6; WSJ letter to the editor, Apr. 8).

We were counting on you for favorable testimony!

A Utah federal court will consider the Pace family’s lawsuit against California anesthesiologist Barry Swerdlow, whom they had earlier hired as an expert witness as part of their medical liability suit against another anesthesiologist, Stephen Shuput, whom they blamed for their late daughter’s death. After agreeing to come on board as an expert for the Paces, Swerdlow examined Shuput’s deposition and concluded that Shuput had met the standard of care; he proceeded to inform Shuput’s lawyers of this, and they quickly got the case dismissed. The Paces then sued Swerdlow for “malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress,” to quote AMNews’s catalogue. Swerdlow conceded that he was new at the expert witness game and that it would probably have been a good idea for him to have read Shuput’s deposition earlier. The EleventhTenth Circuit ruled that a lower court should consider the Paces’s contention that they had suffered legally actionable damages from Swerdlow’s actions. (Bonnie Booth, “Expert who changed mind claims immunity, but plaintiffs still sue”, American Medical News, Apr. 14).

Judge Gorsuch, dissenting from the EleventhTenth Circuit’s ruling, wrote:

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions – with no factual allegation to suggest anything other than an honest change in view based on a review of new information – we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.

(Decision of the Day, Mar. 5; Karen Franklin, Forensic Psychologist, Mar. 7; The Briefcase, Mar. 7).

“Resurrect Rule 11”

In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It’s time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society’s Engage (cross-posted from Point of Law).

Jury not asked to blame driver, does so anyway

“A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn’t exactly thrilled that a jury cleared the automaker — and awarded her $6 million in damages against her sister, who was the driver of the vehicle. … The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached.” Ford’s own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).