Search Results for ‘arson forensics’

Forensics roundup

Roanoke man pardoned on arson conviction

ornamentsVirginia Gov. Terry McAuliffe has granted an unusual absolute pardon to Davey Reedy, released six years ago after many years of imprisonment on an arson murder conviction after a house fire that killed his two small children. The case is one of dozens in which forensic methods formerly used for evaluating arson have been re-examined as poorly based and unreliable. “According to the National Registry of Exonerations, 38 people have been exonerated before Reedy for arson-related crimes since 1991.” [Washington Post; earlier]

From the Post’s Christmas Day story:

After his release in 2009, he has settled back in the Roanoke area with his family. The day McAuliffe called to tell him of his exoneration, Roberta Bondurant said, he was coordinating a volunteer project.

“He’s at a place and time in his life where he’s at peace with himself,” she said. “It doesn’t help him at all in the time he has left on this planet to hold bitterness for anyone who made a mistake along the way.”

Forensics and evidence roundup

  • Radley Balko begins a four-part series on the flawed science of bite mark analysis [parts one, two with Jim Hood angle]
  • Federal judge Jed Rakoff “quits commission to protest Justice Department forensic science policy” [Washington Post]
  • Disturbing, but, to those familiar with the false-memory literature, not all that surprising: “People Can Be Convinced They Committed a Crime That Never Happened” [Psychological Science on new research]
  • Exposure of faulty fire forensics leads to another release after long time served [WHP, Harrisburg; James Hugney Sr. “maintained his innocence throughout” nearly 36 years in prison following conviction in burning death of sleeping son]
  • Courts struggle with evidentiary significance of emoji [Julia Greenberg, Wired] Rap music as gang-tie evidence: “The only value it has is to scare the hell out of white juries, and it’s effective” [ABA Journal]
  • Supporters of Brian Peixoto say his Massachusetts conviction typifies problems of shaken baby forensics [Wrongful Conviction News]
  • “Allegations that NYPD cops may have planted evidence, perjured themselves and engaged in cover-ups while investigating gun cases.” [New York Times via Balko; NYDN 2011 flashback]

An execution, ten years after

First a house fire killed Cameron Todd Willingham’s three tiny daughters. Then the state of Texas killed him. Mistakes were made, notes the Washington Post. The forensics testimony on accelerants has long since been discredited, and now the jailhouse informant whose words sent Willingham to execution, who has wavered between recanting and not-recanting, has given a recantation with much more circumstantial detail about the lies he says he told on the stand.

Here’s a Texas Monthly article (linked a while back) on the unsettling history of arson forensics over many years, in which the use of accelerants was deduced from dubious evidence in such a way as to shift many fires from the “likely accidental” to the “deliberate” category, with dire legal consequences for family members and others on the scene. Earlier on the Willingham case, including pro-prosecution links, from five years ago. More: Jonathan Adler.

Police and prosecution roundup

  • Cop caught on camera stealing dying motorist’s $3700 and gold crucifix “walked out of courtroom with big smile on face” [Bridgeport; Connecticut Post]
  • Durham, N.C. police officer testifies department would illegally gain access to homes for purposes of search by lying about getting 911 calls [IndyWeek]
  • “California Highway Patrol Seizes Medical Records Of Woman An Officer Was Caught On Tape Beating” [Tim Cushing, TechDirt]
  • Drivers routinely expected to give up otherwise-basic civil liberties in exchange for right to use the roads [Michael Tracey, Vice]
  • Teen sexting prosecutions in Virginia and elsewhere: “We must destroy the children in order to save them” [Radley Balko]
  • Narcotics officers get training credit at tax-funded seminars in how to argue in favor of drug laws [Missouri pro-legalization site via Balko]
  • Back from the ashes: advances in fire and arson forensics cast doubt on earlier convictions [Texas Monthly]

November 2001 archives


November 9-11 — “Politically Incorrect Profiling: A Matter of Life or Death”. Stuart Taylor, Jr. returns to the subject of air passenger profiling in a must-read sequel to his September column: “Political pressure from Arab-American and liberal groups spurred the Clinton and Bush Administrations to bar use of national origin as a profiling component before September 11. … [This] achieved its goal of minimizing complaints, which plunged from 78 in 1997 to 11 in 1998, 13 in 1999, and 10 last year, according to Transportation Department data. It did not work so well at preventing mass murder. On September 11, the CAPS [Computer-Assisted Passenger Screening] system flagged only six of the 19 Middle Eastern hijackers for extra scrutiny, which was apparently confined to the bags of the two who checked luggage. None of the 19 men or their carry-ons appear to have been individually searched. And the FAA’s 1999 decision to seal CAPS off from all law enforcement databases — after complaints from liberal groups that criminal records were error-prone — may help explain why the FBI had not told the FAA that two of the 19 were on its watch list of suspected terrorists.” Incredibly, the Bush Administration has signaled that it’s sticking to the current ban on letting airlines do national-origin passenger profiling. (National Journal/The Atlantic, Nov. 6) See Oct. 3-4; also Richard Cohen, “Profiles in Evasiveness”, Washington Post, Oct. 11).

MORE: This makes a good time to catch up on Taylor’s columns since the attacks, all recommended: index; “The Bill to Combat Terrorism Doesn’t Go Far Enough”, Oct. 31; “The Media, the Military, and Striking the Right Balance”, Oct. 23; “The Rage of Genocidal Masses Must Not Restrain Us”, Oct. 16; “Wiretaps Are An Overblown Threat To Privacy”, Oct. 10; “How To Minimize the Risks of Overreacting to Terrorism”, Oct. 2; “Thinking the Unthinkable: Next Time Could Be Much Worse”, Sept. 19.

November 9-11 — Must be the Ninth Circuit, right? Yep, it is: in a September ruling, the much-reversed West Coast federal appeals court “discovered that male inmates in prisons have a ‘fundamental’ right to procreate by artificial insemination,” and thus to become daddies via FedEx delivery (George Will, “Inmates and Proud Parents”, Washington Post, Nov. 8).

November 9-11 — Infectious disease conquered, CDC now chases sprawl. The Centers for Disease Control were established to combat outbreaks of infectious disease, but have been steadily expanded and politicized to the point where the agency has recently crusaded against “epidemics” of gun ownership, tobacco use and domestic violence. The newest initiative of agency officials? A joint effort with the Sierra Club to put over the notion that housing sprawl is a public health risk, in part because suburbanites don’t get exercise walking to shops or work the way many city dwellers do — though you’d think their bigger yards and easier access to outlying recreational areas might give them more chance to exercise in other ways. Vincent Carroll pokes several holes in this theory, noting for example that Colorado, an archetypal suburban-sprawl state, has the country’s lowest rate of obesity (“Once more into the big, bad suburbs”, Rocky Mountain News, Nov. 3; Richard J. Jackson, M.D. (director of CDC’s National Center for Environmental Health), and Chris Kochtitzky (associate director for policy and planning at NCEH’s Division of Emergency and Environmental Health Services), “Creating A Healthy Environment: The Impact of the Built Environment on Public Health”, SprawlWatch Clearinghouse Monograph Series, report in PDF format; Washington Times, “Sprawl alert” (editorial), Nov. 8). Then there’s the CDC’s own recent finding, which goes unmentioned on the Sierra Club’s page, that suburban areas boast better public health indicators than either cities or rural areas (“HHS Issues Report On Community Health in Rural, Urban Areas”, CDC press release, Sept. 10). Given the agency’s performance in the anthrax affair, where it has been left playing desperate catchup to close the gaps in its knowledge base and capabilities, we hope budgeters realize that it can ill afford to squander its resources and credibility on this kind of thing. (See InstaPundit, Oct. 24). (DURABLE LINK)

November 9-11 — Welcome JerryPournelle.com readers. On his “Computing at Chaos Manor” website, the famous science fiction writer and polymath recommends: “If you have any extra time, take a look at Overlawyered.com to see just what our legal system is capable of…” (Thursday’s entry — after this week an archive search will be required, look for Nov. 8). Not only is Pournelle a Macaulay fan, but he’s completely sound on the proposition that wars should be declared (our takes on the former, latter). We’ve also recently been linked by Robert Longley in his About.com sites on U.S. Government Info — specifically, in the environment and gun control subsections. Longley cites our environment page as offering “some fascinating reading” and gives a “Best of the Net” designation to our gun page: “an excellent resource to important gun-related cases”, he calls it.

November 7-8 — Vaccine industry perennially in court. Why are drug companies so chary about participating in the vaccine business? As a medical intervention administered to otherwise healthy persons, vaccination is easy to blame when recipients are later struck by otherwise inexplicable medical problems, and it’s not easy to distinguish genuine (often rare) side effects from unexplained maladies that would have struck just as frequently in the absence of vaccination. Although an Oct. 1 report from the National Academy of Sciences’ Institute of Medicine found no evidence that children have suffered autism or other brain damage from vaccines employing trace amounts of mercury-containing thimerosal as a preservative (as well as no disproof of that scary proposition), a consortium of plaintiff’s law firms was undeterred from piling on a day or two later with mass lawsuits against Merck, Lilly, Abbott, Glaxo SmithKline, and numerous other firms (IOM press release, study; American Medical Association; William McCall, “Drug Companies Sued Over Vaccines Containing Traces of Mercury”, AP/law.com, Oct. 3; “Immune to Reason” (editorial), Wall Street Journal, Oct. 23 (online subscribers only)). For the history of lawsuits charging that the diphtheria- tetanus- pertussis (DTP) and measles, mumps, and rubella (MMR) childhood vaccines cause autism and brain damage, see Aug. 31; American Medical Association; Howard Fienberg, “This Vaccine Won’t Hurt at All”, National Post (Canada), March 22; Howard Fienberg, “There’s No Vaccine Against Irrational Fears”, San Francisco Chronicle, July 5, 2000 (both reprinted at STATS site with long list of links appended).

The troubled recent production history of the anthrax vaccine administered to members of the U.S. military has been matched by an equally troubled legal history (Vanessa Blum, “At War Over Anthrax”, Legal Times, Oct. 23; Matt Fleischer-Black and Bob Van Voris, “Anthrax Vaccine’s Liability Issue”, National Law Journal, Oct. 23). On a personal level all this has tended to hit home for us with the word that our friend Mark Cunningham of the New York Post editorial page has been diagnosed as victim #18 in the anthrax attacks, and the third employee at the paper to contract the illness; it’s just a skin case and he’s doing fine (“really no big deal,” he says). “Fight Terror; Buy the Post” is his new slogan.

November 7-8 — Sued if you do dept.: co-worker’s claim of rape. For years now, HR compliance manuals have been warning that employers face liability if they fail to launch prompt and vigorous investigations when female employees charge male colleagues with sexual harassment, and the more serious the alleged harassment, the more trouble the company is in if it fails to investigate. But now a Philadelphia jury has awarded $150,000 to a male employee against his employer, chemical company Rohm & Haas, which he said invaded his privacy by subjecting him to an embarrassing police-style interrogation after a female co-worker wrongly accused him of rape. The employee’s attorney, Richard Silverberg, “said he believes the company had no business investigating the incident at all. ‘Rape is a police matter. An employer shouldn’t be undertaking to investigate whether a rape occurred,’ Silverberg said.” The jury also found the woman had defamed the man by making false accusations, but declined to order her to pay him any money. (Shannon P. Duffy, “Employee Awarded $150,000 After Co-Worker Falsely Accuses Him of Rape”, The Legal Intelligencer, Oct. 24).

November 7-8 — Byways of intellectual property law. They include this 1993 patent, called to our attention by one of our readers, for a laser-assisted cat-exerciser (US5443036: Method of exercising a cat — issued Aug. 22, 1995, filed Nov. 2, 1993) (Delphion.com).

November 7-8 — “They’re Making a Federal Case Out of It . . . In State Court”. Everything you wanted to know about why big class actions of nationwide scope belong in federal, not state court, from John H. Beisner and Jessica Davidson Miller of O’Melveny & Myers, in a paper for a forthcoming Harvard Journal of Law and Public Policy and the Manhattan Institute’s Center for Legal Policy (with which this site’s editor is affiliated). (No. 3, Sept. 2001: html, PDF formats). For frequent updates on new publications from the Manhattan Institute, whose areas of special focus include not only legal policy but education, urban policy (including New York’s recovery), taxation, crime and many other subjects, many of them covered in the acclaimed publication City Journal, we recommend signing up for the Institute’s free announcement list.

November 6 — NBC mulls Brockovich talk show. “NBC said this week it will feature Erin Brockovich in a pilot for a one-hour syndicated talk show that could begin airing as soon as early next year.” Writing for TechCentralStation.com, Sallie Baliunas and Nick Schulz are not impressed, calling Brockovich “the poster figure for trial lawyer excess and the assault on sound science”. (“Trial Lawyer TV: NBC Announces New Erin Brockovich Program”, Oct. 24; our take, “All About Erin”).

November 6 — In the mean time, let them breathe spores. “The U.S. Postal Service has bought millions of protective masks to guard its 700,000 workers who handle mail against inhaling anthrax spores, but postal workers are not allowed to use the masks until they are trained under Occupational Safety and Health Administration (OSHA) rules. On the advice of health officials at the federal Centers for Disease Control and Prevention (CDC) in Atlanta, the Postal Service bought 4.8 million of the spore-proof masks for its workers who handle mail and began offering workers the masks last week. But according to OSHA officials and regulations, the workers must undergo hours of training and pass a ‘fit test’ before they can be allowed to use the protective masks, which are like those worn by construction workers who install drywall and can be purchased at hardware stores.” (Daniel F. Drummond, “OSHA halts mask use in Postal Service”, Washington Times, Nov. 2).

November 6 — Gun controllers on the defensive. “Though gun-control groups have tried to capitalize on the Sept. 11 attacks, those attempts have misfired.” Indeed, the recent events have pointed up the questionable nature of several of the gun control movement’s underlying tenets: “that violence – even against a criminal – is always bad, that ordinary people are not to be trusted, and that it is best to let the authorities look out for you. … Americans have learned that being harmless does not guarantee that they will not be harmed”. (Glenn Harlan Reynolds, “Terrorists Attacked Gun Control Movement”, FoxNews.com, Nov. 4; George Will, “Armed Against Terrorism”, Washington Post, Nov. 4). Another major setback to the gun-confiscation cause came last month with the Fifth Circuit’s important decision in U.S. v. Emerson making clear that the Second Amendment protects an individual right to gun ownership (David Kopel and Glenn Reynolds, “A Right of the People”, National Review Online, Oct. 25; Michael Barone, “A decision of historic importance”, U.S. News, Oct. 19; Jacob Sullum, “Second Sight”, Reason Online, Oct. 23). For the Taliban’s version of gun control, see Reynolds’s Instapundit (Oct. 24). Go into the kitchen, said Winston Churchill, and get a carving knife: Michael Barone, “Time to stand and fight”, U.S. News, Nov. 11.

November 5 — Talk of torture. “It’s the sort of question that, way back in spring semester, would have made for a good late-night bull session in a college dorm room: If an atomic bomb were about to be detonated in Manhattan, would police be justified in torturing the terrorist who planted it to learn its location and save the city? But today, the debates are starting up in the higher reaches of the federal government. And this time, the answers really matter.” (Steve Chapman, “Should we use torture to stop terrorism?”, Chicago Tribune, Nov. 1; Dahlia Lithwick, “Tortured Justice”, Slate, Oct. 24).

November 5 — Judge may revive “Millionaire” ADA case. Citing the U.S. Supreme Court’s ruling in favor of golfer Casey Martin, a federal judge has indicated that he may revive a dismissed suit, now on appeal, in which disabled plaintiffs charged that the qualifying rounds of ABC’s “Who Wants To Be a Millionaire” unlawfully fail to provide accommodations that would allow deaf or paralyzed applicants to answer questions over the telephone. (Susan R. Miller, “Federal Judge Seeks Rerun of ‘Millionaire’ ADA Case”, Miami Daily Business Review, Nov. 1). And in what promises to be a much-watched case, the U.S. Supreme Court has agreed to review the Ninth Circuit’s ruling in favor of Mario Echazabal in his ADA suit against Chevron Corp. over a refinery job, “contending that he should have gotten the job despite a chronic case of hepatitis C. Doctors who examined Mr. Echazabal said exposure to chemicals at the refinery would speed the deterioration of Mr. Echazabal’s liver and that a large exposure from a plant fire or other emergency could kill him.” (“Justices to decide if ADA protects hepatitis patient”, AP/Dallas Morning News, Oct. 31). Dissenting judge Stephen Trott called the result “unconscionable” and noted that it “would require employers knowingly to endanger workers” in pursuit of the nondiscrimination ideal. (“Needlessly endangering workers” (editorial), Las Vegas Review-Journal, Oct. 30).

November 5 — “Teen sex offenders face years of stigma”. “He was 16, wanting to be one of the guys, playing truth or dare. The dare: touch a girl’s breast during a football game at Hazel Park High School last year [outside Detroit]. He did. As a result, the boy will be branded as a sex criminal until the year 2024.” (L.L. Brasier, Detroit Free Press, Oct. 15) (via iFeminists.com).

November 2-4 — Opponents of profiling, still in the driver’s seat. Hiring for a job that involves, say, transporting petroleum, caustic chemicals or other hazardous materials? Don’t you dare apply any extra scrutiny to driver-applicants of Mideast origin, experts warn. Federal anti-discrimination law bans employer policies or interview questions that relate in any way to religion, ethnicity, or national origin and the Equal Employment Opportunity Commission has put out word that its commitment to this policy is in no way altered by the events of Sept. 11. “Experts say that companies must be careful to apply equally to all job applicants any beefed up prejob screening. Companies can’t, for example, run criminal background checks only on their Middle Eastern job applicants.” It’s also extremely hazardous as a legal matter to contact law enforcement about any unusual pattern of behavior involving one or more employees of Mideast origin unless one is prepared to show in court that one would have acted just as quickly to report the same unusual pattern in employees of Welsh or Korean or West Indian extraction. Hey, we may be sitting ducks, but at least we’re non-discriminatory sitting ducks, right? And of course if someone uses one of your trucks to cause harm you can expect to be sued for every dime you’re worth to compensate the survivors (Deirdre Davidson, “Rethinking the Workplace After Sept. 11”, Legal Times, Oct. 17).

Fourteen Syrian men arrived at Dallas/Fort Worth Airport last month to enroll in U.S. flight schools; although “their country is one of seven on the State Department’s ‘watch list’ of nations that sponsor terrorism,” they were waved through, there still being no official policy that would pose the slightest impediment to their obtaining such training here (Ruben Navarrette, “Flight training for Syrians should raise red flags”, Dallas Morning News, Oct. 19). The Associated Press, describing reports of extra scrutiny given to air passengers of Middle Eastern descent, quotes a parade of sources who deplore such scrutiny but not a single source willing to say there might be good reasons for it, although majorities of both blacks and Arab Americans have supported passenger profiling in post-Sept. 11 polls. (“Some travelers suspect profiling”, AP/CNN, Oct. 21). “A traveler, no less a potential immigrant, with a passport from Yemen and visas from Lebanon and Qatar should receive greater scrutiny — not harassment, but careful scrutiny — than a traveler with a passport from Chile and a visa from Spain. That is not racism; it is prudence — an objective assessment of where the threat resides. To do otherwise after September 11 would constitute extraordinary negligence,” writes Martin Peretz (“Entry Level”, The New Republic, Oct. 15). Before jumping into any proposal to apply heightened scrutiny to residents of Arab descent in this country, however, it should be recalled that the vast majority of Arab-Americans are in fact of Christian, not Muslim, descent, which makes them especially unlikely targets of recruitment efforts by bin Laden cell organizers. (Smart — and Stupid — Profiling”, Chris Mooney, The American Prospect, Oct. 23). (DURABLE LINK)

MORE: Air Canada has assured the Canadian Arab Federation that it has no policy of coordinating with police about passengers with Arabic-sounding names who check in on its flights (Jamie Glazov, “Discrimination a Must For Protection Against Islamic Terrorism”, FrontPage, Sept. 24). On Sept. 22 a United Air Lines flight crew prevented M. Ahsan Baig, a Pakistani man who works for a California high-tech company, from boarding a flight bound from the West Coast to Philadelphia. “A customer service manager repeatedly apologized to Baig for the incident and immediately got him on another flight,” but he’s suing the airline anyway (Harriet Chiang, “Man barred from flight sues airline”, San Francisco Chronicle, Oct. 30). Also see Jason L. Riley, “‘Racial Profiling’ and Terrorism”, OpinionJournal.com, Oct. 24; Jonah Goldberg, “In current context, racial profiling makes sense”, TownHall, Oct. 26; Allison Sherry, “Profile protest ignites debate”, Denver Post, Oct. 21 (sensitivity training demanded after incident at a Radio Shack). See Sept. 19-20, Oct. 3-4, Oct. 9.

November 2-4 — Updates. Digging deep into our backlog in search of items we can call good news:

* Gov. Bob Taft has signed a bill reversing some of the most extreme aspects of the Ohio Supreme Court’s recent jurisprudence expanding the bounds of employer-provided auto insurance. The new law went into effect Oct. 29 on a prospective basis, but judicially mandated retroactive liability will still cost employers more than $1.5 billion in estimated claims currently in the pipeline. (Ohio Chamber of Commerce, summary, “Uninsured/ Underinsured Motorists Availability Act of 2001“; see June 29 and David J. Owsiany, “Judicial tyranny in Ohio”, Buckeye Institute, 2000).

* Following urgings in this space (do you think we had an effect?), the U.S. Department of Justice has reversed its previous position and asked federal judges “to drop thousands of upstate property owners as defendants in lawsuits by Indian tribes to recover land they contend New York State took from them illegally in the 19th century.” (see Nov. 3, 2000 and commentaries linked there) (Richard Perez-Peña, “Justice Dept. Moves to Drop Homeowners In Tribes’ Suits”, New York Times, Aug. 4, not online)

* Courts have generally been frowning on the idea of letting companies milk their insurance policies for the cost of fixing Y2K computer problems, which was the goal of an attempt by creative policyholder lawyers to reinterpret an old marine insurance doctrine known as “sue and labor”. (Celia Cohen, “Y2KO’d: Unisys Damage Suit Voluntarily Dismissed”, Delaware Law Weekly, Aug. 30; Sept. 16, 1999).

November 2-4 — Ambulance driver who broke for doughnuts entitled to sue. “A federal judge has denied the city of Houston’s request to throw out a lawsuit filed by a former ambulance driver fired after he stopped for doughnuts while transporting a patient to a hospital.” On July 10, 2000 Larry Wesley made a snack stop while transporting an injured youth to Ben Taub Hospital; the boy’s mother filed a complaint, and Wesley subsequently lost his job. But U.S. District Judge Lee Rosenthal said Wesley could proceed with his suit charging that had he been white rather than black he would not have been disciplined as severely for the lapse. (Rosanna Ruiz, “Judge refuses to toss suit by ambulance driver fired after doughnut stop”, Houston Chronicle, Oct. 31)(& update Jun. 28-30, 2002: Wesley loses case). (DURABLE LINK)

November 1 — Cipro side effects? Sue! In a welcome if somewhat belated move, public health authorities have advised the public that the normally indicated treatment for suspected exposure to the current round of anthrax attacks should be older antibiotics such as doxycycline rather than the extremely potent antibiotic Cipro, which is best reserved for infections that do not yield to conventional germ-killers. The German drug and chemical company Bayer, having been whipped up one side of the street for its perceived reluctance to hand out Cipro to everyone among the worried well who feels they would like some, might end up getting whipped down the other because it failed to dissuade consumers from using the drug, given the side effects some will likely suffer from it. “Cipro, or ciprofloxacin, is one of several fluoroquinolones, a controversial class of antibiotics that can cause a range of bizarre side effects: from psychological problems and seizures to ruptured Achilles tendons. … Fluoroquinolone users who have suffered severe side effects call themselves ‘floxies’ and have created their own Web site [“Quinolone Antibiotics Adverse Reaction Forum“]. … The Philadelphia law firm Sheller Ludwig Badey has been involved in about two dozen cases of severe quinolone side effects.” (Tara Parker-Pope, “Health Journal: Surge in Use of Cipro Spurs Concerns About Side Effects”, Wall Street Journal, Oct. 26 (online subscribers only)) Lawyers have already jumped all over Bayer over claimed side effects from its cholesterol-lowering drug, Baycol (Ruth Bryna Cohen, “More Locals Jump on Baycol Bandwagon”, The Legal Intelligencer (Philadelphia), Aug. 31).

November 1 — Swiss banks vindicated. A four-year investigation has concluded that “[m]ost dormant Swiss bank accounts thought to have belonged to Holocaust survivors were opened by wealthy, non-Jewish people who then forgot about their money.” Although officials at first assumed that a large share of the 10,000 older dormant accounts would turn out to be those of Nazi victims, only about 200 were, accounting for around $10 million. A public relations and litigation campaign led by American trial lawyers forced Swiss banks into a $1.5 billion settlement of claims that they withheld money from Holocaust victims’ families. (Adam Sage and Roger Boyes, “Swiss Holocaust cash revealed to be myth”, The Times (London), Oct. 13; see Aug. 29, 2000; May 31, 2000 (second item); Feb. 5, 2000 (second item); Aug. 25, 1999).

November 1 — Words as property: “entrepreneur”. How common does a common English word have to be before it’s okay to use it as a domain name without fear of being sued? The magazine named Entrepreneur has made legal rumblings suggesting that it violates its trademark rights for an unrelated entity to run a website entitled Entrepreneurs.com. The latter site does not plan to fold its tent quietly, however, and has mounted a vigorous defense of its position.


November 19-20 — New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)

November 19-20 — Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.

“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)

November 19-20 — By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.

November 19-20 — Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).

Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)

November 16-18 — Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.'” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).

November 16-18 — EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).

November 16-18 — Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).

November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).

November 15 — Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).

November 15 — Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).

November 14 — “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice'”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).

November 14 — Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.

And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)

November 14 — “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).

November 13 — From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.

“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …

“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …

“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.'” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).

Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.'”

Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)

November 13 — Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.

November 13 — Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).

November 12 — “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”

November 12 — Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).

November 12 — “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.


November 30-December 2 — Be somewhat less afraid. Notwithstanding a scare campaign by antinuclear activists including the egregious Robert F. Kennedy Jr., two physicists argue that U.S. nuclear power plants are not likely to top the list of targets of opportunity for terrorists seeking to inflict mass casualties (Gerald E. Marsh and George S. Stanford, “Terrorism and Nuclear Power: What are the Risks?”, National Center for Policy Analysis Analysis #374, November; “NY Nuclear Plant Shutdown Sought Pending Security Review”, AP/Dow Jones/Business Times, Nov. 9 (RFK Jr. compares Indian Point facility near NYC to nuclear bomb); NCPA “Ten Second Response” series, “Media Overplays Risk of Terrorist Attacks on Nuclear Power Plants”, Nov. 16). California agricultural officials are seeking to calm public fears that Central Valley crop dusters furnish a likely method of attack on major urban targets; among the planes’ limitations are their constricted range and speed (Michael Mello, “Crop-dusters nothing to fear, officials told”, Modesto Bee, Nov. 29). And for a really contrarian view, U.S. Army veteran Red Thomas has written a short essay on why, if you possess fairly minimal civil defense smarts, you’re likely to survive a chemical, biological or even radiological attack. (“The Real Deal — Words of Wisdom About Gas, Germs, and Nukes” — Snopes.com, via Libertarian Samizdata and Rallying Point weblogs).

November 30-December 2 — “U.S. Judge Dismisses All but One Columbine Lawsuit”. “A federal judge on Tuesday dismissed all but one lawsuit filed against police and all claims lodged against a school district by victims and relatives of people killed and injured in the 1999 Columbine High School shooting, lawyers said.” (Yahoo/Reuters, Nov. 27)

November 30-December 2 — Whiplash days: a memoir. Back in 1992, actor/writer Thomas M. Sipos (books: Vampire Nation, Manhattan Sharks, Halloween Candy) answered a help wanted ad in Los Angeles’s newspaper for lawyers and took a job with a high-volume personal injury law firm. He’s now published on his website a memoir of that experience, entitled “How To Make Money In Soft Tissue Injury” — names changed to protect the not necessarily innocent.

November 30-December 2 — Rejecting an Apple windfall. The news that a disgruntled Apple employee had filed a race discrimination lawsuit seeking $40 million from the computer maker prompted this reaction from one African-American who recalls his own run-in with prejudice at a high-tech employer (AppleLinks, “Moore’s Mailbag”, letter from Marvin Price, Nov. 9; Duncan Campbell, “Apple faces £27m ‘race bias’ lawsuit”, The Guardian, Nov. 9).

November 29 — “Patriot Act would make watchdogs of firms”. “Ordinary businesses, from bicycle shops to bookstores to bowling alleys, are being pressed into service on the home front in the war on terrorism. Under the USA Patriot Act, signed into law by President Bush late last month, they soon will be required to monitor their customers and report ‘suspicious transactions’ to the Treasury Department — though most businesses may not be aware of this.” (Scott Bernard Nelson, Boston Globe, Nov. 18).

Broadcaster Neal Boortz, who unlike many lawmakers actually sat down and read the text of the USA Patriot Act, spells out the details of what this means: “if you go to a business [not just a bank] and spend more than $10,000 in cash that business has to report your name, address, social security number and other pertinent information to the feds. It doesn’t matter whether you spend the money on one item, or a whole shopping cart full … the federal government must be notified.” He adds: “This has absolutely nothing to do with international terrorism” — at least not the variety practiced by the Sept. 11 killers, who used credit cards and “did not deal in large amounts of cash. … They never spent $10,000 in cash with any business. In short, they never engaged in any activity that would have to be reported under Section 365.” (Neal Boortz, “Neal’s Nuze: The ‘Patriot’ Act???”, Nov. 20). In fact, the Treasury Department has been hoping to extend federal “money laundering” law in this manner for years; it just wasn’t pressing an anti-terrorism rationale for doing so (see “Lost in the Wash”, Reason, March 1999). According to Gabriel Schoenfeld in Commentary, one of the conclusions of former CIA counterterrorism deputy director Paul R. Pillar in a major new study of terrorism policy for Brookings is that financial controls are primarily of “symbolic” importance in combating terrorism, which unlike drug trafficking typically involves the transfer of only smallish sums. (“Could September 11 Have Been Averted?”, Commentary, December).

November 29 — Taco Bell a liquor purveyor? Well, no, you can’t buy booze at its outlet in Fort Smith, Ark. However, after several of its employees there attended a party together on their own time, one got into a fatal traffic accident, and before you can say “Yo quiero deep pockets” the lawyers had figured out who they really wanted to blame (Jeff Arnold, “Taco Bell Attorneys Seek Dismissal”, Fort Smith Times-Record, Nov. 9). Update Feb. 20: case settled.

November 29 — Lutefisk as toxic substance, and other reader letters. A Wisconsin attorney writes to say that his state’s employee right-to-know law specifically excludes the Scandinavian discomfort food from being considered a toxic substance; and we hear about precedents for Sept. 11 litigation, the proper response to malicious email pranks, and whether judges should expect any more privacy than the people who appear before them.

November 29 — “North America’s most dangerous mammal”. It’s not the grizzly bear or mountain lion, but adorable Bambi: deer-car collisions kill 130 Americans a year and seriously injure many more. Meanwhile, “nearly all the venison served in America’s finest restaurants is imported from places like New Zealand (where deer are an exotic species).” One idea for getting more on platters and fewer on fenders: reconsidering old laws restricting traffic in hunted game. (Ronald Bailey, Reason, Nov. 21).

November 28 — Bioterror unpreparedness. First the government does its best to render the making of vaccines uneconomic; then it declares that the private sector has failed and vaccine production must be federalized (Sam Kazman & Henry I. Miller, “Uncle Sam’s Vaccines”, National Review Online, Nov. 26; Naomi Aoki, “Nation wants vaccines, but drug makers remain wary of the risks”, Boston Globe, Nov. 14). Meanwhile, the haste with which politicians like Sen. Charles Schumer and anti-intellectual-property activists called (quite unnecessarily) for abrogating Bayer’s patent in its antibiotic Cipro helped send the worst possible signal to drug companies’ research budgeters about the safety of their investments (James Surowiecki, “No Profit, No Cure”, The New Yorker, Nov. 5; John E. Calfee, “Bioterrorism and Pharmaceuticals: The Influence of Secretary Thompson’s Cipro Negotiations”, draft, American Enterprise Institute, Nov. 1).

November 28 — Oklahoma forensics scandal, cont’d. The Washington Post has a substantial front-page piece catching up with it. “Already, a reexamination of [Joyce Gilchrist’s] work has freed a convicted rapist and a death row inmate, overturned a death sentence, and called into question the evidence used to execute a man last year.” (Lois Romano, “Police Chemist’s Missteps Cause Okla. Scandal”, Nov. 26)(see May 9).

November 28 — “Does reading grades aloud invade privacy?” The Supreme Court has now heard arguments on that very strange case (see June 27) in which a teacher who allowed students to rate each other’s performance on an exam was accused of violating federal “educational privacy” laws. (Warren Richey, Christian Science Monitor, Nov. 27; Frank J. Murray, “Students’ grading papers passes Supreme Court’s test”, Washington Times, Nov. 28; Marcia Coyle, “High Court Faces First School Records Case”, National Law Journal, Nov. 13). Update: high court rules practice not unlawful (Feb. 22, 2002).

November 28 — Fiat against further fatherhood. The Wisconsin Supreme Court “has upheld a ban preventing a man who owes thousands of dollars in child support from having any more children. The court ruled that David Oakley, a father of nine, would be imprisoned if he had another child, unless he was able to prove that he would pay support for both that child and his current offspring.” (BBC, “Baby ban on US child support shirker”, Nov. 24).

November 27 — U.K. to compensate relatives who saw WTC attack on TV. “British families who watched their relatives die during live television coverage of the terrorist attacks on the World Trade Center may receive compensation for the trauma they suffered. The Criminal Injuries Compensation Authority (CICA), which normally compensates people who witness in person a relative killed or injured in Britain, has taken the unprecedented decision that people who watched coverage of the 11 September attacks should be eligible for payments. … Those eligible will receive payouts of between £1,000 and £500,000, although the average level will be an estimated £20,000.” Under earlier rules, such payouts were made only in cases where family members witnessed crimes that took place in Great Britain. Critics complain that the U.K. is developing a “compensation culture”. (Matthew Beard, “British families of New York victims may be compensated for trauma”, The Independent, Nov. 19; Dominic Kennedy, “Surprise payout for relatives who saw attack on TV”, The Times, Nov. 19; Sarah Womack, “Cash plan for British TV witnesses”, Daily Telegraph, Nov. 19).

November 27 — Target: ethnic-immigrant landlords. Latest shock-horror on the housing front: many ethnic immigrant landlords prefer to rent units to members of their own minority group. Who knew? Such patterns have been detected among “Cambodians in Long Beach, Latinos in El Monte and Taiwanese in Rosemead”; some landlords, it seems, will take tenants from their own state in Mexico but not from other states in Mexico. The L.A. Times lends a sympathetic ear to civil rights activists who send out “testers” to catch such building owners and supers in the act, though the article does not explore the hefty financial rewards sometimes available when activists succeed in these missions (see “Tripp Wire”, Reason, April 1998). The article quotes no critics of the law, but does unveil yet another demand coming down the pike: “In California, advocates say the state should require antidiscrimination training for landlords.” (Sue Fox, “Mi Casa No Es Su Casa”, L.A. Times, Nov. 21).

November 27 — Columnist-fest. Very topical stuff today:

* The proposed settlement of (some of) the private Microsoft class actions (donations of outdated product to school districts, which could entrench the company even more as standard-setter) may be absurd, but blame that on the absurdity of the underlying lawsuits themselves, argues Nick Schulz (“‘You’re an Evil Predator; Now Teach My Kids'”, TechCentralStation.com, Nov. 23; Matthew Fordahl, “Few criticize Microsoft deal”, AP/Seattle Post-Intelligencer, Nov. 24).

* Canada’s super-liberal asylum policies are coming under a lot more scrutiny (Christie Blatchford, “Canada and terrorism: programmed to receive”, National Post, Nov. 24; “Canada probes 14,000 refugees”, Nov. 24)(see Sept. 14-16). See Cindy Rodriguez, “Suspects take advantage of liberal asylum program”, Boston Globe, Nov. 23 (tossed grenades at airliner, now collects welfare in Ontario).

* “A desperately needed bill to protect the nation’s insurance industry and the greater economy after Sept. 11 remains in dire peril, thanks to the financial pressure group that exerts the most influence over the Democratic Party: the plaintiff trial lawyers of America.” (Robert Novak, “Politics as usual”, syndicated/TownHall, Nov. 22).

November 26 — Utah: rescue searchers sued. “The family of Paul Wayment and his son Gage have filed claims against searchers who did not find 2-year-old Gage before he froze to death last year. The family of Paul Wayment is seeking more than $3 million. Paul Wayment committed suicide after being sentenced to jail for negligent homicide in his son’s death. The family is accusing searchers of being negligent in their efforts to find Gage and are seeking more than $2 million in damage for the deaths of father and son.” (Pat Reavy, “Wayment kin sue searchers”, Deseret News, Nov. 21; Jim Woolf, “Multimillion-Dollar Claim Filed By Wayments Against Searchers”, Salt Lake Tribune, Nov. 21; Lucianne.com thread).

November 26 — “Smokers Told To Fetter Their Fumes”. In suburban Washington, D.C., the Montgomery County, Md. council has approved a measure setting stiff fines for residents who smoke at home if their neighbors object. “Under the county’s new indoor air quality standards, tobacco smoke would be treated in the same manner as other potentially harmful pollutants, such as asbestos, radon, molds or pesticides. If the smoke wafts into a neighbor’s home — whether through a door, a vent or an open window — that neighbor could complain to the county’s Department of Environmental Protection. Smokers, and in some cases landlords or condominium associations that fail to properly ventilate buildings, would face fines of up to $750 per violation if they failed to take steps to mitigate the problem.” “This does not say that you cannot smoke in your house,” said council member Isiah Leggett (D-At Large). “What it does say is that your smoke cannot cross property lines.” Arthur Spitzer, legal director of the American Civil Liberties Union’s capital area chapter, expressed unease over the proposal, but George Washington U. law prof and anti-smoking activist John Banzhaf, who has been known to give class credit to students for suing people, calls it a “major step forward”. (Jo Becker, Washington Post, Nov. 21; Jacob Sullum, “The Home Front”, Reason Online, Nov. 27) (see also Oct. 5-7). Update: plan is dropped after storm of criticism (Jo Becker, “Global Ridicule Extinguishes Montgomery’s Anti-Smoking Bill”, Washington Post, Nov. 28).

November 26 — After racist gunman’s assault, a negligent-security suit. “A San Fernando judge is set to decide if the North Valley Jewish Community Center can be sued for failing to protect 5-year-old Benjamin Kadish from a racist gunman who opened fire inside the Granada Hills facility in August 1999, injuring the boy and four others. Benjamin’s parents, Eleanor and Charles Kadish, sued the center in April, claiming the center’s officials should have known the facility ‘was a target for anti-Semitic attacks’ and taken appropriate security precautions, such as locking entrances and hiring guards.” Defense lawyers for the center call the Kadishes’ lawsuit “inappropriate, divisive and utterly unsupported by the law”. “There cannot be a duty on the [center] to prevent the likes of Buford Furrow from doing this terrible thing,” attorney Scott Edelman said. “They are suing a victim.” (Jean Guccione, “Judge to Rule on Suit Over Shooting”, Los Angeles Times, Nov. 19).

November 23-25 — Disposable turkey pan litigation. The National Law Journal‘s Gail Diane Cox decided to follow up on some of the suits that get filed after each holiday season against makers of disposable turkey roasting pans, alleging that the pans buckled or collapsed causing personal injuries to result from oven-hot birds or drippings. Attorney Matthew Willens of the Rapoport Law Offices in Chicago said his office’s case on behalf of a 69-year-old Illinois woman hurt in a pan incident on Thanksgiving Day 1995 settled for “a decent amount, if not the millions that some of these cases seek,” but that his office did not pursue opportunities for cases brought in by resultant publicity: “We didn’t want to become known as the turkey pan guys.” (“Voir Dire: Thanksgiving law a turkey”, National Law Journal, Nov. 12, not online). (DURABLE LINK)

November 23-25 — “School sued over poor results”. One we missed last month from the U.K. educational scene: “A student is suing her former school, claiming poor teaching was to blame for her failure to achieve a top grade at A-level. Kate Norfolk, who attended £4,000 per term independent school Hurstpierpoint College, West Sussex, says she was not properly prepared for her Latin A-level. … Her family has issued a writ to the High Court, seeking £150,000 to cover the loss of future earnings, school fees and compensation for the distress caused.” (BBC, Oct. 1).

November 23-25 — Australian roundup. In Australia, Supreme Court Justice Peter McClellan has ruled against Kane Rundle’s claim for more than $1 million in compensation for brain damage suffered when, as he leaned out of a train carriage to spray-paint graffiti on a wall, his head collided with a stanchion. Rundle had argued that the State Rail Authority was negligent “because it had failed to ensure a carriage window could not be opened far enough to put his body through.” (Will Temple, Queensland Courier-Mail, Oct. 6). In the state of Victoria, a woman has won a $20,000 payout from the police for being handcuffed by police in a 1993 incident after she failed a breath test; police sources said the woman had “started banging her head against a wall for several minutes and was handcuffed to a chair [for five minutes] to stop her injuring herself” while the woman contended in a 1998 writ that the cuffed state had lasted a half hour and that she had been severely bruised. A police spokesman said the payout was made after considering the expected cost of fighting the claim and that the department did not concede any liability. “In the past 2 1/2 years, about $5 million has been paid out by police over alleged bashings, illegal arrests and jailings. Police have blamed ‘no win, no fee’ lawyers for fueling a flood of claims.” (Nick Papps, “$20,000 payout for handcuffing”, Sunday Herald-Sun (Melbourne), Sept. 9). However, a Perth bodysurfer dumped by a wave lost his case arguing that the local council breached its duty of care by not posting signs warning of the dangers of bodysurfing, leading one frustrated Aussie private citizen to post a formal declaration: “I hereby publicly totally renounce any duty of care to anybody. … If a person wants to commit suicide, it is not my duty to talk them out of it.” (“Ziggy”, “Blame Others for Your Mistakes“). (DURABLE LINK)

November 21-22 — Liability limits speed WTC recovery. How to help New York City and the commercial aviation business recover from the devastating blows of September? When the chips are down, there’s no substitute for reining in our system of unlimited liability and unpredictable punitive damages, as is being recognized in the WTC case by some unlikely candidates for the role of tort reformer, like New York Sens. Hillary Rodham Clinton and Chuck Schumer, both Democrats who have opposed liability limits in the past. Clinton and Schumer have now successfully pressed for legislation to protect the operator/leaseholder of the destroyed WTC, Larry A. Silverstein; the Port Authority; the city of New York; airport operators such as Boston’s Logan; and certain aircraft makers from the prospect of unlimited, ruinous liability in a decade or more of future litigation. Most of these entities will see their exposure limited to the extent of their insurance or, in the case of the self-insured city of New York, to $350 million, a figure that approximates the city’s annual payout for suits of all other kinds. Sen. Patty Murray (D-Wash.) went to bat for provisions protecting Boeing, which has large operations in Washington state; the airlines themselves were protected in an earlier round.

House Judiciary Chairman James Sensenbrenner (R-Wisc.) warns that various less obvious targets that wield less clout on the Hill, including World Trade Center architects, steel manufacturers, jet-fuel providers, and the state of New York, still face open-ended liability. You’d think this would be what educators call a teachable moment for longtime tort-reform opponents Hillary and Chuck, since they’ve now acknowledged that when it’s really necessary to pick up and keep going after disaster, some limits are needed on the power of their friends in the trial bar to keep the blame process in play forever. Unfortunately, both New York senators are signaling that the circumstances in this case were, um, unique, and that no other defendants worried about liability exposure should expect any sympathy from them. (DURABLE LINK)

SOURCES: “Hillary for Tort Reform” (editorial), Wall Street Journal, Nov. 20 (online subscribers only); statement of Rep. James Sensenbrenner, chairman, House Judiciary Committee, Nov. 16; Christopher Marquis, “Measure Sets Liability Caps for New York and Landlord”, New York Times, Nov. 17; “War Profiteers” (editorial), OpinionJournal.com, Oct. 14; “War Profiteers II” (editorial), Wall Street Journal, Nov. 8; and WSJ coverage: Jim VandeHei, “Airline-Security Bill Will Extend Liability Shield to Boeing, Others,” Nov. 16; Jim VandeHei and Milo Geyelin, “Bush Seeks to Limit the Liability Of Firms Sued as Result of Attacks”, Oct. 25; Jim VandeHei and Jess Bravin, “Lawmakers Work to Provide Liability Shields For Boeing, World Trade Center Leaseholder”, Oct. 24.

November 21-22 — “They’re back!” No, this isn’t the first parody of what will happen if apprehended Al-Qaeda terrorists hire big-name American trial lawyers to get them off, but it’s one of the funnier ones (Victor Davis Hanson, National Review Online, Nov. 20). See also Jonathan Kay, “Bullets over barristers”, National Post, Oct. 13; Michelle Malkin, “No more jury trials for terrorists”, TownHall.com, Oct. 24; James S. Robbins, “Bring on the Dream Team!”, National Review Online, Oct. 9. Incidentally: here’s an inspiring photo weblog of Afghan liberation (via Matt Welch).

November 21-22 — Fight over dog’s disposition said to cost taxpayers $200K. An eight-year legal battle over a Lhasa Apso by the name of Word, alleged by the city of Seattle to be vicious, has at last ended with the dog’s reprieve. “Attorneys for Word’s owner say the fight has cost taxpayers well over $200,000.” (Sara Jean Green, “Canine con gets reprieve after eight years”, Seattle Times, Nov. 14).

November 21-22 — Welcome SmarterTimes readers. Ira Stoll’s invaluable New York Times-watching service gave us a nice mention Tuesday in a discussion of an absurdly one-sided piece the Times ran on the Americans with Disabilities Act. (Nov. 20, see bottom). Also linking us recently: India’s Bombay Bar Association (“Law-U.S.”); Duke Update Morning Run (college sports); John Brignell’s NumberWatch from the U.K. (a site “devoted to the monitoring of the misleading numbers that rain down on us via the media”); Citizen’s Coalition for Children’s Justice (zero tolerance abuses); CPA Wizard; National Anxiety Center; Jim’s Cop Stuff; Egotist (“The mildly libertarian stance bothers me but that aside this site seems to actually have something to say, which is sadly not the rule on the internet”); Randleman Land; weblogs More Than Zero (Andrew Hofer), LawSchoolCrazy, Nov. 17 (Jorge Schmidt, Univ. of Miami — “Every once in a while I need a reality check. Nothing is better at reminding me what most people think of lawyers, and the law, than the outstanding Overlawyered.com site”), What the…? (Andrew Shulman — “find out how funny and sad our legal system is”). Best wishes to all of you, and happy Thanksgiving.

May 2001 archives, part 3


May 31 — Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.

Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.

May 31 — “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).

May 31 — Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (“Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).

May 30 — Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).

May 30 — Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s [“creative destruction”] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).

May 30 — Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.

May 29 — Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (“Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).

May 29 — States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert'”, National Law Journal, May 25).

May 29 — Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).

May 28 — Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:

* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament'” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).

* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).

* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).

May 25-27 — “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ‘self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).

May 25-27 — Columnist-fest. More reasons to go on reading newspapers:

* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (“Stray Dogs As a Litigant’s Best Friend”, April 13).

* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (“Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (“Sickening policy on medical marijuana”, May 17).

* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).

May 25-27 — “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).

May 24 — “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).

May 24 — Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).

May 24 — Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (“Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).

May 23 — “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.

However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.'” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)

May 23 — “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)

MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times‘s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (“‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (“The Times v. Moyers” (editorial), April 16). (DURABLE LINK)

May 22 — From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (“Woman sues stage hypnotist over ‘abuse memories'”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.

May 22 — Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).

Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?'”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).

May 22 — Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).

May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)

May 21 — “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)

May 21 — “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)

MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.

May 2001 archives


May 10 — “Barbecue group sued over contest”. Jim Woodsmall of Jumpin’ Jim’s BBQ in Johnston, Ia., has sued the Kansas City Barbeque Society, charging that his business has suffered because the society has failed to award his barbecue recipe the stellar ratings he feels it deserved. The enthusiast group fails to follow impartial and uniform rules in its cook-offs, Woodsmall claims, which he thinks amounts to fraud and negligence. (Lindsey A. Henry, Des Moines Register, May 8).

May 10 — Fortune on Lemelson patents. We’ve run a couple of items on the amazing Jerome Lemelson patent operation (see Jan. 19, 2001 and August 28, 1999) and now Fortune weighs in with the best overview we’ve seen. Lemelson, who died in 1997, filed patents for hundreds of ideas and industrial processes which he said he had invented, and which underlay such familiar modern technologies as VCRs, fax machines, bar-code scanners, camcorders and automated warehouses. A mechanical genius? Well, at least a genius in figuring out the angles that could be worked with American patent law: by filing vague patents and then arranging to delay their issuance while amending their claims to adjust to later technological developments, Lemelson steered them into the path of unfolding technology, eventually securing bonanzas for his tireless litigation machine. Foreign-owned companies folded first because they were afraid of American juries, which helped give Lemelson the war chest needed to break the resistance of most of the big U.S.-based industries as well. $1.5 billion in royalties later, his estate continues to sue some 400 companies, with many more likely to be added in years to come. (Nicholas Varchaver, “The Patent King”, May 14).

May 10 — Prospect of $3 gas. One reason refinery disruptions lead to big spikes in the price of gasoline at the pump: environmental rules end up mandating a different blend of gas for each state, hampering efforts to ship supplies to where they’re most needed. (Ron Scherer, “50 reasons gasoline isn’t cheaper”, Christian Science Monitor, May 4; Ben Lieberman (Competitive Enterprise Institute), “Skyrocketing Ga$: What the Feds Can Do”, New York Post, April 23, reprinted at CEI site).

May 10 — Welcome Norwegian readers. We get discussed, and several of our recent news items summarized, on the “humor” section of Norway’s Spray Internet service (Bjørn Tore Øren, “For mange advokater”, May 8). Among other non-U.S. links which have brought us visitors: Australia’s legal-beat webzine, Justinian (“A journal with glamour — yet no friends”; more); Baker & Ballantyne, in the U.K.; the Virtual Law Library pages on media law compiled by Rosemary Pattenden at the University of East Anglia; and Sweden’s libertarian- leaning Contra.nu (“Har advokatkåren i USA för stort inflytande?” they ask of us)(more).

May 9 — Oklahoma forensics scandal. After serving fifteen years in prison on a 1986 rape conviction, Jeffrey Pierce was released Monday after new DNA evidence refuted testimony against him by a forensic specialist whose work is the subject of a growing furor. “From 1980 to 1993, Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City police laboratory scientist, often helping prosecutors win convictions by identifying suspects with hair, blood or carpet fibers taken from crime scenes.” Although peers, courts and professional organizations repeatedly questioned the competence and ethical integrity of her work, prosecutors asked few questions, perhaps because she was getting them a steady stream of positive IDs and jury verdicts in their favor. Now Oklahoma Gov. Frank Keating has ordered an investigation of felony cases on which Gilchrist worked after an FBI report “found she had misidentified evidence or given improper courtroom testimony in at least five of eight cases the agency reviewed.” (Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry”, New York Times, May 8; “Inquiry Focuses on Scientist Used by Prosecutors”, May 2)(reg)

May 9 — Not about the money. Foreign policy making on a contingency fee: “When attorneys agreed to champion the causes of American victims of terrorism in the Middle East, it wasn’t supposed to be about the money.” We’ve heard that one before, haven’t we? “But the prospect of multimillion-dollar fees in what once seemed to be long-shot litigation against Iran has left lawyers fighting over fees in federal court in Washington, D.C. High principles of international law and justice aren’t at stake. It’s simply a matter of who gets paid.” (Jonathan Groner, “Anti-Terrorism Verdicts Spur Big Fee Fights”, Legal Times, April 18).

May 9 — Update: cookie lawsuit crumbles. Half-baked all along, and now dunked: a federal court in March dismissed a would-be class action lawsuit against web ad agency DoubleClick over its placing of “cookies” on web users’ hard drives. Other such suits remain pending (see also Feb. 2, 2000); this one was brought by Milberg Weiss’s Melvyn Weiss and by Bernstein, Litowitz (Michael A. Riccardi, “DoubleClick Can Keep Hand in Cookie Jar, Federal Judge Rules”, New York Law Journal, March 30).

May 8 — “Lawyers to Get $4.7 Million in Suit Against Iomega”. “Lawyers in a class action suit alleging defects in portable computer Zip disk drives will get the only cash payout, up to $4.7 million, in a proposed settlement with manufacturer Iomega Corp., according to the company’s Web site.” Rebates of between $5 and $40 will be offered to past customers who buy new Iomega products, while Milberg Weiss and three other law firms expect to split their fees in crisp greenbacks, not coupons, if a Delaware judge approves the settlement in June. (Yahoo/Reuters, April 12) (Rinaldi class action settlement notice, Iomega website).

May 8 — A definition (via Sony’s Morita and IBM’s Opel). “Litigious (li-TIJ-uhs) adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits; 3. Inclined to disputes and arguments. [From Middle English, from Latin litigiosus from litigium, dispute.]

“‘My friend John Opel of IBM wrote an article a few years ago titled ‘Our Litigious Society,’ so I knew I was not alone in my view that lawyers and litigation have become severe handicaps to business, and sometimes worse.” — Sony co-founder Akio Morita (Wordsmith.org “A Word a Day” service, scroll to Jan. 26).

May 8 — “Halt cohabiting or no bail, judge tells defendants”. “A federal judge in Charlotte is using a 19th-century N.C. law banning fornication and adultery, telling defendants they won’t be freed on bond until they agree to get married, move out of the house or have their partner leave. U.S. Magistrate Judge Carl Horn won’t release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805.” (Eric Frazier and Gary L. Wright, Charlotte Observer, April 4) (see also May 18, 2000).

May 7 — Says cat attacked his dog; wants $1.5 million. “A San Marcos man has filed a $1.5 million claim against the city because a cat who lives in the Escondido Public Library allegedly attacked his dog.” Richard Espinosa says he was visiting the library on November 16 with his assistance dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library Cat because it’s allowed to live in the building, attacked the dog inflicting scratches and punctures. As for Espinosa, wouldn’t you know, he “was emotionally traumatized and suffers from flashbacks, terror, nightmares and other problems.” Four lawyers declined to take his case and he finally filed it himself. “The cat was apparently uninjured.” (Jonathan Heller, “Escondido gets $1.5 million claim; library cat allegedly assaulted dog”, San Diego Union-Tribune, May 4) (see letter to the editor from Espinosa, June 13).

May 7 — Judge throws out hog farm suit. As was reported a few months ago, a number of environmental groups aim to take a lesson from the tobacco affair by using mass lawsuit campaigns to pursue various goals which they haven’t been able to secure through the legislative and electoral process. To do this they’ve teamed up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots of publicity in December with one of its first projects, suing Smithfield Farms for billions over the nuisance posed by large-scale hog farming, a project apparently masterminded by Florida trial lawyer Mike Papantonio (tobacco, asbestos, fen-phen) and with suits against chicken and livestock operations promised in later phases of the effort (see Dec. 7, 2000). Far less publicity has been accorded to Judge Donald W. Stephens’s ruling in March which threw out the first two lawsuits as having failed to state a legal claim against the large hog packer and raiser. (Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still on board with his headline-ready name to front for the lawyers in the press, but he doesn’t seem to have gone out of his way to call attention to the adverse ruling (“North Carolina judge dismisses lawsuits against hog producer”, AP/MSNBC, March 30; Scott Kilman, “Environmental groups target factory-style hog farm facilities”, Wall Street Journal/MSNBC, undated; Smithfield press release, March 29).

MORE: National Public Radio, “Living on Earth” with Steve Curwood and reporter Leda Hartman, week of Feb. 16; Water Keeper Alliance (Kennedy’s group), hog campaign homepage with list of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz, Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann, Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston; F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston; Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.), Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton (Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham, N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare “Conoco Could Face $500 Million Lawsuit Over Bayou Water Pollution Problems”, Solid Waste Digest: Southern Edition, March 2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).

May 7 — Website accessibility law hits the U.K. “Scottish companies were warned yesterday that they could face prosecution if their websites are not accessible to the disabled. Poorly-designed websites are often incompatible with Braille software.” (more) (yet more) (Pauline McInnes, “Firms warned on websites access”, The Scotsman, April 19).

May 4-6 — By reader acclaim: “Vegetarian sues McDonald’s over meaty fries”. Seattle attorney Harish Bharti wants hundreds of millions of dollars from the burger chain for its acknowledged policy of adding small amounts of beef flavoring to its french fries, which he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters, May 3). Notable detail that hasn’t made it into American accounts of the case we’ve seen, but does appear in the Times of India: “When he is not practising law in Seattle, Bharti says he teaches at Gerry Spence’s exclusive College for Trial Lawyers in Wyoming”. Does this mean you can be a predator without being a carnivore? (“US Hindus take on McDonald’s over French fries”, Times of India, May 3) (see also Aug. 30, 1999).

May 4-6 — Mississippi’s forum-shopping capital. The little town of Fayette, Miss., reports the National Law Journal, is “ground zero for the largest legal attack on the pharmaceutical industry” in memory. Tens of thousands of plaintiffs are suing in the Fayette courthouse over claimed side effects from such drugs as fen-phen, Rezulin, and Propulsid, not because they’re local residents (most aren’t) but because the state’s unusually lax courtroom rules allow lawyers to bring them in from elsewhere to profit from the town’s unique brand of justice. The townspeople, nearly half of whom are below the poverty level and only half of whom graduated from high school, “have shown that they are willing to render huge compensatory and punitive damages awards”. Among other big-dollar outcomes, Houston plaintiff’s lawyer Mike Gallagher of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours…” There’s just one judge in Fayette County to hear civil cases, Judge Lamar Pickard, whose handling of trials is bitterly complained of by out-of-town defendants. As for appeal, that route became less promising for defendants last November when plaintiff’s lawyers solidified their hold on the Mississippi Supreme Court by knocking off moderate incumbent Chief Justice Lenore Prather.

Lots of good details here, including how the Bankston Drug Store, on Main Street in Fayette since 1902, has the bad fortune to get named in nearly every suit because that tactic allows the lawyers to keep the case from being removed to federal court. Plaintiff’s lawyer Gallagher, who also played a prominent role in the breast implant affair, says criticism of the county’s jurors as easily played on by lawyers “‘sounds racist’, since the jury pool is predominantly black”. He also brushes off defendants’ complaints about forum-shopping with all the wit and sensibility at his command: “They want to tell me where I can sue them for the damage they caused? They can kiss my a**.” (Mark Ballard, “Mississippi becomes a mecca for tort suits”, National Law Journal, April 30).

May 4-6 — Agenda item for Ashcroft. Attorney General Ashcroft could make a real difference for beleaguered upstate New York communities by backing off the Justice Department’s Reno-era policy of avid support for revival of centuries-dormant Indian land claims, which went so far as to include the brutalist tactic of naming as defendants individual landowners whose family titles had lain undisturbed since the early days of the Republic (see Oct. 27, 1999, Feb. 1, 2000) (John Woods, “Long-Running Indian Land Claims in New York May Hinge on Ashcroft’s Stance”, New York Law Journal, April 16).

May 3 — “Family of shooting victim sue owners of Jewish day-care center”. If the gunman doesn’t succeed in wiping out your institution, maybe the lawyers will: “The parents of a boy who was shot by a white supremacist at a Jewish day-care center have filed a lawsuit claiming the center’s owners failed to provide the necessary security to prevent hate crime attacks.” Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May 1).

May 3 — Update: mills of legal discipline. They grind slow, that’s for sure, but does that mean they grind exceeding fine? A disciplinary panel has ended its investigation of New Hampshire chief justice David Brock, letting him off with an admonishment, in the protracted controversy over the conduct (see April 5 and Oct. 11, 2000) which also led to his impeachment and acquittal in the state senate; Brock’s lawyer had threatened to sue the disciplinary panel if it continued its probe, and a dissenting committee member called that lawsuit-threat “intended to intimidate” (“Threat of lawsuit ended Brock case”, Nashua Telegraph, April 23; Dan Tuohy, “Finding bolsters call for reform”, Foster’s Daily Democrat, April 26). A hearing committee of the District of Columbia Board on Professional Responsibility has recommended that Mark Hager be suspended for three years over the episode [see Feb. 23, 2000] in which he and attorney John Traficonte “began negotiations with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay himself and Hager $225,000 in exchange for which they would abandon their representation, agree to hold the agreement and fee secret from the public and their clients, and promise not to sue Warner-Lambert in the future. Traficonte and Hager accepted the offer without first obtaining the approval of any class member.” The disciplinary committee “found that Hager’s conduct was shockingly outrageous, and that his status as a law professor was a factor in aggravation.” We’ve seen no indication that anyone in the administration of American University’s law school, where Hager continues to teach, has expressed the smallest misgivings about the example that students are supposed to take from his conduct (Denise Ryan, law.com D.C., Board on Professional Responsibility No. 31-98, In re Hager, issued Nov. 30, 2000). (Update Jul. 19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan tort lawyer and politician Geoffrey Fieger faces charges before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges (“Fieger Under Fire For Alleged Swearing Fit”, MSNBC, April 17).

May 3 — “Valley doctors caught in ‘lawsuit war zone'”. A report from the Texas Board of Medical Examiners finds medical malpractice cases approximately tripled in 1999 in Texas’s McAllen-Brownsville region compared with the previous year. Among short-cuts lawyers are accused of employing: suing doctors without an authorization from the client, and hiring as their medical expert a family doctor who charges $500 an hour and has reviewed 700 cases for lawyers, second-guessing the work of such specialists as cardiovascular surgeons, but has not herself (according to an opposing lawyer) had hospital privileges since 1997. (James Pinkerton, Houston Chronicle, March 2 — via Houston CALA). State representative Juan Hinojosa has introduced a bill that would allow doctors and hospitals to countersue lawyers and clients who file suits with reckless disregard as to whether reasonable grounds exist for their action. (“Doctors seek new remedy to fight frivolous lawsuits”, CALA Houston, undated).

May 2 — Suing the coach. “A teenager, who felt she was destined for greatness as a softball player, has filed a $700,000 lawsuit against her former coach, alleging his ‘incorrect’ teaching style ruined her chances for an athletic scholarship. Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her personal pitching coach, Roy Jenderko, of Warminster, not only taught her an illegal style of pitching but also used ‘favorite players’ which resulted in demoralizing the teen. ” (Dave Sommers, “Legal Pitch”, The Trentonian, May 1).

May 2 — Trustbusters sans frontieres. Truly awful idea that surfaced in the press a while back: a bipartisan group of senators led by Sen. Arlen Specter (R-Pa.) say they’re trying to pressure the Bush administration to file an antitrust suit against the Organization of Petroleum Exporting Countries, accusing it of restricting the output of oil in order to raise prices to consumers in countries like ours — which is, of course, OPEC’s reason for existence. “Most antitrust and foreign policy experts interviewed say they cannot imagine a scenario in which such legal action would succeed, or that any president would risk his foreign policy goals for such a lawsuit”, reports the National Law Journal. But even the gesture of inviting unelected judges and unpredictable juries to punish sovereign foreign powers would increase the chances of our landing in a series of confrontations and international incidents that would be at best imperfectly manageable by the nation’s executive branch and diplomatic corps (which cannot, for example, necessarily offer to reverse or suspend court decisions as a bargaining chip).

The United States’s relations with OPEC countries, it will be recalled, have on occasion embroiled us in actual shooting wars, which are bad enough when entered after deliberation on the initiative of those to whom such decisions are entrusted in our system of separation of powers, and would be all the less supportable if brought on us by the doings of some rambunctious judge or indignant jury. Wouldn’t it be simpler for Sen. Specter to just introduce a bill providing that the courts of the United States get to run the world from now on? (Matthew Morrissey, “Senators to Press for Suing OPEC Over Pricing”, National Law Journal, March 1).

May 1 — Columnist-fest. Scourings from our bookmark file:

* Mark Steyn on the Indian residential-school lawsuits that may soon bankrupt leading Canadian churches (see Aug. 23, 2000): (“I’ll give you ‘cultural genocide'”, National Post, April 9). Bonus: Steyn on protectionism, globalization and Quebec City (“Don’t fence me in”, April 19).

* Federalists under fire: there’s a press campaign under way to demonize the Federalist Society, the national organization for libertarian and conservative lawyers and law students. The Society has done a whole lot to advance national understanding of litigation abuses and overuse of the courts — could that be one reason it’s made so many powerful enemies? (Thomas Bray, “Life in the Vast Lane”, OpinionJournal.com, April 17; Marci Hamilton, “Opening Up the Law Schools: Why The Federalist Society Is Invaluable To Robust Debate”, FindLaw Writ, April 25; William Murchison, “In Defense of the Federalist Society”, Dallas Morning News, April 25).

* A Bush misstep: the White House has named drug-war advocate and Weekly Standard contributor John P. Walters as head of the Office of National Drug Control Policy. “Walters, almost alone among those who have spent serious professional time on drug abuse in America, harbors no misgivings over the fact that we’ve been crowding our prisons almost to the bursting point with nonviolent drug offenders.” (William Raspberry, “A Draco of Drugs”, Washington Post, April 30) (Lindesmith Center).

* “Overreaching IP legal teams kick the firm they supposedly represent”: Seth Shulman of Technology Review on the “patented peanut butter sandwich” case (see Jan. 30). (“Owning the Future: PB&J Patent Punch-up”, May). Also: California judge William W. Bedsworth (“Food Fight!”, The Recorder, March 16).


May 18-20 — “Couple sues for doggie damages”. Claiming that their 4-year-old golden retriever Boomer was hurt by an “invisible fence” electronic collar device, Andrew and Alyce Pacher, of Vandalia, Ohio, want to name the dog itself as a plaintiff in the suit. “It’s my opinion that it’s clear dogs cannot sue under Ohio law,” says the fence company’s lawyer. But the Pachers’ attorney, Paul Leonard, a former lieutenant governor and ex-mayor of Dayton, says that’s exactly what he hopes to change: he’s “hoping to upgrade the legal status of dogs in Ohio.” (“Damages for Injuries Caused by Invisible Fence Sought for Dog”, AP/FoxNews.com, May 11).

May 18-20 — “Fortune Magazine Ranks ATLA 5th Most Powerful Lobby”. The business magazine finds that plaintiff’s lawyers have more clout in Washington than the U.S. Chamber of Commerce or the AFL-CIO; more than Hollywood or the doctors or the realtors or the teachers or the bankers. (Fortune, May 28; ATLA jubilates over its rise from 6th to 5th, May 15).

May 18-20 — Batch of reader letters. Our biggest sack of correspondence yet includes a note from a reader wondering if some open-minded attorney would like to help draft a loser-pays initiative for the ballot in Washington state; more about carbonless paper allergies, the effects of swallowing 9mm bullets, the Granicy trial in California, and “consumer columns” that promote lawyers’ services; a link between ergonomics and gun control controversies; and a reader’s dissent on the case of the boy ticketed for jaywalking after being hit by a truck.

May 17 — “Crash lawyers like Boeing move”. Attorneys who sue after midair mishaps are pleased that Boeing is planning to relocate its headquarters to Chicago. They say the courts of Cook County, Ill., hand out much higher verdicts than those of Seattle, the aircraft maker’s former hometown. Some lawyers in fact predict that domestic crashes, at least when the plane is Boeing-made, are apt to be sued in Cook County from now on regardless of where the flight originated or went down; under the liberal rules of forum-shopping that prevail in American courts, most big airlines may be susceptible to venue in the Windy City since they do at least some business there. (Blake Morrison, “Crash lawyers like Boeing move”, USA Today, May 16).

May 17 — Like a hole in the head. As if the nine private law schools in the state of Massachusetts weren’t enough, proponents now want to establish a public one by having the state take over the struggling Southern New England School of Law at North Dartmouth, near New Bedford. (Denise Magnell, “Crash Course”, Boston Law Tribune, May 1).

May 17 — Lessons of shrub-case jailing. The months-long contempt-of-court jailing of John Thoburn of Fairfax County, Va. for refusing to erect enough trees and shrubs around his golf driving range is a good example of the excesses of bureaucratic legalism, says Washington Post columnist Marc Fisher (“In Fairfax shrub fight, Both Sides Dig In Stubbornly”, April 26). Some of the county’s elected supervisors voice few misgivings about the widely publicized showdown, saying their constituents want them to be tougher in cracking down on zoning violations. (Peter Whoriskey and Michael D. Shear, “Fairfax Zoning Case Draws World Attention”, Washington Post, April 21) (freejohnthoburn.com).

May 16 — No baloney. “A suspected drug dealer who was served a bullet-and-bologna sandwich wants a side of lettuce — about $5 million worth. ” Louis Olivo says he was given an officially prepared lunch during a break in a Brooklyn Supreme Court hearing last week, and felt something “crunchy” which turned out to be a bullet. Surgery (not syrup of ipecac?) is expected to remove the 9mm bullet from Olivo’s stomach; his lawyer wants $5 million (Christopher Francescani, “$5M Lawsuit Over Bulletin in Bologna”, New York Post, May 15) (& letter to the editor, May 18)

May 16 — “Who’s afraid of principled judges?” More questions should be raised about a retreat held at Farmington, Pa. earlier this month in which 42 Democratic Senators were lectured on the need to apply ideological litmus tests to judicial nominees, writes Denver Post columnist Al Knight. (May 13). “Liberals rightly decried efforts a decade ago to turn membership in the American Civil Liberties Union into a disqualification for high office; current efforts to do the same thing to the Federalist Society are equally wrong. … In fact, they are the only group, liberal or conservative, that regularly sponsors debates throughout the nation’s law schools on important public-policy issues.” (Howard Shelansky, “Who’s Afraid of the Federalist Society?”, Wall Street Journal, May 15).

May 16 — Drawing pictures of weapons. In Oldsmar, Fla., an eleven-year-old “was taken from his elementary school in handcuffs after his classmates turned him in for drawing pictures of weapons.” (Ed Quioco and Julie Church, “Student removed from class because of drawings”, St. Petersburg Times, May 11; “Pinellas fifth grader cuffed, sent home after classmates turn him in for drawing weapons”, AP/Fort Lauderdale Sun-Sentinel, May 11). In Sunderland, England, police raided Roland Hopper’s 11th birthday party and arrested him as he cut the cake after he was seen playing with the new pellet gun his mother had bought him (“Armed Police Raid 11th Birthday”, Newcastle Journal, April 10). And the website ztnightmares.com, which developed out of a controversy at Lewis-Palmer High School in Monument, Colo., “publicizes the downside or evils of zero tolerance school discipline policies” and has a noteworthy list of outside links as well as horror stories.

May 15 — “Judges or priests?”. Why have judicial nomination fights taken on the intensity and bitterness once associated with religious disputes? “The only places left in this country that could be described as temples — for that is how we treat them — are the courts. … They are temples because the judges who sit in them now constitute a priesthood, an oracular class … we have abdicated to them our personal responsibility and, in many cases, even what used to be the smallest judgment call a citizen had to make for himself.” (Tunku Varadarajan, WSJ OpinionJournal.com, May 11).

May 15 — Techies fear Calif. anti-confidentiality bill. Trial lawyers have been pushing hard for the enactment of legislation granting them wide leeway to disseminate to anyone they please much of the confidential business information they dig up by compulsory process in lawsuits. (At present, judges are free to issue “protective orders” which restrain such dissemination.) Proponents say lawyers will use this new power to publicize serious safety hazards that now remain unaired; critics predict they will use it to stir up more lawsuits and for general leverage against defendants who have been found guilty of no wrong but who don’t want the inner details of their business to fall into the hands of competitors or others. A lawyer-backed bill had been hurtling toward enactment in California following the Firestone debacle, but now a counterforce has emerged in the person of high-tech execs who say the proposal “could expose confidential company information, stifle innovation and encourage frivolous litigation. … TechNet CEO Rick White called the bills ‘the most significant threat to California’s technology companies since Prop. 211.’ White was referring to the 1996 initiative that would have made company directors and high-ranking executives personally vulnerable to shareholder lawsuits.” (Scott Harris, “Old Foes Squabble Over Secrecy Bills”, Industry Standard/Law.com, May 10).

May 15 — Canadian court: divorce settlements never final. The Ontario Court of Appeal has ruled that courts may revisit and overturn former divorce settlements if a “material change of circumstances” has taken place since the original deal. “Tens of thousands of people who believed they had agreed to a ‘final’ divorce settlement could face more financial demands … Family law lawyers predict a surge of legal attacks on separation agreements and marriage contracts as a result of the ruling.” (Cristin Schmitz, “Divorce deals never final: court”, Southam News/National Post, April 28).

May 14 — Write a very clear will. Or else your estate could wind up being fought over endlessly in court like that of musician Jerry Garcia (Kevin Livingston, “Garcia Estate Fight Keeps On Truckin'”, The Recorder, April 25; Steve Silverman, “Online Fans Sing Blues About Garcia Estate Wrangling”, Wired News, Dec. 16, 1996; Don Knapp, “Garcia vs. Garcia in battle for Grateful wealth”, CNN, Dec. 14, 1996). Or actor James Mason (A Star is Born, North by Northwest) (“He would have been horrified by all this. … he hated litigation”) (Caroline Davies, “James Mason’s ashes finally laid to rest”, Daily Telegraph (London), Nov. 25, 2000). Or timber heir H.J. Lutcher Stark of Orange, Texas, who died in 1965 and whose estate, with that of his wives, has spawned several rounds of litigation which look as far back for their subject matter as 1939 and are still in progress (William P. Barrett, “How Lawyers Get Rich”, Forbes, April 2 (reg)).

May 14 — City gun suits: “extortion parading as law”. To curb the use of officially sponsored litigation as a regulatory bludgeon, as in the gun suits, the Cato Institute’s Robert Levy recommends “a ‘government pays’ rule for legal fees when a governmental unit is the losing plaintiff in a civil case”. (Robert A. Levy, “Pistol Whipped: Baseless Lawsuits, Foolish Laws”, Cato Policy Analysis #400 (executive summary links to full paper — PDF))

May 14 — Update: “Messiah” prisoner’s lawsuit dismissed. In a 22-page opinion, federal district judge David M. Lawson has dismissed the lawsuit filed by a Michigan prisoner claiming recognition as the Messiah (see April 30). The opinion contains much to reward the curious reader, such as the list on page 5 of the inmate’s demands (including “5 million breeding pairs of bison” and “25,000 mature breeding pairs of every creature that exists in the State of Michigan,” and the passage on page 18 citing as precedent for dismissal similar previous cases such as Grier v. Reagan (E.D. Pa. Apr. 1, 1986), “finding that plaintiff’s claim she was God of the Universe fantastic and delusional and dismissing as frivolous complaint which sought items ranging from a size sixteen mink coat and diamond jewelry to a three bedroom home in the suburbs and a catered party at the Spectrum in Philadelphia”). (opinion dated April 26 (PDF), Michigan Bar Association site) (DURABLE LINK)

May 11-13 — Welcome Aardvark Daily readers (NZ). “New Zealand’s leading source of Net-Industry news and commentary since 1995” just referred us a whole bunch of antipodal visitors by featuring this website in its “Lighten Up” section. It says we offer “an aggregation of quirky and oddball legal actions which go to prove that the USA has far too many lawyers for its own good”. (Aardvark.co.nz). For NZ-related items on this site, check out July 26, Sept. 8 and Oct. 31, 2000, as well as “Look for the Kiwi Label”, Reason, July 2000, by our editor.

May 11-13 — New York tobacco fees. “An arbitration panel has awarded $625 million in attorneys’ fees to the six firms that were hired by New York state to sue the tobacco industry, say sources close to the arbitration report.” The well-connected city law firm of Schneider, Kleinick, Weitz, Damashek & Shoot (which last year was reported to be renting office space to New York Assembly Speaker Sheldon Silver; see May 1, 2000) will receive $98.4 million. Three firms that took a major national role in the tobacco heist will share $343.8 million from the New York booty, to add to their rich haul from other states; they are Ness Motley, Richard Scruggs’ Mississippi firm, and Seattle’s Hagens & Berman. (Daniel Wise, “Six Firms Split $625 Million in Fees for New York’s Share of Big Tobacco Case,” New York Law Journal, April 24). Update Jun. 21-23, 2002: judge to review ethical questions raised by fee award.

May 11-13 — “Judges behaving badly”. The National Law Journal‘s fourth annual roundup of judicial injudiciousness includes vignettes of jurists pursuing personal vendettas, earning outside income in highly irregular ways, jailing people without findings of guilt, and getting in all sorts of trouble on matters of sex. Then there’s twice-elected Judge Ellis Willard of Sharkey County, Mississippi, who allegedly “fabricated evidence such as docket pages, arrest warrants, faxes [and] officers’ releases.” That was why he got in trouble, not just because he was fond of holding court in his Beaudron Pawn Shop and Tire Center, “a tire warehouse flanked by service bays on one side and a store that holds the judge’s collection of Coca-Cola memorabilia.” (Gail Diane Cox, National Law Journal, April 30).

May 11-13 — Update: Compaq beats glitch suit. In 1999, after Toshiba ponied up more than a billion dollars to settle a class action charging that its laptops had a glitch in their floppy drives, lawyers filed follow-on claims against other laptop makers whose machines they said displayed the same problem. But Compaq refused to settle, and now Beaumont, Tex. federal judge Thad Heartfield has felt constrained to dismiss the suit against it on the grounds that plaintiff’s lawyer Wayne Reaud had failed to show that any user suffered the requisite $5,000 in damages. (Daniel Fisher, “Billion-Dollar Bluff”, Forbes, April 16 (now requires registration)).


May 31 — Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.

Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.

May 31 — “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).

May 31 — Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (“Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).

May 30 — Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).

May 30 — Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s [“creative destruction”] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).

May 30 — Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.

May 29 — Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (“Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).

May 29 — States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert'”, National Law Journal, May 25).

May 29 — Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).

May 28 — Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:

* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament'” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).

* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).

* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).

May 25-27 — “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ‘self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).

May 25-27 — Columnist-fest. More reasons to go on reading newspapers:

* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (“Stray Dogs As a Litigant’s Best Friend”, April 13).

* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (“Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (“Sickening policy on medical marijuana”, May 17).

* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).

May 25-27 — “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).

May 24 — “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).

May 24 — Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).

May 24 — Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (“Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).

May 23 — “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.

However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.'” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)

May 23 — “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)

MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times‘s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (“‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (“The Times v. Moyers” (editorial), April 16). (DURABLE LINK)

May 22 — From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (“Woman sues stage hypnotist over ‘abuse memories'”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.

May 22 — Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).

Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?'”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).

May 22 — Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).

May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)

May 21 — “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)

May 21 — “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)

MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.

February 2000 archives


February 15 — County to pay “mountain man” burglar $412,500. Mincho Donchev, an escaped murderer from Bulgaria who lived for ten years in the Cascade Mountains of Washington breaking into vacation cabins, has won a $412,500 settlement of his lawsuit against Snohomish County for excessive force in his arrest. Two years ago, as Donchev resisted officers trying to subdue him, a police dog mangled his foot, causing the eventual loss of two of his toes; he was armed with knives, handguns and a pronged stick during the affair. The sheriff denies that either his deputies or the dog did anything wrong, but Donchev’s Seattle attorney, Mark Shepherd, said his client had “been horribly, grotesquely disfigured on his foot, and that foot will never function properly again”; the settlement money, he said, would help ease his client’s re-entry into society when he’s released from prison this August. Some local residents may have other ideas for where the money ought to go. “Every time he broke into our place he cleaned out every bit of our food in the cabinet and the refrigerator — pop, any kind of meat we had,” said Bob Gardner, whose vacation cabin was burglarized three times. (“‘Mountain-Man’ Thief Wins $412K for K-9 Bite”, AP/APB News, Feb. 4).

February 15 — Bill introduced to curb opportunistic ADA filings. Florida GOP Representatives Mark Foley and Clay Shaw have now introduced legislation “designed to block plaintiffs’ lawyers from using the Americans with Disabilities Act as a mill for grinding out legal fees,” reports the Miami Daily Business Review. As previously reported (see our January 26-27 commentary), more than 600 South Florida businesses have been hit with charges that their facilities are out of compliance with the ADA; most of the complaints can be traced to a small network of activists linked to lawyers who obtain legal fees typically in the thousands of dollars from defendants eager to settle. The new bill would require that businesses be given notice of an ADA problem and an opportunity to correct it before suit could be filed. According to a press release issued by the Congressmen, a group calling itself Citizens Concerned about Disability Access appears to consist mainly of “the two lawyers initiating the suits, and a neighbor and her disabled daughter who reportedly live across the street from one of the lawyers.” Some of its complaints are premised on the notion that the disabled daughter encountered barriers while trying to patronize the businesses, which included a pawn shop, a liquor store and a swimming-pool-supply store — the latter an especially curious subject of concern since the disabled daughter “has no swimming pool.” Last month U.S. Attorney General Janet Reno declined Rep. Foley’s request that the Justice Department investigate the matter. (Dan Christiansen, “Congressmen Rein In ‘Rogue’ Disabled Access Suits”, Miami Daily Business Review, Feb. 8).

February 15 — Britons debate false-rape-claim damages. In Newcastle upon Tyne, England, a four-man, eight-woman jury has ordered Lynn Walker to pay $630,000 (£400,000) in damages to co-worker Martin Garfoot, after concluding she had falsely accused him of raping her in a storeroom. Ms. Walker had waited nine months after the supposed incident to raise the claim and had sought neither police nor doctors’ help; video camera records from the days after the claimed attack showed her “at ease and untroubled” as she worked with the accused. Mr. Garfoot, 46, managed a branch of Boots, the drugstore concern; both Ms. Walker and Mr. Garfoot’s wife Janice are pharmacists. Feminist groups expressed outrage, but Mr. Garfoot’s barrister, Edward Garnier, Q.C., said: “She should not be able to simply walk away and hide in her tent after she has been found to be an out-and-out liar. Mr. Garfoot has spent the last few years wearing a cloak of shame. She twisted and twisted and twisted the knife in Mr. Garfoot.” (Nigel Bunyan, “Woman must pay £400,000 to man she said raped her”, Daily Telegraph (London), Feb. 8; Mark Blacklock, “Rape Claim Woman Lied”, Daily Express (London), Feb. 8).

February 14 — Bill Clinton among friendly crowd. The President hit Texas last week for a fund-raising tour of which the highlight was a $25,000-a-couple dinner hosted by trial lawyer husband-and-wife Fred Baron and Lisa Blue at their “palatial” (eleven bathrooms, six wet bars) Dallas home. The event raised an estimated $500,000 for the Democratic National Committee. The Reuters report describes Baron only as a “Democratic activist” but not as a trial lawyer, and none of the papers appear to pick up on his rather salient role as president-elect of the Association of Trial Lawyers of America. Needless to say, none of the reporters are so rude as to mention the controversies over the coaching of testimony in Baron’s asbestos claims practice, either. Maybe host and guest-of-honor shared tips about their respective successes with creative witness preparation.

The February 11 Dallas Morning News does report that at the Baron event “the president had plenty of lawyers to chat with. He was seated at the head table with trial lawyer Trevor Pearlman, and law partners/life partners Debbie and Frank Branson, as well as his lawyerly hosts.” (“Clinton Says Senate Doing ‘Slow Walk’ on Nominees, Reuters/Excite, Feb. 9; Madeline Baro Diaz, “Clinton arrives in South Texas to discuss border issues, raise money”, AP/Fort Worth Star-Telegram, Feb. 10; Todd J. Gillman, “In Texas, Clinton blasts GOP”, Dallas Morning News, Feb. 10; Alan Peppard, “Backing Bill all the way”, Dallas Morning News, Feb. 11 (fee-based archive)).

February 14 — U.S. foreign policy, hijacked by lawsuits. Trial lawyers’ freelance pile-on of WWII-recrimination suits is undercutting America’s effort to maintain a coherent foreign policy, most recently in Japan, where U.S. Ambassador Thomas S. Foley has joined the Japanese government in rejecting an attempt to claim compensation in U.S. courts for maltreated American prisoners in World War II. “The peace treaty put aside all claims against Japan,” Foley pointed out. The continuing claims are generating dismay and an anti-American backlash among Japanese (as also among citizens of various European nations). By this point, however, the American litigation system has grown so vigorous in its assertiveness that mere treaties may not be very effective at reining it in. (Doug Struck and Kathryn Tolbert, “US envoy, Japan reject WWII veterans’ lawsuits”, Boston Globe (originally Washington Post), Jan. 19, link now dead; Richard Pyle, “Ex-POWs want Japanese firms to pay for ‘slave labor'”, AP/Seattle Times, Sept. 15, 1999; “Anger as court rejects Allied POWs’ compensation suit”, CNN, Nov. 26, 1998) (see Sept. 20, Aug. 25, Feb. 5-6 commentaries).

February 14 — Improvements to our gun-litigation page. We’ve been continuing to add links to our subpage on firearms lawsuits. Included are the useful news-links page on gun issues maintained by the Colorado Shooting Sports Association, the special page on gun controversies at Jurist: The Law Professor’s Network, a bunch of choicely worded letters to the editor from the Detroit Free Press last summer responding to the NAACP’s suit, and Robert Levy’s Jan. 30 opinion piece for the National Law Journal, “Blackmail of gun makers“. In response to a suggestion from an attorney reader who protested, “We’re not all against gun rights, you know”, we’re also pleased to add a link to the Lawyers’ Second Amendment Society.

February 12-13 — AOL upgrade’s sharp elbows. America Online‘s new 5.0 upgrade, like many other pieces of software, asks whether you want to make it your “default” program for the purpose; if you say yes, it alters your settings in ways that make it easier to use AOL but harder to use other Internet service providers you may have installed. Some users have found that the AOL “default” setting makes it remarkably difficult indeed to use rival ISPs, and some ISPs report spending hours helping frustrated customers trying to use their service after having installed AOL 5.0 over it.

Enter class-action lawyers, who’ve filed two distinct lawsuits: one on behalf of the roughly 8 million AOL customers who’ve already installed the new version, and the other on behalf of rival ISPs. The suit on behalf of individual users rather arbitrarily demands up to $1,000 for each user, and CNN rose to the bait by describing the suit in its headline as being for $8 billion — even though AOL claims that more than 90 percent of its users do not have accounts with other ISPs, which means they’re unlikely to have run into difficulties (at least if they’re not trying to connect over a LAN or corporate system). AOL says other ISPs’ software does the same thing as its does, and contends that the upgrade gives users a smoother Net experience which has reduced reports of technical problems overall. According to USA Today, one of the suits invokes a federal anti-hacking law which provides both criminal and civil penalties for anyone “who alters the programs or use of a computer used in interstate commerce,” quoting “Lloyd Gathings, a Birmingham, Ala., lawyer involved in the case.”

SOURCES: Brian McWilliams, “AOL Sued Over Networking Bugs in AOL 5.0”, InternetNews.com, Feb. 2 (& see same site, Oct. 6, 1999, Oct. 12, 1999, and Feb. 8, 2000, all links now dead); “AOL Sued over 5.0 Install”, Reuters/ZDNet, Feb. 2; Slashdot, Feb. 2 (bonus: thread includes link to this site); “Disgruntled AOL 5.0 users seek up to $8 billion in damages”, CNN.com, Feb. 2; “AOL sued over latest software”, USA Today, Feb. 2; Brooke A. Masters, “AOL Rivals File Suit Over Its New Software”, Washington Post, Feb. 8; Donna DeMarco, “AOL 5.0 problems boot up users’ ire”, Washington Times, Feb. 9, link now dead; Peter H. Lewis, “Takeover Artist”, New York Times, Feb. 10. The inevitable website by lawyers organizing the suits is called www.classactionversion5.com.

February 12-13 — Blue-ribbon excuse syndromes. Former Chicago City Treasurer Miriam Santos, once a rising star of the Democratic Party, has “blamed her now-overturned conviction on extortion charges on pre-menstrual syndrome….’I am human and probably the first woman to go to jail for PMSing,'” she told a news conference. (“Former treasurer blames PMS for crime”, UPI/Virtual New York, Feb. 7). A lawyer for New York City’s Dr. Allan Zarkin, charged with carving his initials into a sedated patient’s belly after delivering her baby by Caesarean section, says his client “has a “frontal lobe disorder” called Pick’s disease, an Alzheimer-like disease that causes personality and behavior changes and dementia.” (“Doctor charged in carving incident”, Reuters/Excite, Feb. 10; “Report: Woman Settles with Doctor”, Feb. 12). Vancouver Metis Indian Deanna Emard, convicted of stabbing her common-law husband to death, has gotten off without jail time because Canadian law now recognizes Indians’ cultural oppression as a mitigating factor in sentencing. (Neal Hall, “Metis woman avoids jail term for killing husband”, Vancouver Sun/National Post, Jan. 20). And in a recent U.S. News column, John Leo nominates 1999’s top ten claims of victimization, including several discussed previously in this space as well as additional contenders such as James Moore, a landscape gardener from upstate New York who raped and strangled a 14-year-old girl in 1962 and asked a judge last year for release from his life-without-parole sentence, arguing that exposure to insecticides made him do it. (“The top ten victims”, Jan. 31).

February 12-13 — The nutty professor. How does University of Wisconsin law professor Marc Galanter retain his position as the favorite academic of America’s trial lawyers? In part by his willingness to dispense to reporters quotes like the following: “Some who have studied the issue say that what Bush has called ‘the litigation explosion in Texas’ was nonexistent. ‘There is really no evidence that frivolous or totally unfounded lawsuits pose a significant problem,’ said [Galanter].” (George Lardner Jr., “‘Tort Reform’: Mixed Verdict”, Washington Post, Feb. 10). (tell the Post what you think).

February 10-11 — Antitrust obstacles to hacker defense. This week’s hacker attacks on Yahoo, E-Trade and other sites are likely to encourage proposals to establish surveillance of the Net by federal law enforcers, but a better reaction, according to MIT network manager Jeff Schiller, would be to roll back existing regulations that make it hard for operators to coordinate network security. “There needs to be a way network operators can [work together] in a way that’s immune from Sherman antitrust,” he said. “We had a situation at IETF (Internet Engineering Task Force) where we couldn’t have two people in the same room together by themselves since they were representatives of big competitors.” (Declan McCullagh, “Was Yahoo Smurfed or Trinooed?”, Wired News, Feb. 8) (second page of story).

February 10-11 — ADA vs. freedom of expression on the Web. The U.S. Department of Justice has indicated that a wide range of Internet activity may be subject to the Americans with Disabilities Act and its requirement that “reasonable accommodation” be provided to handicapped users (see Dec. 21 commentary). At a hearing before the House Judiciary Committee yesterday (Wednesday), panelists explained that a wide range of common page construction techniques currently cause websites to be “inaccessible”, including the use of undescribed visual and audio elements, image maps that lack text for hotspots, link text that does not make sense when read out of context (example: “click here”), graphs and charts that are not summarized, nondescriptive frames titles, and much more. The editor of this site, unlike several of the other witnesses, found it alarming that federal law should presume to enforce such rules on private web publishers. We’ll try to provide a fuller report on the hearing at a later point; in the mean time, we’ve posted our editor’s prepared statement.

February 10-11 — “Not-a-Lawyer”. Fast Company nominates it as among “Job Titles of the Future”, and it’s the official description on Rory Holland’s business card. Mr. Holland works for Canadian law firm Russell & DuMoulin in Vancouver, helping clients “figure out what role lawyers should play in their companies”. (Erika Germer, Fast Company, March).

February 10-11 — Gun litigation roundup. Free-Market.Net’s J.D. Tuccille has assembled a link-rich “Spotlight on Anti-Gun Lawsuits” feature (Jan. 6). At a gun industry trade show last month in Las Vegas, members vowed greater activism in fending off attacks on their business, including the formation of a legal defense fund under the auspices of the National Shooting Sports Federation to respond to courtroom bullying. (Melanie Eversley, “Gun dealers take aim at rash of anti-gun suits”, Knight-Ridder/Spokane Spokesman-Review, Jan. 19). And in a Cato Institute Daily Commentary, David Kopel counters some myths about the supposed “gun show loophole”. One Congresswoman has charged that 70 percent of guns used in crimes come from gun shows, but National Institute of Justice figures indicate the figure is 2 percent, Kopel says. Handgun Control, Inc. “claims that ’25-50 percent of the vendors at most gun shows are unlicensed dealers.’ That statistic is true only if one counts vendors who aren’t selling guns (e.g., vendors who are selling books, clothing or accessories) as ‘unlicensed dealers.'” (David Kopel, “The Facts About Gun Shows”, Cato Daily Commentary, Jan. 10).

February 10-11 — Orange, soured. After representing bankrupt Orange County, Calif. and other public entities seeking to recoup investment damages, the L. A.-based law firm of Hennigan, Mercer & Bennett petitioned for an extra $48.7 million on top of its standard fee. In November U.S. District Judge Gary Taylor of Santa Ana issued an order allowing a mere $3 million of that request. What really stung was the judge’s language: he called the firm’s arguments for the enhanced fee “flawed”, “cynical”, and even “unethical” and “dishonorable”. The firm had already been accorded fees of $26.3 million based on hourly charges of up to $445 an hour for its work on the cases, but then placed a lien on the county’s recovery in quest of an additional $48.7 million as a “lodestar” multiplier to reward it for having achieved good results in the face of difficulty. “If lawyers in cases like these are paid only their straight hourly rates, they have less reason to maximize results for clients,” the firm said in a court filing, which prompted the judge to ask at oral argument: “Do you really believe that?” The judge’s subsequent fee opinion asserted that attorneys are obliged to do their best for clients whether or not the fee arrangement partakes of a contingency element: “anything less would be unethical and dishonorable.” Now there’s a revolutionary idea! A legal ethics expert says the judge is being “idealistic”. (Gail Diane Cox, “Firm Smacked by Judge Over Orange Bankruptcy”, Cal Law/The Recorder, Nov. 17).

February 8-9 — Litigious varsity. “High school sports should be a healthy, fun lesson in fair play, not a prep course for law school.” But parents and educators are running to court to get referees’ calls reversed, says a Boston Globe editorial. The Massachusetts Interscholastic Athletic Association reports that eight lawsuits arose in the last year alone from high school games. After a brawl during a recent hockey game between Melrose and Stoneham, several players were handed a two-game suspension, but a mother went to court and got a restraining order letting her son back on the ice, claiming he hadn’t been involved. In a case in Springfield, officials didn’t clear the legal paperwork allowing them to eject an offending player until the next game was about to begin and the National Anthem was playing, the player suited up and ready. (“Spoiled sports” (editorial), Boston Globe, Jan. 17, link now dead). And in Brunswick, Ohio, a father sued the coach of the Brunswick Cobras boy’s baseball team for leading the team to such a poor record. “Charles Settles, whose son, Kevin, was the catcher on the 16-year-old-and-under team,” went to small claims court asking $2,000, “the estimated value of a seven-day Florida trip the team could have made had it not lost every game — most by a 10-run ‘mercy’ rule.” A magistrate dismissed the action. (Stephen Hudak, “Losing season prompts dad to sue son’s coach”, Cleveland Plain Dealer, Jan. 9).

February 8-9 — From the dog’s point of view. A week ago we reported on dogbitelaw.com, a lawyer’s website that encourages persons bitten by dogs to sue the animals’ owners (see February 1 commentary). Now, for balance, here’s an excerpt from a Washington Times interview last week with Boston attorney Steven Wise, who heads an animal-rights group called the Center for the Expansion of Fundamental Rights. “Over the last 15 years, I have represented probably 150 owners of dogs who have been ordered executed or banished from their towns. People may have complained they bit someone or they bark excessively.

“Most people who have companion animals consider them family members. They come to me and say one of my family members has been ordered executed. We’ve managed to save the lives of every single one except for two people who didn’t stay with us.

“We try to convince judges to say it’s a good and safe thing for dogs to live with their families. We bring in an animal behaviorist and try to help the judge understand what happened from a dog’s point of view.”

The judges who hear these cases aren’t the only ones giving more consideration to the dog’s point of view; last week Harvard Law School kicked off its first-ever class in animal-rights law, with Mr. Wise as instructor. (“Animal rights lawyer unleashes profession”, Washington Times, Feb. 3, link now dead).

February 8-9 — Emails that ended 20 Times careers. MSNBC has posted this Wall Street Journal account of the New York Times‘s mass firing of 23 employees, all but one of them in the company’s Norfolk, Va. outpost, found to have forwarded offensive e-mails, including sexually oriented images, blonde jokes and Ebonics jokes. One of the fired employees, former database security manager Carla Belgrave, “who is black, says she found the Ebonics jokes funny. ‘I don’t speak that way,’ she shrugs. ‘Who’s to tell me what I should be offended by?'”.

“Why are the Times and other companies so concerned about e-mail? One reason is their liability in harassment suits. One or two explicit e-mail messages typically aren’t enough by themselves to prove that a workplace environment was hostile. But such e-mail can bolster other damaging evidence. At a subsidiary of Chevron Corp., e-mail containing such jokes as ’25 reasons beer is better than women’ were used along with other evidence in a sexual-harassment claim that was settled in 1995 for $2.2 million.” (Ann Cairns, “That bawdy e-mail was good for a laugh — until the ax fell”, MSNBC (highlights from WSJ.com), Feb. 4, link now dead). Also see Lisa Fried, “Employers Crack Down on Personal Internet Use”, New York Law Journal, Jan. 3; Christine A. Amalfe and Kerrie R. Heslin, “Courts start to rule on online harassment”, National Law Journal, Jan. 24).

February 8-9 — Court insists on summoning nine-year-old girl as juror. Her Brooklyn parents have been trying to explain for the past year that she’s too young to serve, but the paperwork grinds on as judicial officials insist that fourth-grader Alyson Fuchs report for her civic duty. Her mom, who thinks Alyson may have gotten on prospective-juror lists because she has college savings in a mutual fund, is giving up and bringing her in to the courthouse, which she’s eager to see anyway. (Bridget Harrison, “A Jury of Peers?”, Fox News/New York Post, Feb. 6) (via Reason Express)

February 7 — Mobile Register probes class-action biz. Alabama cases have figured prominently in complaints of class-action abuse and the Mobile Register deserves some sort of prize for the thorough investigation of the topic it published over the holidays in a five-day report written by Eddie Curran. The series contains too much good material to summarize in a single installment, so we’ll start with one chunk for now and come back for more later. (Impatient readers can find the entire series here: “On behalf of all others”, Mobile Register, Dec. 26-30).

The series includes a thorough airing of the famous BancBoston case of the mid-1990s, filed in Mobile, in which locally based lawyer John Sharbrough teamed up with the Chicago class-action firm of Daniel Edelman to accuse the large lender of retaining excessively high escrows for mortgage borrowers nationwide, one of many similar class actions filed at the time against mortgage lenders over escrow practices. Pressured by a rules change from the federal Department of Housing and Urban Development, BancBoston and other lenders agreed to reduce the escrows, thus allowing consumers earlier recoupment of money which they’d eventually have gotten back anyway. In the case of BancBoston, the repayments that were accelerated were estimated in the lawsuit at about $42 million, but the actual sum seems to have been lower.

For achieving this result, the class-action lawyers asked for more than $14 million, all of it deducted directly from consumer accounts; Mobile County Circuit Court Judge Braxton Kittrell wound up granting them more than $8.5 million of that request. Thus consumers around the country were billed what was often $100, $150 and more in exchange for benefits that included the refund of a few dollars interest (in no case more than $8.76) and the chance to use their funds somewhat earlier than would otherwise be the case — mere weeks or months earlier in the case of many who were near refinancing or selling their homes at the time.

How’d the lawyers pull it off? They hired as expert witness a local accountant who testified that the real economic benefit to a consumer of getting back a lump of money earlier than otherwise is equal to the total sum at issue — after all, once he had it in hand he could invest it and double his money! The lawyers could then claim fees equal to a third of this notional benefit. The witness also assumed that the bank would otherwise have held surplus escrows for twenty years before refunding them, though in fact most loans get paid off through refinances or home sales within a few years and many of the mortgages were of 15-year duration. Boston U. law professor Susan Koniak, who’s co-authored a law review article on the case, describes the resulting enrichment of lawyers as “so outrageous, it’s not even a close call”. When a Maine real estate broker and class member named Dexter Kamilewicz stepped forward to challenge it, however, Chicago lawyer Edelman countersued Kamilewicz personally for $25 million, cowing him into silence (see Nov. 15 commentary).

Prominent class-action lawyer Elizabeth Cabraser, who was not involved in the case, defended the current state of the system, telling the Register that the BancBoston case is “like urban folklore“, that it “did happen, but it continues to be brought out as an example of class action abuse when in fact there’s never been another case like it,” in her words. “There’s never going to be another BancBoston case, and there doesn’t need to be legislation to prevent that from recurring. It won’t. It was freak in every sense.”

But is that so? The Register had no trouble finding escrow cases against other mortgage lenders that led to outcomes very similar to those in BancBoston, but were given less publicity. In these cases, too, consumers found themselves docked hundreds of dollars for little evident benefit and complained in heated letters to the court. In truth, “the BancBoston case was not alone…some other Alabama judges — such as Montgomery County Circuit Court Judge Sally Greenhaw and Choctaw County Circuit Court Judge Harold Crow — approved similar settlements for the same lawyers, but avoided public scorn.” In a case against Colonial Mortgage, class lawyers asked judge to award them 40 percent of the escrow sums — an even higher share than in the BancBoston case. (“You win, you pay”, Dec. 29; “Bottom of the class”, Dec. 30; “Colonial customers rage at lawyer, judge”, Dec. 29).

February 7 — New subpage on Overlawyered.com: disabled-rights law. In which we pull together our reports on how students with clever parents get extra time on the SATs, the risk if you’re a merchant of not admitting an emotional-support dog to your shop, courthouses that hear handicap accommodation lawsuits but fail to comply with the law themselves, disability suits for boozing student athletes who don’t want to be thrown off the team, and other dispatches from the front lines of the Americans with Disabilities Act and related statutes. Incidentally, this Wednesday our editor is going to be a witness at a House Judiciary Committee hearing on the ADA’s application to the Internet. See our Dec. 21 commentary for a preview of his likely comments about the ominous implications of letting website publishers get sued on the grounds that their content isn’t sufficiently “accessible” to all users.

February 5-6 — Don’t blame us, we didn’t say it: “‘If criminals can rehabilitate themselves, then why can’t lawyers?’ — East Lansing attorney Steven A. Mitchell, quoted in Michigan Lawyers Weekly on a proposal to permanently disbar lawyers for misconduct.” The Detroit News ran the above item under the heading: “But I Repeat Myself”. (Editorial roundup, Jan. 22).

February 5-6 — Weekend reading: columnist-fest. More well-stated cases from the in-box:

* Laura Pulfer of the Cincinnati Enquirer, who admits to an occasional weakness for shopping sprees at outlet stores, receives a notice in the mail saying she’s a member of the plaintiff class in a class action against Polo Ralph Lauren Corporation. “I am allowing myself to get a little bit excited. This is a defendant with deep, deep pockets. And Mr. Lauren apparently has done something terrible, something really bad, something actionable, something expensive to me.” However, the prospective settlement merely promises a discount if she goes back for another splurge at the store (“Lawsuit just an invitation to go shopping”, Feb. 3). Bonus: the same columnist comments on animal-rights law (“Does your dog need services of a lawyer?”, Nov. 7) and on warning labels (“It’s impossible to outlaw sheer stupidity”, Feb. 18, 1999) (NPR Morning Edition version, Real Audio).

* “There’s scarcely an issue in international affairs this year more likely to induce a feeling of moral superiority in Americans than that of the dormant Jewish accounts in Swiss banks.” Yet the recently issued Volcker report reveals that the actual sums in such accounts fall “staggeringly short” of what had been alleged by American class-action lawyers. More remarkable yet, the United States was at least as important as Switzerland as a destination for money escaping Nazi rule, yet somehow escapes scrutiny though it did little after the war to compensate heirs of dormant accounts (Alexander Cockburn, “Forget About the Swiss; What About US Banks?”, NewsMax, Dec. 29).

* Good general brief overview by CBS News legal correspondent Andrew Cohen on why this country is so litigious and what might be done — he even mentions loser-pays. (“Americans going nuts for lawsuits”, USA Today, undated). It leads with this grabber: “The Girl Scouts now take customers to small claims court when cookie payments are not made on time.” We hope he’s just referring to one overzealous troop somewhere.

February 5-6 — 200,000 pages served on Overlawyered.com. Thanks for your support!

February 4 — Special assignments for special cases? Federal judges at the U.S. District Court in Washington, D.C. have now voted to require incoming cases to be assigned randomly among their number. Eyebrows were raised last year when it was revealed that chief judge Norma Holloway Johnson had used special procedures to bypass random selection and assign six Clinton Administration scandal cases to judges appointed by the Clinton Administration. Included were five fund-raising prosecutions, including that of presidential friend Charlie Trie, plus the tax evasion case of Webster Hubbell. In a letter to the editor of a newspaper, Judge Johnson said that she made the assignments to “move the docket as expeditiously as possible” and that politics was “never a factor.” (“U.S. judges end controversial rule that let Clinton appointees get Democrats’ cases”, AP/Dallas Morning News, Feb. 3).

February 4 — Jeff MacNelly. The premier editorial cartoonist of his generation is currently keeping to a reduced but regular output schedule while battling health challenges. His website allows you to send him a get-well message and browse an archive of his cartoons back to the middle of last year, including great panels on Microsoft, health care, tobacco, tobacco (again) and many more. Then there’s his oil painting of lawyers….

February 4 — Taco Bell bites back. In 1997 customer Dwonne N. Carter charged that she had been insulted because of her race by an employee at a Taco Bell in Oconomowoc, Wisconsin. Plenty of press coverage resulted, and the restaurant’s business fell off sharply. But Carter’s story in her discrimination lawsuit kept changing, and she turned out to have previously filed and then recanted charges of rape and abduction in another case. Taco Bell countersued for defamation and last month a jury found in the company’s favor, awarding it a token $1,060 in damages. The tapes from the restaurant’s surveillance camera proved particularly helpful. (Gretchen Schuldt, “Customer defamed Taco Bell, jury decides”, Milwaukee Journal Sentinel, Jan. 14).

February 4 — Green cards gather moss. Linus Torvalds, Finland-born architect of Linux and perhaps the world’s most admired programmer, has been in this country three years. He’s still waiting for his green card. Thousands of engineers and other highly skilled immigrants in Silicon Valley are in the same predicament, as delays stretch on seemingly endlessly in the processing of applications for permanent residency. The average wait for final green card processing has jumped from 21 months a year and a half ago to 33 months. Holders of H-1B visas can stay at most six years, which is not always long enough to make it through the queue. “Real lives are being destroyed,” says immigration attorney Peter Larrabee, and an Immigration and Naturalization Service official privately calls the situation “a mess”. At least no one can accuse us of discriminating unduly in favor of the talented. (Ken McLaughlin, “Workers left in limbo by INS”, San Jose Mercury News, Jan. 30, link now dead; Wired News, Feb. 1).

February 3 — Reason Online “Featured Site”. Overlawyered.com has just been awarded this honor, bestowed approximately weekly by the lively website associated with the magazine of “free minds and free markets”. While you’re visiting the site, now would be a good time to catch up with our editor’s February column, which examines the class-action lawyers’ assault on the high-tech business, taking off from the Toshiba laptop settlement and the private actions against Microsoft that tagged along in the wake of Judge Jackson’s findings of fact. (main page/archive; Walter Olson, “Gold Bugs”, Reason, February).

February 3 — Tobacco: Connecticut AG has “no idea” whether lawyers he hired are overcharging. Richard Blumenthal, attorney general of Connecticut, is much feared by that state’s business community for his relentless and headline-grabbing pace of suit-filing; he’s known for “demonizing his foes”. One group of business people in the state, however, will “do extraordinarily well” from his tenure: the “tiny group of private lawyers” whom he hired to represent the state in the tobacco litigation. Queried about how much money these lawyers are getting from the deal, Blumenthal says, “I have no idea.” He says he’s sure it’s “substantially less” than the generous 25 percent contingency he agreed to bestow on them, which if followed through would have given them $900 million (the firms agreed not to insist on that full amount). It happens that the four lucky law firms he picked to do the work include his own former firm, Silver, Golub & Teitell of Stamford. (Thomas Scheffey, “Jedi Blumenthal”, Connecticut Law Tribune, Dec. 1) (see February 16 update: fees to total $65 million, more details on lucky firms).

February 3 — Another pro bono triumph. Beat cop Jim Gratz says he was acting on his own initiative when, imitating a practice used by some other Bay Area police departments, he asked some of the hardest-core drinkers who slept in San Francisco’s Washington Square Park if he could snap their pictures. Then he had flyers printed up and handed them to owners of nearby liquor stores, asking them not to sell to these people. “Someone had to do something to try and save their lives…I have nothing against booze, but plainly it was killing them,” he says. Well, the homeless-advocacy lawyers were on his case like a duck on a June bug, and soon the city agreed to settle the resulting litigation by paying each of the ten people approximately $960, which they spent on…well, what do you think they spent it on? All are still on the street, Gratz says, and one was admitted to Laguna Honda Hospital nearly paralyzed with alcohol poisoning. (Scott Ostler, “Trying to Help Just Doesn’t Pay”, San Francisco Chronicle, Jan. 6).

February 2 — “Children’s rights” fee grab. In 1995, following front-page scandals about child neglect in New York City, a private group called Children’s Rights Inc. filed suit seeking court oversight of the city’s child welfare system. The case ended in a settlement in December 1998. Now Children’s Rights Inc. is asking a court to award it $9.1 million in legal fees for its work on the case, to be paid from — where else? — taxpayer funds. City child welfare commissioner Nicholas Scoppetta is particularly steamed about the fee demand because he says the city offered to settle the case in May 1997 on terms substantially the same as those eventually reached. Children’s Rights Inc. spurned that offer and insisted on battling for a further year and a half, during which time the group ran up what it says are $6 million in billable hours. Scoppetta says $9 million would be enough to hire 230 child welfare caseworkers, put 1,059 children in Head Start for a year or support 1,200 kids in foster care, if it isn’t handed to lawyers instead. (“Children’s rights is wrong” (editorial), New York Daily News, Feb. 1; “Children’s Advocacy Pays” (editorial), New York Post, Feb. 1; past Post coverage).

February 2 — Cookies, dunked. Privacy advocates have been aghast at the recent disclosure that Internet ad-placement firm DoubleClick is planning to combine cookie use with access to clients’ site-registration data in ways that will enable it to detect the actual identity of many users who currently enjoy the customary expectation of anonymity as they browse its clients’ sites. Already a California lawyer has jumped in to sue the company; his named client does not claim to have suffered any damages, but he says he wants to “put DoubleClick’s policies under a microscope.” Of course his client could just have gone to DoubleClick’s site and selected the “opt out” feature, which the company says will bail you out of its cookie-mongering for the life of your browser or until you delete your cookie file, whichever comes first. To repeat: if a privacy solution that simple happens to appeal to you, just press here and follow the “opt out” link. But that wouldn’t be nearly as much fun as suing, would it? (“DoubleClick defends data gathering as suit pends”, FindLaw/Reuters, Jan. 28; “Privacy group eyes DoubleClick”, Reuters/Wired News, Feb. 1). Update May 9, 2001: federal court dismisses one such suit.

February 2 — Cuomo menaces gun makers: “death by a thousand cuts”. Settlement talks have broken down between firearms makers and activist litigators who continue to seek restrictions on gun sales that go beyond anything they can persuade democratically elected legislatures to enact. On Monday HUD secretary Andrew Cuomo warned gun companies that unless they cooperate they’ll suffer “death by a thousand cuts” from lawsuits filed by 28 localities (and vocally backed by his own department). Could the Cabinet secretary be invoking the cost-infliction threat of litigation to bully an opponent? Naah — that would be unethical. (Bill McAllister, “Gun industry rejects settlement effort”, Denver Post, Feb. 1).

February 1 — Welcome Humorix (and Slashdot) visitors. Humorix, complete with penguin-graphic adornment, consists of parody and humor articles geared to aficionados of the Linux open-source operating system. Last week it ran a piece by Dave Finton and James Baughn about the DVD-copying-code litigation (see Dec. 31 commentary) which pointed to this site by way of providing an embedded link for the phrase “overachieving lawyers”. Then yesterday a discussion of the piece in turn made it onto Slashdot. Jeepers, do a lot of people ever read Slashdot: next thing we knew we were beating, by far, this site’s previous daily traffic record (assisted by some other publicity). (“Corporate Media Conglomerate HOWTO”, Jan. 26.)

February 1 — Give us Syracuse. Trial began last week in upstate New York on Cayuga Indian land claims, the first such Indian case to make it to a jury for damages. Lawyers for the tribe, backed by the U.S. Department of Justice, say they’re owed at least $335 million in market value and rental fees for lands in the Finger Lakes region bought from them in 1795 and 1807 in deals which the U.S. Supreme Court in 1985 voided as having lacked the federal government’s go-ahead as required by law. Waiting in the wings: similar (often larger) claims by the Oneidas, Mohawks, Senecas and Onondagas. Wrangling over the Onondaga claim promises to be especially lively because the large tract of land under dispute includes the city of Syracuse, New York’s fifth largest. “It’s in total violation,” says the Onondaga chief, referring to the 160,000-population community. (James Odato, “Land’s value at heart of Cayuga claim case”, Albany Times-Union, Jan. 25; David L. Shaw, “Damages trial focuses on cash”, Syracuse Online, Jan. 24; “Claim comes down to numbers”, Syracuse Online, Jan. 25; Matthew Purdy, “Tribal Justice? They’d Settle for Syracuse”, New York Times, Jan. 30; see our Oct. 5-6, Oct. 27 commentaries) (via Empire Page) (see update, Feb. 19-21).

February 1 — Down, attorney! Down! Here’s a site for you if you’re a mailman tired of having your leg chewed on, or just want to convince the neighbors to send that ill-tempered yapper of theirs to the glue factory: dogbitelaw.com. “Attorney Kenneth Phillips is available by e-mail at no charge. He will respond to your questions about dog bites,” explains the promotional copy. Lots of links, too, such as one to the website of a canine forensics specialist to testify in your lawsuit: dogexpert.com. (via The Recorder/Cal Law).

February 1 — Career advice: become a lawsuit entrepreneur. Columnist Jim Pinkerton tells the public-administration class of ’00 they’re wasting their time thinking about civil service, when the real action in government today is in privately managed policy-through-lawsuits. “Why plow through discrimination cases in a back room at the EEOC, when you can join hands with Jesse Jackson and sue the pants off of some big company in a civil rights class action? Why work at the FDA and worry about drug approvals, when you can work at a law firm and share in billions after the drug is withdrawn and the suits are settled? Why lobby for gun control, when you can sue and put the gun makers out of business?” Why tinker with health care regulation when you can just file suit against HMOs and make yourself a player at the negotiation table overnight? Yes, it’s a parody, but just barely. (James Pinkerton, “Being a Bureaupreneur”, GovExec.com (Government Executive magazine), January).


February 29 — Update: Publishers Clearing House case. Turning aside objections from state attorneys general who viewed the deal as offering more prizes to lawyers than to magazine subscribers, federal judge G. Patrick Murphy approved a settlement of a class-action suit against Publishers Clearing House for allegedly misleading sweepstakes claims. He also approved as fair and reasonable the payment of $3 million in legal fees to the class lawyers, a sum criticized as excessive by objectors and by commentators such as the St. Louis Post-Dispatch‘s Bill McClellan. (“Publishers Clearing House Deal OKd”, AP/FindLaw, Feb. 22).

As readers of this space will recall (see Nov. 30, Nov. 4 commentaries) McClellan in his column on the suit jocularly compared class-action lawyers to bank robbers and then corrected himself, saying the comparison wasn’t fair to bank robbers, who don’t pretend they’re in business for our good. Class-action lawyers Judy Cates and Stephen Katz then proceeded to sue him for $1 million, charging that these sentiments had defamed them. Among the discovery demands they proceeded to make was that McClellan turn over everything he’d written in the past decade that was “in any way critical or mocking to lawyers or lawsuits.” In another of their discovery forays, McClellan advises readers in a recent column, “Cates and Katz were demanding all correspondence I have received relating to their lawsuit. In other words, if you sent me a letter or an e-mail concerning this case, they wanted it. They wanted to see who has written what about them.” Now an agreement has been reached to end the lawsuit — on what terms is not immediately apparent. (Bill McClellan, “This is a situation where even when you win, you lose”, St. Louis Post-Dispatch, Feb. 23).

February 29 — Feds’ mission: target Silicon Valley for race complaints. The federal Equal Employment Opportunity Commission has decided that Silicon Valley employers would make a suitably high-profile target for a series of race discrimination complaints, and now is “scouring” the Valley for likely defendants. A likely charge is that despite the strong representation in high-tech employment of ethnic groups from around the world, local blacks and Hispanics are underrepresented in professional and managerial slots. “We’ve been beefing up our staffing in every place that we see significant economic growth related to high technology,” says EEOC vice chairman Paul Igasaki, a long-time civil rights attorney: “this is an industry in which a message may need to be sent.” A source within the agency puts it more bluntly: “We’re busy looking under every rock we can, looking for a couple of high-profile companies we can hit with a suit.” (Gary Rivlin, “Busting the Myth of the Meritocracy”, The Industry Standard, Feb. 21).

February 29 — Tobacco lawyers’ lien leverage. While states are salivating at the vast new revenue banquet promised by the tobacco settlement — with no need to do anything unpopular, like raise taxes! — some are finding that the trial lawyers who seemed so helpful at first are now proving obstreperous, slapping the states with liens that may prevent the distribution of some or all settlement booty until the lawyers’ share is resolved. In New Jersey, Bergen County plaintiff’s attorneys Terry Bottinelli and Marc Saperstein blocked access to upwards of $92 million in funds, then relented when the state agreed to help document their case for sharing in the fee payday, though in the end it merely made short mention of their work in a press release. (Matt Ackermann, “New Jersey’s Tobacco-Suit Dividends Delayed by Hold-Out Attorneys”, New Jersey Law Journal, Jan. 11; “Holdout Tobacco Lawyers Will Relent If State Documents Their Case for Fees”, Jan. 18; “N.J. Tobacco Settlement Holdouts Drop Appeal”, Feb. 17) (more N.J. tobacco-fee coverage: Oct. 1). In Illinois, Seattle attorney Steve Berman’s Hagens & Berman, San Francisco’s Lieff, Cabraser, Heimann & Bernstein, and two other firms slapped a lien on the state’s $9.1 billion windfall; last fall a national arbitration panel ruled that while the Berman firm had been an important player in tobacco litigation on the national scene, “relatively little was done to advance the case to trial in Illinois”. Berman, quoted in the Chicago Tribune, conceded that not everyone sympathized with his position that he and the other lawyers are nonetheless entitled to as much as $910 million for their Illinois work: “Some people say lawyers have got a lot of money and are overpaid and are bad guys anyway”. (Rick Pearson, “Lawyers demand a bigger piece of tobacco cash pie”, Chicago Tribune, Nov. 23) (more Illinois tobacco-fee coverage: Oct. 16; more on Berman: Feb. 28, Aug. 21).

February 28 — “Medical errors” study. Malpractice lawyers have already seized on a recent federal study (see Feb. 22 commentary) which extrapolated from a study of hospitals in three states to the conclusion that between 44,000 and 98,000 patients die each year nationally because of mistakes in medical care. In a short paper for the Statistical Assessment Service, Iain Murray and Howard Fienberg point out a few of the study’s questionable premises. For example, the study’s definition of medication-related errors, a significant share of the total, “is based on errors that resulted ‘from acknowledged errors by patients and medical personnel'” (emphasis added). “In other words, if a patient takes an overdose or fails to inform their medical advisers of other conflicting medications they are taking, that is regarded as a medical error, rather than misadventure.” (Iain Murray and Howard Fienberg, “Doctoring the Data, Nursing the News?”, “STATS Spotlight”, Feb. 24) (via Junk Science). Plus: a Chicago Tribune editorial urges caution: “Don’t Compound Medical Errors”, Feb. 27.

February 28 — Fifteen years locked away. If you think the day-care-abuse mania of the 1980s has mostly run its course, consider the case of Bernard Baran, convicted of mass molestation in 1985 in Pittsfield, Mass. under the sorts of dubious circumstances that were later to become familiar in such cases. Katha Pollitt’s Nation account mentions in passing that the mother who initiated the accusations, a drug addict living in troubled circumstances, proceeded to file a suit against the center demanding $3.2 million (the case “was settled out of court, reputedly for a small sum”), and that one of the children, whose mother was a friend of the original accuser, “told a therapist after the trial that her mother had told her to say Baran had molested her so they could get toys and money”. Since Baran still insists on his innocence he’s ineligible for parole. (Katha Pollitt, “Subject to Debate: Justice for Bernard Baran”, The Nation, March 13) (via Arts & Letters Daily) (“The Appalling Case of Bernard Baran”, website about the case).

February 28 — Hiring talent from the opposing camp. Seattle plaintiff’s lawyer Steven Berman is among the most feared in the country; a class-action securities specialist, he went on to assume a prominent role in the tobacco litigation (see August 21; his fee from that has been estimated at $2 billion). But now the city’s best known corporate citizen, Microsoft, has quietly hired Berman to help it fend off the wave of class-action lawsuits it’s facing over its antitrust troubles. According to Forbes‘s “The Informer”, Berman and Microsoft chairman Bill Gates have become personal friends — notwithstanding a 1989 incident in which, following a sudden drop in the company’s stock price, Berman filed a lawsuit against the company and won $1.5 million. (Elizabeth Corcoran and Tomas Kellner, “The Informer”, Forbes, Feb. 7) (fourth item).

February 28 — Welcome Duke Law visitors. Overlawyered.com is the featured “site of the week” on the Duke Law School “Faculty and Staff Gateway” page.

February 26-27 — Legal ethics meet medical ethics. Two weeks ago, in preparation for his second murder trial on charges of pushing Kendra Webdale to her death on the New York subway last January, Andrew Goldstein went off his antipsychotic medication. Mr. Goldstein’s court-appointed lawyers “advised him to go off his drugs in an effort to demonstrate to the jury the debilitating effects of his mental illness”. Doctors treating the 30-year-old schizophrenic at Bellevue were strongly opposed to the tactic, and some outside observers were also skeptical, such as Columbia law professor Richard Uviller, who said “a lawyer’s first duty is to preserve his client’s health.” However, schizophrenia expert Dr. E. Fuller Torrey called the move legitimate and said he himself “had intentionally given homeless mentally ill patients less medication than they needed before court competency hearings to keep them from being released back onto the street.” Justice Carol Berkman of State Supreme Court in Manhattan “has said she would allow Mr. Goldstein to stop taking his medication for as long as he appeared competent to stand trial. If he appeared not to understand his surroundings, she ruled, he would be forcibly given his medication.” The new trial is expected to last at least a month; the first ended in a jury deadlock and mistrial. (David Rohde, “For Retrial, Subway Defendant Goes Off Medication”, New York Times, Feb. 23 — fee-based archive).

February 26-27 — “Judgment reversed in Seinfeld case”. “An appeals court on Tuesday reversed a $25 million judgment awarded to a man who was fired after a female co-worker complained that he harassed her by discussing a racy episode of ‘Seinfeld.’ … The ‘Seinfeld’ element of the case eventually became secondary and a Milwaukee County Circuit court dismissed a wrongful-firing claim.” Jerold Mackenzie had argued that his bosses at Miller Brewing Co. were already plotting to fire him from his $95,000-a-year management job at a time when they told him his position was safe. (Jenny Price, AP/Washington Post, Feb. 22, link now dead).

February 26-27 — Deep pockets blameable for denial of service attacks? PBS commentator Robert X. Cringely has posted a bunch of emails from his readers concerning the coordinated “distributed denial of service” attacks on major web sites earlier this month. Among them was the following from Jay Kangel: “At some point one of these hacking events is going to cost someone who can hire lots of lawyers with real money. At that point the victim, or the victim’s insurance company, will want to sue for damages. The actual hacker will likely have little or no money. Even if the victim wins such a suit the damages cannot be recovered. The deep pockets are the owners of the zombie machines. Is it negligence if a machine owner does not promptly install security patches and, as a result, hackers take over the machine? I don’t know….” (“The Cat is Out of the Bag”, I, Cringely: The Pulpit, Feb. 24).

February 26-27 — Mayors: liability fears stalling “brownfields” development. A report from the U.S. Conference of Mayors finds that liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Environmentalists and urbanists consider brownfields an attractive alternative for new industrial development near the existing workforce, remedying eyesores and bolstering urban tax bases while avoiding development of peripheral vacant land around cities (“sprawl”). The open-ended liability inflicted by the Superfund program, however, menaces new developers, lenders, realtors and users with potential responsibility for the environmental sins of long-departed actors. (“Traci Watson, “Report finds more than 80,000 acres of polluted land in USA”, USA Today, Feb. 25, link now dead; report and news release).

February 25 — Music stores sue Sony. Candidate for the distinction of lamest business-vs.-business suit of the year? You be the judge. The National Association of Recording Merchandisers has filed suit against Sony for the purported offense of including hyperlinks and promotional inserts in or with its music products that enable/encourage consumers to use its online store, thus “diverting” them away from their destined role as future purchasers at the retail outlet. “Few retailers are happy about having to stock Ricky Martin CD’s with hyperlinks to Sonymusic.com [where customers can buy more CDs], but Sony hasn’t provided any alternative,” complains Pamela Horovitz of NARM. This practice amounts, says Horovitz, to “forcing retailers to steer their own customers to competitive sites”. “Forcing”? Well, it seems, the latest Ricky Martin album was just too darn popular for record stores to consider not stocking it by way of punishing Sony for its hyperlink policy.

The retailers insist that Sony has a legal obligation to make available to them CDs stripped of the capability to hyperlink to an online store, much as if newsstand distributors demanded that publishers supply magazines that were free of subscription cards (which of course tend to “divert” readers’ business from further newsstand purchases of the magazine). The complaint also charges Sony with “copyright misuse, illegal price discrimination by favoring its own record club and on-line music retailer (CDNow/ Columbia House) over other retailers, unfair competition, and false advertising.” (“Retailers Sue Sony”, Reuters/Wired News, Jan. 31; NARM press release, Jan. 31; Pamela Horovitz, commentary, Billboard, July 1999 (reprinted at NARM site, second item)).

February 25 — Not to be dismissed. Item from a recent (Jan. 27) edition of Chuck Shepherd’s News of the Weird, under the heading “Fireproof Workers“: “An arbitration panel ruled in July that Toronto Transit Commission janitor Winston Ruhle had been improperly fired and deserved about $115,000 (U.S.) in damages; he was fired in 1995 for padding his recuperation time after surgery, improperly missing 203 days during a 244-day period. And English chauffeur John Forbes, 55, won an employment tribunal ruling in September that it was unfair to fire him simply because he had twice dressed in women’s clothing on the job and flashed his underwear to passing motorists.”

February 25 — Secrets of class action defense. “Some companies facing a multitude of class actions have been accused of shopping for the cheapest settlements by choosing to deal with lawyers willing to seek less for class members, sometimes in return for a hefty legal fee,” reports the Mobile Register in its investigative series (see Feb. 7 commentary). For example, Norwest Financial was accused of overcharging for credit life insurance in a class action filed in Birmingham; it offered a settlement, which was rejected. It then struck a similar deal with a Mobile lawyer to settle the case on behalf of the same class. “‘Defendants can to some degree get different plaintiffs’ lawyers to bid against each other,’ said John Coffee, a professor at Columbia University in New York and expert on class action law. … If one plaintiffs’ lawyer drives a hard bargain and seeks a truly beneficial settlement for a class, a company may seek another lawyer and ask him to file a suit for the purpose of settling, and on terms the company dictates.

“Coffee said it’s ‘a game’ by which a defendant arranges for a plaintiffs’ attorney to agree to a ‘modest settlement for the class but very lucrative attorney’s fees. The defendant might even write up the complaint to make sure it’s competent and covers everything,’ Coffee said.” (Eddie Curran, “Judge: Mobile deal a ‘cheap ticket out of trouble'”, Dec. 27 (full series).

February 24 — Columnist-fest: liberal aims, illiberal means. Three variations on a theme, namely how progressive social goals aren’t always well served by handing ever-greater authority to those who run the legal process:

* Wendy Kaminer understands why feminists would rally behind the Violence Against Women Act, currently up before the Supreme Court in Brzonkala v. Virginia Tech, but wonders whether liberals should really be comfortable arguing for an expansive view of federal police power. “We need to combat sexual violence without making a federal case of it.” (“Sexual Congress”, American Prospect, Feb. 14).

* Stuart Taylor welcomes the idea of extending legal recognition in Vermont to same-sex relationships, but asks: should this advance really be put over by way of a unilateral assertion of power by the state’s Supreme Court? (“A Vote For Gay Marriage — But Not By Judicial Fiat”, National Journal, Feb. 21).

* William Raspberry agrees that loving relatives should be a part of kids’ lives, but still is mystified by the law under review in the Supreme Court’s pending Troxel v. Granville: “If you stipulate the mother’s parental fitness (as both sides seemed to do in last week’s questioning by the justices) then how can you insist that she bow to the grandparents’ desires — or even that she has to explain why she chooses not to?” (“Grandparents’ visitation rights case misses boat”, Detroit News, Jan. 18).

February 24 — House passes liability reforms. President Clinton is going to huff and puff and use his veto to blow down anything that looks like a shelter from the incursions of his good friends in the trial bar, which hasn’t deterred the House from passing two bills this month aimed at extending modest degrees of such protection to small businesses and manufacturers of long-lived capital goods. (“GOP makes little headway in reining in lawsuits”, AP/CNN, Feb. 22, link now dead). The small business bill would restrict punitive damages levied against enterprises with fewer than 25 employees to $250,000 or three times actual damages, whichever is less, and would require plaintiffs seeking punitive damages to show that a defendant acted with “willful misconduct and was flagrantly indifferent to the rights and safety of others.” (“House Passes Bill Shielding Small Businesses From Liability Suits”, DowJones.com, Feb. 16.) The durable-goods bill would bar suits against makers of factory equipment that were filed more than 18 years after the delivery of the equipment to its original user; it would not apply to workers who are ineligible for workers’ compensation. (Paul Barton, “House passes cap on makers’ liability”, Cincinnati Enquirer, Feb. 3). The two bills passed by almost identical margins — 221-193 for the small business bill, and 222-194 for the statute of repose bill — with about two dozen Democrats crossing over to join the GOP majority in favor, and about one dozen Republicans crossing the other way.

February 24 — Blaming good pilots. One of the first lawsuits arising from the Jan. 31 Alaska Airlines crash over the Pacific claims that “the pilots should have ‘immediately … land(ed) the aircraft upon first notice of difficulty in operation.’ … But the second-guessing, and the widow’s lawsuit, are wrong. The pilots did what they were supposed to: Analyze the situation, take corrective action, land as soon as practicable. Hurtling through the skies in a pressurized metal tube has its risks. Slapping the airline with a lawsuit won’t make those risks magically disappear. … The pilots were heroes, keeping their crippled plane over the ocean instead of slamming it into suburban Los Angeles.” (Phaedra Hise, “Aerial ambulance chasing”, Salon, Feb. 18) (more on overlawyered skies: Oct. 8, July 19, Dec. 1, Dec. 9, “Kingdom of the One-Eyed“, “Life, Liberty, and the Pursuit of a Good Beer)

February 23 — Crime does pay, cont’d. A federal judge last week refused to dismiss a civil rights lawsuit by family members of a bank robber killed in a spectacular televised shootout with police in North Hollywood, Calif. Emil Matasareanu and Larry Eugene Phillips Jr. “fired more than 1,200 rounds from automatic weapons during a 44-minute battle on Feb. 28, 1997. Both men died, and 11 officers and a half-dozen civilians were wounded.” Attorney Stephen Yagman, representing the family, alleges that police violated Matasareanu’s rights by deliberately “keeping paramedics away from him for an hour as he died on the street….The city has contended that paramedics were needed elsewhere and that authorities initially feared Matasareanu might be booby-trapped.” (“Judge allows lawsuit to go forward in North Hollywood shootout case”, AP/FindLaw, Feb. 16).

February 23 — “How’s the pool?” “It’s okay, but what’s amazing about it is that its construction predates massive lawsuits, so it actually has a deep end. Where most new Las Vegas pools are only three feet deep, this one goes to twelve feet. The diving board has been removed, however.” — from a review of the Frontier Hotel on the website CheapoVegas.com. Better hurry, though: the review advises that “The Frontier is scheduled to be demolished in the summer of 2000”.

February 23 — That Hager case. The Washington Post‘s David Segal, who covered the lawyer beat for three years and has now moved on to write about music, last month penned a valedictory column which mentioned one of his regrets: not having taken a harder look at the disciplinary process for D.C. lawyers and in particular “the tale of Mark Hager, the American University Law professor and sometime plaintiffs lawyer.

“He represented a pair of Virginia mothers who wanted to sue Warner Lambert, makers of a lice shampoo, for creating an environmental hazard and for failing to rid critters from their children’s heads. In an out-of-court deal, Warner Lambert offered refunds to the moms and some 90 other buyers of Nix shampoo, a sum that totaled less than $10,000. Hager and a partner, meanwhile, ended up splitting the $225,000 that Warner Lambert paid on condition that the lawyers not bring another, similar suit and — here’s the kicker — not tell their clients about the bargain. (Hager countered that the deal was legit, in part because it doesn’t prevent his clients from suing Warner Lambert in the future. He also said the moms’ demand for a toxic tort-style suit was unreasonable.)

“The moms filed an ethics grievance and a hearing before a committee of the D.C. Board of Professional Responsibility — which recommends disciplinary action — occurred in January. Not a peep has been heard from that committee since, even though it’s supposed to cough up a recommendation within 60 days.”

Concludes Segal: “That’s an outrage. If Washington lawyers want the trust of their clients and abiding respect from the rest of us, devising a more efficient policing mechanism might be a good start.” (Update May 3, 2001: disciplinary panel in Nov. 2000 called Hager’s conduct “shockingly outrageous” and recommended three-year suspension) (Update Jul. 19, 2003: Hager resigns AU post in April 2003).

SOURCES: David Segal, “Hearsay: Verdicts Rendered, a Beat Surrendered”, Washington Post, Jan. 17; David Segal, “Group Says Lawyer Made Secret Deal”, Washington Post, November 4, 1998, and Siobhan Roth, “American University Professor Faces Ethics Charges, Legal Times, Jan. 18, 1999, both reprinted at headlice.org site; “‘Settlement’ in lice shampoo case probed”, AP, Jan. 27, 1999, reprinted at “Safe 2 Use” commercial page; Goldie H. Gider, “Law Professor Faces Ethics Charges”, The Legal Reformer (HALT), Spring 1999 (second item); Deborah Kelly, “Lice infestations on the rise”, Richmond Times-Dispatch, May 29, 1997. In addition to publishing in such outlets as Monthly Review and Z Magazine, Prof. Hager has also distinguished himself for the vehemence of his attacks on liability reformers; see, for example, “Civil Compensation and Its Discontents: A Response to [Peter] Huber,” 42 Stanford Law Review 539 (1990) (not online).

February 23 — “Quadriplegic is given 7 years in prison for selling marijuana”. In another triumph for the drug war, a federal court has sentenced Louis E. Covar Jr., 51, to prison for seven years. Covar, a wheelchair user who cannot control his muscles beneath his shoulders, says he uses marijuana for medicinal purposes but police testified that he was selling it, in violation of probation terms for a conviction for marijuana possession last March. “According to the Department of Corrections, the special care Covar will need will cost $258.33 a day — or more than $660,000 if he serves his full seven years. A typical prisoner costs taxpayers $47.63 per day.” Federal judge J. Carlisle Overstreet said he was aware of the cost-of-custody problem but said Covar had showed “blatant disregard for the law”. (AP/Deseret News, Feb. 19).

February 23 —Overlawyered.com sets new visitor record. Yesterday was our busiest day ever, thanks in large part to the Wall Street Journal‘s generous editorial mention and the live link in its interactive edition.

February 22 — Welcome Wall Street Journal readers. In an editorial (“Virtual Sanity“) hailing the anti-food-scare Guest Choice Network, the Journal says that “overlawyered.com, a site run by Walter Olson to track the excesses of the lawsuit industry” is one of “a new breed of Websites… cropping up to keep tabs on the army of lawyers and activists”. (“Virtual Sanity”, Wall Street Journal, Feb. 22 (online subscription required)).

February 22 — Against medical advice. Ignoring the advice of both his own subordinates and the medical profession, President Clinton is expected today to unveil a package of measures aimed at combating “medical errors” among doctors, hospitals and other medical providers. The most controversial measure would subject providers to legal sanctions if they fail to report such errors. Since there’s often much doubt as to whether a particular incident constituted error and whether it contributed to a patient’s bad outcome, institutions could stay out of legal danger only by reporting as “error” many incidents that they might not be convinced are such. Despite supposed safeguards for privacy, the New York Times reports, it will often be possible for outsiders to identify the names of patients and doctors involved, and “public reports could be used to strengthen the hand of plaintiffs’ lawyers in malpractice lawsuits.”

The proposals follow a stampede set off by the release of a federally sponsored study which found high rates of avoidable injury to patients in the medical system. (For skeptical looks at the same Harvard-based researchers’ earlier allegations of an “epidemic” of medical malpractice, see Richard Anderson, 1996, and Peter Huber, 1990 and 1997). Both the American Medical Association and the American Hospital Association have warned that, to quote the Times, “if doctors and hospital employees fear being sued…they will be reluctant to discuss the lessons that could be learned from their mistakes.” Also conspicuous by its absence is any evidence that federally managed health care facilities, such as Veterans’ Administration hospitals, are presently achieving more success at avoiding errors than private hospitals, or any demonstration of why Washington should be imposing untried changes on private hospital management when it has as yet done nothing to demonstrate the workability of the proposed changes in its own facilities.

Indeed, “[e]ven Mr. Clinton’s own advisers had suggested that the administration move cautiously.” Instead, Clinton — fresh from a $500,000 trial-lawyer-hosted fund-raiser in Dallas two weeks ago — overrode their advice. He also insisted that an additional principle be part of the package: no matter how many rights doctors and hospitals are made to give up, no jot or tittle of the right to sue doctors or hospitals for malpractice may be interfered with. (Robert Pear, “Clinton to Propose a System to Reduce Medical Mistakes”, New York Times, Feb. 22 (requires registration)).

P.S.: For the past year, having abruptly reversed its earlier stance of resisting the expansion of litigation, organized American medicine has been cheerleading the trial lawyers’ assault on HMOs; the Connecticut State Medical Society, for example, recently sponsored trial lawyer bigwig Richard Scruggs to come to the state to talk up the subject. This could be seen as a kind of experiment: with the trial lawyers receiving such extraordinary and unexpected assistance from their old enemy, would they ease off on their litigation war against the doctors themselves? The Clinton initiative provides a definitive answer to that question: no, they won’t. (Edward J. Croder, “$300 million lawyer revs up to take on HMOs” (Scruggs speech at Quinnipiac College School of Law), New Haven Register, Feb. 11 — not online)

February 19-21 — “Deaf group files lawsuit against movie theaters.” Invoking the Americans with Disabilities Act, eight hearing-impaired persons in Portland, Oregon have filed what aspires to the status of a national class action seeking to force three large cinema chains, Regal, Century, and Carmike, to install closed captioning devices for films in their theaters. The technology, called MoPix, displays captions in a patron’s cupholder; the plaintiffs say it costs about $12,000 a screen to install. A spokesman for the suit, attorney Dennis Steinman, said the country’s biggest cinema chain, Cinemark, was likely to be added soon to the case as a defendant. (Ashbel Green, “Suit seeks to aid deaf moviegoers”, The Oregonian, Feb. 4).

February 19-21 — Bountiful NYC taxpayers come through again. It happened in 1989: Driver Jack Goldberg, under the influence of heroin, cocaine and methadone, lost control of his car and ran onto a Brooklyn sidewalk, gravely injuring Linda Davis, who’d been waiting with her daughter and grandson to catch a bus. Pleading guilty to assault, Goldberg was sent to prison for two years. But the blame could hardly be allowed to stop there, especially not when a far deeper pocket was on hand. Mr. Goldberg proceeded to aver that he’d swerved to avoid a city sanitation truck that was entering the intersection against the light. This theory outraged city officials, who according to the New York Law Journal “contended that Mr. Goldberg admitted at his deposition that he did not recall even seeing the truck in the area and that he had swerved to avoid striking a boy who had run into the street half a block away.” Nonetheless, on December 16 a Kings County jury proceeded to find the city 23 percent culpable for the incident and hand down a $16 million verdict in the suit brought by Ms. Davis and her relatives; joint and several liability should do the rest. (“Verdicts and Settlements”, New York Law Journal, Jan. 28, not online).

February 19-21 — Harassment-law roundup. A new product called Disappearing Email is set to launch next month which automatically “shreds” and destroys email after a certain length of time as determined by company policy; the target market is companies worried that internal emails will be used against them by lawyers in harassment or other types of litigation. (“Email’s Vanishing Act”, Wired News, Feb. 7). Meanwhile, the Industry Standard takes a look at the widely publicized sexual harassment lawsuits filed by two employees against Juno, the Internet start-up. (Susan Orenstein, “What happened at Juno”, The Standard, Feb. 7). And at Intellectual Capital, reader discussion is in progress about Joan Kennedy Taylor’s book What to Do When You Don’t Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, excerpted briefly in this space in November. (Jaime Sneider, “Above the Law?”, Intellectual Capital, Feb. 17).

February 19-21 — Welcome Lucianne.com, Crikey.com.au readers. Readers of Lucianne.com, the popular news forum presided over by Zippergate stalwart Lucianne Goldberg, recently discussed our commentaries “Bill Clinton among friendly crowd” and “Thanks for the memories” (links now dead). And an influx of visitors from Australia over the last week or so owes much to our inclusion as a link on Crikey.com.au, an irreverent investigative site that covers media, government and business down under.

February 19-21 — “Motorists speed more, but fewer die”. When Congress did away with the national 55-mph highway speed limit, opponents called it a “killer bill”; Advocates for Highway and Auto Safety — a be-safe-or-else coalition backed by both insurance companies and the trial-lawyer-allied Ralph Nader complex — predicted that the move “will be the death knell for thousands of American men, women and children“. But in fact “the national crash fatality rate, determined by the number of fatalities for every 100 million vehicle miles driven, has fallen by 11 percent since the United States lifted the national 55 mph speed limit in 1995”. (Tom Greenwood, “Motorists speed more, but fewer die”, Detroit News, Jan. 4; Brock Yates, “Just when you thought bigger was better”, Car and Driver, Oct. 1999, reprinted at Steve Hartford site).

February 19-21 — Update: Cayuga land claim. A Syracuse, N.Y. jury has recommended an amount of $36.9 million as appropriate compensation to the Cayuga Indian tribe for its sale of 64,015 acres to the state of New York two centuries ago. The sum was far below the $335 million sought by the Cayugas and below even the $51 million recommended by appraisers for the state, which was the defendant in the suit. Cayuga attorney Martin Gold lashed out at the ruling as “ridiculous…Apparently nine people didn’t pay attention to the evidence.” The 1795 and 1807 sales were recently declared invalid because they were not approved by the federal government, as required by law (see Feb. 1 commentary). Jim Memmott, “Verdict saddens Cayugas”, Rochester Democrat & Chronicle, Feb. 18.)

February 18 — Bush unveils legal reform plan. On the campaign trail last week, Texas Gov. George W. Bush unveiled proposals for reforming the civil justice system if he’s elected President. (Disclosure: this site’s editor has served as an unpaid advisor to the Bush campaign on the issue.) The proposals include: tougher sanctions for meritless lawsuits and motions; a “Fair Settlement Rule” under which parties who reject a bona fide settlement offer and then do worse at trial will be liable for the reasonable legal fees their opponents expended after the offer; curbs on lawyers’ power to steer actions into courts they view as favorable (“forum-shopping”); a “Client’s Bill of Rights” prescribing more disclosure about fees to be charged and enhanced supervision by federal courts of fees charged in the cases they oversee; and controls on unreasonable fees charged by lawyers representing government bodies. (“Bush proposes higher standards for lawyers”, Reuters/FindLaw, Feb. 9; campaign news release, Feb. 9; fact sheets on tort reform and on Texas record (PDF format); Morton Kondracke, “Bush’s Trial with the Trial Lawyers”, June 28, 1999 (reprinted at Citizens Against Lawsuit Abuse Houston site)).

February 18 — I see riches in your future. ABC has confirmed that it has paid $933,992 to an employee of the Psychic Services Network who sued the network over its 1993 airing of a secretly made videotape on its newsmagazine “PrimeTime Live”. Mark Sanders charged that ABC had ruined his reputation by covertly videotaping him and his colleagues working the telephones in a show aimed at depicting the call-a-psychic business as “a scam and illegitimate”. In 1994 a jury awarded Sanders $335,000 in compensatory and $300,000 in punitive damages, and the total sum owing has mounted through the accumulation of interest as ABC has pursued unsuccessful appeals. (Yahoo/AP, “ABC Pays Damages to Psychic Network”, Feb. 15, link now dead).

February 18 — Lawsuit reform helps Michigan taxpayers. The state’s payout in judgments and settlements, which had been running around $25 to $35 million a year, declined to $12.7 million last year. Democratic state attorney general Jennifer Granholm credited skillful legal work and good economic times for the favorable trend but also, significantly, acknowledged the helpful role of 1995 reforms which bolstered sovereign immunity and curbed the application of joint and several liability, the deep-pocket doctrine by which a defendant one percent responsible for an accident can be made to pay all the damages. (“Tort reform pays off” (editorial), Detroit News, Feb. 2).

February 18 — The trouble with bounty-hunting. “Porcupines [in New England] have never enjoyed the popular status of, say, the armadillo in Texas. They were particularly unpopular earlier in this century, when they returned to reforested areas ahead of their natural predators and consequently boomed. John Barrows, a district forester with the state of Vermont, recalls that Vermont used to offer a bounty of fifty cents for a set of porcupine ears, and in 1952 paid out $90,000. Remarkably, it still had a porcupine problem in 1953 and for several decades thereafter. Barrows explains: ‘There was a time when we thought the state had a lot of money, and a trapper who knew how to use his knife could get ten or twelve sets of ears out of a single animal.'” — from Richard Conniff, Every Creeping Thing: True Tales of Faintly Repulsive Wildlife (Henry Holt & Co., 1998).

February 17 — And so now everybody’s happy. “Last month, the Supreme Court decided not to review an appeals court decision that temporary Microsoft workers must receive the same retirement benefits, including discounted stock, as regular employees…. Already, some companies have reacted to the original Microsoft decision by getting rid of temporary workers before they can be considered permanent, lawyers said.” (David Leonhardt, “Who’s the Boss? Who’s a Worker?”, New York Times, Feb. 16) (& see letters, Dec. 20).

February 17 — Barrel pointing backward. “President Clinton enthusiastically backs the current wave of municipal lawsuits against the gun industry”, yet he’s also proposed giving $10 million in taxpayer money to some of the same manufacturers for the sake of developing so-called smart guns. Some litigation advocates are upset about the inconsistency, including Kristen Rand of the Violence Policy Center, who says: “It makes the lawsuits seem like a charade.” Yes, now she’s getting the idea.

The litigation onslaught may in fact have retarded progress toward smart-gun technology. Colt’s Manufacturing Co. had been at work on a smart-gun venture but folded its effort late last year; the Wall Street Journal’s Paul Barrett quotes John Rigas, a partner in the company’s controlling owner, the New York investment group Zilkha & Co., as saying that “potential punitive damages scared away needed outside investors”. (Paul M. Barrett, “‘Smart’ Guns Trigger a Debate”, Wall Street Journal, Jan. 27 (requires online subscription).)

February 17 — Welcome Kausfiles.com readers. Mickey Kaus’s commentaries on politics, journalism and social policy, among the high points of Slate, are also collected on this freestanding website. He’s just added new features including a desktop-style assortment of columnist and policy links. Check out the ultrabrief descriptions (for this page: “Daily horror stories”.)

February 17 — The fine print. The Boston Globe has backed off at least temporarily from a short-lived effort to save money, trees and ink by reducing the type size of its articles, thus squeezing more onto a page. Readers had protested vociferously, and at least one threatened to sue under the Americans with Disabilities Act: “The Globe cannot simply refuse to serve readers with aging eyes and poor eyesight.” (Jack Thomas, “The incredible shrinking type irks Globe readers”, Boston Globe, Feb. 14, link now dead (via Romenesko, Media News)).

February 17 — Let your fingers do the suing. The Yellow Pages contain many entries for businesses like the A-ABC Locksmith Service and AAA Affordable Auto Glass, and now you can add to that list of eagerly promotional trade monickers the AAAA Legal Center, run by Detroit-area trial lawyer Robert D. Mouradian, though its website has not been updated since April 1999 and could use a spell-check.

February 16 — Welcome Fox News Channel visitors. Our editor was interviewed for a story on how the Americans with Disabilities Act may require the redesign of websites so as to provide “reasonable accommodation” to blind, deaf and other handicapped users. For more details, see his prepared statement presented to a House Judiciary Committee hearing last week; our Dec. 21 commentary, and our subpages on disabled-rights law and Internet law.

February 16 — Update: Connecticut tobacco-fee bonanza. Not long after Connecticut attorney general Richard Blumenthal said last winter he had “no idea” whether law firms were going to rake in excessive fees representing the state in the tobacco settlement (see Feb. 3 commentary), a total fee haul was announced: a handsome $65 million. As previously reported in this space, the three lucky firms selected to handle the in-state work included Blumenthal’s own former law firm of Silver, Golub & Teitell of Stamford. The other two firms? One was Carmody & Torrance of Waterbury, whose managing partner James K. Robertson is personal counsel and counselor to the state’s governor, John Rowland. And the third was Stamford’s Emmett & Glander, whose name partner, Kathryn Emmett, happens to be married to partner David S. Golub of Silver, Golub & Teitell. “I know how it [looks]”, concedes Golub.

A number of other firms that wanted to be considered for the work were cut out; Robert Reardon of New London, a former president of the Connecticut Trial Lawyers Association, couldn’t get even get in the door for a meeting. Though Attorney General Blumenthal was later to disclaim knowledge of the firms’ fee entitlements, the Connecticut Law Tribune reports that he “was extraordinarily active in the litigation and settlement — more so than any other attorney general”. (Thomas Scheffey, “Winning the $65 Million Gamble”, Connecticut Law Tribune, Dec. 8; “After the Lion’s Share”, Feb. 5).

February 16 — Disabled test-accommodation roundup. Salon is the latest to notice this issue. While the share of students getting extra time on the SAT — typically an extra hour and a half on a three-hour exam — is still only 1.9 percent nationwide, “the number jumps to nearly 10 percent in some New England prep schools and wealthy districts in California.” Michael Scott Moore, “Buying Time”, Salon, Feb. 9). AP reports that the percentage of college freshmen describing themselves as disabled more than tripled between 1978 and 1998, from less than 3 percent to 9.4 percent. Forty-one percent of the disabled freshmen in 1998 identified their impediment as a learning disability, up from 15 percent ten years earlier. More chances to attend college for kids who’d have been classified as disabled all along — or just more students being classified as disabled? (“Learning Disabled Advance in School”, AP/FindLaw, Feb. 10). In a case closely watched by college officials, a Boston College senior with attention deficit disorder and a 3.35 grade point average “has sued the Law School Admissions Council, charging the national testing giant violated her rights by denying her extra time to take the all-important exam.” (Andrea Estes, “BC student sues test firm: Wants more time for law school exam”, Boston Herald, Jan. 12).