Search Results for ‘exotic wood’

Environment roundup

August 6 roundup

Gibson Guitar agrees to $300,000 fine

The fine is well below the cost of mounting a legal defense in a case that had become a symbol of trigger-happy regulatory prosecution. [Nick Gillespie/Reason, Ann Althouse, AP] Besides, Ted Frank argues, “Gibson was planning on setting up camp at the RNC to promote the problem of overcriminalization,” so the Obama administration gets something of value too in an election season.

More: “The Lacey Act: Protectionism Through Criminalization” [K. William Watson, Cato at Liberty]

November 20 roundup

  • Judge finds Army Corps of Engineers negligent in Katrina levees suit [WSJ Law Blog, Krauss/PoL]
  • Feds raid the Gibson guitar factory in Nashville on an exotic-woods rap [The Tennessean] Eric Scheie has a few things to say about what turns out to be a remarkably comprehensive federal regulatory scheme on trade in wood enacted with little public discussion as part of the 2008 farm bill [Classical Values]
  • In the mail: Amy Bach’s new book Ordinary Injustice: How America Holds Court, very favorably reviewed by Scott Greenfield not long ago (AmLaw Daily interview with author);
  • Pension tension: link roundup on CALPERS mess [Reynolds]
  • Maine passes very sweeping law banning marketers from collecting or using wide array of information about minors, but state acknowledges that much of the law probably wouldn’t pass constitutional muster and won’t be enforced [Valetk/Law.com, Qualters/NLJ]
  • StationStops, which provides a mobile app for NYC commuter schedules, seems to have survived its legal tussle with New York’s MTA and thanks those who helped call attention to the story, with generous words for a certain “great blog”;
  • Lawsuits cost Chicago taxpayers $136 million last year [Fran Spielman, Sun-Times]
  • Blawg Review #238 is from Joel Rosenberg and bears the title, “Celebrating the International Day of Tolerance … and the NRA’s Birthday” [WindyPundit]

June 2003 archives, part 2


June 20-22 — Fast food: give me my million. From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:

CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.

RICHARD CARLETON: So what do you want in return?

CAESAR BARBER: I want compensation for pain and suffering.

RICHARD CARLETON: But how much money do you want?

CAESAR BARBER: I don’t know … maybe $1 million. That’s not a lot of money now.

(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines. (DURABLE LINK)

June 20-22 — Investors’ Business Daily interviews our editor. Now at a stable URL, last Friday’s interview mostly concentrated on our editor’s new book The Rule of Lawyers (David Isaac (interviewer), “Frivolous Lawsuits Creating New Power Class — Lawyers”, Jun. 13, reprinted at Manhattan Institute site). (DURABLE LINK)

June 20-22 — Batch of reader letters. Special all-critical edition — nothing but letters taking issue with us. Topics include the MTV “Jack Ass” suit, Ann Arbor substitute teachers, the ADA, high verdicts as an inspiration to young lawyers, and medical malpractice. (DURABLE LINK)

June 18-19 — Keep playing in our conference or we’ll sue you. Five schools in the Big East football conference — Pittsburgh, West Virginia, Virginia Tech, Rutgers and Connecticut — have filed suit to stop Miami and Boston College from departing for the Atlantic Coast Conference. (Eddie Pells, “Big East accuses Miami, BC and ACC of conspiracy”, AP/Kansas City Star, Jun. 6; Sam Eifling, “Requiem for the Big East”, Slate, Jun. 12; Steve Wieberg, “Conference changes becoming more hostile than ever”, USA Today, Jun. 15). Politicians have gotten into the act in support of the suit, including (inevitably) Connecticut AG Richard Blumenthal as well as the state’s Gov. John Rowland (Andy Katz, “ACC lawyer: Lawsuit will not distract from expansion”, ESPN, Jun. 12). Virginia AG Jerry Kilgore, too (“Virginia Tech, the Big East and the ACC”, Roanoke Times, Jun. 17; see S.W.Va. Law Blog, Jun. 17). S.M.Oliva comments (Initium, Jun. 6) (via Dan Lewis). (DURABLE LINK)

June 18-19 — A judge bans a book. “A tax protester may not sell his book that contends paying income tax is voluntary, a federal judge ruled Monday. U.S. District Judge Lloyd D. George wrote in an order banning the book that Irwin Schiff is not protected by the First Amendment because he has encouraged people not to pay taxes. ‘There is no protection … for speech or advocacy that is directed toward producing imminent lawless action,’ George wrote in support of the preliminary injunction on the book, ‘The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes.'” (“Federal judge in Las Vegas bans anti-tax book”, Reno Gazette-Journal, Jun. 16). (DURABLE LINK)

June 18-19 — Texas’s giant legal reform. With the support of Gov. Rick Perry, the Texas legislature this month passed what looks to us to be the most serious and comprehensive package of litigation reforms achieved at one stroke anywhere in recent memory. Among other features, it: adopts an offer-of-settlement-driven variant of loser-pays; reforms class action certification and requires that lawyers’ fees be paid in coupon form to the extent that class relief is provided that way; tightens forum non conveniens safeguards against court-shopping; protects defendants from having to pay damages attributable to other responsible parties’ fault; establishes innocent-retailer and regulatory-compliance defenses in product liability law, along with a 15-year statute of repose; curbs artificially high interest on judgments; limits appeals bonds; restrains medical liability in a long list of ways including a $250,000 cap on non-economic damages; and much more. (“Ten-gallon tort reform” (editorial), Wall Street Journal, Jun. 6, reprinted at Texans for Lawsuit Reform site; summary of legislation at same site; John Williams, “Proponents cheer tort reform”, Houston Chronicle, Jun. 11). (DURABLE LINK)

June 18-19 — Around the blogs. Virginia Postrel (Jun. 5) has some comments from civil libertarian Harvey Silverglate criticizing 18 U.S.C. sec. 1001, which the feds are using to go after Martha Stewart. This law makes it unlawful to lie to a federal agent — even if you’re not under oath, and even though the agents may be free to lie to you. See also the comment from reader James Ingram. Mickey Kaus (Jun. 16) echoes speculation by “some media lawyers” quoted in the Washington Post (James V. Grimaldi, “Blair Analogy Reaches Courtroom Far From N.Y.”, Jun. 16) that the New York Times may have forced out top executives Howell Raines and Gerald Boyd in part because if it hadn’t done so, defamation plaintiffs might have been able to use its forbearance “to devastating effect” in future litigation. And MedPundit catches up at some length (Jun. 3) on the controversy over thimerosal, the mercury-containing vaccine preservative which has given rise to bitter litigation and legislative battles. (DURABLE LINK)

June 16-17 — Probate’s misplaced trust. Washington Post investigation into guardianship in the D.C. courts finds that the D.C. Superior Court’s probate division, “mandated to care for more than 2,000 elderly, mentally ill and mentally retarded residents, has repeatedly allowed its charges to be forgotten and victimized …. Chaotic record-keeping, lax oversight and low expectations in this division of the court have created a culture in which guardians are rarely held accountable. They are often handed new work even when they have ignored their charges or let them languish in unsafe conditions.” The Post “found hundreds of cases where court-appointed protectors violated court requirements. Since 1995, one of five guardians has gone years without reporting to the court. Some have not visited their ailing charges. In more than two dozen cases, guardians or conservators have taken or mishandled money. Neglectful caretakers are rarely disciplined, D.C. bar records show. Even when they have been caught stealing or cheating clients, attorneys can go as long as nine years before they are punished.”

Why have the courts gone on giving new work to lawyers charged with misconduct or incompetence in earlier cases? “[Senior Judge Eugene] Hamilton said he would hesitate to ban lawyers from future appointments simply because they’ve been removed from a case. ‘You have to be careful about barring someone from cases, said Hamilton, who oversaw the probate division from 1991 until 1993. ‘It may be the person’s only source of practice.'” (Carol D. Leonnig, Lena H. Sun and Sarah Cohen, “Under Court, Vulnerable Became Victims”, Washington Post, Jun. 15) (via David Bernstein)(& see Ethical Esq.). More: Second part of article: Sarah Cohen, Carol D. Leonnig and April Witt, “Rights and Funds Can Evaporate Quickly”, Jun. 16). (DURABLE LINK)

June 16-17 — He’s gotta have it. A Manhattan judge has granted a temporary injunction sought by filmmaker Spike Lee against the launch of Spike TV, a cable channel aiming to provide television programming of interest to men. (Samuel Maull, “Spike Lee wins temporary injunction”, AP/San Francisco Chronicle, Jun. 12). However, “State Supreme Court Justice Walter Tolub ordered Lee to post a $500,000 bond to cover Viacom’s losses in case the company wins.” (“Spike Lee outmans Spike TV”, Newsday, Jun. 13; Mark Perry, “Spike Lee Gains Upper Hand In Legal Battle With TNN”, Impact Wrestling, Jun. 13). At FindLaw, columnist Julie Hilden (“Spike Lee v. Spike TV”, Jun. 9) is nondismissive about Lee’s case, while conceding it raises questions about whether other well-known persons with the same nickname, such as director Spike Jonze, could also sue. Sentiment in the blog world, on the other hand, seems to be running heavily against Lee (né Shelton). Examples: Catbird.org, Idler Yet, Horrors of an Easily Distracted Mind, Doedermara.net, LedUntitled. (DURABLE LINK)

June 16-17 — A tangled Mississippi web. “A web of connections exists between the judges, lawyers, politicians and investigators involved in a Mississippi judicial-corruption probe, raising questions about the fairness and thoroughness of the investigation and about possible conflicts of interest.” Among prominent figures in the probe are “[plaintiff’s attorney Dickie] Scruggs as a cooperating witness and [state Attorney General Michael] Moore as a co-investigator of some sort. And their friendship has raised eyebrows, most recently after The Sun Herald witnessed Moore giving Scruggs a lift to the courthouse before Scruggs testified before the grand jury. … Scruggs has said he does not have an immunity agreement with prosecutors and that he doesn’t need one.” A federal grand jury is expected to reconvene next month to consider the allegations. (Margaret Baker, Tom Wilemon and Beth Musgrave, “Web of connections”, Biloxi (Miss.) Sun-Herald, Jun. 8)(see May 7 and links from there).

MORE ON INVESTIGATION: Thomas B. Edsall, “Mississippi Trial Lawyers Under Inquiry”, Washington Post, May 18; “FBI agent reassigned after questioning ties in judge-attorney probe”, AP/Grenada (Miss.) Star, May 29; Tom Wilemon, Margaret Baker and Beth Musgrave, “Lott, Moore deny influencing probe”, Biloxi Sun Herald/San Jose Mercury News, May 30; “Moore says he has no role in judges probe”, AP/Jackson Clarion Ledger, May 30; “Paper: Lott, judge probers talked”, Jackson Clarion Ledger, Jun. 3. (DURABLE LINK)

June 16-17 — “The rise of the fourth branch”. Our editor’s book The Rule of Lawyers is reviewed in Enter Stage Right by ESR editor Steven Martinovich (Jun. 9). And on Friday Investor’s Business Daily published correspondent David Isaac’s interview with our editor; when we get a stable URL, we’ll post it. (DURABLE LINK)

June 16-17 — “McDonald’s sues food critic”. “McDonald’s has sued one of Italy’s top food critics for raking its restaurants over the coals, but the critic says he has no intention of going back on saying its burgers taste of rubber and its fries of cardboard.” McDonald’s of Italy called the comments by Edoardo Raspelli, food critic of the newspaper La Stampa, “clearly defamatory and offensive”. (Reuters/CNN, Jun. 2; BBC, May 30; Guardian (UK), Jun. 4; “McDonald’s Turns to the Dark Side”, Center for Individual Freedom, Jun. 12). David Farrer at Freedom and Whisky suggests a better approach the company might take (“Shooting themselves in the foot”, May 31). (DURABLE LINK)

June 12-15 — Docs leaving their hometowns. As liability woes worsen, this genre of article is running in papers across the country. Philadelphia, of course: Michael Hinkelman, “Like older docs, young M.D.s fleeing Pa., too”, Philadelphia Daily News, May 28. An example from Corpus Christi, Tex.: Robert M. (Marty) Reynolds, “Why this doctor is leaving his hometown”, Corpus Christi Caller-Times, Apr. 23, reprinted at Texans for Lawsuit Reform site. From Independence, Mo., best known as Harry Truman’s hometown: M. Steele Brown, “Malpractice ‘crisis’ drives docs from Missouri”, Kansas City Business Journal, May 2. And neurosurgery in Seattle faces a crisis as ten local surgeons lose their coverage, forcing hospitals to send patients elsewhere; the ten say they have good records but the chief operating officer of the Doctor’s Company, an insurance provider, “said about half of all neurosurgeons nationwide are sued each year”, which makes it plain enough that plenty of good ones get sued. (Carol M. Ostrom, “A neurosurgeon ‘crisis’: Insurer drops doctors’ group”, Seattle Times, Jun. 7). Meanwhile, the incoming head of the American Bar Association, North Carolinian Alfred P. Carlton Jr., a partner with Kilpatrick Stockton LLP, claims in an interview with The Hill — no fair laughing aloud, now — that “I don’t think there’s any credible evidence that connects anything going on in the justice system to the rise of malpractice insurance rates. My malpractice rates are going up. Everybody’s insurance rates are going up, for all kinds of insurance.” Now there’s a checkable proposition: have insurance rates for life, health, fire, storm, crop and marine risks jumped by 60 or 80 percent on renewal in the past couple of years, the way so many doctors’ liability rates have? (“‘There are abuses at the edges'” (interview), The Hill, Jun. 11). (DURABLE LINK)

June 12-15 — U.K. roundup. “George Blake, the KGB spy who fled to Moscow in 1966, has accused the Government of breaching his human rights by confiscating £90,000 he was expecting to make from his memoirs.” Blake, who escaped from Wormwood Scrubs prison after serving five years of a 42-year sentence for highly damaging work as a Soviet double agent, has petitioned the European Court of Human Rights for the right to the money from the autobiography. (Joshua Rozenberg, “Spy Blake tries to sue Britain for his lost £90,000”, Daily Telegraph, May 16). “Meet Britain’s most prolific race discrimination litigant. Omorotu Francis Ayovuare, a Nigerian-born surveyor, may not have held a steady job for five years: he has, however, earned a certain celebrity in the world of industrial relations after launching 72 employment tribunal cases alleging racial discrimination.” (Adam Lusher and David Bamber, “Give me a job – or I’ll sue”, Daily Telegraph, Jun. 8). (Update Dec. 13: at request of attorney general, court restrains him from further filings). “The Scottish Parliament, fresh from outlawing hunting with dogs, is to force fish-lovers to buy pet licences for exotic species in their garden ponds and aquaria. … Anyone who owns exotic fish without a licence will face fines of up to £2,500.” (Rajeev Syal, “Have you got a licence for that exotic minnow?”, Daily Telegraph, Apr. 6). Enthusiasm about lawsuits to recoup costs of global warming has reached Britain, although as one Oxford physicist told the BBC, “Some of it might be down to things you’d have trouble suing — like the Sun”. (“Suing over climate change”, BBC, Apr. 3). (DURABLE LINK)

June 12-15 — To tame Madison County, pass the Class Action Fairness Act. By ensuring that large nationwide class actions are heard in federal court, the bill would curb the influence of “magic jurisdictions” in which “the judiciary is elected with verdict money”, as one big-league trial lawyer has put it. (Jim Copland, “The tort tax”, Wall Street Journal, Jun. 11; Mr. Copland is associated with the Manhattan Institute’s Center for Legal Policy, as is this site’s editor.). The Madison County, Ill. courthouse “is on pace to have another record year for class-action lawsuits”, reports a local newspaper. (Brian Brueggemann, “Number of lawsuits is 39 and climbing”, Belleville News-Democrat, May 26). Two plaintiff’s law firms, St. Louis-based Carr Korein Tillery and the Wood River, Ill.-based Lakin Law Firm, dominate the filing of class actions in the county (Andrew Harris, “At the head of the class actions”, National Law Journal, Jun. 9). And Madison County personal injury lawyer John Simmons, 35, of Edwardsville, whose law firm in March obtained a $250 million jury verdict for a retired steelworker in an asbestos case against U.S. Steel, “has announced his intention to run for the U.S. Senate seat being vacated by Republican Peter Fitzgerald”. (“Downstate lawyer to enter Democratic primary”, AP/Northwest Indiana Times, May 27). (DURABLE LINK)

Archived environment items, pre-July 2003

See separate entries for archived entries on animal rights and mold.


Wildlife management, species protection, 2003:U.K. roundup” (licensing of exotic pet fish), Jun. 12-15. 2001:False trail of missing lynx“, Dec. 18; “Pricing out the human species“, Aug. 22-23; “Stories that got away“, Jul. 23; “Bush’s environmental centrism“, Apr. 24.  2000:Endangered list“, Dec. 4; “Snakes’ rights not always paramount” (man killed snake in self-defense), Aug. 18-20; “‘Imperfect laws add to danger of perfect storms’“, Aug. 10.  1999:Property owners obliged to host rattlesnakes“, Oct. 12; “Knock him over with a feather” (migratory bird contraband laws), Sept. 11; “Mow’ better ADA claims” (claim of “exotic prairie plants” by resident who didn’t want to mow her lawn), Jul. 26.

Bounty-hunting in New Jersey“, Jun. 10-11, 2003.

‘State is suing ex-dry cleaners’” (Calif., Superfund), May 27, 2003.

Suing ’til the cows come home“, May 20, 2003. 

U.K. roundup” (global warming suits), Jun. 12-15, 2003; “Tort suits over global warming“, Feb. 6-9, 2003; “Global warming suit?“, Jul. 31, 2001 (& Aug. 10-12); “Plus extra damages for having argued with us“, Aug. 19, 1999. 

California’s hazardous holiday” (fireplaces), Dec. 27-29, 2002; “Chestnuts-roasting menace averted“, Dec. 24-27, 2001; “Put out that match” (agricultural burning, residential wood burning), Feb. 28-Mar. 1, 2001.

“Right to know” laws, 2002:California’s hazardous holiday” (acrylamide), Dec. 27-29; “‘Lawyers who sue to settle’“, Nov. 4-5; “Chocolate, gas-pump fumes, playground sand and so much more“, Oct. 15; “‘Greedy or Just Green’“, Mar. 13-14.  2001:There’ll always be a California” (chocolate and Prop 65), Dec. 4; Letter to the editor (lutefisk exempted from toxic-substance status in Wisconsin), Nov. 29; “Be somewhat less afraid” (nuclear plant terrorism), Nov. 30-Dec. 2; “‘U.S. Debates Info on Chemical Hazards’” (“right to know” and terrorism), Nov. 12; “Chemical-plant vulnerabilities: read all about them“, Oct. 1. 1999:Lockyer vs. keys” (California attorney general declares brass a toxic hazard), Nov. 2. 

How much did you say that Indian legend was worth?“, Sept. 25-26, 2002; “Final innings for Kennewick Man“, Sept. 27-28, 2000; “Free Kennewick Man!” (pre-Columbian remains), Oct. 11, 1999. 

Low exposures, 2002:A breast-cancer myth“, Sept. 3-4; “‘Unharmed woman awarded $104,000’” (Canada), May 6. 2001:There’ll always be a California” (chocolate and Prop 65), Dec. 4; “‘Incense link to cancer’“, Aug. 27-28; “‘Candles might be polluting your home, EPA says’“, Jun. 19; “While you were out: the carbonless paper crusade“, Apr. 25 (& letter to the editor, May 18); “Hunter sues store over camouflage mask“, Jan. 12-14. 2000: ‘Airbag chemical on trial’“, Aug. 14; “Multiple chemical sensitivity from school construction“, Jul. 3-4; “Feelings of nausea? Get in line” (Baton Rouge chemical spill), Jan. 26-27. 1999:Lockyer vs. keys” (California attorney general declares brass a toxic hazard), Nov. 2. 

Zoning, land use, 2002:How much did you say that Indian legend was worth?“, Sept. 25-26; “‘Preserving’ History at Bayonet Point“, Feb. 15-17; “Planners tie up land for twenty years“, Jan. 18-20.  2001:Columnist-fest” (John Tierney on NYC battle over IKEA site), May 25-27; “Lessons of shrub-case jailing“, May 17; “Perils of regulatory discretion“, Jan. 24-25. 2000:Cornfield maze as zoning violation“, Oct. 30.  1999:Great moments in zoning law” (rescued pets from storm, charged with running unlawful animal shelter), Nov. 22.

Mercury in dental fillings“, Jul. 16-17, 2002 (& Nov. 4-5, 2002). 

Going to blazes” (logging and Western fires), Jul. 1-2, 2002; “Credibility up in smoke?” (same), Jul. 12-14, 2002; letter to the editor, Oct. 23. 

Industrial farming:‘Tampa Judge Tosses Out Class-Action Suit Against Hog Company’“, Jul. 3-9, 2002; “RFK Jr. blasted for hog farm remarks“, Apr. 15, 2002 (& Apr. 17, Apr. 19-21, letter to the editor and editor’s response, Apr. 19); “Chickens are next“, Feb. 6-7, 2002; “Judge throws out hog farm suit“, May 7, 2001; “Trial lawyers vs. hog farms“, Dec. 7, 2000; “This little piggy got taken to court“, Sept. 12, 2000; “Not so high off the hog“, Oct. 4, 1999. 

‘San Francisco Verdict Bodes Ill for Oil Industry’“, Jun. 11-12, 2002. 

‘Legal fight over chemical spill ends with whimper’” (W.V.), Jun. 7-9, 2002. 

Flowers, perfume in airline cabins not OK?” (Canada), May 17-19, 2002; “Scented hair gel, deodorant could mean jail time for Canadian youth“, Apr. 24, 2000.

The mystery of the transgenic corn“, May 14-15, 2002.

“Erin Brockovich”, 2002:‘Erin Brockovich, the Brand’“, Apr. 29-30.  2001:Exxon Brockovich vs. Erin Valdez“, Nov. 15; “NBC mulls Brockovich talk show“, Nov. 6, 2001; “Brockovich a heroine?  Julia really can act“, Mar. 23-25.  2000:Errin’ Brockovich?“, Dec. 21, 2000; “‘All about Erin’“, Oct. 12; “More woes for ‘Brockovich’ lawyers“, Jun. 22-25;  “Brockovich story, cont’d: the judges’ cruise“, Apr. 18; Brockovich story breaks wide open“, Apr. 17; “Plume of controversy“, Apr. 14-16; “Hollywood special“, Mar. 30.  1999:A Civil Action II?“, July 7. 

Trial lawyer/enviro alliance?  “RFK Jr. blasted for hog farm remarks“, Apr. 15, 2002 (& Apr. 17, Apr. 19-21, letter to the editor and editor’s response, Apr. 19); “‘Working’ for whom?” (Environmental Working Group), May 23, 2001; “Judge throws out hog farm suit“, May 7, 2001; “‘Bogus’ assault on Norton“, Jan. 18, 2001; “Trial lawyers vs. hog farms“, Dec. 7, 2000.

‘Former clients sue attorney O’Quinn’” (Kennedy Heights case), Apr. 8-9, 2002. 

Arsenic: one last dose?“, Mar. 22-24, 2002; “The view from Arsenictown“, Sept. 11, 2001; “‘The arithmetic of arsenic’“, Aug. 17-19; “Bush’s environmental centrism“, April 24; “Tempest in an arsenic-laced teacup?“, Apr. 18; “‘Bogus’ assault on Norton“, Jan. 18; “The Times vs. Gale Norton“, Jan. 15; “Ecology and economy“, Jan. 5-7, 2001. 

Liability concerns fell giant sequoia“, Mar. 12, 2002. 

Environmental lawsuits vs. military readiness“, Jan. 2-3, 2002.

Overlawyered schools roundup” (environmental impact statement for teacher layoffs?), Dec. 7-9, 2001.

Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001.

States lag in curbing junk science“, May 29, 2001.

‘Family awarded $1 billion in lawsuit’” (Louisiana land contamination), May 24, 2001. 

Prospect of $3 gas“, May 10, 2001.

Who needs power anyway?:Sweetness and light from Bill Lockyer“, Jun. 1-3, 2001 (& see June 8-10, June 22-24); “California electricity linkfest“, Mar. 26, 2001; “Brownout, Shivers & Dim, attorneys at law“, Oct. 11, 2000; “Worse than Y2K?” (EPA/DOJ suit against coal-burning utility plants), Nov. 18-19, 1999. 

Seventh Circuit rebukes EPA” (Superfund search and seizure), Apr. 23, 2001. 

Attorneys’ fees:Stories that got away” (Endangered Species Act suits), Jul. 23, 2001; “Losers should pay” (columnist Thomas Sowell; injunctions, bonding requirements), Aug. 4-7, 2000; “Marbled Murrelet v. Babbitt: heads I win, tails let’s call it even” (“one-way” fee shifts), Sept. 8, 1999 (& see National Law Journal, Dec. 14, 1999).

Enviro litigator: debate belongs in Congress, not courts“, Dec. 29, 2000-Jan. 2, 2001.

Federal power over mud puddles?” (wetlands case), Nov. 28, 2000. 

From the evergreen file: cancer alley a myth?“, Nov. 8, 2000. 

‘A Civil Action’ and Hollywood views of lawyers“, Jun. 20, 2000. 

Don’t cooperate” (lawyers’ advice re local health survey), Jun. 9-11, 2000.

EPA’s high courtroom loss rate“, May 26-29, 2000; “When agencies like getting sued“, Dec. 6, 1999.

After the great power-line panic“, May 24, 2000; “Another scare starts to fizzle” (endocrine disrupters), Aug. 19, 1999. 

This side of parodies” (“dihydrogen monoxide” parody), May 10, 2000.

Diapered wildlife?” (animal emissions as environmental problem), Apr. 10, 2000; “Backyard trash burning” (suspected as major dioxin source), Jan. 6, 2000.

Emerging campaign issue: ‘brownfields’ vs. Superfund lawyers“, Apr. 4, 2000; “Mayors: liability fears stalling ‘brownfields’ development“, Feb. 26-27, 2000. 

Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999. 

Weekend reading: evergreens” (Race car great Bobby Unser’s snowmobiling rap), Dec. 3-5, 1999. 

Leave that mildew alone” (EPA considers mildew-proof paint to be pesticide), Nov. 30, 1999.

Flag-burning protest requires environmental permits” (one for smoke, one for fire), Nov. 3, 1999.

A mile wide and an inch deep” (EPA considers Platte River impaired because sun heats it up), Oct. 15, 1999.

Careful what you tell your lawyer” (feds demand waiver of lawyer-client confidentiality in environmental cases), Sept. 14, 1999; “Overlawyered skies not always safer” (environmental audits and other “self-critical analysis”), Jul. 19, 1999. 

Tainted cycle” (class action over infectious bacterium in Milwaukee water supply), Sept. 2, 1999. 


Articles by Overlawyered.com editor Walter Olson:

Hollywood vs. the Truth” (“Civil Action” movie), Wall Street Journal, December 23, 1998. 

Don’t Steal This Book“, review of Property Matters by James DeLong, Wall Street Journal, April 2, 1997 (property rights).

Lawyers with Stethoscopes: Clients Beware“, Manhattan Institute Civil Justice Memo # 26, June 1996.

June 2003 archives


June 10-11 — New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ‘structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)

June 10-11 — Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More: PointOfLaw.com, Sept. 5, 2004. (DURABLE LINK)

June 10-11 — The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)

June 9 — “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)

June 9 — “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)

June 9 — The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (“ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.

And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)

June 6-8 — New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)

June 6-8 — Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)

June 6-8 — Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)

June 4-5 — Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)

June 4-5 — Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)

June 4-5 — Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).

A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (“2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (“Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).

How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)

June 4-5 — “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.'” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.'” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)

June 3 — An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)

June 3 — “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”, PeopleClick.com, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, GlobeTechnology.com (Globe & Mail, Canada), Jan. 8 (“Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)

June 2 — Updates. Further developments in cases we’ve covered:

* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);

* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);

* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);

* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”, WeeklyStandard.com, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)


June 20-22 — Fast food: give me my million. From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:

CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.

RICHARD CARLETON: So what do you want in return?

CAESAR BARBER: I want compensation for pain and suffering.

RICHARD CARLETON: But how much money do you want?

CAESAR BARBER: I don’t know … maybe $1 million. That’s not a lot of money now.

(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines. (DURABLE LINK)

June 20-22 — Investors’ Business Daily interviews our editor. Now at a stable URL, last Friday’s interview mostly concentrated on our editor’s new book The Rule of Lawyers (David Isaac (interviewer), “Frivolous Lawsuits Creating New Power Class — Lawyers”, Jun. 13, reprinted at Manhattan Institute site). (DURABLE LINK)

June 20-22 — Batch of reader letters. Special all-critical edition — nothing but letters taking issue with us. Topics include the MTV “Jack Ass” suit, Ann Arbor substitute teachers, the ADA, high verdicts as an inspiration to young lawyers, and medical malpractice. (DURABLE LINK)

June 18-19 — Keep playing in our conference or we’ll sue you. Five schools in the Big East football conference — Pittsburgh, West Virginia, Virginia Tech, Rutgers and Connecticut — have filed suit to stop Miami and Boston College from departing for the Atlantic Coast Conference. (Eddie Pells, “Big East accuses Miami, BC and ACC of conspiracy”, AP/Kansas City Star, Jun. 6; Sam Eifling, “Requiem for the Big East”, Slate, Jun. 12; Steve Wieberg, “Conference changes becoming more hostile than ever”, USA Today, Jun. 15). Politicians have gotten into the act in support of the suit, including (inevitably) Connecticut AG Richard Blumenthal as well as the state’s Gov. John Rowland (Andy Katz, “ACC lawyer: Lawsuit will not distract from expansion”, ESPN, Jun. 12). Virginia AG Jerry Kilgore, too (“Virginia Tech, the Big East and the ACC”, Roanoke Times, Jun. 17; see S.W.Va. Law Blog, Jun. 17). S.M.Oliva comments (Initium, Jun. 6) (via Dan Lewis). (DURABLE LINK)

June 18-19 — A judge bans a book. “A tax protester may not sell his book that contends paying income tax is voluntary, a federal judge ruled Monday. U.S. District Judge Lloyd D. George wrote in an order banning the book that Irwin Schiff is not protected by the First Amendment because he has encouraged people not to pay taxes. ‘There is no protection … for speech or advocacy that is directed toward producing imminent lawless action,’ George wrote in support of the preliminary injunction on the book, ‘The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes.'” (“Federal judge in Las Vegas bans anti-tax book”, Reno Gazette-Journal, Jun. 16). (DURABLE LINK)

June 18-19 — Texas’s giant legal reform. With the support of Gov. Rick Perry, the Texas legislature this month passed what looks to us to be the most serious and comprehensive package of litigation reforms achieved at one stroke anywhere in recent memory. Among other features, it: adopts an offer-of-settlement-driven variant of loser-pays; reforms class action certification and requires that lawyers’ fees be paid in coupon form to the extent that class relief is provided that way; tightens forum non conveniens safeguards against court-shopping; protects defendants from having to pay damages attributable to other responsible parties’ fault; establishes innocent-retailer and regulatory-compliance defenses in product liability law, along with a 15-year statute of repose; curbs artificially high interest on judgments; limits appeals bonds; restrains medical liability in a long list of ways including a $250,000 cap on non-economic damages; and much more. (“Ten-gallon tort reform” (editorial), Wall Street Journal, Jun. 6, reprinted at Texans for Lawsuit Reform site; summary of legislation at same site; John Williams, “Proponents cheer tort reform”, Houston Chronicle, Jun. 11). (DURABLE LINK)

June 18-19 — Around the blogs. Virginia Postrel (Jun. 5) has some comments from civil libertarian Harvey Silverglate criticizing 18 U.S.C. sec. 1001, which the feds are using to go after Martha Stewart. This law makes it unlawful to lie to a federal agent — even if you’re not under oath, and even though the agents may be free to lie to you. See also the comment from reader James Ingram. Mickey Kaus (Jun. 16) echoes speculation by “some media lawyers” quoted in the Washington Post (James V. Grimaldi, “Blair Analogy Reaches Courtroom Far From N.Y.”, Jun. 16) that the New York Times may have forced out top executives Howell Raines and Gerald Boyd in part because if it hadn’t done so, defamation plaintiffs might have been able to use its forbearance “to devastating effect” in future litigation. And MedPundit catches up at some length (Jun. 3) on the controversy over thimerosal, the mercury-containing vaccine preservative which has given rise to bitter litigation and legislative battles. (DURABLE LINK)

June 16-17 — Probate’s misplaced trust. Washington Post investigation into guardianship in the D.C. courts finds that the D.C. Superior Court’s probate division, “mandated to care for more than 2,000 elderly, mentally ill and mentally retarded residents, has repeatedly allowed its charges to be forgotten and victimized …. Chaotic record-keeping, lax oversight and low expectations in this division of the court have created a culture in which guardians are rarely held accountable. They are often handed new work even when they have ignored their charges or let them languish in unsafe conditions.” The Post “found hundreds of cases where court-appointed protectors violated court requirements. Since 1995, one of five guardians has gone years without reporting to the court. Some have not visited their ailing charges. In more than two dozen cases, guardians or conservators have taken or mishandled money. Neglectful caretakers are rarely disciplined, D.C. bar records show. Even when they have been caught stealing or cheating clients, attorneys can go as long as nine years before they are punished.”

Why have the courts gone on giving new work to lawyers charged with misconduct or incompetence in earlier cases? “[Senior Judge Eugene] Hamilton said he would hesitate to ban lawyers from future appointments simply because they’ve been removed from a case. ‘You have to be careful about barring someone from cases, said Hamilton, who oversaw the probate division from 1991 until 1993. ‘It may be the person’s only source of practice.'” (Carol D. Leonnig, Lena H. Sun and Sarah Cohen, “Under Court, Vulnerable Became Victims”, Washington Post, Jun. 15) (via David Bernstein)(& see Ethical Esq.). More: Second part of article: Sarah Cohen, Carol D. Leonnig and April Witt, “Rights and Funds Can Evaporate Quickly”, Jun. 16). (DURABLE LINK)

June 16-17 — He’s gotta have it. A Manhattan judge has granted a temporary injunction sought by filmmaker Spike Lee against the launch of Spike TV, a cable channel aiming to provide television programming of interest to men. (Samuel Maull, “Spike Lee wins temporary injunction”, AP/San Francisco Chronicle, Jun. 12). However, “State Supreme Court Justice Walter Tolub ordered Lee to post a $500,000 bond to cover Viacom’s losses in case the company wins.” (“Spike Lee outmans Spike TV”, Newsday, Jun. 13; Mark Perry, “Spike Lee Gains Upper Hand In Legal Battle With TNN”, Impact Wrestling, Jun. 13). At FindLaw, columnist Julie Hilden (“Spike Lee v. Spike TV”, Jun. 9) is nondismissive about Lee’s case, while conceding it raises questions about whether other well-known persons with the same nickname, such as director Spike Jonze, could also sue. Sentiment in the blog world, on the other hand, seems to be running heavily against Lee (né Shelton). Examples: Catbird.org, Idler Yet, Horrors of an Easily Distracted Mind, Doedermara.net, LedUntitled. (DURABLE LINK)

June 16-17 — A tangled Mississippi web. “A web of connections exists between the judges, lawyers, politicians and investigators involved in a Mississippi judicial-corruption probe, raising questions about the fairness and thoroughness of the investigation and about possible conflicts of interest.” Among prominent figures in the probe are “[plaintiff’s attorney Dickie] Scruggs as a cooperating witness and [state Attorney General Michael] Moore as a co-investigator of some sort. And their friendship has raised eyebrows, most recently after The Sun Herald witnessed Moore giving Scruggs a lift to the courthouse before Scruggs testified before the grand jury. … Scruggs has said he does not have an immunity agreement with prosecutors and that he doesn’t need one.” A federal grand jury is expected to reconvene next month to consider the allegations. (Margaret Baker, Tom Wilemon and Beth Musgrave, “Web of connections”, Biloxi (Miss.) Sun-Herald, Jun. 8)(see May 7 and links from there).

MORE ON INVESTIGATION: Thomas B. Edsall, “Mississippi Trial Lawyers Under Inquiry”, Washington Post, May 18; “FBI agent reassigned after questioning ties in judge-attorney probe”, AP/Grenada (Miss.) Star, May 29; Tom Wilemon, Margaret Baker and Beth Musgrave, “Lott, Moore deny influencing probe”, Biloxi Sun Herald/San Jose Mercury News, May 30; “Moore says he has no role in judges probe”, AP/Jackson Clarion Ledger, May 30; “Paper: Lott, judge probers talked”, Jackson Clarion Ledger, Jun. 3. (DURABLE LINK)

June 16-17 — “The rise of the fourth branch”. Our editor’s book The Rule of Lawyers is reviewed in Enter Stage Right by ESR editor Steven Martinovich (Jun. 9). And on Friday Investor’s Business Daily published correspondent David Isaac’s interview with our editor; when we get a stable URL, we’ll post it. (DURABLE LINK)

June 16-17 — “McDonald’s sues food critic”. “McDonald’s has sued one of Italy’s top food critics for raking its restaurants over the coals, but the critic says he has no intention of going back on saying its burgers taste of rubber and its fries of cardboard.” McDonald’s of Italy called the comments by Edoardo Raspelli, food critic of the newspaper La Stampa, “clearly defamatory and offensive”. (Reuters/CNN, Jun. 2; BBC, May 30; Guardian (UK), Jun. 4; “McDonald’s Turns to the Dark Side”, Center for Individual Freedom, Jun. 12). David Farrer at Freedom and Whisky suggests a better approach the company might take (“Shooting themselves in the foot”, May 31). (DURABLE LINK)

June 12-15 — Docs leaving their hometowns. As liability woes worsen, this genre of article is running in papers across the country. Philadelphia, of course: Michael Hinkelman, “Like older docs, young M.D.s fleeing Pa., too”, Philadelphia Daily News, May 28. An example from Corpus Christi, Tex.: Robert M. (Marty) Reynolds, “Why this doctor is leaving his hometown”, Corpus Christi Caller-Times, Apr. 23, reprinted at Texans for Lawsuit Reform site. From Independence, Mo., best known as Harry Truman’s hometown: M. Steele Brown, “Malpractice ‘crisis’ drives docs from Missouri”, Kansas City Business Journal, May 2. And neurosurgery in Seattle faces a crisis as ten local surgeons lose their coverage, forcing hospitals to send patients elsewhere; the ten say they have good records but the chief operating officer of the Doctor’s Company, an insurance provider, “said about half of all neurosurgeons nationwide are sued each year”, which makes it plain enough that plenty of good ones get sued. (Carol M. Ostrom, “A neurosurgeon ‘crisis’: Insurer drops doctors’ group”, Seattle Times, Jun. 7). Meanwhile, the incoming head of the American Bar Association, North Carolinian Alfred P. Carlton Jr., a partner with Kilpatrick Stockton LLP, claims in an interview with The Hill — no fair laughing aloud, now — that “I don’t think there’s any credible evidence that connects anything going on in the justice system to the rise of malpractice insurance rates. My malpractice rates are going up. Everybody’s insurance rates are going up, for all kinds of insurance.” Now there’s a checkable proposition: have insurance rates for life, health, fire, storm, crop and marine risks jumped by 60 or 80 percent on renewal in the past couple of years, the way so many doctors’ liability rates have? (“‘There are abuses at the edges'” (interview), The Hill, Jun. 11). (DURABLE LINK)

June 12-15 — U.K. roundup. “George Blake, the KGB spy who fled to Moscow in 1966, has accused the Government of breaching his human rights by confiscating £90,000 he was expecting to make from his memoirs.” Blake, who escaped from Wormwood Scrubs prison after serving five years of a 42-year sentence for highly damaging work as a Soviet double agent, has petitioned the European Court of Human Rights for the right to the money from the autobiography. (Joshua Rozenberg, “Spy Blake tries to sue Britain for his lost £90,000”, Daily Telegraph, May 16). “Meet Britain’s most prolific race discrimination litigant. Omorotu Francis Ayovuare, a Nigerian-born surveyor, may not have held a steady job for five years: he has, however, earned a certain celebrity in the world of industrial relations after launching 72 employment tribunal cases alleging racial discrimination.” (Adam Lusher and David Bamber, “Give me a job – or I’ll sue”, Daily Telegraph, Jun. 8). (Update Dec. 13: at request of attorney general, court restrains him from further filings). “The Scottish Parliament, fresh from outlawing hunting with dogs, is to force fish-lovers to buy pet licences for exotic species in their garden ponds and aquaria. … Anyone who owns exotic fish without a licence will face fines of up to £2,500.” (Rajeev Syal, “Have you got a licence for that exotic minnow?”, Daily Telegraph, Apr. 6). Enthusiasm about lawsuits to recoup costs of global warming has reached Britain, although as one Oxford physicist told the BBC, “Some of it might be down to things you’d have trouble suing — like the Sun”. (“Suing over climate change”, BBC, Apr. 3). (DURABLE LINK)

June 12-15 — To tame Madison County, pass the Class Action Fairness Act. By ensuring that large nationwide class actions are heard in federal court, the bill would curb the influence of “magic jurisdictions” in which “the judiciary is elected with verdict money”, as one big-league trial lawyer has put it. (Jim Copland, “The tort tax”, Wall Street Journal, Jun. 11; Mr. Copland is associated with the Manhattan Institute’s Center for Legal Policy, as is this site’s editor.). The Madison County, Ill. courthouse “is on pace to have another record year for class-action lawsuits”, reports a local newspaper. (Brian Brueggemann, “Number of lawsuits is 39 and climbing”, Belleville News-Democrat, May 26). Two plaintiff’s law firms, St. Louis-based Carr Korein Tillery and the Wood River, Ill.-based Lakin Law Firm, dominate the filing of class actions in the county (Andrew Harris, “At the head of the class actions”, National Law Journal, Jun. 9). And Madison County personal injury lawyer John Simmons, 35, of Edwardsville, whose law firm in March obtained a $250 million jury verdict for a retired steelworker in an asbestos case against U.S. Steel, “has announced his intention to run for the U.S. Senate seat being vacated by Republican Peter Fitzgerald”. (“Downstate lawyer to enter Democratic primary”, AP/Northwest Indiana Times, May 27). (DURABLE LINK)


June 24 — Next: Mercedes sues Merced, Calif. The Volo Antique Auto Museum and Mall in Volo, Ill. (population 200) exhibits and vintage and historic automobiles and runs a website Volocars.com. Now the Volvo division of Ford Motor has failed in a bid before the World Intellectual Property Organization in Geneva to take away the museum’s right to the volocars.com domain. (Dan Rozek, “Volo car museum nets a win in Volvo Web fight”, Chicago Sun-Times, Jun. 20; Declan McCullagh’s Politech, Jun. 11 and Jun. 10; TechDirt, Jun. 20). (DURABLE LINK)

June 24 — Engle: a $710-million loose end. Assuming the $145 billion punitive damages verdict in the Florida tobacco class action is not revived by the state’s supreme court, one major loose end remains, but it’s a really big one. Three tobacco companies agreed to fork over $710 million in exchange for class counsel’s agreeing “not to challenge a new state law, passed at the behest of the cigarette makers, capping appeals bonds at $100 million.” The enormous sum was placed in escrow for the class, but now the class does not exist since it’s been decertified. Does the class somehow get reconstituted for purposes of dividing the booty? Does it go back to the defendants? To some worthy cause? And how much of it, if any, are plaintiff’s lawyers Stanley and Susan Rosenblatt going to be allowed to grab for themselves? The agreement between the Rosenblatts and the three companies says nothing about decertification. (Matthew Haggman, “The $710 Million Question”, Miami Daily Business Review, Jun. 19). (DURABLE LINK)

June 23 — Lightning bolt in amusement park’s parking lot. Cincinnati attorney Drake Ebner admits cynics will think he’s suing the Kings Island amusement park — in whose parking lot his client was struck by lightning — just because it’s a deep pocket. “But they should hold the park accountable, for not telling his client and thousands of others about an impending lightning storm, Edner said Monday. ‘They could have told the people not to go to their cars, which are large metal objects that can attract lightning.'” (Kimball Perry, “Family sues Kings Island”, Cincinnati Post, Jun. 17). (DURABLE LINK)

June 23 — Misguided search for a sanitized jury. The “legal defense team for Lee Boyd Malvo, the young suspect in last fall’s Washington-area sniper attacks, is seeking a change of venue from Fairfax County. It contends that all potential jurors in the county were victims of the terror spread by the sniper attacks and that jurors contaminated by news coverage make a fair trial impossible. … But impartiality only means without bias. It does not mean without knowledge. The courts have long recognized that jurors can set aside what they might know about a case, and that it’s preferable to have jurors who are tuned into the world around them than ones who are hermits.” (Charles H. Whitebread, “Jurors Must Be Impartial. They Shouldn’t Be Clueless”, Washington Post, Jun. 22). (DURABLE LINK)

June 23 — Mold — to the highest bidder! “Did you hear the one about the guy with the Park Avenue apartment full of toxic mold? He couldn’t find anyone to buy the place for $15.5 million, so he jacked up the asking price last week to $18 million. … At 515 Park Avenue, real-estate developer Richard Kramer would have you believe that recently, his apartment went up in value by $2.5 million even as he and the condominium’s board of managers continue to fight multimillion-dollar lawsuits against the building’s developers and sponsors, in which they allege that the 43-story tower is plagued with a mold infestation and major construction deficiencies.” (Blair Golson, “Toxic-Mold Gold: Shoddy High Rises Sold With Flaws”, New York Observer, Jun. 23 (temporary URL — after it expires, try search function)) (DURABLE LINK)

March 2001 archives


March 9-11 — Push him into a bedroom, hand him a script. “A group of lawyers that includes Hugh Rodham, the brother-in-law of former President Bill Clinton, submitted a videotaped tribute from Mr. Clinton about its role in tobacco-related lawsuits to help support a fee request of up to $3.4 billion.” “The way I understand it, they pushed him into a bedroom during a fund-raiser, gave him a script and shot the tape,” said a local official with the American Lung Association, the once estimable but now litigation-infatuated public health group that gave the lawyers an award. The Castano Group lawyers haven’t won their own cases, but are now trying to claim credit for having created an atmosphere in which the state AGs could win theirs, or something like that. Anyway, they want several billion. (Barry Meier, “Rodham and Group Seeking Legal Fees Uses Clinton Testimonial”, New York Times, March 8) (& see Oct. 25, 1999).

March 9-11 — “Panel backs deaf patron’s claim against club”. “The Ohio Civil Rights Commission is tentatively supporting a deaf West Toledo woman’s claim that a local comedy club discriminated against her when it refused to provide an interpreter at one of its shows. Rebecca M. Bisesi, 23, contends the club violated state law when it did not agree to supply an interpreter.” (David Patch, Toledo Blade, Mar. 6).

March 9-11 — Narrow escape from ergonomic regs. We sure were lucky Congress ditched those awful new rules, for reasons that Tama Starr’s op-ed makes clear (“Getting Older? The Government Says Blame Your Boss”, Wall Street Journal, Mar. 8, reprinted at Dynamist.com; Helen Dewar and Cindy Skrzycki, Washington Post, Mar. 6; “House Scraps Ergonomic Regulation”, Mar. 8).

MORE: John Tierney, “Best Incentive for Job Safety – Money”, New York Times, March 9 (reg); “Developing a Framework for Sensible Regulation: Lessons from OSHA’s Proposed Ergonomics Rule,” by Robert W. Hahn and Petrea R. Moyle, AEI-Brookings Joint Center Regulatory Analysis, March 2000 (PDF); “Bad Economics, Not Good Ergonomics,” by Robert W. Hahn, AEI-Brookings Joint Center Policy Matters, December 1999; Karlyn H. Bowman (AEI), “Ergonomic Standards,” Roll Call, Dec. 2, 1999.

March 9-11 — Trial lawyer president? North Carolina trial-lawyer-turned Senator John Edwards (D) is “consistently mentioned as a likely presidential candidate” and turned up in Iowa to give a speech at Drake Law School. (Jennifer Dukes Lee, “Campaign 2004: Iowa visits begin”, Des Moines Register, March 3; Emily Graham, “Senator says money skews justice”, March 4) (via WSJ OpinionJournal.com) (& see Aug. 15, 2000).

March 7-8 — Show your diversity commitment, or don’t bother applying. In Pennsylvania, Bucks County Community College gives job applicants a questionnaire in which it requires them to describe their “commitment to diversity.” The Foundation for Individual Rights in Education, challenging the policy, says it tends to screen out applicants with insufficiently progressive opinions on multicultural controversies, much as universities in the 1950s weeded out Communist professors by way of loyalty oaths. A college official says the question is not meant to enforce any orthodoxy. (Robin Wilson, “Diversity Question on College’s Job Application Amounts to ‘Loyalty Oath,’ Group Contends”, Chronicle of Higher Education, Feb. 21, reprinted at FIRE site).

March 7-8 — “Painting the town — with lawsuits”. Oakland and San Francisco have joined other California localities in suing companies that once made lead paint, pushing the sort of tobacco- and gun-style “recoupment” claim that “flies in the face of centuries of Anglo-American common law”, writes George Mason University law professor Michael Krauss. Krauss says the California cities “allege that a conspiracy of lead paint manufacturers hid the truth from them until 1999, so they couldn’t sue before then”, an “astounding” claim since by the 1950s an official of the Lead Industry Association was vigorously publicizing the dangers of flaking lead paint in dilapidated housing. “In 1999, a Maryland court dismissed a conspiracy suit against paint companies with the finding that there was ‘no evidence whatsoever’ that manufacturers ‘concealed any studies, altered any documents or misrepresented any finding.’ Where have California cities been these last 50 years?” (Michael I. Krauss, “Painting the Town — With Lawsuits”, Independent Institute, Jan. 30).

March 7-8 — Can you own common words? “In one of the broadest crackdowns ever issued against a domain name holder, a federal judge has ordered eReferee.com to stop using the word ‘referee’ in all of its domain names. … In issuing the court ruling, Wisconsin federal [j]udge C.N. Clevert sided with Referee magazine, a periodical holding the trademark to the word ‘referee’ for the purposes of publication.” David Post, an associate professor of law at Temple, called the ruling “unbelievable”, saying that regardless of whether eReferee.com had violated trademark law, as was alleged, by using a logo confusingly similar to its rival’s, “You just don’t want to let someone own the word ‘referee'”. (Lisa M. Bowman, “Judge approves domain name penalty on eReferee”, CNet, Feb. 16; Gretchen Schuldt, “Referee Enterprises Seeks to Halt Competitor from Using ‘Referee’ in Web Name”, Milwaukee Journal Sentinel/Corporate Intelligence.com, Feb. 23).

March 6 — “EEOC sued for age bias”. “As a regional attorney for the [Atlanta office of the] Equal Employment Opportunity Commission, William D. Snapp’s job was to ensure workers weren’t discriminated against because of race, gender, or age. But he alleges he was told to get rid of senior attorneys and replace them with younger staffers. Now, the EEOC is being sued for discrimination by attorneys who led the agency’s civil actions against private employers throughout Georgia.” Among those suing is 25-year veteran attorney Maureen Malone, who says it was an inside joke among her fellow EEOC trial lawyers that the agency “would require us to hold an employer to the line … when we were the biggest violators of all.” The agency’s management denies the charges. (R. Robin McDonald, Fulton County Daily Report, Mar. 2). According to the Wall Street Journal OpinionJournal.com‘s “Best of the Web”, which picked up this item, EEOC may stand for “Expel Every Old Codger”.

March 6 — Tendency of elastic items to recoil well known. “A federal judge in Pennsylvania dismissed a products liability suit brought by a man who seriously injured his eye when the elastic cord on the hood of his jacket recoiled. ‘This court assumes,’ the judge wrote, ‘that the average ordinary consumer is well acquainted with the propensity of all manner of elastic items to recoil after they have been extended and released.'” (Shannon P. Duffy, “Jacket’s Recoil Danger Well Known, Says Judge, Dismissing Liability Case”, The Legal Intelligencer (Philadelphia), Mar. 2).

March 5 — Watch what you call me. An Indiana death-row inmate has sued jail officials for discrimination and religious persecution, saying they fail to call him by the name Zolo Agona Azania, which he legally adopted in 1991, and instead go on addressing him by the name he was given at birth, Rufus Averhart, which he terms his “slave name”. Sheriff Jim Herman said jail employees use the older name because that’s the one under which charges were filed, besides which: “No one can pronounce his new name.” “Azania, 46, was sentenced to death for the 1981 murder of a Gary police officer during a bank robbery. … [He] has filed at least 27 other lawsuits against various officials since 1980. ‘I imagine it’s not going to end,’ Herman said, ‘until Rufus is executed or becomes a free man.'” “Inmate on Death Row Sues Jailers For Using His ‘Slave Name'”, AP/Fox News, Mar. 1).

March 5 — “Lawyers get tobacco fees early”. Last month, “[i]n an unprecedented financial transaction, a group of plaintiff’s lawyers who participated in the 1998 settlement against the tobacco industry … converted nearly $1 billion in legal fees that would have been paid over 12 years into $308.1 million in cash.” The transaction, arranged with the help of investment bankers, covers only a portion of the total fees that lawyers collectively expect from the tobacco caper; if it serves as a model for further conversion of the fee stream to immediate dollars, the attorneys could soon be looking at cash-in-hand exceeding $3 billion.

“With the tobacco victory behind them, some of the trial lawyers said they plan to expand their legal activities into new areas. Richard ‘Dickie’ Scruggs, one of the leading plaintiff’s lawyers, said he intends to file suit against government contractors, especially shipbuilders in the Mississippi port of Pascagoula.” The qui tam (“whistleblower”) provisions of federal law allow for triple-damage suits against government contractors alleged to have overbilled, and lawyers can collect a sizable portion of that sum (see Jan. 18, 2000). (Thomas Edsall, “Lawyers Get Tobacco Fees Early”, Washington Post, Feb. 14, fee-based archives).

March 2-4 — Securities law: time for loser-pays. Congress’ 1995 round of securities-law reform has been mostly ineffective in quelling meritless class actions. While judges are dismissing more complaints, “[t]he marginal cost of drafting additional complaints is small (it is not uncommon for ‘cookie cutter’ complaints to erroneously contain the names of defendants from previous cases filed by the law firm), while the potential rewards are large.” Existing sanctions provisions are almost completely ineffective, which means it’s time for Congress to put plaintiff’s lawyers at risk of a fee shift when cases are dismissed for failure to state a legal claim, argues attorney Lyle Roberts of the northern Virginia office of San Jose-based Wilson Sonsini Goodrich and Rosati, which represents defendants in these cases (“Losers Weepers”, Legal Times, Feb. 5).

March 2-4 — Mold wars, cont’d. Dampness, water intrusion and the consequent appearance of mold and mildew in buildings are as old as shelter itself, but it certainly makes it scarier, and more than enough reason to call a lawyer, when you relabel the problem as “toxic mold” (see Oct. 10). Los Angeles attorney Alex Robertson claims to be representing 1,000 individuals on mold claims in California alone. Melinda Ballard, whose nationally publicized case against Farmers Insurance is slated to go to trial in Texas momentarily, says she has collected a database of 9,000 mold-related lawsuits around the country, most filed within the last two years. Ballard and her family are accusing Farmers, in part, “of failing to inform them about the dangers of [the mold] Stachybotrys, which ultimately drove them out of their 22-room mansion, located just west of Austin in the aptly named town of Dripping Springs. The Ballards are seeking $100 million in civil damages.” Dallas journalist Joanna Windham, meanwhile, believes mold in her apartment is responsible for her dog’s getting cancer. (Rose Farley, “Attack of the black mold”, Dallas Observer, Feb. 22).

MORE: “Mold: A Health Alert”, USA Weekend, Dec. 5, 1999; Catherine Tapia and Constance Parten, “Mold in Buildings”, Insurance Journal of Texas, Nov. 20; Kerri Ginis, “Tulare workers sue county over mold”, Fresno Bee, Oct. 27. Attorney Robertson “said that his IAQ [indoor air quality] litigation cases have seen a decided shift from building furnishings’ VOCs [volatile organic chemicals] to mold in buildings.”: John N. McNamara, “IAQ Seminar Fact or Fiction: A Paradigm of Perspectives”, Industrial Hygiene News website, July.

March 2-4 — Trial lawyer heads Family Research Council. You might not have guessed that Washington’s most visible religious right organization would be able to boast endorsements for its incoming president from such figures as former Association of Trial Lawyers of America president Michael Maher, Democratic Florida Attorney General (and tobacco-lawyer benefactor) Robert Butterworth, and American Bar Association president Martha Barnett, as well as John Ashcroft, Jeb Bush and James Gwartney (more). But that’s what happened when the Family Research Council picked as its new president plaintiff’s lawyer Kenneth L. Connor, who made his fortune suing nursing homes in the Sunshine State (see June 20) and has been a tenacious advocate of the interests of the litigation community in that state’s politics. According to one of his fans, Mr. Connor “filibustered” to keep a state advisory panel on nursing homes from endorsing liability reforms, as most of his fellow panelists wished to do (aradvocate.com). And in October Connor was quoted in the press, identified as FRC president, as criticizing efforts to replace Florida’s elective judgeships with an appointive “merit selection” system; the system of judicial elections has aroused unease because of the propensity of interest groups, led by lawyers, to shovel money into judges’ campaigns (“Judges’ Selection in Hands of Voters” (editorial), St. Petersburg Times, October 30, 2000, no longer online, summarized at NYU Brennan Center). In an interview with National Journal, Connor says “I don’t engage in personal attacks or attacks against classes of people,” which must have made it hard for him to run a legal practice demanding punitive damages from nursing-home operators, no? (Shawn Zeller, “New Advocate on the Religious Right”, National Journal, Feb. 10, not online).

March 2-4 — Debate on Microsoft case. Tom Hazlett vs. Ken Auletta, on (Microsoft’s) Slate (“Dialogue”, Feb. 28 and after).


March 19-20 — “Kava tea drinker alleges bias in FedEx firing”. Taufui Piutau of San Bruno, Calif., a native of Tonga, was pulled over by a California highway patrolman in 1999 and charged with driving while impaired. It turned out he’d downed dozens of cups of kava tea, a popular Pacific Islander beverage widely regarded as having relaxing medicinal effects. A jury last November deadlocked on whether to convict him and prosecutors decided to drop the case, but by then Federal Express, Piutau’s employer, had suspended him without pay from his driving job over the off-duty incident. Now he’s suing the company for — guess the theory — religious discrimination, saying enjoyment of the beverage is a custom of a religious nature. (Ann E. Marimow, San Jose Mercury-News, Mar. 14).

March 19-20 — Scientologists vs. Slashdot. “In the face of legal threats from the Church of Scientology, Slashdot pulled down an anonymous posting that quoted a copyrighted church tract, known as Operating Thetan, Section III (OT III). ‘It’s an open forum, but as of today it’s a little less open than it was yesterday,’ says Robin Miller, the editorial director of Slashdot’s parent, the Open Source Development Network. ‘And we’re not happy about that.'” (Roger Parloff, “Threat of Scientologists’ Legal Wrath Prompts Slashdot to Censor a Posting”, Inside.com, March 16; Slashdot thread; Church of Scientology; some of its critics (“Operation Clambake“); Declan McCullagh, “Xenu Do, But Not on Slashdot”, Wired News, Mar. 17).

March 19-20 — Why they seize. “Kansas law enforcement officials on Monday strongly opposed a reform forfeiture bill that would send money seized in drug cases to education. Currently, law enforcement agencies can keep most of the money once it is legally confiscated. Law enforcement officials told the House Judiciary Committee that if their agencies were not allowed to keep drug money, forfeitures could become extinct in Kansas”. Kind of confirms what critics have said about the motivations for forfeiture law, doesn’t it? (Karen Dillon, “Kansas law enforcement officials oppose reform forfeiture bill”, Kansas City Star, Mar. 12; see May 25, 2000).

March 19-20 — Microdonation update. Amazon’s new micropayment “Honor System” for small and nonprofit websites has had at least one big success so far, as you may have heard: Andrew Sullivan’s personal site has taken in an envy-inducing $6,000 from his fans. That’s way ahead of most other popular sites: for example, the well-thought-of ModernHumorist.com says that as of March 9 it had received $509.99 from 209 readers, according to its “Tip Jar” account. Reason editor-at-large Virginia Postrel writes that her weblog/commentary “The Scene” “is pulling in about 500 page views a day — the poor woman’s approximation of visitors — and in the last month has netted contributions of $457.38 via Amazon and, in the last week, $27.50 via PayPal.”

So how’re we doing at Overlawyered.com, comparatively? As of Sunday evening we’d taken in about $404.50, from sixty readers, for an average donation of about $6.50. That’s not shabby at all. But we do notice that our readers are showing a far lower rate of participation than Virginia’s: we’ve been getting around 3,500 page views per weekday lately, so if our readers were as generous as hers we’d have raised a kitty that was seven times as high instead of a little lower. Another way of looking at it is that although it takes many thousands of regular readers to get us up to that 3,500-page daily volume, only an average of two of those readers a day actually throw coins in the hat. (No wonder Amazon calls it the Honor System.) We’ve just installed, on our PayPage, a new feature where you can watch donations climb and see your own added to the total. Thanks (again) for your support!

March 16-18 — Coupon settlement? Pay the lawyers in coupons. In a “blistering” 27-page ruling, Broward County, Fla. circuit judge Robert Lance Andrews has slashed a $1.4 million class-action legal-fee request by the New York law firm Zwerling Schachter & Zwerling to about $294,000, and “ordered that a quarter of the fees be paid in $10 to $60 travel vouchers — the same vouchers awarded to the 80,000 plaintiffs in the suit”. The suit had accused Renaissance Cruises Inc. of padding port charges. “Too often, [Judge Andrews] wrote in the ruling, lawyers use class actions as cash cows that ultimately don’t yield much for plaintiffs. … ‘Essentially, these vouchers have no value whatsoever,’ said [Edwin H.] Moore, president and chief executive of the James Madison Institute, a Tallahassee, Fla., think tank. ‘It’s kind of absurd, taking a cruise for hundreds of dollars and getting $10 off.'”

The judge further accused the lawyers of engaging in “fuzzy math” and said they had piggybacked on enforcement efforts by the Florida Attorney General, who had investigated cruise lines’ practice of passing on “port charges” to vacationers greater than those actually incurred. “Andrews said he considered denying plaintiffs’ lawyers any legal fees, ‘on the basis of their blatant disregard of their ethical obligations to the class and to the court.’ In fact, before ruling on legal fees, Andrews rebuffed 13 law firms that claimed to have had a hand in the class action.” Zwerling Schachter says it expects to appeal. “(Tom Collins, “Florida Judge Slashes Fee Request, Blasts Attorneys Suing Cruise Lines”, Miami Daily Business Review, Mar. 15).

March 16-18 — Compulsive grooming as protected disability. Last month a three-judge panel of the Ninth Circuit U.S. Court of Appeals, reversing a lower court, ruled that medical transcriber Carolyn Humphrey can proceed with her claim that her firing by a Modesto, Calif. hospital was unlawful. Humphrey, “an otherwise excellent employee, compiled a history of tardiness and absenteeism because of grooming and dressing rituals that took hours, sometimes all day. … [Her suit claims] the obsessive trait that drove her relentless primping had not been accommodated, as required by the Americans With Disabilities Act.” (Denny Walsh, “Compulsive grooming a true disability? Perhaps”, Sacramento Bee, March 14).

March 16-18 — Wife: hubby’s tooth discovery deprived me of companionship. Ronald Cheeley of Alamance County, N.C. “is suing Hardee’s, claiming he found a tooth in a biscuit from a one of the chain’s Burlington restaurants. … The lawsuit does not say whether Cheeley actually put the tooth in his mouth. … Cheeley’s wife, Queen Williamson Cheeley, is also named as a plaintiff in the lawsuit, which claims the incident has deprived her of companionship.” (Bill Cresenzo, “Tooth found: Man sues Hardee’s”, Burlington (N.C.) Times-News, Feb. 15) (via Obscure Store)

March 15 — Reclaiming the tobacco loot. If the Bush administration has its way, the politically connected lawyers who helped themselves to billions for representing the states in the great tobacco shakedown may soon have to turn a large share of that booty over to their clients, the fifty states (see our earlier coverage of the fees, the settlement and the lawyers). “President Bush proposed during the campaign to apply to lawyers in mass tort cases the Internal Revenue Code provisions that govern fiduciary breaches of duty by pension fund trustees, foundation executives, and employees of 501(c)(3) non-profits. Under this so-called Jim and Tammy Faye Bakker provision of the 1996 Taxpayer Bill of Rights, overreaching fiduciaries have the ‘choice’ of refunding their excess payments or paying a federal tax of $2 for every dollar they keep.” Contrary to some early reports that President Bush had dropped this plan, “[p]age 80 of the president’s budget contains this terse and, to taxpayers, cheering sentence: ‘The budget also assumes additional public health resources for the States from the President’s proposal to extend fiduciary responsibilities to the representatives of States in tobacco lawsuits.'” (Michael Horowitz, “Can Tort Law Be Ethical?”, Weekly Standard, Mar. 19; Ramesh Ponnuru, “A Good Tobacco Tax”, National Review Online, Mar. 14). And hurrah for the U.S. Chamber of Commerce, which has just filed Freedom of Information Act requests to obtain information from 21 states about the magnitude of fees paid to the tobacco lawyers, which it says may exceed $100,000 an hour (U.S. Chamber release; the Chamber’s Institute for Legal Reform; “Group Targets ‘Outrageous’ Legal Fees in Tobacco Case”, Yahoo/Reuters, Mar. 14).

March 15 — No more Indian team names? “The U.S. Commission on Civil Rights will vote next month on a statement that would condemn sports teams or mascots named after American Indians as violations of the 1964 Civil Rights Act. If adopted and widely accepted, the statement could eventually lead to a cutoff in federal funding for schools that cling to traditions like the University of North Dakota Fighting Sioux or the University of Illinois’ mascot Chief Illiniwek.” (Catherine Donaldson-Evans, “Civil Rights Commission Considers Condemning Sports Teams Named After American Indians”, FoxNews.com, Mar. 13 (related story and links, right column, includes this page); John J. Miller & Ramesh Ponnuru, “Home of the Braves”, National Review Online, March 9) (& see letter to the editor, April 16).

March 13-14 — Hypnotist sued by entranced spectator. During a show by mesmerist Travis Fox at the Puyallup Fair last September, fairgoer Joshua Harris of Tacoma agreed to participate but “felt such a threat from a space alien mask that he broke his hand trying to ward off the extra-terrestrial. And now he’s suing. … ‘If people get up there and participate, you have to make sure it’s safe,’ said Harris’ attorney, George Christnacht.” (Karen Hucks, “Entertainment hypnotist being sued for negligence”, Tacoma News-Tribune, March 8).

March 13-14 — Judge throws out Hollywood- violence suit. Citing the First Amendment’s guarantee of free speech, Louisiana state judge Bob Morrison on Monday “threw out a lawsuit against director Oliver Stone that claimed his movie ‘Natural Born Killers’ led to a young couple’s bloody crime spree.” (“Judge Throws Out Movie Lawsuit”, AP/FindLaw, March 12). “It’s depressing that a suit that should have been thrown out on the first pass could result in such a waste of time, energy and money. We’ve created a new legal hell where everyone is entitled and no one is responsible,” said Stone (“Notable Quotes”, Reuters/Yahoo, March 13).

March 13-14 — “Nursing homes a gold mine for lawyers”. Week-long series in the Orlando Sentinel and South Florida Sun-Sentinel (series overview) examines mounting crisis in Florida nursing homes, where lawsuits have multiplied several-fold in recent years as lawyers have learned to deploy a liberal “Resident’s Rights” law that allows them to recover damages without proving negligence. Even the Lutheran Haven home, which hasn’t been sued in its 52 years, faces a liability insurance bill of $175,690 a year. (Diane C. Lade, “Money remains root of nursing homes’ woes”, March 6; Bob LaMendola and Greg Groeller, “Nursing homes a gold mine for lawyers”, March 4; Jeff Kunerth, “Even never-sued home feels insurance’s squeeze”, March 5). “Nursing homes are often in a Catch-22 when it comes to restraining patients. One tenet of the state’s nursing-home residents’ bill of rights guarantees residents the right to safety. Another tenet guarantees their freedom from ‘physical and chemical restraints.'” (Diane C. Lade and Greg Groeller, “Bedsores, falls make homes ripe for suing”, March 4; Jeff Kunerth, “Broken bones ended in lawsuit”, March 6; Jeff Kunerth, “A rarity: Lake lawsuit went to trial”, March 4).

As frequently happens with these newspaper group efforts, the tone is weirdly inconsistent, with one of the lead reporters buying much of the pro-litigation side of the story (Greg Groeller, “Elderly care put to test”, March 4) while many of the other installments in the series tend to document the need for curbs on suing (“Collapse of care” (editorial), March 11). Both nursing home operators and trial lawyers have been pouring money into Tallahassee, where lawmakers are considering such curbs. Among the attorneys opening their wallets is “Jim Wilkes, a sharp and politically connected nursing-home litigator from Tampa who said he probably gave at least $1 million of his own money to campaigns in the last election cycle. ‘If you took the national and state money that my firm has contributed to campaigns, I could have probably retired on the money,” Wilkes said.” Mark Hollis, “Nursing homes, lawyers plan fight in capital”, March 6). Six of eight publicly held for-profit home operators are now operating in bankruptcy, and a plaintiff’s lawyer concedes the possibility that “[t]he entire industry would end up being regulated through the bankruptcy courts.” (Lade, “Money remains”, March 6). Update: the National Law Journal‘s Margaret Cronin Fisk reports on the trend (“Juries Treat Nursing Home Industry With Multimillion Dollar Verdicts”, Apr. 23): “In the past 12 months, there have been verdicts of $312 million and $82 million in Texas, $5 million in California, $20 million in Florida and $3 million in Arkansas. … One Florida-based law firm, Tampa’s Wilkes & McHugh, has about 1,000 cases pending.”

March 12 — We have some to send you. The level of litigation in Japan is still minuscule by U.S. standards, but it has doubled over the past decade, and rural areas experience a perceived lawyer shortage. “Japan has set a goal of reaching France’s level of one lawyer per 1,900 people. That compares with its current level of about one per 7,155 people and America’s world-beating one lawyer per 295 people.” “One unfortunate side effect [of the obstacles to litigation in Japan] has been a social dependence on organized crime for help in settling thorny disputes,” according to the head of the American Chamber of Commerce in the island country. (Mark Magnier, “No Joke: Send More Lawyers”, Los Angeles Times, Mar. 9).

March 12 — More Tourette’s discrimination suits. John Miller is suing Gold’s Gym in Totowa, N.J., saying it terminated his membership because of the involuntary tics caused by his Tourette’s Syndrome. ‘I want these people to realize . . . I guess I do want them to be hurt a little — to realize what they’ve done to me,” he said. The Bergen Record also reports that in October, “a jury in New York City awarded $750,000 to the Metropolitan Museum of Art’s former assistant banquet manager after finding the museum’s food contractor had fired him illegally because of the disorder.” (Jennifer V. Hughes, Bergen County Record, Feb. 9) (earlier Tourette’s cases: August 21 and July 26, 2000).

March 12 — Welcome National Review Online readers. The pseudonymous author, described as an officer of the Los Angeles Police Department, writes: “The Soviet menace may have faded into the history of another era, but the American legal profession, with its standing army of some half-million attorneys, presents as grave a threat to western civilization as has ever existed. For proof of this, I recommend to the strong of heart a visit to Overlawyered.com, a website that will at once amuse, bemuse, and horrify.” We’re headed toward a banner day for traffic, testimony to NR Online‘s popularity. (“Jack Dunphy”, “Disorder in the Court”, March 12).


March 30-April 1 — Gary to Gannett: pay up for that investigative reporting. In December 1998 the Pensacola, Fla. News Journal published a investigative series alleging that a Lake City business by the name of Anderson Columbia pulled political strings to evade environmental and other rules while obtaining lucrative state road contracts. Now noted plaintiff’s lawyer Willie Gary (key cases: Loewen, Disney, Coke, reparations 1, 2) has been retained by Anderson Columbia and is demanding $1.5 billion, which far exceeds the value of the newspaper itself, in a libel suit against the News Journal and its parent Gannett. The suit, filed downstate in Fort Lauderdale, “also cites two 1990 stories reporting allegations of environmental damage and poor-quality work and an editorial that last year criticized Escambia County commissioners for their dealings with Anderson Columbia.” (Bill Kaczor, “Gary client sues newspaper, Gannet [sic] Co. for libel, seeks $1.5 billion”, Mar. 23) In other pending cases, Gary is representing bias plaintiffs against Microsoft “and is seeking a $2.5 billion breach-of-contract judgment against beer giant Anheuser-Busch on behalf of the family of former home run king Roger Maris.” The Stuart, Fla. lawyer’s choice of clients in the past has not always matched his populist image: for example, he’s represented Florida’s “fabulously rich” Fanjul family in the defense of a suit charging that its mostly black sugar cane cutters were underpaid. (Harris Meyer, “Willie Gary’s Sugar Daddies”, New Times Broward/Palm Beach, Mar. 25, 1999)

March 30-April 1 — Dangers of complaining about lawyers. “Beware: Accusing your lawyer of wrongdoing soon could be even more intimidating. It could land you in court, running up a legal bill to defend yourself against a defamation lawsuit.” A pending change in Georgia rules would open clients and others who talk to lawyer-discipline authorities to defamation suits from the lawyers they criticize — even if the charges against the lawyer are upheld, and even if the statements are made in private to only a few investigators. Critics say the prospect of being sued for defamation, win or lose, would chill legitimate complaints, while bar official David Lipscomb says it’s a difference between two philosophies: “One is you allow a few lies to encourage people to file complaints,” he says. “And the other is you should hold people to a standard of truth, and if that chills some of the complaints, then that’s a price we are willing to pay.” Hmmm … when that same philosophical dispute comes up concerning litigation itself, doesn’t our legal establishment usually favor bending over backwards to keep from chilling dubious complaints? And isn’t it only fair to ask them to live with the same culture of easy accusation that so often results? (Lucy Soto, “Complain about a lawyer at your own risk of peril”, Atlanta Journal-Constitution, Mar. 26).

March 30-April 1 — No cause to be frightened. An Iowa court of appeals has ruled that a man who entered a convenience store at 4:30 a.m. wearing a disguise and ordered a clerk to empty the cash register did not commit robbery for legal purposes. James Edward Heard came in to a Davenport, Ia. Coastal Mart store “wearing a paper bag over his head and athletic socks on his hands” and, according to court records, “greeted cashier Aimee Hahn by saying either ‘Happy Halloween’ or ‘Trick or treat’ and then, in a soft voice, asked her to give him ‘the money.'” (The date was May, not October). After Ms. Hahn complied, he ordered her to lie down and fled. Mr. Heard admitted the facts of the case and was convicted of second-degree robbery, but the appeals court overturned his conviction, ruling that Heard’s actions did not imply a threat of “serious injury” as defined by law. The district attorney called the ruling “terrible”. (Clark Kauffman, “Court rules no threat, no robbery”, Des Moines Register, March 15) (via Jerry Lerman’s Bonehead of the Day Award).

March 29 — Putting the “special” in special sauce. A Toronto family claims its nine-year-old daughter found a severed rat’s head in her sandwich and wants C$17.5 million (U.S. $11.2 million) from McDonald’s Canada. According to her family’s lawyer, Ayan Abdi Jama, “having been enticed by McDonald’s pervasive child-focused advertising”, ordered a Big Mac which was “served in a paper wrapper bearing the Disney ‘Tarzan’ logo”, and proceeded to “partially ingest” the bewhiskered rodent portion, suffering as a result extensive psychiatric damage. Her mom was so shocked by the event that she can no longer carry on normal daily activities or earn a living, the suit further alleges, and her sister will quite likely be similarly affected when she grows up, so they deserve lots of money too. The complaint further alleges that “customers should be warned to inspect sandwiches prior to consumption” and that McDonald’s was negligent for not issuing such a warning. (“Alleged rat’s head in Big Mac triggers lawsuit”, CBC News, Mar. 27; “McDonald’s Canada lawsuit claims rat head in burger”, Reuters/FindLaw, Mar. 28; complaint in PDF format (very long), courtesy FindLaw).

March 29 — “Workers win more lawsuits, awards”.Employees who claim they’ve been harassed or discriminated against are winning many of their cases, and the financial awards they’re receiving often far eclipse those of years past.” The new spate of layoffs is likely to push those numbers higher, and companies that have gone off chasing youthful New Economy workforces invite costly age-bias claims, according to our editor, who is quoted. (Stephanie Armour, USA Today, March 27).

March 28 — The malaria drug made him do it. Last week federal prosecutors indicted former Congressman Ed Mezvinsky on 66 counts of fraud, saying he bilked banks and investors out of more than $10 million trying to make up his losses after himself falling victim to an African advance-fee scam. Mezvinsky now says his errant conduct arose from psychiatric side effects of the anti-malaria medication Lariam, which he took while on his business trips to Africa, and he’s suing the giant drugmaker Roche, along with Philadelphia’s Presbyterian Medical Center, his physician and a pharmacy, saying they should reimburse the losses of the people who entrusted their money to him and also pay him damages. “Clearly the responsibility lies with the manufacturers,” said his lawyer, Michael F. Barrett. (“Mezvinsky files suit over drug”, AP/Philadelphia Daily News, Mar. 24; Jim Smith, “$10M classic swindle”, Philadelphia Daily News, Mar. 23)(more on advance-fee scams). (DURABLE LINK)

March 28 — Ideological pro bono. We should be grateful to lawyers for the idealistic work they do free (“pro bono“) on behalf of worthy causes, right? Well, that may depend on what causes you find worthy. A new Federalist Society survey confirms that pro bono work at the nation’s biggest law firms tilts heavily toward liberal-left causes, such as gun control and racial preferences, as opposed to conservative or libertarian ones. (Pro Bono Activity at the AmLaw 100; Peter Roff, “Pro Bono, Pro Liberal”, National Review Online, March 14).

March 27 — Junk-fax bonanza. An Augusta, Ga. jury has found that the Hooters restaurant chain unlawfully allowed an ad agency to send unsolicited ad faxes offering lunch coupons to businesses and individuals in the Augusta area. Because the Telephone Consumer Protection Act (TCPA) specifies that each sending of an improper fax incurs a $500 fine, which is tripled if the offense is willful, “attorney- turned-plaintiff Sam G. Nicholson and 1,320 class members … stand to share an estimated $4 million to $12 million from a suit Nicholson filed in 1995.” Each recipient of the six unsolicited faxes will be entitled to a minimum of $3,000 for the inconvenience, and $9,000 if damages are tripled. Hooters says its local manager signed up for a fax-ad service without realizing that its services were illegal or that federal law made advertisers as well as fax-senders liable for violations. (Janet L. Conley, “Just the Fax, Ma’am: Unsolicited Ad Spree May Cost Hooters Millions”, Fulton County Daily Report, Mar. 26). For earlier stages in the junk-fax saga, see Oct. 22, 1999 and Mar. 3, 2000.

March 27 — Shot, then sued. Batavia, Ill. police officer Chris Graver won numerous awards and accolades for bravery after surviving a shootout with a gunman in which he was critically injured and the gunman killed. He’s relieved that the gunman’s survivors have now finally agreed to drop their lawsuit against him. The legal action “was kind of aggravating. You get three bullets in you, almost die, and there’s still lawyers lining up to file a lawsuit against you.”(Sean D. Hamill, “Lawsuit dropped, but officer still tormented by shooting”, (suburban Chicago) Daily Herald, Mar. 23).

March 26 — “Teacher sues parent over handshake”. “A Utah elementary school teacher is suing a parent for allegedly shaking her hand so hard during a parent-teacher conference that she has had to wear a hand brace, undergo surgery and drop out of advanced teaching classes.” The suit, by teacher Traci R. England, says that parent Glenda Smith was irate and charges Smith with “vigorously pumping [England’s] arm up and down,” with the result that England “missed work, incurred medical expenses of more than $3,000 and dropped a university class, making her ineligible for a pay raise of $2,000 per year. Her attorney, Michael T. McCoy, is seeking damages for his client, including pain and suffering, in excess of $250,000.” (Dawn House, Salt Lake Tribune, Mar. 23).

Update: we received the following email in November 2005:

I am the teacher in your post. The injury occurred November 20, 2000. Five years later, I have had 7 (yes, seven) surgeries. Each surgery resulted in a loss of 3 weeks of teaching. Over the years, I have suffered from the irresponsible choice an angry parent made over her son’s grades. My students were affected as a result of multiple and lengthy absences. I continue to take medication for inflammation and pain. I have ugly scars on my forearm, wrist, and palm. Did I receive the $250,000 originally asked for in the claim? Not even 10%. How’s that for justice? My lawsuit was never superfluous, nor was it irresponsible. I resent my name and litigation information being present on your site. Please remove it. It does not belong there. You have not done your homework. — Traci England

For our reply, see letters column of Nov. 18, 2005.


March 26 — California electricity linkfest. We’ve neglected this one, what with being on the other coast and all, but here are some catch-up highlights: “California policymakers … froze the retail price of electricity and utilities lost so much money as to face bankruptcy. They barred utilities from signing long-term supply contracts and saw spot prices soar. They dragged their feet on new power-plant construction and found electricity in short supply. They ignored the need for more long-distance transmission lines and then couldn’t import enough power to meet demand. They shielded consumers from higher utility bills and gave them rolling blackouts instead.” And with each round of failure they propose to push the state further into the power business. (William Kucewicz, “California’s Dreaming”, GeoInvestor.com, Feb. 12). The “major crisis could have been averted” had the state last summer allowed utilities to enter long-term contracts with slightly higher rates, but “it’s clear that [Gov. Gray] Davis didn’t act last summer because he was afraid. He feared that long-term contracts could have been criticized if power prices dropped in the future, and that even a minor increase in rates would bring fire from consumer activists.” (Dan Walters, “Crisis also one of leadership”, Capitol Alert/Sacramento Bee, March 25) (via Kausfiles). Pennsylvania, Texas and Ohio all show promising models of genuine deregulation, as opposed to the fake version paassed off by Golden State lawmakers (“California Dreamin'” (editorial), Christian Science Monitor, Jan. 19).

As for the supply side: “In the last decade the population [of California] has climbed 14%, to 34 million”, while peak demand for electricity has climbed 19%. “The number of big power plants built since 1990: zero.” (Lynn Cook, “My Kingdom for a Building Permit,” Forbes.com, Feb. 19). “In the 1970s California’s power regulators got all excited about renewables. The state is now littered with high-cost, low-efficiency wind and solar facilities that produce limited amounts of unreliable power, for which ratepayers have overpaid by at least $25 billion in the intervening years. In 1996 the regulators were persuaded by a cabal of efficiency mavens and end-of-growth pundits that demand for electrons was leveling off and would soon decline, while supply was plentiful and would soon become a glut. They regulated accordingly.” (Peter Huber, “Insights: The Kilowatt Casino”, Forbes.com, Feb. 19)(see also Oct. 11)

And we all knew the trial lawyers would manage to get into it somehow, didn’t we? Not long ago San Francisco launched what is apparently the first “affirmative litigation” office meant to turn suing businesses into an ongoing profit center for the city in partnership with private law firms (see Oct. 5). The political leadership of that city having been a voice for the worst possible policies at each step along the way to where we are now, now City Attorney Louise Renne has sued 13 energy producers for supposedly conspiring to create the crisis. “Joining the lawsuit as co-counsel is attorney Patrick Coughlin of Milberg Weiss Bershad Hynes & Lerach in San Francisco. Coughlin worked with the city in its successful litigation against the tobacco industry.” (Dennis Opatrny, “San Francisco City Attorney Lays Energy Crisis at Feet of Power Companies”, The Recorder, Jan. 22; Paul Pringle, “Power struggle: Finger-pointing intensifies as California woes grow”, Dallas Morning News, Jan. 29).

MORE: Victor Davis Hanson, “Paradise Lost”, Wall Street Journal/OpinionJournal.com, March 21; Gregg Easterbrook, “Brown and Out”, The New Republic, Feb. 19; Robert J. Michaels (California State Fullerton), “California’s Electrical Mess: The Deregulation That Wasn’t,” National Center for Policy Analysis Brief Analysis No. 348, Feb. 14; Paul Van Slambrouck, “How California lost its power”, Christian Science Monitor, Jan. 19 (“California actually has been a pioneer in energy conservation and is one of the most energy-efficient states in the nation, according to conservation experts like Ralph Cavanagh of the New York-based Natural Resources Defense Council”; so much for that proposed cure); Reason Public Policy Institute; Cato; NCPA.

March 23-25 — Non-gun control. “Two second-graders playing cops and robbers with a paper gun were charged with making terrorist threats. The boys’ parents said the situation should have been resolved in the principal’s office, but [Irvington, N.J.] Police Chief Steven Palamara on Wednesday defended school officials and the district’s zero-tolerance policy.” (“Second-graders face charges for paper gun”, AP/CNN, Mar. 21). And earlier this year Rep. Ed Towns (N.Y.) “introduced bill H.R. 215, a measure to ban ‘toys which in size, shape or overall appearance resemble real handguns,'” part of a spate of anti-toy-gun legislation in various jurisdictions. (Lance Jonn Romanoff, “Someone call the National Toy Rifle Association”, Liberzine, Feb. 19).

Meanwhile Ross Clark of the estimable Spectator of London notes in his regular column, “Banned wagon: a list of the things which our rulers wish to prohibit”, that a Labor MP has proposed banning the carrying of bottles and glasses on the street, because they are capable of use as offensive weapons in altercations: “It was never likely that our legislators would be happy banning just items purposely designed for killing people, such as handguns and samurai swords. There are some who will not be satisfied until the human environment is constructed entirely from soft substances which cannot conceivably be used as weapons” (Feb. 10).

March 23-25 — Brockovich a heroine? Julia really can act. One of the most entertaining aspects of that entertaining movie, “Erin Brockovich“, is the pretense that its script has more than a nodding acquaintance with the real-life history of the Hinkley case (Michael Fumento, “Erin Go Away!”, National Review Online, March 21)(our take: Reason, October).

March 23-25 — Guest editorial: ABA’s judicial role. “Good riddance to the American Bar Association’s judge-vetters. Who elected them? Now they can criticize and praise judicial nominees like any other lobby or trade association.” (Mickey Kaus, “Hit Parade”, Kausfiles.com, March 22; see David Stout, “Bush Ends A.B.A.’s Quasi-official Role in Helping to Pick Judges”, New York Times, Mar. 22).

March 23-25 — “Fired Transsexual Dancers Out for Justice”. “Two transsexuals say they were given walking papers from their go-go dancing jobs at a trendy Chelsea club because the nightspot decided they wanted to hire ‘real girls.'” Amanda Lepore and Sophia LaMar, post-operative transsexuals who used to dance at Twilo, are suing the West 27th Street club for $100,000, charging wrongful firing. “This was just a case of out-and-out discrimination,” said their lawyer, Tom Shanahan. The nightclub denies that it discriminates against gals who used to be guys. (Dareh Gregorian, New York Post, March 22). In other news, a “judge has peeled away more than half of stripper Vanessa Steele Inman’s $2.5 million verdict against a Georgia nightclub, the Pink Pony, and its owner.” (Richmond Eustis, “$1.6M Punitives Award Peeled From Stripper’s Legal Victory”, Fulton County Daily Report, March 8; see July 26, 2000). Update Apr. 17, 2004: court of appeals overturns Inman’s verdict (more exotic-dancer litigation: Dec. 4, Aug. 14, May 23, Jan. 28, 2000)

March 21-22 — Hostage-taker sues victims. “Richard Gable Stevens’ hostage-taking rampage at Santa Clara’s National Shooting Club 18 months ago will cost him the next 50 years of his life behind bars in state prison,” Judge Kevin Murphy ruled earlier this month. “Stevens, 23, was convicted of kidnapping, robbery, false imprisonment, threats and assault with a deadly weapon in connection with the July 5, 1999 incident. … Murphy questioned the sincerity of Stevens’ remorse, noting that he has filed a lawsuit for monetary damages against the very people he was convicted of having wronged.” (Bill Romano, “Man gets 50 years for rampage at gun club “, San Jose Mercury News, March 10 (search fee-based archive on “Richard Gable Stevens”, retrieval $1.95) The incident ended when Stevens was shot and wounded by one of his intended victims. According to columnist Vin Suprynowicz, police found a note in which Stevens told his parents he would get revenge on them because they would be bankrupted by lawsuits from the survivors of his intended victims (Vin Suprynowicz, “No serial killings this week in Santa Clara”, Las Vegas Review-Journal, July 11, 1999). (DURABLE LINK)

March 21-22 — Reparations-fest: give us Toronto. Among the latest claimant groups to attract notice with demands for reparations: descendants of early New Mexico settlers asserting land claims that predate the 1848 Treaty of Guadalupe Hidalgo, under which Mexico ceded much of its northern territory to the U.S. (Christian Science Monitor, March 6). In Canada, the Indian Claims Commission, a federal agency, “says it is handling roughly 480 land-claims cases. There are dozens more in the courts. ” Nearly 200 years after the fact, a band of Mississaugas “are seeking retroactive compensation from Ottawa for the Toronto Purchase, a quarter-million acres covering the whole of Toronto and into the suburbs. … Last summer, the Squamish Indians settled their claim to some prime real estate in North Vancouver for nearly C$92.5 (US$58) million.” (Ruth Walker, “Indian land claims flood Ottawa”, Christian Science Monitor, March 20).

At National Review Online, Jonah Goldberg wonders whether it might not after all be worth paying trillions if it actually got the racial-spoils lobby to cool it once and for all on preferences, quotas, set-asides and the rest of the list — as if it would ever do that (“Reparations Now”, March 19). And reparations lawyers in California have neatly arranged for their targets and the state’s taxpayers to conduct a lot of their research for them: “California Gov. Gray Davis this month signed the Slaveholder Insurance Policy law, which requires all insurers whose businesses date to the 19th Century to review their archives and make public the names of insured slaves and the slaveholders through the state’s insurance commissioner. … Davis also signed the University of California Slavery Colloquium law directing college officials to assemble a team of scholars to research slavery and report how some current California businesses benefited.” (V. Dion Haynes, “California Tells Insurers: Open Slave Records”, Chicago Tribune, Oct. 20.) See also Jeffrey Ghannam, “Repairing the Past”, ABA Journal , Nov.).

March 21-22 — (Another) “Monster Fee Award for Tobacco Fighters”. “New York’s Milberg Weiss Bershad Hynes & Lerach and San Francisco’s Lieff, Cabraser, Heimann & Bernstein are among 10 firms that will share $637.5 million in fees for their role in helping California cities and counties capture their share of a $206 billion settlement agreement with the tobacco industry. The Tobacco Fee Arbitration Panel announced Tuesday that private lawyers in California should be awarded the fees for the more than 130,000 hours they [say they — ed.] worked in helping cities and counties grab half the $25 billion awarded California in the master settlement agreement. The state takes the other half. That works out to approximately $4,904 per hour for the lawyers.” (Kirsten Andelman, The Recorder, March 9).

March 21-22 — Welcome visitors. We’ve noticed this site being mentioned or linked to lately on weblogs Pie in the Sky (Mar. 17: “As a soon-to-be-lawyer, Overlawyered.com is going on my permanent bookmark list. Don’t worry, I’m going to be a transactional attorney- I won’t be doing any litigation (like the kind in the site linked to, or any other).”) and AFireInside; on the NetCool Users Group disclaimer; and on pages including Russell Shaw’s, Univ. of Calif. Libertarians, Swanson Group, LeaveThePackBehind.org (tobacco-Canadian), PelicanPolitics.com, UtterlyStupid.com, FoldingJonah, TheRightTrack.org (“Alaska’s Conservative Digest”), and Dave and Holly’s.

December 2000 archives


December 8-10 — Vicarious criminal liability? Suburban Detroit prosecutors are pressing charges of involuntary manslaughter against 49-year-old cook Terry Walker, who hails from the palindromically named town of Capac in Michigan’s rural Thumb. It seems Walker sold a chrome-plated 9mm semiautomatic gun to a friend without having the friend provide a purchase permit for it as required by law. The friend resold the weapon and it eventually wound up in the hands of Ljeka Juncaj of Sterling Heights, a stranger to Walker, who used it to kill a police officer in Warren while in custody following a drug arrest. “Macomb County Prosecutor Carl Marlinga said he hopes Walker will become the vessel for a lesson to gun owners by telling them that if they fail to properly sell a gun and it is used in a crime, that is as bad as committing the crime.” Outraged Capac townspeople think that idea is crazy, and are taking up a collection for Walker’s defense. (Kim North Shine, “Punishment of ex-owner debated”, Detroit Free Press, Dec. 7).

December 8-10 — Florida’s legal talent, before the Chad War. Wall Street Journal‘s Collin Levey pulls together highlights from the pre-November legal careers of prominent Florida attorneys assisting Democrats in their postelectoral legal efforts. Dexter Douglass, “David Boies’s right hand”, had been among those who represented the state in the tobacco lawsuit; Henry Handler, who “brought suit against the butterfly ballot”, also had filed a class-action lawsuit against the Florida Marlins “on behalf of season-ticket holders who claimed the team injured them by ‘losing too much'”; Gregory Barnhart, who represented the Democratic National Committee in recount litigation, is past president of the Florida Trial Lawyers Association; and Harry Jacobs, who “launched the lawsuit to throw out 10,000 absentee ballots in Seminole County”, had fought a “high-profile war against Florida rules preventing lawyers from advertising on television (a k a electronic ambulance chasing).” (“Gore’s Bombastic Barristers”, Opinion Journal, Dec. 7).

December 8-10 — Sylph esteem. Krissy Keefer has filed the first case under San Francisco’s new law banning discrimination on the basis of height and weight, saying the prestigious San Francisco Ballet School rejected her 8-year-old daughter Fredrika as an applicant because it considered the girl’s size and shape inappropriate for a ballerina. The school says its purpose is to train professional dancers, not to provide recreation, and says it accepted only 29 percent of the 1,400 student applications it received last year (Edward Epstein, “Girl Fights For a Chance To Dance”, San Francisco Chronicle, Dec. 7).

December 8-10 — “Armstrong World Files for Chapter 11 Amid Battle With Asbestos Lawsuits”. The building and construction materials concern “tried a number of approaches to manage its asbestos liability, including negotiating broad-based solutions and supporting efforts to find a legislative resolution. But the number of cases filed and the cost to settle cases have continued to increase.” Lenders pulled the plug after the bankruptcy of Owens Corning earlier this fall made clear that even large companies that operate with success in unrelated businesses can face financial ruin if they sold asbestos-containing products decades ago (see Nov. 27, Oct. 6; DowJones/ CFO, Dec. 6; AP/MSNBC, Dec. 6; company site and bankruptcy news site).

December 8-10 — Welcome WorldNetDaily readers. We linked to and briefly excerpted Jon Splatz’s “LawyerClysm” article on Nov. 22, and the full version appears here. (Ralph R. Reiland, “Lawyered to death”, WorldNetDaily, Dec. 9). We also got a mention from Doug Camilli in his Montreal Gazette column on Thursday (Dec. 7) and were featured on Yahoo “Cool Links” as one of Leya’s “Surfer’s Picks” (now rotated off).

December 7 — Promising areas for suits. Among the National Law Journal‘s annual roundup of hot new causes of action that lawyers are suing on: cases charging employers with breaking promises (which may be only “implied” promises) made in job interviews; injuries over foul balls and other hazards in sports stadiums, long barred by the (fast-shrinking) old doctrine of assumption of risk; suits against relatives for failing to prevent gun-related injuries; suits over workplace injury against consultants (HR, security) and other third parties who, unlike the direct employer, may not be able to invoke the litigation shield of workers’ comp laws; laser eye surgery complications; negligent failure to provide defibrillation equipment in public places; “[l]awsuits against owners, leasers and drivers of trucks over accidents caused by trucker fatigue”; suits against sports doctors; and claims against trade associations, such as the one that recently obtained an $11 million verdict against the National Spa and Pool Institute on an allegation that its voluntary standards for diving boards should have been more stringent (Margaret Cronin Fisk, “New Century, New Causes”, National Law Journal, Nov. 21).

December 7 — “Woman drops suit alleging she caught herpes from mannequin”. It now develops that Brenda Nelson (see Oct. 11) of Hammond, Ind. has consulted a second doctor and been told she does not have herpes after all, and she has accordingly dropped her suit against the American Red Cross alleging that she contracted the malady by pressing her lips to those of a first-aid mannequin, says her attorney, Jerry Jarrett. The executive director of the local Red Cross said he doubted the disease could have been transmitted in the claimed manner anyway: “‘Everyone here gets a separate mannequin. Nobody gets behind someone else in line. Staff and volunteers wash the mannequins down with warm, soapy water with a little bit of bleach in it after each class,” said the director, whose name is Wayne Wigglesworth. (AP/FindLaw, Dec. 5).

December 7 — No more “naughty”. Organizations that train and represent British nursery staff have put out the word that misbehaving tots are not to be called “naughty”, “bad boy”, “silly” or “stupid”, such terms amounting to stigma-laden “labeling”. Some nursery staff have also asked parents to avoid using the terms in correcting their own children. Others call it “political correctness gone mad”. (Martin Bentham, “‘Naughty’ is banned from the nursery”, Sunday Telegraph (London), Dec. 3).

December 7 — Trial lawyers vs. hog farms. Various lawyers active in tobacco and other mass litigation are filing nationally coordinated lawsuits against hog farms in seven states over their purported porcine pollution atrocities. An environmentalist group led by Robert Kennedy Jr., Water Keeper Alliance, will provide the media-friendly face for the effort. Fifteen law firms are kicking in $50,000 apiece to get the assault underway. (Philip Brasher, “Environmentalists Target Hog Farms”, AP/Los Angeles Times, Dec. 6). For more on hog farm litigation, see Sept. 12, 2000 and Oct. 4, 1999. And the New York Times reports today that the hog farm effort is expected to serve as the pilot case in a new alliance between environmental groups and leading trial lawyers, which will involve the filing of mass tort suits in an effort to wrest policymaking away from the Environmental Protection Agency and Congress, i.e., the units of government that have some occasion to consult the views of actual voters (Douglas Jehl, “Fearing a Bush Presidency, Groups Plan Pollution Suits”, New York Times (reg), Dec. 7). “In one court filing, the plaintiffs said that the cleanup [of North Carolina hog farms] would require restoration of 3.7 million acres of wetlands at a cost of no less than $40,000 an acre — or roughly $148 billion for these damages alone.” The major defendant in the case, Smithfield Foods, has a total market capitalization of almost exactly one-one-hundredth that sum, at $1.48 billion (Motley Fool profile, SFD). Update May 7, 2001: judge throws out first two suits; Apr. 15, 2002: RFK Jr. embarrasses himself in Iowa; Jul. 3-9, 2002: federal judge throws out suit and imposes sanctions on plaintiffs.

December 6 — You deserve a beak today. Okay, so Katherine Ortega of Newport News, Va. says she found a crispy chicken head in her order of McDonald’s fried chicken wings, and by now pictures of the handsomely breaded ornithological exhibit have been beamed round the world. But what are the damages? (Especially since Ortega didn’t eat the offending morsel, and people in other countries do eat chicken’s heads.) A local plaintiff’s injury lawyer, Stephen H. Pitler, told the Newport News paper: “It looks to me that there’s a legal wrong … people might be psychologically scarred for a very long time”. On the other hand, a liability defense lawyer said that it really wasn’t much of a case: “no more than a couple thousand dollars”, which by the standards of the U.S. legal system, you will understand, really counts as nothing at all. (Peter Dujardin, “Chicken-head incident has ruffled feathers”, Newport News (Va.) Daily Press, Nov. 30; David Koeppel, “You deserve a beak today”, FoxNews.com, Dec. 1). The Newport News paper added: “Some wondered how urbanized Americans have become so far removed from the process of killing what they eat that the mere sight of a natural piece of an animal – one that is consumed every day elsewhere in the world — could cause such emotional scarring.” Right on schedule, local TV station WVEC reports that the Ortegas have now hired an attorney; they’re refusing McDonald’s request to examine the object in question; and they “said their children now refuse to eat chicken and that their youngest child has had a nightmare about the fried chicken’s head.” (“Fried chicken’s head flies the coop”, WVEC-TV (Hampton Roads), Dec. 5; “Inspectors investigate fried chicken’s head”, Dec. 5).

December 6 — Bear market. New York Observer tells how Bear Stearns lost a nine-figure jury verdict to a wealthy investor who’d suffered major losses in his account, in a case that has other brokerages more than a little nervous (see June 9-11) (Landon Thomas Jr., “Meet the Great de Kwiatkowski, the Man Who Was Awarded $164 Million From Bear Stearns”, New York Observer, Nov. 13).

December 6 — Safer but less free. Three years ago Gail Atwater of Lago Vista, Tex. was arrested, handcuffed in front of her children and hauled off to jail for … non-seat-belt use. Now her case has reached the U.S. Supreme Court. (Amanda Onion, “Soccer Mom at Highest Court”, ABCNews.com, Dec. 1).

December 5 — California’s lucrative smog refunds. “Five law firms, including one that donated nearly a quarter-million dollars to the governor, will split $88.5 million in state taxpayer money for a lawsuit returning smog fees to residents who registered out-of-state vehicles in the 1990s.

“An arbitration panel in Sacramento made the award, among the largest attorneys’ fees ever paid by the state.

“‘I’m going to be exploring every option I have to freeze this payment,’ state Controller Kathleen Connell said Thursday. ‘No one can recall any settlement that even comes close. I’m deeply distressed.’…

“The money will come from $665 million allocated by Gov. Gray Davis and the Legislature for refunds to people who paid the $300 fee. …One of the law firms that will claim a share of the $88.5 million is Milberg, Weiss, Bershad, Specthrie & Lerach. Bill Lerach and his firm, with offices in New York and San Diego, have been among Davis’ major donors, giving him $221,000 during his 1998 election campaign, and $20,000 this year.” (“Five Firms to Split $88.5 Million for Smog Lawsuit”, AP/DowJones.com, Dec. 4; Google search on Lerach + smog fee). (Update June 22-24, 2001: judge strikes down fee; Aug. 21, 2004: second arbitration panel awards $23.7 million).

December 5 — Do as we say, cont’d: arbitration clauses. “Lawyers appear to be quick to sue almost anyone except other lawyers, a lawyers’ publication said.

Lawyers Weekly USA reported Thursday that a growing number of lawyers are putting fine print in fee agreements shielding them from being sued by a client if they botch a case.

“The Boston-based national newspaper for small law firms said lawyers instead prefer that such disputes go to private arbitration because arbitration is faster and cheaper, decisions are often made by other lawyers rather than juries, and there’s no public record.” (UPI/Virtual New York, Nov. 30).

December 5 — Might fit in at Business Week. “[Cartoonist Ted] Rall does freelance work as well, which includes a monthly cartoon for Fortune magazine, called ‘Business as Usual.’ ‘Actually, it’s one of my favorite gigs because it’s really anti-corporate, anti-business… I basically trash capitalism in Fortune…. I have no business being in Fortune, you know, it’s ridiculous. I’m a Marxist, basically.”” (Morika Tsujimura, “Cartoonist Rall Comes Out of Left Field”, Columbia Daily Spectator (Columbia University), Dec. 4) (via Romenesko/Poynter Media News).

December 4 — Burying old hatchets. The decay of the principle of statutes of limitation underlies a host of troublesome legal actions in areas ranging from slavery and WWII reparations to recovered-memory child abuse charges to Indian land claims, argues our editor in his latest Reason column (Walter Olson, “Stale Claims”, November; Paul Shepard, “Lawyers Plan Slave Reparations Suit”, AP/Excite, Nov. 4). Not everyone who has suffered historical dispossession is in a position to profit from the law’s willingness to reopen old grievances: “Germany’s highest court ruled on Wednesday that east Germans stripped of property during 60 years of dictatorship under first Nazism and then communism were not entitled to further compensation.” (Reuters/FindLaw, “Court Rejects East German Land Compensation”, Nov. 22).

December 4 — Endangered list. “The Fish and Wildlife Service says it can’t add more wildlife to the endangered species list this year because it has to spend so much time and money defending lawsuits from environmentalists. … The service is swamped by lawsuits from environmental groups demanding ‘critical habitat’ designation for some of the 1,225 species in the U.S. already listed as threatened or endangered. A critical habitat ruling describes the area where a species either lives or could live.” (“Agency: Lawsuits Stymie Conservation”, AP/FindLaw, Nov. 21).

December 4 — Exotic dancers in court. In Scranton, Pa., a jury has “ordered a nightclub to pay $363,153 to a stripper who was badly burned while performing her fire-breathing routine. … [In 1994 Patricia] Ryan accidentally dribbled a mixture of 151-proof rum and salt onto her chest and suffered second-degree burns. She alleged that the [Cabaret Nightclub’s] employees did not provide adequate safety equipment or come to her aid quickly enough.” Ryan is now 36 and is enrolled at Harvard University, according to the story. (“Burned Stripper Wins $363,153 Award “, AP/Newsday, Nov. 16). And in Cleveland, a lawyer for Jodi Ketterman has objected to a judge’s plan to order an electronic monitoring bracelet attached to her ankle in lieu of bond in a pending criminal case, saying the bulky device would interfere with her work as an exotic dancer (Karl Turner, “Exotic dancer’s lawyer says bracelet too much to wear”, Cleveland Plain Dealer, Sept. 28). More exotic dancer litigation: Aug. 14, July 26, May 23, January 28.

December 1-3 — Hauling commentators to court. Both left and right these days seem increasingly inclined to drag pundits of the opposite camp into litigation. White House aide Sidney Blumenthal, pursuing his defamation suit against Matt Drudge, is demanding that numerous conservative commentators submit to interrogation under oath about the case; the list is said to include John Fund, Arianna Huffington, Ann Coulter, David Horowitz and Tucker Carlson (David Carr, “Blumenthal-Drudge Legal Grudge Match Drags in a Who’s Who of Right-Wing Commentators”, Inside.com, Nov. 29; Michael Ledeen, “An Open Letter to the Blumenthal 25”, National Review Online, Nov. 21). Meanwhile, the litigious conservative group Judicial Watch has announced that it is going to “monitor” hostile columnists Joe Conason and Gene Lyons “among others, to make sure they do not violate the rights of American citizens,” which might easily be mistaken for a not-very-veiled intent to seek grounds to sue them (Greg Lindsay, “Judicial Watch, Clinton Administration Scourge, Targets Salon Writers Conason and Lyons”, Inside.com, Nov. 21). And the World Wrestling Federation, under fire from the social-conservative Parents Television Council, has sued PTC alleging “a multi-faceted pattern of tortious and fraudulent activities” based on its efforts to get corporate advertisers to drop their support of WWF broadcasts (“Grudge Match”, Opinion Journal (Wall Street Journal), Nov. 26).

December 1-3 — Batch of letters. The latest additions to our letters page have to do with why the EEOC’s chairman asked to stop the tape during a John Stossel interview; the Florida election debacle; and the Derrick Thomas crash.

December 1-3 — Burned by a hired witness. Lawyers around the country hired Gary S. Stocco of the National Burn Victim Foundation to testify as a courtroom expert on burn injuries, for both prosecution and criminal defense as well as in civil cases. But his resume was “filled with embellishments and false qualifications”, and listed two degrees from an outfit that “requires no course work and mails out degrees for cash”. Now he faces up to 20 years in prison after being convicted in Prince William County, Va., south of Washington, of perjury and obtaining money under false pretenses. One DA called Stocco a hired gun, while another said he “sets out to tip the scales of justice toward whoever is paying him.” Sentencing is scheduled for January.

“According to transcripts of testimony in several jurisdictions, Stocco said he had investigated hundreds of child-abuse cases as a state police officer in New Jersey and had attended surgical procedures for burn victims. But Gary Gardiner, a Prince William detective, said yesterday that Stocco had instead patrolled parking lots and hadn’t been involved in any criminal investigations or surgeries.

“Each time Stocco was allowed by a judge to testify as an expert witness, it boosted his qualifications. It’s a cycle that worries prosecutors.” (Josh White, “Roving Burn ‘Expert’ Was False Witness”, Washington Post, Nov. 3. See also New Jersey legislative commission (scroll halfway down), June 17, 1998; Georgia Firefighters Burn Foundation bulletin board; USA Today).


December 20 — Property taxes triple after wrongful-termination suit. “The Delaware County [Oklahoma] Excise Board voted Monday to impose a tax levy that will triple property taxes for Kenwood’s 128 residents to pay off a court judgment against the school system.

“Board members voted to set the levy after Kenwood school board members agreed Thursday to use $75,000 in federal Impact Aid funds to pay Garland Lane, the former school superintendent, who won a $305,600 judgment against the district in 1998 for wrongful termination.

“The school district still owes Lane $179,000. The federal trial judge ordered that Lane and his Tulsa attorney would be allowed to collect an additional 10 percent interest on the outstanding debt until it was paid.

“A Kenwood taxpayer who normally pays $224 in taxes for the year will now have to pay $763, under the levy approved Monday.” (Jann Clark, “Property tax triples in Kenwood”, Tulsa World, Dec. 12).

December 20 — Obese fliers. A judge has ruled that Southwest Airlines did not unlawfully discriminate against Cynthia Luther, whose weight exceeds 300 pounds, when it required her to buy a second seat on a flight from Reno to Burbank (“Large Passenger Has Suit Dismissed”, Yahoo/AP, Dec. 14) (via Drudge). Days earlier, a confidential report from an official agency in Canada recommended that airlines be forbidden to charge highly obese passengers for a second seat, on the grounds that their condition should count as a disability entitled to accommodation. The opinion from the Canadian Transportation Agency promptly came under fire from both directions, with the Air Transport Association of Canada charging that such a rule would be unacceptably expensive, and Helena Spring, founder of the Canadian Association for Fat Acceptance, saying that obesity should be viewed as a healthy condition rather than a disability (Glen McGregor, “Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10). Update Oct. 25-27, 2002: complaint by obese Canadian passenger fails.

December 20 — New batch of letters. Our letters page catches up on more of its backlog with letters from readers on the Florida recount, Microsoft’s decision to settle its “permatemps” case, and a view from British gangland on how lawyers ought to be paid.

December 20 — Jury orders Exxon to pay Alabama $3.5 billion. No, Alabama hasn’t lived down the reputation for jackpot justice it earned in cases like BMW and Whirlpool: a jury yesterday deliberated just two hours before tagging the oil company with the mega-verdict in a dispute over natural gas royalties owed the state. Consultants for the state had argued that it was due $87 million, Exxon said the figure was much lower or zero, but private attorney Bobo Cunningham of Mobile — whom the state had hired on contingency, promising him 14 percent of any winnings — convinced the jurors that $3 billion would be a much more appropriate sum (Phillip Rawls, “Jury orders Exxon to pay $3.5 billion to state in offshore gas case”, AP/Birmingham News, Dec. 19). Updates Dec. 1, 2003: first verdict thrown out, retrial yields $11.8 billion punitive damage award; Apr. 18, 2004 judge cuts that verdict to $3.6 billion.

December 18-19 — “‘Belligerent’ Worker Is Covered by ADA, Says Federal Court”. “A worker who suffers from major depression that makes her belligerent and hypersensitive to criticism has a right under the Americans with Disabilities Act to a reasonable accommodation from her supervisors, a federal judge has ruled.” After she was fired from her job as a manager with the Unisys Corp., Tina Bennett sued arguing that she had been suffering from major depression which manifested itself in interpersonal difficulties. “U.S. District Judge Franklin S. Van Antwerpen found that when a worker’s depression affects her ability to think and concentrate, she has the right under the ADA to get more feedback and guidance if it would help her perform her job. … Bennett met the test [for impairment of ‘major life activities’], Van Antwerpen said, since the evidence showed she was ‘belligerent and displayed an unprofessional attitude,’ that she had ‘difficulty controlling her emotions’ and that she was ‘incredibly sensitive to criticism.’ Bennett’s supervisor testified that Bennett’s peers felt that they could not approach her and have a meaningful conversation with her, Van Antwerpen noted, and her poor interpersonal skills were listed as a reason she was fired.” Given her “evidence linking her behavior to symptoms of her mental disability,” the judge ruled, a jury must be allowed to consider her claim for damages under the ADA. (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Dec. 13).

December 18-19 — Behind the subway ads. “[T]here isn’t a subway-riding adult in New York who hasn’t seen an ad for 1-800-DIVORCE, with the O formed by a diamond ring and a woman’s hand to the side making a tossing motion.” The law firm that picks up the phone when you call, Wilens & Baker, believes in the economies of scale obtainable from a volume business. It’s also unusual among advertisers in its emphasis on such lines as immigration and bankruptcy law: “There are a thousand lawyers advertising now, and 980 are personal injury lawyers,” says Michael Wilens. (Laura Mansnerus, “From a Captive Audience, Clients”, New York Times, Nov. 15) (reg).

December 18-19 — How to litigate an American quilt. For all their cozy and nonadversarial image, quilts these days “are hot items in copyright litigation” as designers head to court to accuse each other of swiping patterns. In one pending action, Paul Levenson, a New York attorney who makes a specialty in quilt law, is representing Long Island designer Judy Boisson in a suit against the Pottery Barn chain “over an allegedly infringing quilt that, like one of Ms. Boisson’s, contains eight-pointed pastel ‘Missouri Star’ blocks on a white background. One of the burdens that Mr. Levenson has to overcome is the fact that many quilt blocks and borders have been in the public domain for more than 100 years, and that the communal spirit that led pioneer women to make quilts is the polar opposite of the mindset of intellectual property law. … Home quilters are abuzz about Ms. Boisson’s copyright claims, but Mr. Levenson says her targets are commercial entities, not grandmothers making quilts for their own families.” (Victoria Slind-Flor, “Quilts: Traditional and ‘mine'”, National Law Journal, Nov. 13).

December 18-19 — Smoker’s suit nixed in Norway. “A Norwegian court ruled [last month] the tobacco industry could not be held responsible for a smoker’s terminal cancer in the country’s first tobacco compensation lawsuit. The Orkdal District Court said the smoker, Robert Lund, continued to smoke even after the dangers of smoking ‘became broadly known and accepted’ and said tobacco’s addictiveness did not free him from responsibility for continuing to smoke.” (Doug Mellgren, “Norway puts tobacco industry on trial”, AP/Nando Times, Nov. 10).

December 18-19 — Welcome Wall Street Journal readers. The Weekend Journal‘s “Taste” editorial commentary briefly mentioned our item on female Santa litigation (see Dec. 13-14). And today’s (Monday’s) Christian Science Monitor quotes our editor on the subject of workplace litigation over accent discrimination (Kelly Hearn, “What legal experts say”, Dec. 18, sidebar to main story, “Pegged by an accent“).

December 15-17 — Farm bias settlements: line forms on the left. The U.S. Department of Agriculture recently agreed to pay more than $2 billion to settle suits claiming it had discriminated against black farmers; a suit by Indian farmers is proceeding as well. And now lawyers have filed suit seeking $3 billion in damages on behalf of female and elderly farmers allegedly treated unfairly in USDA programs. “The farmers are represented by Washington, D.C., attorney Phillip Fraas, who helped win the lawsuit brought by black farmers.” (“Women, Elderly Farmers Sue USDA”, Omaha World Herald, Dec. 11).

December 15-17 — U.K.: skipping, “conkers” taboo in schoolyards. Skipping and other pastimes are being banned in British schoolyards as potentially hazardous or antisocial, as is the age-old game of “conkers”, played by throwing chestnuts at classmates. Teachers “are nervous about legal action from parents if the children are injured, according to a survey by Keele University. … [A] poll found last month that 57 per cent of parents would ask for compensation if their child was injured at school. … Sarah Thomson, the survey’s author, said that one headmaster said he would prefer to ‘ban all playtimes, as they are a nightmare'” The survey of Midlands schools “concluded that playgrounds were now often ‘barren, sterile and unimaginative’ because of over-cautious staff.” (Glen Owen, “Playtime conkers banned as dangerous”, The Times (London), Dec. 8).

In other zero tolerance news, the Washington, D.C. subway system made news last month after its police arrested 12-year-old Ansche Hedgepeth for eating french fries in one of its stations (“Girl Arrested for Eating Fries in Subway”, AP/APBNews, Nov. 16; Petula Dvorak, “Metro Snack Patrol Puts Girl in Cuffs”, Washington Post, Nov. 16). See also Adrienne Mand, “Schools’ Zero-Tolerance Programs Both Praised and Attacked”, FoxNews.com, Oct. 11; “Zero tolerance turns silly” (editorial), Detroit News, Oct. 7.

December 15-17 — O’Quinn a top Gore recount angel. Tied for second among biggest donors to the Gore recount campaign was Houston trial lawyer John O’Quinn, a frequent subject of commentaries in this space (Aug. 4, 1999, etc.). (“Jane Fonda, others pony up for Gore”, AP/MSNBC, Dec. 8). Aside from his role representing the state of Texas in the tobacco litigation (May 22, 2000), O’Quinn is probably best known for having reaped a huge fortune suing on the theory that silicone breast implants cause autoimmune and related illnesses, a theory that O’Quinn and his p.r. firm, Fenton Communications, still strive tenaciously to keep alive — a far more dogged refusal-to-concede than in the Gore case, which lasted mere weeks. See also Doug Bandow, “Ending silicone breast implant saga”, TownHall.com, Dec. 13.

December 13-14 — Supreme Court: forget that recount. Looks like it’s really, really over this time, but every time we allow ourselves to think so, a hand resembling David Boies’s pops out of the ground and starts pulling us down as in the last scene of Carrie. (Charles Babington, “High Court Overrules Gore Recount Plea”, washingtonpost.com, Dec. 12; Supreme Court opinions (PDF)). The courts are going to come out of this one looking more partisan, partial and willful, writes Stuart Taylor, Jr., who predicted the Supreme Court’s 5-4 split; but the real blame should be laid on the Florida Supreme Court for having “betrayed its trust and done grave damage to the rule of law”. (“The Dangers of Judicial Hubris”, Slate, Dec. 11). “It should now be obvious to most people that the Rule of Trial Lawyers isn’t a good substitute for the Rule of Law. … it’s worth noting that three of the four justices who voted for Al Gore’s ‘adventures in recounting’ on Friday had been personal-injury trial lawyers.” (John H. Fund, “Saved from rule of trial lawyers”, MS/NBC, Dec. 9). And Christopher Caldwell, in a column making too many interesting points to recount, asks the question: why did the candidates file most of the Florida lawsuits against their own side, with Gore suing Democratic-run counties and Bush suing those run by the GOP, the opposite of what you might expect if the point of election challenges is to expose and correct partisan irregularities? (“Bench Press”, New York Press, Dec. 12).

December 13-14 — Latest female Santa case. Donna Underwood of Mount Hope, W.V. has sued a company that had hired her to play Santa Claus for children at a mall in Beckley. “She said the company fired her after one of the mall’s managers complained about having a female Santa.” (“Woman Fights for Right to Be Mr. Claus”, FoxNews.com, Dec. 11). In October (see Oct. 12) the Kentucky Commission on Human Rights said it was okay for Wal-Mart not to employ a female Santa.

December 13-14 — “Economy-class syndrome” class action. A Melbourne, Australia law firm is filing a proposed class action on behalf of victims of “economy-class syndrome” against airlines and travel agents. The suit will claim that the complainants were not warned that sitting for prolonged periods in cramped conditions might lead to blood clots in the legs and elsewhere, and were not advised to get up from time to time to walk about the cabin. (Alison Crosweller, “‘Economy-class syndrome’ victims to sue”, The Australian, Dec. 11).

December 13-14 — Internet service disclaimers. Anxious to limit their liability, Internet service providers insert into their service agreements a lot of “defensive legalistic blather designed to keep the company out of court”, which taken literally would place many of their ordinary users in violation for doing things like maintaining multiple chats at once. They also reserve the right to change the rules: “‘They could suddenly demand you wear a bra and panties and dance in the street, and you are contractually bound to it, the way this is written,’ says Andrew Weill, a partner at Benjamin, Weill & Mazer, an intellectual property firm in San Francisco.” In practice users treat the language as a joke (but also are slower to sue). (John Dvorak, “Nihilists at Home”, Forbes, Oct. 2).

December 13-14 — Hamilton’s example. “Few men contributed as much to the ratification of the Constitution as Alexander Hamilton, who wrote the majority of The Federalist Papers. Hamilton worked as a lawyer. Unlike the landed gentry, he had to earn a living. The individual whose economic policies ensured the young Republic’s survival did not amass a huge personal fortune. In Alexander Hamilton, American, Richard Brookhiser explains: ‘His skill and success put him in great demand . . . and if he did not become rich from his practice, it was because of the interruptions of public life and because he charged low fees.’

“Low fees? Those words seldom appear in stories about, for instance, the tobacco lawsuits. Hamilton didn’t eat in a soup kitchen or live in a shelter, but he didn’t make enough to buy the era’s equivalent of a sports team, either. And if all lawyers followed his example, then audiences would not hoot and howl during a certain intense Shakespearean scene.” (“Law school” (editorial), Richmond Times-Dispatch, Nov. 28).

December 11-12 — What was the Florida court thinking? In Slate, University of Utah law professor Mike McConnell clears up why the actions of the Florida Supreme Court in the recount case are properly reviewable by the federal courts: “Article II, Section 1 [of the Constitution] provides that electors [of a state] shall be appointed ‘in such Manner as the Legislature thereof may direct.’ Any significant deviation from state statutory law is therefore a federal issue.” McConnell explains how the Florida high court has now (again) attempted to impose a method for the counting of votes (and thus for the resultant appointment of electors) markedly at odds with the manner laid down before the election by its legislature, making it proper for the U.S. Supreme Court to intervene a second time to vacate its action. And McConnell raises the interesting question: if the Florida high court really thought a statewide hand count advisable, why didn’t it order one earlier, when it had access to the same basic information and there was much more time to conduct one? (“What was the Florida court thinking?”, Dec. 9).

More: Michael Barone on how the Florida fiasco is likely to bring judicial activism into further disrepute (“Red Queen rules”, U.S. News & World Report, Dec. 18). George Will finds lawyer David Boies getting away with some pretty fast moves before the Sunshine State jurists (“Truth Optional”, Washington Post, Dec. 10). The Chicago Tribune says the Florida court’s “reckless leaps of illogic not only have threatened the integrity of the election, but also have risked tossing the nation into real turmoil.” (“A Supreme Blow for the Rule of Law” (editorial), Dec. 10)

December 11-12 — “Stock Options: A Gold Mine For Racial-Discrimination Suits?”. Lucrative tactic for lawyers representing disgruntled minority employees of firms like Microsoft, Gateway, Sun, Cisco and AOL: claim that had it not been for racism your client would have gotten stock options. Given the way these stocks have been behaving lately, they’d better hurry up with this theory while the options are still worth something (Jordan Pine and Linda Bean, DiversityInc.com, Dec. 5 (reg after first page teaser)).

December 11-12 — New Jersey OKs retroactive tort legislation. “Filling in for Gov. Christie Whitman, the New Jersey Senate president, Donald T. DiFrancesco, [last month] signed into law a measure that eliminates a two-year statute of limitations on wrongful death lawsuits involving victims of murder or manslaughter. The law is meant to give distraught families time to deal with the trauma of losing a loved one before turning to the task of seeking compensation from the people, businesses or institutions [emphasis added] they believe are responsible for the death. Yesterday’s measure applies retroactively, and therefore allows … past victims’ families to sue, [according to a spokeswoman for Sen. DiFrancesco]. “Frank Askin, founder of the constitutional litigation clinic at Rutgers University, said that he did not see a problem with the clause being retroactive, so long as the defendants in lawsuits had been convicted, thus establishing beyond reasonable doubt that a murder or manslaughter did occur, and that the evidence was clear and convincing.” Askin’s answer seems curiously beside the point given that the most frequent financial targets of such suits are sure to be not the actual individual killers, but the “businesses or institutions” that will be accused of such sins as “negligent security” (based on, say, allegedly inadequate lighting or patrolling of parking lots). These defendants normally will not have been charged with any criminal offense at all in connection with the incidents, let alone had such guilt established beyond reasonable doubt, yet now are apparently being opened to suit retroactively, despite the expiration of the statute. Sen. DiFrancesco is expected to run for governor of New Jersey in 2001. (“New Law Ends Time Limits On Wrongful Death Lawsuits”, New York Times, Nov. 18) (more on decay of statutes of limitation).

December 11-12 — Florida lawyers’ day jobs, cont’d. The election isn’t the only reason a lot of lawyers hang out in the Sunshine State these days: “If South Florida is the Wild Wild West of the class-action world, then the region’s posse of plaintiff lawyers are the cowboys. Some of the wealthiest, most prominent power brokers in the community, these litigators have turned South Florida into a hotbed for class-action lawsuits.” (Julie Kay, “Along for the Ride”, Miami Daily Business Review, Oct. 24) (quotes our editor). St. Petersburg Times columnist Bob Trigaux found in October that the state of Florida won the not-coveted award for the year’s worst suit (“The most frivolous lawsuit award goes to …”, Oct. 4) (also quotes our editor) (and see Dec. 8-10).

December 11-12 — Trustworthy professionals. Nurses, pharmacists and veterinarians score highest in a survey of which occupations are viewed as most honest and ethical; teachers, clergy, judges and police also do well. Attorneys are “consistently rated among the top five professions for prestige, but near the bottom for ethics and honesty.” (Daniel B. Wood, “Who people trust — by profession”, Christian Science Monitor, Nov. 28).


December 29, 2000-January 2, 2001 — Gambler rebuffed. Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due “for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time.” (Grand Casino Tunica v. Robert Shindler, Dec. 14).

December 29, 2000-January 2, 2001 — Makes others pay, doesn’t pay himself. Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as “acts of civil disobedience that will be organized at targeted Burger Kings across the country.” The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case. “U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a ‘clear and unambiguous’ agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. ” (“Sharpton Plans Lawsuit Against Burger King”, FoxNews.com, Dec. 18).

However, the wherewithal for Sharpton’s hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago. During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, “says he owns no suits, but has ‘access’ to a dozen or so. He says he owns no television set because the one he watches in his home was purchased by a company he runs. He says he has no checking accounts, no savings accounts, no credit cards, no debit cards … The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring.” (“Sharpton says he has no assets to pay slander victim”, AP/CNN, Dec. 7; Alan Feuer, “Asking How Sharpton Pays for Those Suits”, New York Times, Dec. 21; “It Depends on What You Mean by ‘Own'” (sidebar), Dec. 21). (Update June 22-24, 2001: he finally pays Pagones).

December 29, 2000-January 2, 2001 — Seats in all parts. “Tiered” stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them. But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints. “The ADA has proved a powerful tool on a similar issue — handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena.” (Matthew Mosk, Ian Shapira, “Buying a Ticket to Court”, Washington Post, Dec. 8; Mark Pratt, “Theaters Sued Over Disabled Seating”, AP/FindLaw, Dec. 18). And: “Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so ‘pretty women’ could sit in the first two rows. Brooks’ attorney denied the allegation, saying people in the front rows are generally Brooks’ friends. A judge ruled Friday that the complaint can proceed to trial, but said Brooks’ liability is limited because he had no control over concert operations at Seattle’s Key Arena.” (“Brooks accused of discrimination”, AP/Washington Post, Dec. 17).

December 29, 2000-January 2, 2001 — Enviro litigator: debate belongs in Congress, not courts. We promise we didn’t make up the following quote, though we understand why it might astound readers familiar with the environmental movement’s record over the past three decades of heading for court in quest of victories it couldn’t win in Congress: “Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the “nondelegation” doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies. ‘We think EPA’s policy on this issue is a good policy,’ said Fox, who is representing the American Lung Association in the case. ‘But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.'” (Margaret Kriz, “Trying to Roll Back the Regulators”, National Journal, Nov. 4, not online). See also Gregg Easterbrook, “Green values”, The New Republic, Nov. 13).

December 26-28 — That’ll teach ’em. In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack. The ambulance arrived eight and a half minutes after the mother’s 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which “constituted ‘willful and wanton misconduct,’ the standard for erasing municipal immunity.” Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools’ invisible-fist theory. (Margaret Cronin Fisk, “911 Incident Brings $50 Million Award”, National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004).

December 26-28 — Appearance-blind hiring? Green-haired Santas, take hope! A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth. “But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.” They may be violating employment law if they want to hire only “lithe” or “athletic-looking” personnel, for example. However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more “natural-looking”. (Virginia Postrel, “When the ‘Cool’ Look Is Illegal”, Forbes, Nov. 27).

December 26-28 — Updates. Further developments in stories already covered in this space:

* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under “sue and labor” clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue. Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along. (Barnaby J. Feder, “Court Rules on Year 2000 Claim”, New York Times, Dec. 22 (reg)).

* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center’s rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, “Court Overrides Hospital’s Ban on Photographs in Intensive Care Unit”, New Jersey Law Journal/Law.com, Dec. 4).

* In the latest sign that “baby Castano” (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies (“NY court rejects smokers’ class-action certification”, Reuters/FindLaw, Nov. 30).

December 22-25 — Victory in Philadelphia. “A federal judge yesterday dismissed Philadelphia’s lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue.” Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their “novel legal theories” would have failed as a matter of law. “The city’s drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit.” His successor as mayor, John Street, did proceed to sue. Many other cities’ gun suits have also been dismissed, most recently Chicago’s. (Frederick Cusick, “Court rejects city gun lawsuit”, Philadelphia Inquirer, Dec. 21).

December 22-25 — Suits even ATLA admits are frivolous dept. An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic. Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: “Life has its disappointments. Some come out of the blue/ But that doesn’t mean a prisoner should sue.” (“Dissatisfied Customer”, Reuters/ABCNews.com, Dec. 20)

December 22-25 — Britain’s delicate soldiery. The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on “what he called a culture of ‘risk aversion’, warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. … In a swipe at the ‘litigious nation’ Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. … He added: ‘But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. … There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.'” In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: “we need to guard against such ill-conceived ideas in future”. (Richard Norton Taylor, “Defence chief lays into culture of ‘risk aversion'”, The Guardian (UK), Dec. 20). (“Armed Forces ‘under threat from human rights legislation'” (text of speech), Daily Telegraph, Dec. 21; Michael Smith, “Guthrie attacked over ban on disabled”, Daily Telegraph, Dec. 21; “General alert” (leader/editorial), Dec. 21). And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise. “‘One solution would be to provide ear protectors during training, but then soldiers couldn’t hear their sergeant major giving orders,'” said a spokesman. (“British Army Bands May Have to Pipe Down”, Reuters/Excite, Dec. 21).

December 22-25 — Not pro bono, not nohow. The roundtable discussion in the November Harper’s on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, “came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:”

Alexander Pires, Jr.: So would you all work for free?

Dennis Sweet: What?

Richard Scruggs: Um.

Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, “Why would you want me working unhappy for you? [If I’m unhappy,] I’ll get you 100,000 bucks. If you got me happy, I’ll get you 2 million.”

Pires: Maybe I’m wrong.

Jack Hitt (moderator): I guess that issue’s resolved. (Harper’s, November; quoted in American Lawyer, Dec. 2000)

December 22-25 — Welcome visitors. Among the many personal websites linking to Overlawyered.com: Ellen’s Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio — Aug. 3).

December 21 — Errin’ Brockovich? “An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film ‘Erin Brockovich‘, found that Brockovich’s testimony in the arbitration proceeding ‘was hardly credible’,” notes the Wall Street Journal‘s Opinion Journal. Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him. Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been “preoccupied with other significant matters” during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie. “[Faulty representation] is evidenced not only by the poor result, but also by the firm’s overall lack of professionalism; by the firm’s putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct,” wrote Krivis. Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator’s excessive credence in Baroody’s witnesses; it is not known whether his professional liability insurer will appeal. Moreover, “a claim isn’t necessarily because you did something wrong,” Cathy Hastings, insurance manager for the State Bar of California, told a reporter. “It’s only because someone decided to sue you.” That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves. (Brad Smith, “Law firm made famous by film ruled negligent in case”, Ventura County Star, Dec. 13).

December 21 — ADA requires renting to addiction facility. A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts. Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility. The jury did turn down the drug program’s request for millions of dollars in damages, however. Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection. (Kate Shatzkin, “Judge orders long-term lease for ship treating drug addicts”, Baltimore Sun, Dec. 12).