Search Results for ‘lsat flag’

“DOJ Intervenes In LSAT Disability Bias Class Action, Says ‘Flagging’ of Tests Violates ADA”

The U.S. Department of Justice is taking the position that it violates the Americans with Disabilities Act for the Law School Admission Council to inform law schools that test-takers got extra time or other accommodations after lodging demands under the ADA. The ABA is siding with disabled-rights activists in calling for an end to test score flagging. [ABA Journal]

June 12 roundup

  • John McGinnis: As information technology disrupts the legal profession, will lawyers’ clout decline? [City Journal]
  • Law schools, especially of the more leftward persuasion, collecting millions of dollars in cy pres lawsuit diversions [Derek Muller]
  • Who’s still defending embattled medical examiner Steven Hayne? Mississippi attorney general Jim Hood, for one [Radley Balko, earlier here, here, here]
  • Life in America will become more drab if Campaign for Safe Cosmetics gets its way [Jeffrey Tucker via @cathyreisenwitz, earlier on “CPSIA for soap”]
  • LSAT settled with DoJ demands re: disabled accommodation back in 2002 and again just now, and the differences between the two settlements tell a story [Daniel Fisher, earlier] Some prospective students will be losers [Derek Muller]
  • “‘Swoop and Squat’: Staged car accidents, insurance fraud rise in L.A.” [Los Angeles Times]
  • Toughen duty for California psychiatrists to inform on dangerous patients? Awaiting backfire in three, two, one… [Scott Greenfield]

Law schools roundup

  • Under DoJ gun, LSAT agrees to end flagging of test scores taken with disabled accommodation, cough up more than $7 million [Justice press release, Caron/TaxProf roundup coverage]
  • “Things law school trustees probably should not do: subpoena their own school’s students for criticizing them” [@petersterne; Danielle Tcholakian, DNAInfo]
  • Should law students graduate without studying the First Amendment? And other thoughts from Justice Scalia’s William & Mary commencement speech [text via Will Baude]
  • “Rank ordering the likelihood of law school reforms” [Prof. Bainbridge] ABA moves forward with law school accreditation changes; tenure, among other institutions, likely to remain sacrosanct [Caron/TaxProf, Fortune]
  • Paul Horwitz reviews James R. Hackney Jr. book on contemporary legal academy [Journal of Legal Education via Prawfs]
  • Alex Acosta dean case: should conservative legal academics steer clear of Florida? [Bainbridge]
  • Orin Kerr vs. Erwin Chemerinsky and Carrie Menkel-Meadow on curricular reform [Volokh Conspiracy]

Disabled rights roundup

  • A rein on line-jumping by disabled tour guides? Walt Disney World changes ride admission policy [WKMG Orlando, earlier here and here]
  • Every body into the ADA: Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis in U. Chi. Law Review are latest to propose “universal” right to accommodation [Bagenstos]
  • Speaking of which, everyone interested in disability law should be following Prof. Sam Bagenstos’s Disability Law Blog, the ultimate source of many articles linked in this space. I’m honored that Prof. Bagenstos has invited me to speak to his disabilities law class today at the University of Michigan (sorry, it’s not a public event), all the more so since we regularly square off on opposite sides of these issues;
  • “First ADA suit since AMA’s obesity policy: Is this the start of something big?” [HR Morning via Eric B. Meyer]
  • “Disability Groups Defend California’s LSAT Anti-Flagging Law” [Karen Sloan, NLJ]
  • “Student Sues Kaplan For Not Providing Sign Language Interpreter” [Florida Daily Business Review] Another movie theater captioning suit [Connecticut Law Tribune]
  • Rep. Tammy Duckworth vs. putative set-aside “disabled vet”: “I’m sorry that twisting your ankle in [prep] school has now come back to hurt you in such a painful way” [Daily Caller]
  • From the rumor mill: Senate Foreign Relations Committee may hold hearings next month on ratification of Convention on the Rights of Persons with Disabilities, much criticized in this space; here’s a pro-ratification Facebook group and a John Kerry op-ed to the same effect.
  • From historic Julian, Calif. to Philadelphia, we all pay price of ADA’s coercive utopianism [Mario Loyola and Richard Epstein, The American Interest]

Schools roundup

  • Disabled kids and their parents among chief losers in NYC school bus strike [Richard Epstein]
  • “School District to Spend $2.4 MILLION on Guards? A Mom Protests” [Free-Range Kids, N.C.] “Our Schools Are Safe Enough: A Movement to Stop Overreacting to Sandy Hook” [same] Shame that NRA would decide to push big government mandate at taxpayer expense [Brian Doherty]
  • LSAC challenges new California law banning flagging applicants’ extra time on LSAT [Karen Sloan, NLJ]
  • One year on job, 13 years in rubber room for NYC teacher accused of sexually harassing students [NY Post]
  • Missouri lawmaker introduces bill criminalizing failure to report gun ownership to child’s school [Caroline May, Daily Caller]
  • Suing for edu-bucks: “Court says Kansas must increase school funding, slams tax cuts” [Reuters, Severino/NRO]
  • “Yay for Recess: Pediatricians Say It’s as Important as Math or Reading” [Bonnie Rochman, Time]

Penelope Trunk: “How To Hack Public School”

Take advantage of IDEA and the feds’ disapproval of test-accommodation flagging:

3. Classify your kid as having some sort of learning difference. Get your kid an Individualized Education Plan (IEP) early on so that they get unlimited time taking the SAT. The classification is not reported to colleges, so it’s just seen simply as a really high score.

You might think this is extreme, but in New York City parents get their kid classified as special needs in order to get a leg up getting into elite preschools. So doing this to get into an elite college seems fine. And look, it’s hard to get an IEP when your kid is two years from taking the SAT. Everyone wants an IEP then. It’s easy when you have a first-grader. Most first graders look like they need an IEP when they are in school because school is so uncomfortable for young kids.

[Penelope Trunk]

February 2000 archives, part 2


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 2000 archives


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 2000 archives


January 15-16 — “Blatant end-runs around the democratic process”. “If I had my way, there’d be laws restricting cigarettes and handguns,” writes former Secretary of Labor Robert Reich, a prominent liberal, in this widely noted piece in the new American Prospect. But “[f]ed up with trying to move legislation, the White House is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker.”

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.” The federal gun case prefigures liability for the makers of such products as “alcohol and beer, fatty foods, and sharp cooking utensils.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”. (Robert Reich, “Smoking, guns”, The American Prospect, Jan. 17).

January 15-16 — “Public paranoia, and other losses”. George Williams of Cut Off, Louisiana is suing the Fair Grounds Corp. and assorted other defendants over two winning trifecta bets he placed at an off-track betting parlor which paid $80.80 and $36.60 when the television monitor suggested that the actual payout should be $121.20 and $41.80 respectively. The suit charges the race track and various other defendants with wire fraud, mail fraud, theft and breach of contract, and claims damages for “mental anguish and emotional distress, loss of enjoyment of life, embarrassment, humiliation, loss of sleep, public paranoia, and other losses.” Williams’ attorney, Corey Orgeron of Cut Off, “said he simply wants to get to the bottom of the discrepancies between what Williams thought he won and what he was actually paid. ‘It very easily could be nothing more than simple negligence,’ Orgeron said. ‘I don’t think there was any criminal intent.'” Then why’d he throw in the charges of fraud, theft, and so on? (Joe Gyan Jr., “Man accuses OTB parlor of fraud”, Baton Rouge Advocate, Jan. 8) (& letter to the editor, Jan. 16, 2001).

January 15-16 — Poetry corner: Benjamin Franklin. Thanks to Tama Starr for suggesting this one:

The Benefit of Going to LAW

Two Beggars travelling along,
One blind, the other lame,
Pick’d up an Oyster on the Way
To which they both laid claim:
The matter rose so high, that they
Resolv’d to go to Law,
As often richer Fools have done,
Who quarrel for a Straw.
A Lawyer took it strait in hand,
Who know his Business was,
To mind nor one nor t’other side,
But make the best o’ th’ Cause;
As always in the Law’s the Case:
So he his Judgment gave,
And Lawyer-like he thus resolv’d
What each of them should have;

Blind Plaintiff, lame Defendant, share
The Friendly Laws’ impartial Care,
A Shell for him, a Shell for thee,
The Middle is the LAWYER’S FEE.

— Benjamin Franklin, Poor Richard’s Almanack, 1733 (& see Jan. 26-27 update).

January 15-16 — Welcome HealthScout visitors. In an article on the “Internet addiction” defense (see Jan. 13-14) and other creative legal theories, the online health news service concludes: “If you wonder whether America’s legal system is getting out of control, check out Overlawyered.com (yes, that’s its real name) to read more about the Columbine case and other questionable legal tactics.” (Serena Gordon, “‘The Web Made Me Do It!'”, HealthScout, Jan. 13). Check out our subpage on law and medicine.

January 13-14 — Latest excuse syndromes. A Florida teenager accused of making a threat of violence in an email to Columbine High School was suffering from “Internet intoxication”, his lawyer plans to argue. Michael Ian Campbell was “role-playing” when he sent a message threatening to “finish” what Eric Harris and Dylan Klebold began in their massacre last April, according to Miami attorney Ellis Rubin. In earlier cases, Rubin offered “television intoxication” as a defense for a teenager eventually convicted of murdering an elderly neighbor, and defended a woman who eventually pleaded guilty to prostitution by saying that the antidepressant Prozac had turned her into a nymphomaniac. Meanwhile, a black Pennsylvania man accused of bank robbery is offering an insanity defense, saying that he had been driven to mental derangement by the racism of the white culture around him. “Police said [Brian] Gamble dressed as a woman when he went into the bank on July 3 and robbed tellers at gunpoint.” (Steve Gutterman, “Internet Defense in Columbine Case”, Washington Post, Jan. 12; “Robbery suspect claims racism made him insane”, AP/CNN, Dec. 23).

January 13-14 — “Litigation Bug Bites Into Democracy”. “Fueled by the success of the class-action war on Big Tobacco, class-action ‘lawfare,’ if you will, is also now being waged against — among others — gun manufacturers, makers of lead paint, Microsoft, the health maintenance organization industry, makers of genetically altered seed, the vitamin industry and the airlines.” Chicago Tribune editorial also points out, regarding charges that American businesses poured too much money into averting even minor Y2K glitches, that of course they were terrified out of any reasonable cost-benefit calculation: “it wasn’t just fear of the millennium bug. It was fear of lawyers waiting to pounce. Didn’t spend enough money to fix your computers, eh? Created a public safety problem, did you? Surely you knew your negligence would disrupt us. We’ll see you in court.” (editorial, Jan. 10).

January 13-14 — Huge jump in biggest jury verdicts. Survey by Lawyers’ Weekly USA finds the ten biggest jury awards to individual plaintiffs approached an aggregate $9 billion in 1999, nearly tripling from the amount in 1998. “Something totally unparalleled in history is going on in our legal system,” says the weekly’s publisher, not without a touch of magniloquence. Besides the Anderson (Chevy Malibu) verdict against GM, set by the jury at $4.9 billion and reduced by a judge to $1.1 billion (see Dec. 16, Aug. 27, July 10 commentaries), the other billion-dollar case was an award of $1.2 billion to the family of 32-year-old Jennifer Cowart, who died of burn injuries after a go-cart accident at a Pensacola, Fla. amusement park. (AP/FindLaw, Jan. 11).

January 13-14 — Watch your speech in Laguna Beach. The use of slurs, catcalls and other “hate speech” on the street is not in itself unlawful, but police in Laguna Beach, Calif. have begun documenting episodes of such verbal nastiness anyway on the theory that perpetrators often “graduate” to physical violence later on — a sort of gateway theory, as they call it in the drug war. Police Chief James Spreine said the database of hate-speech incidents will help his department identify suspects in serious crimes — raising the danger that constitutionally protected speech, although not to be punished itself, will bring with it something akin to official suspect status when unknown parties commit bias crimes later on (Mayrav Saar and Barbara Diamond, “Laguna Beach police will document hateful speech”, Orange County Register, Jan. 12).

January 13-14 — “Americans Turn To Lawyers To Cure Nation’s Social Ills”. Uh, speak for yourself, would you mind, please? Last week’s flattering news-side Wall Street Journal profile of class-action impresario Michael Hausfeld (anti-guns, anti-HMOs, anti-biotech) got the most basic premise wrong about the class action biz when it said that “more and more frequently, they [referring to “people” or “society”] turn to courts when the traditional avenues of politics or activism seem obstructed.” But the “people” don’t hire class action lawyers; more typically those lawyers hire themselves, and if necessary go out and find a representative plaintiff to sue for. Of course these lawyers would love to establish that their activities simply coincide with what the public wants them to do, but why is the Journal‘s news side lending them a hand by assuming what is to be proven? (Paul Barrett, “Americans Turn To Lawyers To Cure Nation’s Social Ills”, Wall Street Journal, Jan. 4)

January 13-14 — Your fortune awaits in Internet law. Five years ago this Ohioan was toiling away as a computer operator for a sleep clinic, but now he’s moved on to a career in the fast-growing world of Internet law — representing a client who cybersquatted on such domain names as “dolphins.com” and “jets.com” and now wants major bucks from the football folks on the grounds that they interfered with his sale of the names. “Mr. DeGidio sees such issues as fertile ground for dispute.” (George J. Tanber, “Web challenges kindle this attorney’s interest”, Toledo Blade, Jan. 10).

January 13-14 —Overlawyered.com announcement list now hosted at ListBot. It was getting too big to be managed any other way — besides, this way you can volunteer fun demographic information about yourself. To join the list, look for the red Listbot button in the column at left and enter your email address.

January 13-14 —Correction: surname of Pennsylvania AG. Our January 10 report mistook the surname of Attorney General Mike Fisher of Pennsylvania. We’ve fixed it now. Our apologies.

January 12 — Finally! Reform may be in the wind for New York City’s patronage-ridden courts, following a burgeoning scandal in Brooklyn. Two top officials resigned last month from the law committee of the Brooklyn Democratic Party, complaining that despite their “unquestioned loyalty” to the party they’d been cut out of lucrative court assignments. The letter painted a damning picture of the operations of the city’s notoriously buddy-buddy system of fiduciary appointments, by which judges appoint clubhouse lawyers to fee-intensive positions managing the estates of decedents, orphans, failed businesses, foreclosed properties and other entities that can’t tend to their own affairs. Mayor Rudy Giuliani promptly called for reform to purge the system of its continuing machine taint, and now the state’s chief judge, Judith Kaye, has announced that she’s appointing an investigator with subpoena power to uncover improprieties and make the fiduciary appointment process worthy of public confidence. If that works, our friend Augeas has some stables that need cleaning out. Update Dec. 20, 2001: investigation results in report exposing abuses.

SOURCES: Alan Feuer, “2 Brooklyn Lawyers, Ex-Insiders, Outline a Court Patronage System”, New York Times, Jan. 5; Thomas J. Lueck, “Giuliani Urges Chief Judge to End Patronage in Courts”, New York Times, Jan. 6; Winnie Hu, “Political Favoritism by Judges Faces an Investigation”, New York Times, Jan. 11 (all Times links now dead); John Caher, “NYS Courts to Probe Judicial Appointments of Lawyers”, New York Law Journal, Jan. 11; Tracey Tully, “Judge To Probe Patronage”, New York Daily News, Jan. 11; Frederic U. Dicker and Maggie Haberman, “Top Judge Orders Probe of B’klyn Patronage Scandal”, New York Post, not dated.

January 12 — Disabled accommodation in testing. Sunday’s L.A. Times notices the trend: “The number of students who get extra time to complete the SAT because of a claimed learning disability has soared by more than 50% in recent years, with the bulk of the growth coming from exclusive private schools and public schools in mostly wealthy, white suburbs.” (Kenneth R. Weiss, “New Test-Taking Skill: Working the System”, Los Angeles Times, Jan. 9; see our editor’s “Standard Accommodations“, Reason, February 1999.) The U.S. Department of Justice has sued the Law Schools Admissions Council for allegedly following overly rigid rules in responding to physically disabled applicants’ requests for extra time on the Law School Admissions Test. “We are extremely disappointed that the Department of Justice has decided to litigate this matter and even more disappointed that they issued a press release about the lawsuit before serving us with the complaint,” says the Council’s president. (Shannon P. Duffy, “Disabled Students Denied Accommodation to Take LSAT, Suit Says”, The Legal Intelligencer (Philadelphia), Dec. 9). Columnist Robyn Blumner isn’t the only one reminded of the Kurt Vonnegut story, “Harrison Bergeron”. (“The high cost of equality: our freedom”, St. Petersburg Times, Dec. 19).

January 12 — Ontario judge okays hockey-fan lawsuit. Justice Michel Charbonneau ruled that a lawsuit by season-ticket holders against player Alexei Yashin (see Oct. 20 commentary) can proceed even though the law in the area is “relatively undeveloped”. “This is groundbreaking because this is the first time we can examine an athlete’s state of mind regarding fans,” said attorney Arthur Cogan. “Does he ever think about fans’ interests?” Next up: lawsuits by inconvenienced customers against workers who go out on unauthorized strikes? (Kevin Allen, “Yashin to face fans’ discontent”, USA Today, Jan. 6; “Judge: Fans’ lawsuit against Yashin can proceed”, CBS SportsLine, Jan. 5).

January 12 — Warn and be sued. “When Gwinnett County police officer Gordon Garner III told clinical psychologist Anthony V. Stone during a fitness-for-duty interview that he had had a vision of killing his captain, and thoughts about killing eight to 10 others including the chief and a county commissioner, Stone took it seriously.” He “consulted a lawyer for the Georgia Psychological Association, Susan Garrett, who advised him he had a duty to warn the individuals Garner had named”, according to court papers. Two weeks after the initial interview, he did warn them — walking right into a lawsuit from Garner for breach of confidentiality which culminated last month in a jury award of $280,000. Sued if you do, sued if you don’t? “In previous reported cases in Georgia, mental health professionals have been sued for failing to warn third parties that they might be in danger; Stone was sued for issuing that precise warning.” (Trisha Renaud, “Ex-Cop Wins Rare Confidentiality Case”, Fulton County Daily Record, Jan. 5).

January 11 — Health plans rebuffed in bid to sue cigarette makers. Now we find out! Helping close the door on the premise of the state Medicaid suits (after that $246 billion horse has already escaped from the barn), the Supreme Court yesterday let stand lower-court rulings denying union health plans the right to sue tobacco companies to recoup smoking-related health outlays. (“Union health plans lose round with cigarette makers”, AP/FindLaw, Jan. 10; Joan Biskupic, “Court Rejects Union Tobacco Suits”, Washington Post, Jan. 11). For a brief run-down of why these third-party payor claims have no law on their side, we recommend Judge Frank Easterbrook’s enjoyably abrasive 7th Circuit opinion, issued in November, dismissing suits filed by union funds and Blue Cross/Blue Shield plans in Illinois.

January 11 — Microsoft temps can sue for stock options. “In another victory for temporary workers at Microsoft, the Supreme Court today let stand a ruling that greatly expanded the number of employees who could sue the software giant to purchase stock options and get other benefits.” If you’re an employer who was counting on the old notion of freedom of contract to hold temps and independent-contractor employees to the benefits they bargained for, be afraid. (James V. Grimaldi, “High court rules 15,000 Microsoft temps can sue”, Seattle Times, Jan. 10; Dan Richman, “Microsoft ‘Permatemps” Win”, Seattle Post-Intelligencer, Jan. 11) (see also Aug. 19 commentary).

January 11 — “Update from the Year 2050”. The protagonist of this 1984-like tale wakes up to tepid home-brewed coffee: “Today, no house could be programmed to prepare scalding fluids. No ice cubes either: People choked on them and died. As Plaintiff in Chief Rodham Bush liked to say, ‘Extremes are unhealthy.'”. It was in the 00’s decade that the lawyers really took over: “By piling lawsuit atop lawsuit, the attorneys could bankrupt any company that tried to fight them….Politicians had discovered that by joining in the lawsuits, the government could take a cut of the settlements.” Now there was just one big company left, McNikeSoft, which efficiently settled hundreds of thousands of suits a day on the Litigation Exchange, and which the lawyers refrained from bankrupting because that would end the game. “Profits flowed efficiently from the real economy directly to the attorneys. Everybody was happy.” Hurry up and read this new satire by Jonathan Rauch before the folks he skewers find some way to sue him for writing it (National Journal, Jan. 7 — see Reason archive)

January 11 — Can they get a patent on that? “Two top executives and two high-level officers at a consulting firm that serves lawyers and insurance companies were indicted by a federal grand jury [in November] on charges of designing a computer program that automatically inflated the bills it sent to clients.” The indictment charges that a computer programmer at the firm, S.T. Hudson International Inc. of Wayne, Pa., “developed a program he called the ‘gooser’… which automatically multiplied every hour worked by a consultant by 1.15 and then added an extra half hour to the total hours,” with resulting overpayments by clients and affiliated companies totaling more than $320,000. (Shannon P. Duffy, “Consulting Firm Indicted for Inflating Bills Sent to Lawyers”, Legal Intelligencer (Philadelphia), Nov. 30).

January 11 — “Dear Abby: Please help…” “…I fell in love with a married man. He claimed he loved me. My husband caught us and now has filed for divorce. My lover called it quits and ran back to his wife.

“Can I sue my lover for breach of promise because he promised to get a divorce and marry me?” — Destroyed in the U.S.A.

“Dear Destroyed: I recommend against initiating such a lawsuit.”

— An entry, reprinted in its entirety, from “Dear Abby“, January 2.

January 11 — Welcome, Yahoo and About.com visitors. Our page on overlawyered schools has recently won listings at Yahoo “Full Coverage: Education Curriculum and Policy” and J. D. Tuccille’s popular Civil Liberties section at About.com.

January 10 — Pokémon litigation roundup. The Burger King Corporation last month recalled about 25 million pull-apart plastic balls containing the cartoon characters, which had been distributed as premiums with childrens’ meals, after a young child apparently suffocated on half of one of them. The company offered a small order of french fries in exchange for each returned ball, which did not save it from class action lawyers in Dallas who dashed at once to court, their named client a local mother whose son was entirely unharmed by the balls but who (or so the premise of the suit went) considered the french fries inadequate compensation for the toys’ return. (“Burger King Hit With Pokémon Lawsuit”, Reuters/FindLaw, Dec. 30; Jenny Burg, “Dallas Mom Sues Burger King Over Poke Balls”, Texas Lawyer, Jan. 5).

In other Pokémon litigation news, showman Uri Geller, whose act is best known for his purported ability to bend spoons by the power of remote mind control, is threatening to sue the makers of the cards over the inclusion of the character Kadabra, which is shown wielding a spoon and which boasts “special mental powers: It plagues bystanders with a mysterious pain in the brain'”, to quote the New York Post. Japanese children are said to have nicknamed the character “Uri Geller”; “There’s no way that they’re allowed to do this,” Geller says his lawyer told him. (Lisa Brownlee, “Pokémon card trick makes magic man mad”, New York Post, Dec. 30). And the American Lawyer has now given a write-up to the recent imbroglio (see Oct. 13 commentary) in which class-actioneers Milberg Weiss Bershad Hynes & Lerach filed a lawsuit charging that the trading cards are a form of unlawful gambling, without realizing that a company it represented owned the licensing rights to the characters — with the result that it sued its own client for treble damages for alleged racketeering. (Sherrie Nachman, “Cartoon Conflicts”, American Lawyer, Dec. 20) (earlier Pokémon coverage: Dec. 16, Oct. 13, Oct. 1-3).

January 10 — Pennsylvania tobacco fees: such a bargain! “One lawyer spent 12 minutes reading the Wall Street Journal and billed $62. Another charged $290 for the hour he took identifying and ordering books.” Lawyers’ bills like that might stand in need of a little revising, you might think — but in the case of the Pennsylvania tobacco fees the revision was upward, from $7.1 million to a negotiated deal of $50 million. On a per-capita basis that still ranks among the lowest tobacco fees in the country, but eyebrows have been raised by the fact that the prominent and generally business-oriented law firms that handled the work for the state, Buchanan Ingersoll of Pittsburgh and Duane, Morris & Heckscher of Philadelphia, were selected in what critics say was not an open or competitive process, and happened to be major campaign contributors of Attorney General Mike Fisher, the one doing the selecting (Fisher also made the key decisions in the eventual negotiated fee settlement). “Obviously,” says one critic, Philadelphia attorney Lawrence Hoyle, Jr., “it was a political kind of deal.”

“The $50 million that Duane, Morris and Buchanan Ingersoll will share over the next five years dwarfs the combined total of the Ridge administration’s bills for outside legal counsel last year: about $35 million to 241 law firms, with none getting more than $2.3 million.” And by the time Pennsylvania sued, other states had developed the legal theories on which the case rested. Tobacco-fee zillionaire Joseph Rice, who represented many states in the affair, agrees that the late-filing Keystone State did not face as much legal risk as states that filed earlier, but says: “I don’t think we should quibble about it.” But then, he would say that, wouldn’t he? (Glen Justice, “In tobacco suit, grumblings over legal fees”, Philadelphia Inquirer, Oct. 4)(& see Oct. 24, 2002).

January 10 — Back pay obtained for illegal aliens. Scoring an early win for its new policy of backing lawsuits by undocumented workers over the loss of jobs it was unlawful for them to hold in the first place, the federal government has extracted a $72,000 settlement from a Holiday Inn Express Hotel and Suites in Minnesota on behalf of nine illegal Mexican immigrants. The National Labor Relations Board and Equal Employment Opportunity Commission had charged the hotel with firing the workers because they were leading a union organizing drive, along with other employment and labor law infractions. The workers are still in the country and are resisting a deportation order. (“Hotel Settles Illegal Aliens Case”, AP/FindLaw, Jan. 7) (see Oct. 29, Oct. 28 commentary).

January 8-9 — OSHA at-home worker directive. No wonder the AFL-CIO spoke favorably of this abortive (see Jan. 6, Jan. 5) proposal; as recently as the 1980s it was calling for an outright ban on telecommuting. Communications Workers of America president Mort Bahr, for example, warned that allowing stay-home employment was dangerous “particularly if that worker wants to work at home”. (Quoted in James Bovard, “How Fair Are Fair Labor Standards?”, Cato Inst./Regulation mag.) “Traditionally, unions have opposed telecommuting/work-at-home programs because they fear that such programs represent a return to cottage industry piecework. A distributed workforce makes it more difficult for unions to organize, represent members, and police collective bargaining agreements”. (“Telecommuting and Unions”, Telecommute America California Style).

Curiously, the only newspaper we could find that commented favorably on the new OSHA intervention was Silicon Valley’s own San Jose Mercury News (link now dead) (cynics might point out that since at-home tech workers in Bakersfield, Boise and Bangalore directly compete with the face-to-face Valley culture, they’re not exactly the Merc‘s constituency). At other papers it was a more or less uniform hail of dead cats: the Washington Post, USA Today, Wall Street Journal, Hartford Courant (“Bureaucrats Gone Berserk”), Los Angeles Times, Dallas Morning News, Boston Globe, Chicago Tribune, Detroit News, Cincinnati Post, Denver Post, Washington Times, Arizona Republic, Birmingham News, as well as Sen. Kit Bond, the American Electronics Association (EE Times) and commentators Steve Chapman (quotes our editor), Dick Feagler, Marjie Lundstrom, Bruce Harmon (Bridge News), and Ken Smith (many of these links via Junk Science)(many links now dead).

When the OSHA letter hit the nation’s front pages, reports the Washington Post, “A number of companies immediately put on hold plans to expand telecommuting privileges to employees”. But the letter was hardly a frolic or detour on the part of some low-level Munchkin: the agency spent two years on it, and it was “considered a declaration of existing policy by OSHA officials”. Among the possible real-world effects of the letter, the Post quotes a Labor Department official as saying, is to have been “used by courts to make it easier to hold employers accountable for injuries that occur in home offices” — i.e., in litigation. And “since Labor Department officials had originally regarded the letter [as] a statement of existing policy, it is unclear whether withdrawing the letter had much practical effect.” (Frank Swoboda, “Labor Chief Retreats on Home Offices”, Washington Post, Jan. 6)

January 8-9 — Right to win unlimited carnival prizes. Florida’s Busch Gardens has put a limit of ten a year on the number of prizes — stuffed animals, football jackets and the like — that its patrons can win at its carnival games. One of the park’s frequent patrons, Herman James, is so adept at the games that he says he makes a side business of reselling the many prizes he wins. Now Mr. James is suing the park, saying the ten-prize-a-year limit is unfair to him. The park denies that its limit is directed specifically at Mr. James. (“Man sues Florida’s Busch Gardens for the right to win unlimited prizes”, AP/Court TV, Jan. 5)

January 8-9 — Shenanigans on the bayou. Someone — who was it? — posed as a staff person with the clerk of court’s office and placed calls to potential jurors’ residences, inquiring about their plans, while a multimillion-dollar asbestos case was going through its jury-selection stage this fall in Plaquemine, La. Soon ugly charges were flying back and forth between Exxon Corp. and prominent Dallas plaintiff’s firm Baron & Budd. The case has been referred to the Office of Disciplinary Counsel, which regulates the state’s lawyers, but it’s expected to be at least a year before the ODC completes its investigation. A year? They sure take their time down there (Angela Ward, “Baron & Budd’s Bayou Blues”, Texas Lawyer, Nov. 11).

January 8-9 — No warning given to cousin-spouses. 22-year-old Leslie Zambrana and her husband Alfredo are seeking millions of dollars in a lawsuit against the University of Miami School of Medicine, Jackson Memorial Hospital and a health clinic for failing to warn them that their daughter might be born with Down’s Syndrome, the genetic disorder whose effects include mental retardation. The suit contends that even though Leslie told the clinic’s physician that she and her husband, the baby’s father, are first cousins to each other, she was not administered a recommended “triple screen” blood test for high-risk mothers that might have detected the syndrome and caused her to seek an abortion. The couple’s grandparents are also first cousins to each other. (Jay Weaver, “Married cousins sue over baby’s disability”, Miami Herald, Jan. 3).

January 7 — Hire that felon, or else. Our editor’s December Reason column, now online, looks at what happened after the state of Wisconsin passed a first-of-its-kind law forbidding employers in most circumstances from discriminating against job applicants on the grounds of those applicants’ criminal records. Among the consequences: the cash settlement won by the notorious “Halloween killer” from a company that declined to hire him on his release from prison, and a case where the Milwaukee school system learned it was not free to deny a job to a man convicted of felony child endangerment. (Walter Olson, “Reasonable Doubts: Felon Protection”, Reason, Dec. 1999) (see also our Sept. 24 commentary).

January 7 — Protests just aren’t what they used to be. We reported in our November 3 installment on how flag-burning protesters in at least one sizable American city (Las Vegas) are now legally required to take out advance environmental permits — smoke emissions into the atmosphere, and all that. Now John Leo, in a U.S. News column on the way many campus newspapers have faced intimidation and thefts of their stock after printing material that offends identity groups, tells what happened after “the Ohio State Lantern [ran] a comic strip poking fun at the women’s studies department….A noisy crowd took their protest to the front porch of cartoonist Bob Hewitt and attempted to burn a bra, but thanks to consumer protection regulations, the flame-retarding brassiere failed to ignite.” (John Leo, “The 1999 Sheldon”, U.S. News, Jan. 3)

January 7 — GQ on Gov. Bush, Karl Rove and litigation reform. The new January issue of GQ profiles Karl Rove, key strategist in the George W. Bush campaign and “easily the team’s most pivotal player after W. himself.” Aside from the intrinsic interest of the following passage, it allows our editor to get away with more shameless self-promotion about how his book The Litigation Explosion (buy it now!) gets read in high places:

“Of the four issues he ran on in ’94 [education, welfare, juvenile justice, tort reform], I can honestly say I played a role in only one of them,” Rove told interviewer Robert Draper. “I’m a huge tort-reform advocate, and I said, ‘See what you’ve talked about here — a thread of responsibility runs through all of these. We have a society where people are being held responsible for their actions not to the degree of their responsibility but to the degree of their monetary worth, and someone’s life’s work can disappear overnight because he happens to have deep pockets and gets hit by junk and frivolous lawsuits.’ And I gave him Wally Olson’s book [The Litigation Explosion] and a couple of others. He had feelings about the topic, but he hadn’t thought about it. And look — that’s the way the best candidates are. They need people around them to execute the mechanics of the campaign, the tactical considerations . And the strategy is born out of their heart, soul and gut.” (Robert Draper, “W’s Brain”, GQ, Jan. 2000 — not online)

January 6 — “Accord tossed: Class members ‘got nothing'”. A panel of the Seventh Circuit U.S. Court of Appeals has thrown out a settlement in a class-action suit over the mailing by Equifax Check Services Inc. of allegedly unlawful debt collection letters. Judge Frank Easterbrook, joined by Judges Richard Posner and Ilana Diamond Rovner, said the settlement provided no tangible benefit for the 214,000 class members while funneling fees, later determined to be $78,000, to the lawyer for the class. Equifax agreed to stop using a form letter and to donate $5,500 to a law school consumer clinic; “Crawford and his attorney were paid handsomely to go away; the other class members received nothing (not even any value from the $5,500 ‘donation’) and lost the right to pursue class relief,” Judge Easterbrook wrote. (opinion, Cases Nos. 99-1973 & 99-2122, decided January 3; Patricia Manson, “Accord tossed: Class members ‘got nothing'”, Chicago Daily Law Bulletin, Jan. 4)

January 6 — Haunted house too scary. “A woman suing Universal Studios contends the theme park operator’s annual Halloween Horror Nights haunted house attraction was too scary and caused her emotional distress.” Cleanthi Brooks, 57, says that when she and her granddaughter were visiting the Florida park in 1998, an employee wielding a (chainless) chainsaw chased them toward an exit, with the result that they slipped on a wet spot and suffered unspecified physical injuries. (Tim Barker, “Universal fall leads to lawsuit”, Orlando Sentinel, Jan. 5; “Woman sues haunted house over injuries, emotional distress”, AP/FindLaw, Jan. 5)

January 6 — OSHA backs off on home office regulation. Moving quickly to nip mounting public outrage, Secretary of Labor Alexis Herman now explains that the Occupational Safety and Health Administration never intended to bring home working conditions under full-fledged federal regulation — why, the idea never even crossed their minds! The advisory letter to that effect has been withdrawn, but Republicans on the Hill are promising hearings. (“Labor Department does about-face on home office letter”, AP/CNN, Jan. 5; see yesterday’s commentary)

January 6 — Backyard trash burning. Researchers from the Environmental Protection Agency and the New York State Department of Health report that the burning of ordinary trash by households, still a common practice in many rural areas, is an unexpectedly important likely source of release into the atmosphere of polychlorinated compounds such as dioxin, long a subject of regulatory scrutiny because of their potential toxicity. A family of four burning trash in a barrel on their property “can potentially put as much dioxin and furan into the air as a well-controlled municipal waste incinerator serving tens of thousands of households”. (“Backyard Burning Identified As Potential Major Source Of Dioxins”, American Chemical Society/Science Daily, Jan. 4)

January 5 — Beyond parody: “OSHA Covers At-Home Workers”. “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site, according to a Labor Department advisory,” reports the Washington Post. The policy covers not only telecommuters but even the parent who briefly takes work home to be with a sick child. “Although the advisory does not provide specifics, in effect it means that employers are responsible for making sure an employee has ergonomically correct furniture, such as chairs and computer tables, as well as proper lighting, heating, cooling and ventilation systems in the home office.” Employers may also be responsible for identifying and repairing such hazards as, for example, rickety stairs that lead down to a basement home office. They “must also provide any needed training to comply with OSHA standards, and may have to ensure that the home work space has emergency medical plans and a first-aid kit.”

The new directive “makes sense”, says AFL-CIO health and safety director Peg Seminario: “Employers have to provide employees a workplace free from hazards.” Pat Cleary, vice president for human resources policy at the National Association of Manufacturers, takes a different view: “This is nuts”. And at Slate “Breakfast Table”, Matt Cooper is almost equally succinct: “This is one of those regulatory rulings that sets liberalism back a generation.” Washington lawyer Eugene Scalia calls the development “part of a string of recent initiatives intended to court union leaders as the presidential primaries approach.”

Sources: Frank Swoboda and Kirstin Downey Grimsley, “OSHA Covers At-Home Workers”, Washington Post, Jan. 4; Slate “Breakfast Table”, Jan. 4 (third item); “Workplace Rules Protect Home Office”, AP/FindLaw, Jan. 4; “Workplace Safety Rules Cover Telecommuters — OSHA”, Reuters/Excite, Jan. 4; Eugene Scalia, “Gore, Unions Invite OSHA to Your Home” (op-ed), Wall Street Journal, Jan. 5 (online subscription required).

Sequel: faced with mounting public outrage, the Department of Labor announced within 24 hours that it was withdrawing the new directive and rethinking its policy (see January 6 commentary)

January 5 — Calif. state funds used to compile tobacco “enemies list”. The Daily News of Los Angeles reported last month that the Americans for Nonsmokers Rights Foundation, a Berkeley advocacy group, has received $1.2 million from the state of California over the past four years to track and counter critics of “tobacco control”. Among its activities: “[m]onitoring people who attended and spoke on tobacco issues at city council meetings in cities throughout the state”, “[i]nvestigating a federal judge in North Carolina who issued a ruling in a case involving second-hand smoke,” and “[i]ncorrectly accusing John Nelson, a spokesman for former Assembly Speaker Curt Pringle, of being on the payroll of the tobacco industry. After Nelson complained, the foundation apologized.”

A state official acknowledges that the private foundation has been asked to monitor groups that have “interfered in tobacco control activities” — such “interference” taking the form, for example, of opposing municipal smoking-ban ordinances. Steve Thompson, vice president for government affairs of the California Medical Association, called the program “a political surveillance operation on people that this group perceived as unsympathetic to the anti-smoking movement.” Among those who learned that his name was on the resulting lists was Los Angeles attorney Bradley Hertz, who led the opposition to an anti-smoking ordinance in Long Beach but says he was erroneously listed in the advocacy group’s reports as a participant in pro-tobacco efforts on a statewide level; Hertz says that in his view public funds should not be used to “spy on citizens”. Jon Coupal, president of the Howard Jarvis Taxpayers Association, went further, charging that the dossier-compiling “smack[ed] of Gestapo tactics…. Taxpayers are actually financing an abuse of government power.” However, some on the other side dismissed the criticism and said they found nothing improper about the program. “To protect the public interest, there must be independent monitoring of these front groups — the job cannot be left to newspapers or public officials,” said Sen. Tom Hayden (D-Los Angeles).

In North Carolina, many attorneys “leapt to the defense” of U.S. District Judge William Osteen, who the Nonsmokers Rights group targeted with an exposé after he handed down a 1998 ruling overturning a federal report on secondhand smoke. “To me it’s just one more example of a focused interest group trying to intimidate judges,” said the recently retired chief justice of the N.C. Supreme Court, Burley Mitchell. “It’s part of the meanness that’s crept into public life at all levels.”

Sources: Terri Hardy, “Smokers’ Spy Tax; Using Tax Funds for ‘Enemies List’ Not What Public Intended, Critics Say”, Daily News (Los Angeles), Dec. 6; and “Group Assailed for Sloppy Work; Man Says Organization Hurt His Reputation When it Got Facts Wrong”, sidebar to above, same date (fee-based archive, search Daily News file on “Nonsmokers Rights Foundation”); same, reprinted as “Tax-funded group had ‘enemies list'”, Orange County Register, Dec. 6 (fee-based archive, see above); David Rice, “Lawyers back N.C. judge on anti-smoking group’s ‘hit’ list”, Winston-Salem (N.C.) Journal, Dec. 9, link now dead. See also “Tobacco industry influence and income on decline in California”, press release, Oct. 12, for an account of “research” at the Univ. of California, S.F., into constitutionally protected advocacy and campaign contributions from tobacco sources; the work was funded by the tax-supported National Cancer Institute as well as the American Cancer Society.

January 5 — New page on Overlawyered.com: cyberlaw. The legal woes of such class-action defendants as Microsoft and Toshiba, liability for improper linking and non-handicap-compliant web design, domain-name squabbles, state-of-the-art ways for your litigators to sift through your enemies’ and competitors’ internal emails, and other news of the growing inroads being made against America’s most successful business, high-tech, by its second most successful business, litigation.

January 4 — Gun-buying rush. “More than a million Americans asked for background checks so they could buy guns in December, a surge insiders say has something to do with Millennium mania, but more to do with pending litigation,” Reuters reports. “Current and pending litigation…is making many consumers rush to buy arms before any anti-gun verdicts or new laws further restrict their purchase,” in the view of a spokesman for gunmaker Sturm, Ruger & Co. Better exercise those Second Amendment rights before mayors, trial lawyers and Clinton cabinet secretaries take ’em away for good! Yet such a result is far from the outcome of any democratic decision process; indeed, senior analyst H. Sterling Burnett of the National Center for Policy Analysis) cites the results of a poll conducted by the Tarrance Group finding firearms manufacturer liability a singularly unpopular idea — “only 5 percent [of respondents] feel that manufacturers or retailers should be held responsible for firearm misuse”.

A second Reuters report, from London, suggests the havoc litigation can wreak on its targets’ businesses through its sheer uncertainty, independent of outcome. British-based conglomerate Tomkins PLC would like to sell its U.S. handgun maker Smith & Wesson, according to the Financial Mail on Sunday. But the newspaper “said the prospect of class action lawsuits against gun makers in the United States could block any sale of Smith & Wesson. ‘Tomkins will (sell Smith & Wesson) if it can, but until the lawsuits are settled, it may be difficult to sell,’ [a] source close to Tomkins was quoted as saying.”

Sources: “Century End, Lawsuit Threats Spark Gun Sales Spike”, Reuters/FindLaw, Dec. 28; H. Sterling Burnett, “Latest Gun Lawsuits Leading Us Down a Slippery Slope,” Houston Chronicle, Dec. 11, 1999; Burnett, NCPA op-ed, Dec. 12; “U.S. gun maker sale mulled”, Reuters/CNNfn, Jan. 2.

January 4 — Lawsuits over failing grades. In Bath Township, Ohio, 15-year-old Elizabeth Smith and her mother Betsy Smith have sued the Revere School District and 11 teachers over the girl’s failing grades. The suit, which seeks $6 million, says the school’s grading practices punished the girl for her frequent lateness and absences even though “Elizabeth has chronic tonsillitis that caused her to miss school, and she has had to stay home in the mornings to put her twin siblings on their elementary school bus because her mom, a single parent, had to be at work,” said her lawyer, James Childs. And Kerry Grandahl has sued the Massachusetts College of Pharmacy and Allied Health Sciences after her dismissal for poor exam scores, charging that under the Americans with Disabilities Act the school should have accommodated her “exam phobia,” which she says was triggered by depression. Because the exam room was noisy and thronged with other students, Kerry “could hardly concentrate, much less remember what she knew,” according to the suit filed by attorney Nicholas Kelley, which faults the school for not allowing her to take exams in smaller rooms with her own monitors. (Donna J. Robb, “Student fails over failing grades”, Cleveland Plain Dealer, Dec. 8; Shelley Murphy, “Ex-student sues college for ignoring ‘test phobia'”, Boston Globe, Dec. 21).

January 4 — Expert witnesses and their ghostwriters. Critics have long voiced alarm about the way American lawyers can orchestrate the testimony of expert witnesses they hire. In a recent case in Michigan a federal magistrate judge threw out the testimony of an expert hired by plaintiffs in a “vanishing-premium” case against Jackson National Life Insurance Co. The magistrate found that the report filed by actuary Philip Bieluch avowing his opinion as to the facts of the Jackson case had improperly reused verbiage from a report he had filed for the same lawyers in a separate case in Iowa, and was “substantially similar” to the language of a report filed by an entirely different expert in a Louisiana case. U.S. Magistrate Judge Joseph Scoville concluded that the lawyers themselves had furnished Bieluch with the wordings: “This is one of the most egregious cases of providing witness-for-hire testimony that I’ve ever seen, and at some point the courts have to say that enough is enough,” he said. The plaintiff’s executive committee in the Jackson National litigation included representatives of four firms, including well-known class-action powerhouse Milberg Weiss Bershad Hynes & Lerach. (Emily Heller, “An Insurance Expert Is Bounced”, National Law Journal, Oct. 28).

January 3 — Lawyers for famine and wilderness-busting? “Pitched on its environmental merits, the class-action lawsuit filed [last month] against Monsanto would be thrown out in short order,” argues Peter Huber of the Manhattan Institute. “So the lawyers dressed it up as an antitrust case instead.” Class-action high rollers such as Washington’s Michael Hausfeld have lent their assistance to longtime ludfly Jeremy Rifkin in organizing the suit. “They aren’t trying to save free markets from a monopoly, and the last thing they want is more competition in this field. What Mr. Rifkin is after is something even less competitive than a monopoly. He wants nobody in the genetic technology business at all.” If that happens, lawyers will have managed to stop today’s best hope — given the new methods’ success in boosting crop yields — for enabling the Third World to feed itself without pushing its agriculture into yet more wilderness.

“Perhaps the most ridiculous aspect of this whole farce,” writes “Moneybox” columnist James Surowiecki at Slate, “is Rifkin’s use of the word ‘populist’ to describe the suit” — which, after all, seeks to shift power away from elected officials and farming populations and into the hands of elite lawyers and activists who effectively appointed themselves. Surowiecki calls the action and its arguments “spurious”, a “publicity stunt” and “a haphazard and scattershot collection of charges that might have been designed to demonstrate the excesses to which the U.S. legal system can be driven.”

Meanwhile, the world’s most prominent environmental group, the million-donor, supposedly respectable Greenpeace, has been openly conducting property-destroying sabotage against biotech installations in the United Kingdom; the “direct action” bug has now crossed the Atlantic, and last year vandals struck more than a dozen crop sites in the United States.

Sources: Philip Brasher, “Antitrust lawsuit to fight biotech farming”, AP/Spokane Spokesman-Review, Sept. 14; “Rifkin sues Frankenfood giant”, Reuters/Wired News, Dec. 14, link now dead; Peter Huber, “Ecological Eugenics”, Wall Street Journal, Dec. 20, now reprinted at Manhattan Institute site; James Surowiecki, “Jeremy Rifkin’s Spurious Suit Against Monsanto”, Slate, Dec. 20; Michael Fumento, “Crop busters”, Reason, January; anti-biotech site Genetech.

January 3 — Overlawyered.com forums on hold for now. Over the holiday weekend we attempted to install an upgrade for this site’s bulletin board software. Bad move: we managed instead to knock out the forums entirely, and haven’t even succeeded in figuring out yet what went wrong. We’d like to keep the forums idea going, but are mulling over a number of options at this point, including the possibility of forums hosted off-site, which might lessen the demand on our already overstretched techie skills. Advice from experienced forum-managers is welcome.

January 3 — This side of parodies. Calls for a ban on lawyer jokes as hate speech? A Million Lawyer March on Washington to protest anti-attorney stereotyping? Well, maybe not yet, but it can be hard to pick out which elements of this whimsical column are based on fact and which parts are invention. (Richard Dooling, “When you prick us…”, National Law Journal, Oct. 11).


January 31 — Scorched-earth divorce tactics? Pay up. Lawyers in Massachusetts are assessing the impact of two recent cases in which, departing from usual practice, courts have penalized family-law litigants for engaging in carpet-bombing tactics by ordering them to pay attorneys’ fees to their victimized opponents. In one case, Basel v. Basel, a husband was ordered to pay $100,000 of his wife’s legal bill after he unsuccessfully accused her of being a drunk, a drug addict, and a child abuser; the judge ruled that he’d engaged in a “calculated campaign of outrageous behavior to destroy (his) wife’s credibility” and called his portrayal of his wife “nefarious” and “fraudulent”. “By the time it was over,” the Boston Globe reports, “the lengthy litigation had cost more than $600,000 in legal fees, half of which was paid by [the husband’s] parents.”

Peter Zupcofska, vice chairman of the Boston Bar Association’s family law section, said the ruling by Worcester probate judge Joseph Lian Jr. could signal a new departure in the state of matrimonial practice: “if the litigation that’s waged is clearly done to harass, harangue, and intimidate the other party, and to create a kind of economic slavery by utilizing vast amounts of marital funds in a really destructive way,” he said, “then the judge is going to do something to redress that imbalance.” In another recent Bay State case, Krock v. Krock, a probate judge awarded $81,000 in fees against a wife found to have engaged in wrongful litigation. “You can no longer assume that having money gives you the right to wage these frivolous, scorched-earth campaigns without risking paying the price for the other side,” said Boston family law practitioner Elaine Epstein. “And if you do, you do so at your own peril.” (Sacha Pfeiffer, “A warning to battling spouses”, Boston Globe, Jan. 23).

January 31 — Coils of forfeiture law. For Joe Bonilla, the good news is his acquittal three months ago on charges of drunken driving. The bad news is that New York City has no plans to give back the $46,000 Ford Expedition he was driving when cops pulled him over. Bonilla, a 34-year-old construction worker, is paying $689 a month on the vehicle, which he’d been driving for only two days when stopped last May on his way home, he says, from a late screening of the movie “Shakespeare in Love”. A Bronx judge declared him not guilty on the charge, but that doesn’t mean he can have his car back, the city says. (Tara George, “He’s Not Guilty of DWI, But Cops Still Have Car”, New York Daily News, Jan. 25) (more on forfeiture: Oct. 7, F.E.A.R., Reason, Fumento).

January 31 — Do as we say…. Serious fire code violations are threatening to snarl plans to open a $1-million public facility in Charleston, W.V. It’s kinda embarrassing since the facility is itself a fire station. “Not only is a firewall improperly installed inside the $1 million station house, but there are no smoke alarms in the sleeping quarters.” (Todd C. Frankel, “Fire station also lacking smoke alarms”, Charleston Daily Mail, Jan. 19).

January 31 — Showdown in Michigan. Battle royal shaping up this November in the Wolverine State, whose Supreme Court, since a series of appointments by Republican Gov. John Engler, has been assuming a national leadership role in rolling back litigation excesses. Trial lawyers, unionists and others are furiously plotting revenge when the judges stand for their retention elections. A Detroit News editorial provides a quick rundown on what promise to be some of this year’s most closely watched judicial races (Jeffrey Hadden, “State Supreme Court in partisan Catch-22”, Detroit News, Jan. 18).

January 29-30 — Update: OSHA in full retreat on home office issue. The Occupational Safety and Health Administration announced on Wednesday that it will not, after all, seek to regulate hazardous conditions in workers’ home offices, such as rickety stairs, ergonomically inappropriate chairs, or inadequate lighting. Accepting the agency’s spin, the New York Times‘s Steven Greenhouse reports the new stance as a “clarification” meant to dispel “confusion”. Translation: the agency has baldly reversed its earlier policy. When OSHA’s November advisory letter came to public notice earlier this month, the Washington Post summarized its contents this way:Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site.” (see Jan. 5, Jan. 6, Jan. 8-9 commentaries). Under the new policy, the word “not” will simply be inserted before the word “responsible” in that sentence. (At least as regards home offices: manufacturing activities conducted at home will still come under its jurisdiction, the agency says.)

Why did the earlier OSHA directive cause such an uproar? According to the Times‘ Greenhouse, it “alarmed thousands of corporate executives and angered many lawmakers, particularly Republicans” who began “using it” as a political issue — very naughty of them to do such a thing, we may be sure. But as most other news outlets reported, word of the policy had scared not just bosses but innumerable telecommuters themselves, who not unreasonably expected that the new policy would result in (at a minimum) more red tape for them and quite possibly a chill on their employers’ willingness to permit telecommuting at all. And while opposition from Republicans might come as scant surprise, the newsier angle was the lack of support from the measure from many elected Democrats; even a spokeswoman for Rep. Richard Gephardt said it “seemed excessive”.

OSHA director Charles N. Jeffress announced that the “bottom line” remained what it had “always been”: “OSHA will respect the privacy of the home and expects that employers will as well.” Translation: the agency was stung so badly by the public reaction to its initiative that it’s going to pretend it never proposed it in the first place (Steven Greenhouse, “Home Office Isn’t Liability For Firms, U.S. Decides”, New York Times, Jan. 28; Frank Swoboda, “OSHA Exempts White-Collar Telecommuters”, Washington Post, Jan. 27; “OSHA Exempts Home Offices”, Reuters/FindLaw, Jan. 27).

January 29-30 — Update: judge angered by obstructive SEPTA defense. After last month’s $50 million jury award against the Philadelphia transit authority over the maiming of 4-year-old Shareif Hall on an escalator, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million; Authority Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6; see Dec. 17-19 commentary).

January 28 — Law prof wants to regulate newspaper editorials. Libertarians have long warned that laws curbing private buying of campaign ads constitute a dangerous incursion on free speech and are likely to pave the way for further inroads. In last June’s Texas Law Review, Associate Professor Richard L. Hasen of Loyola University Law School (Los Angeles) proceeds to prove them correct by endorsing government regulation of newspaper editorials. He writes: “If we are truly committed to equalizing the influence of money of elections, how do we treat the press? Principles of political equality could dictate that a Bill Gates should not be permitted to spend unlimited sums in support of a candidate. But different rules [now] apply to Rupert Murdoch just because he has channeled his money through media outlets that he owns… The principle of political equality means that the press too should be regulated when it editorializes for or against candidates.”

Hasen happily looks forward to the day when the Supreme Court can be persuaded to overturn Buckley v. Valeo and the way will be clear for such regulation of the expression of opinion in newspapers: “op-ed pieces or commentaries expressly advocating the election or defeat of a candidate for federal office could no longer be directly paid for by the media corporation’s funds. Instead, they would have to be paid for either by an individual (such as the CEO of the media corporation) or by a PAC set up by the media corporation for this purpose. The media corporation should be required to charge the CEO or the PAC the same rates that other advertising customers pay for space on the op-ed page.” (Quoted by Stuart Taylor, Jr., “The Media Should Beware of What It Embraces”, National Journal, Jan. 1, no longer online; see also Richard Hasen, “Double Standard,” Brill’s Content, Feb. 1999).

January 28 — From our mail sack: unclear on the concept. To judge from the summaries of our search-engine traffic, a nontrivial number of visitors land on this website each day because they’re looking to get in on class-action lawsuits. We fear that we do not always succeed in giving full satisfaction to these visitors. For example, last week the following note arrived in our inbox, signed K.E.: “Please send me the website or address re the Toshiba settlement. I need to file. Why was this not on your site where it could readily be found?”

January 28 — Strippers in court. A group of San Francisco exotic dancers sued their employers last month, saying they’d been improperly categorized as independent contractors with the result that they were denied overtime pay and were unfairly forced to purchase their own “supplies”, in the form of expensive drinks. (National Law Journal, “The Week in Review: The Flux”, Dec. 27-Jan. 3). In Canada, a judge has ruled against Loredana Silion, 24, in her petition for a work permit to perform as an exotic dancer. While Ms. Silion had danced in a nightclub in her native Rumania, the job there involved only topless dancing, which the judge ruled was not a close enough match in skills for the task of dancing at Toronto’s Sunset Strip club, where nothing at all is worn. (Marina Jimenez, “Stripper told she’s not naked enough to work in Canada”, National Post, Jan. 14). And exotic dancer Doddie L. Smith has now sued an Arizona plastic surgeon, saying the doctor’s augmentation surgery left her breasts “too high” with the result that she is “unable to be a ‘featured dancer’ at exotic dance clubs, model as a centerfold in adult magazines, or promote her modeling career”. Estimated wage loss: $100,000. (Gretchen Schuldt, “Exotic dancer claims doctor botched breast surgery”, Milwaukee Journal Sentinel, Jan. 12) (Update: more on strippers in court: May 23, July 26-27).

January 26-27 — Florida ADA complaint binge. Invoking the Americans with Disabilities Act, “a half-dozen non-profit corporations and associated individuals [ ] have filed more than 600 federal suits in Miami, Fort Lauderdale and West Palm Beach” charging building owners and service providers with failing to make their facilities accessible to the handicapped, according to Miami’s legal publication, the Daily Business Review. Targets of the complaints, large and small, range from Kmart and Carnival Cruises down to local funeral homes and the little Coconut Court Motel in Fort Lauderdale, as well as nonprofits and public entities such as the local Baptist hospital and the city of Pompano Beach. A six-lawyer Miami Beach law firm, Fuller, Mallah & Associates, has spearheaded the assault, helping form three nonprofits that account for most of the filings. Indeed, no less than 323 of the cases name as plaintiff 72-year-old wheelchair user Ernst Rosenkrantz. “When pressed to explain how he hooked up with the law firm, Rosenkrantz said law firm partner John D. Mallah is his nephew.” However, “Mallah didn’t mention that relationship when asked about Rosenkrantz in an earlier interview,” notes reporter Dan Christiansen.

Most cases settle when the charged business agrees to make some modification to its facilities and pay the complainant’s legal fees — $275 an hour plus expenses in Mallah’s case. The ADA allows complainants to file suit without warning the target, and it displays considerable solicitude for the welfare of lawyers filing cases: “the attorney’s fees provisions are such that even if they get [nothing more than] the telephone volume controls changed, they automatically win the case,” says one defense lawyer. First Union, the large bank, says it refuses on principle to settle cases filed by the group: “The fees that are being charged seem to be way out of line to the amount of work that they do,” says one of its lawyers, besides which the bank had been moving forward on its own with an ADA compliance program. Rep. Mark Foley (R-Fla.) has asked the U.S. Department of Justice to investigate mass ADA filings in Broward County. (Dan Christiansen, “Besieged by Suits”, Miami Daily Business Review, Dec. 21). (Feb. 15 update: Congressmen introduce legislation) (DURABLE LINK)

January 26-27 — Seattle police: sued if they do… The constabulary of the northwest metropolis now faces a slew of lawsuits over its handling of the World Trade Organization protests in late November and early December. According to the Post-Intelligencer, the claims divide into two broad groups: those accusing the city of cracking down on the protesters too hard, and those accusing it of not cracking down hard enough. (Mike Barber, “Police sued for doing too little, too much”, Seattle Post-Intelligencer, Jan. 25).

January 26-27 — Feelings of nausea? Get in line. In 1997 a barge accident and chemical spill on the Mississippi sent a foul-smelling haze over much of Baton Rouge, La. A steering committee of attorneys formed to sue for compensation for local residents over symptoms such as “nausea, severe headaches and fatigue” experienced after smelling the odors. And did the claims ever start to roll in: by November of last year 13,000 forms had already been submitted, according to one lawyer, and the pace became even more frenetic as the Jan. 14 final deadline approached for filing claims. Long lines stretched around the block outside the old federal building; one woman said she waited six hours to get in the door, while more than 100 others were turned away at the end of the day, to come back the next day if at all; and many grumblings were heard about missing work. (Adrian Angelette, “Long line awaits claimants in chemical leak suit”, Baton Rouge Advocate, Jan. 14).(DURABLE LINK)

January 26-27 — From our mail sack: the lawyer’s oyster. Regarding our Jan. 15-16 “Poetry Corner” reprint of “The Benefit of Going to Law”, from Benjamin Franklin’s Poor Richard’s Almanack, 1733, New York attorney John Brewer writes: “Just a few days after noting the verse by Ben Franklin you had posted on your site, I came across an earlier and more concise exposition of the same image, viz.:

“Two find an Oyster, which they will not part,
Both will have all or none, the Lawyer’s art
Must end the strife; he fits their humour well,
Eats up the fish, and gives them each a shell.

“According to the recently published Oxford Companion to the Year (“An exploration of calendar customs and time-reckoning”), this appeared in the 1665 edition of Poor Robin’s Almanack (note possible Franklin influence of the name), as one of four such bits of doggerel marking the traditional four law terms. The oyster stanza was for Michaelmas Term.

“You might also find salient the verse for Hilary Term:

Anoint thy Lawyer, grease him in the fist,
And he will plead for thee e’en what thou list;
He’ll make thy cause strong though the same were weak,
But if thy purse be dumb, his tongue can’t speak.

“The verses for Easter and Trinity Terms are similarly on the theme of the costliness of going to law and its financial benefit to none but the bar, but have somewhat less punch and clarity of expression.”

January 25 — Feds’ tobacco hypocrisy, cont’d: Indian “smoke shops”. It seems when the Clinton Administration isn’t filing lawsuits to brand tobacco-marketing as “racketeering” (see Sept. 23 commentary), it’s quietly staking taxpayer money to help its constituents get into the business. A Senate Small Business Committee probe has found that since 1997 the Department of Housing and Urban Development has laid out $4.2 million to enable four Indian tribes to build “smoke shops” that sell discounted cigarettes free from state taxes. Why, one wonders, should subsidies be needed to facilitate an intrinsically high-profit activity that might be likened to lawful smuggling? And of course the source of this largesse is the very same HUD whose Secretary Andrew Cuomo has so loudly endorsed lawsuits against gun sellers whose wares are said to inflict spillover damage on other localities’ public health. A crowning hypocrisy is that some of the tribes that derive income from smoke shops are themselves now suing tobacco companies (see July 14 commentary).

The Senate committee uncovered six instances in which tribes obtained HUD subsidies to open smoke shops, five in Oklahoma and one in Nevada, but it is likely that the true number is larger. For example, this site’s editor, in his March Reason column (not yet in subscribers’ mailboxes, but previewing at the Reason site), identified another similar-sounding case: in 1997 HUD furnished the Reno Sparks Indian Colony with $450,000 “to build a smoke shop along Interstate 80 near the California border,” according to the Bend, Oregon, Bulletin. (Wendy Koch, “Tribes get funds to build ‘smoke shops'”, USA Today, Jan. 24; Walter Olson, “The Year in Double Takes”, Reason, March). (DURABLE LINK)

January 25 — Line forms on the right for chance to suffer this tort. A woman has won $5,135 in damages from owners for having been locked overnight in an Irish pub. “Marian Gahan fell asleep on the toilet in Searsons Pub in central Dublin, and did not wake until 2 a.m., by which time the pub was closed”. She argued that the pub managers should have checked the toilets before locking up. The trial had to be adjourned early on when Ms. Gahan’s barrister, Eileen McAuley, burst into uncontrollable fits of laughter while recounting her own client’s case. (“Woman locked in pub wins $5,135 damages”, Reuters/Excite, Jan. 18; “Tears and laughter at trauma in toilet”, Irish Times, Oct. 21).

January 25 — Recommended reading. On the unnerving ease with which charges of abuse and violence can be pulled from a hat to provide legal assistance in a divorce (Dan Lynch, “We’ll see how blind justice is”, Albany Times-Union, Jan. 19); on the war underway in legal academia over many scholars’ acceptance of the idea that the Second Amendment does indeed protect individual gun rights (Chris Mooney, “Showdown”, Lingua Franca, February); on the chill to workplace banter now that harassment law has gotten well established in Britain (Roland White, “Careless talk makes the office world go round”, The Times (London), Jan. 23).

January 25 — Latest lose-on-substance, win-on-retaliation employment claim. It’s pretty common, actually: the suit-prone worker flatly loses on his original claim of discrimination, but his claim for “retaliation” comes through to save the day because after the job relationship had turned adversarial the employer was shown to have treated him less favorably than before. Bad, bad employer! This time a Delaware jury decided that Eunice Lafate had not in fact been passed over for a promotion at Chase Manhattan because of her race, but awarded her $600,000 anyway on her retaliation charges; after filing the complaint, she said, she’d been cut out of management meetings and given less favorable evaluations. (Jim DeSouza, “Jury Wants Chase Manhattan to Pay $600,000 for Retaliating Against Employee”, Delaware Law Weekly, Dec. 9)(see also Sept. 29 commentary).

January 24 — Latest shallow-end pool-dive case. In Massachusetts, the state’s Supreme Judicial Court has agreed to hear the appeal of Joseph O’Sullivan, who was visiting his girlfriend’s grandparents in Methuen and decided to dive into the shallow end of their pool. An experienced swimmer and 21 years old at the time, O’Sullivan was not paralyzed but did crack two vertebrae and proceeded to sue the grandparents for not stopping him or providing warnings. Boston Globe columnist Derrick Z. Jackson takes a dim view of O’Sullivan’s case, and the lower court did not find it persuasive either (“A shallow case for the SJC”, Jan. 12).

January 24 — “Mormon actress sues over profanity”. Christina Axson-Flynn, 20, is suing the University of Utah, charging that the theater department insisted that she use foul language in character portrayals even though they knew it violated her religious principles to do so. The department disputes the contentions in her suit, which asks for unspecified damages. (Yahoo/AP, Jan. 14; Jim Rayburn, “U. theater department sued over language”, Deseret News (Salt Lake City), Jan. 14). Update Feb. 16, 2004: appeals court lets suit proceed.

January 24 — “Ambulance chaser” label ruled defamatory. The Second Circuit federal court of appeals has ruled that a New York attorney can sue over a printed description of him as an “ambulance chaser” given to taking only “slam dunk cases”. The American Association of University Women and its related AAUW Legal Advocacy Fund had put out a directory in 1997 which listed 275 attorneys practicing in its fields of interest. Appended to the contact information for attorney Leonard Flamm was the following description: “Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment and promotion. Note: At least one plaintiff has described Flamm as an ‘ambulance chaser’ with an interest only in ‘slam dunk cases.'” U.S. District Judge Denny Chin had dismissed Mr. Flamm’s resulting lawsuit against AAUW, ruling that the comments, although “beyond the pale” and “seriously derogatory”, were protected as expressions of opinion under the First Amendment. On appeal, however, a panel led by Judge Thomas Meskill reinstated the action, noting that the objectionable passage might be read as implying specific factual assertions relating to unethical solicitation of business, that it appeared in italics, and that the other entries in the directory were generally of a factual rather than opinion-based nature. (Mark Hamblett, New York Law Journal, Jan. 6).

January 24 — No clash between clauses. Cincinnati attorney Richard Ganulin has filed a notice of appeal after a federal court dismissed his lawsuit claiming that the government’s observing of Christmas as a public holiday violates the Bill of Rights’ Establishment Clause. Last month U.S. District Judge Susan Dlott rejected Ganulin’s action, ruling that Congress was “merely acknowledging the secular cultural aspects of Christmas by declaring Christmas to be a legal public holiday. … A government practice need not be exclusively secular to survive”. She also prefaced her opinion with a bit of free verse: “The court will uphold /Seemingly contradictory causes /Decreeing “The Establishment” and “Santa” /Both worthwhile Claus(es).” (Ben L. Kaufman, “Challenge to Christmas holiday appealed”, Cincinnati Enquirer, Jan. 10).

January 21-23 — “Tracking the trial lawyers”: a contributions database. American Tort Reform Foundation today unveils a handy interactive database for keeping track of which lawyers have been donating to which politicians and parties. You can search by lawyer, by law firm, by recipient politician or institution, and more. Hours of alarming fun (“Follow the Money“).

January 21-23 — From our mail sack. Julia Vitullo-Martin of the Vera Institute of Justice writes, regarding our Jan. 18 report on the strange-warning-labels contest:

“I can tell you were never a teenage girl that you think the advice ‘never
iron clothes while they’re being worn’ is wacky. We used to do this in high school all the time. We’d be in a big hurry — having wasted hours trying on & discarding one another’s clothes — and would finally find the right thing to wear only to notice that the sleeve, say, was wrinkled. Why take it off? Just retract your arm & iron. The occasional small burn never deterred us that I can recall.

“I do like your newsletter.”

January 21-23 — Y2K roundup: poor things! Lack of century-end catastrophes is a “calamity” of its own for lawyers who’d been set to file suits galore demanding damages for outages and data loss. “Lawyers were licking their chops,” Madelyn Flanagan of the Independent Insurance Agents of America told the Washington Post‘s David Segal. “I think the whole world is relieved.” (David Segal, “A Y2K Glitch For Lawyers: Few Lawsuits”, Washington Post, Jan. 10.) Ross & Co., a British solicitors’ firm that had been planning a big Y2K practice, still hopes for the best: “It Ain’t Over Till the Fat Lady Sues“, claims its website. (“Lawyers still gearing up for millennium bug attack”, FindLaw/Reuters, Jan. 20). Don’t count us out yet either, says Philadelphia attorney Ronald Weikers (softwarelitigation.com), who’s hoping the state of Delaware will sue manufacturers over a glitch that knocked out 800 slot machines for three days, thus preventing the state from slurping up locals’ spare coins over that period. Then there are the remediation-cost suits: thus the commonwealth of Puerto Rico, which made the transition “without a murmur”, is considering suing tech firms over the $80 million it says it spent to upgrade systems. (“Puerto Rico Government Considers Suing Over $80 Million In Y2K Work”, DowJones.com, Jan. 4) The reliable Ralph Nader has chimed in with his reasons for blaming everything on the deep pockets (“Y2Pay”, San Francisco Bay Guardian, Dec. 29.) And here come the backlash suits: the Independent of London reports that one company has sued outside consultants for exaggerating the risk from the calendar rollover (Robert Verkaik, “Y2K consultants sued by firm for exaggerating risk”, The Independent, Jan. 11). (DURABLE LINK)

January 21-23 — Cartoon that made us laugh. By Ruben Bolling, for Salon: “….We can’t take those off the market! Dangerous products are a gold mine for the government!” (Jan. 20 — full cartoon)

January 21-23 — Civil disabilities of freethinkers. Imagine letting a murderer go free because you’d excluded the crime’s only witness from testifying on the grounds that as a religious unbeliever he could not take a proper oath. Absurd? Yet such notions survive today in the constitution of the state of Arkansas: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.” Along with Arkansas, the constitutions of Maryland, North and South Carolina, Pennsylvania, Tennessee, and Texas retain historic provisions that contemplate or mandate the exclusion of unbelievers — and in some cases, minority religionists who reject the idea of a retributive afterlife — from public office, admission as witnesses in court, or both. Thus Article IX, Sec. 2, of the Tennessee constitution: “No person who denies the being of God, or a future state of rewards and punishments shall hold any office in the civil department of this state.” Widely considered unenforceable today, such provisions might at some point resume practical importance given today’s highly visible movement to re-infuse religious sentiment into government; in the meantime, they symbolically relegate to second-class citizenship those who hold one set of opinions. “The Arkansas anti-atheist provision survived a federal court challenge as recently as 1982”. (Tom Flynn, “Outlawing Unbelief”, Free Inquiry, Winter 1999). (DURABLE LINK)

January 20 — The joy of tobacco fees. In his January Reason column, this website’s editor pulls together what we now know about the $246 billion state-Medicaid tobacco settlements, including: the role of the settlement in imposing a cartel structure on the industry and chilling entry by new competitors; the happy situation of some lawyers who are in line to collect hundreds of millions of dollars when they simply “piggybacked” on others’ legal work, with little independent contribution of their own; and the often more-than-casual ties between tobacco lawyers and the state attorneys general who hired them, to say nothing of such influentials as President Bill Clinton and Senate Majority Leader Trent Lott (both of whose brothers-in-law were in on the tobacco plaintiffs’ side). Maybe it’s time to retire Credit Mobilier and Teapot Dome as synonyms for low points in American business-government interaction. (Walter Olson, “Puff, the Magic Settlement”, Reason, January).

January 20 — “The case for age discrimination”. You do it, Supreme Court justices do it, we all do it: generalize about people based on their ages. It’s clear that most age-based discrimination isn’t “invidious” in the original sense of race bias, and it’s only rational for an employer to avoid investing in costly retraining for a worker who’s likely to retire soon. So how’d we wind up with a law on the books purporting to ban this universal practice, anyway? (Dan Seligman, “The case for age discrimination”, Forbes, Dec. 13).

January 20 — Watchdogs could use watching. Beginning in 1993 Brian D. Paonessa employed an active solicitation campaign in conjunction with various Florida law firms to sign up hundreds of securities investors to pursue arbitration claims against Prudential Securities Inc. Not prominently featured in Paonessa’s marketing, apparently, was the fact that federal securities regulators were on his own tail on charges that he’d pocketed $149,500 in “ill-gotten gains” at the expense of investor clients. Since then, as the busy rainmaker has become embroiled in legal disputes over alleged fee-splitting arrangements with the law firms, some colorful charges have made it onto the public record. (Stephen Van Drake, “Florida Fee-Sharing Suit May Open Door to Direct-Solicitation Scrutiny”, Miami Daily Business Review, Oct. 11).

January 20 — Gotham’s plea-bargain mills. “Last year each judge sitting in the New York City Criminal Court, on average, handled nearly 5,000 cases. With calendars that huge, the system is reduced to a plea bargain mill, with no true trial capability offering balance to the process. It’s no secret. Everyone — including the repeat offender — knows this.” — New York chief judge Judith Kaye, State of the Judiciary Address, Jan. 10 (New York Law Journal site).

January 19 — “Private job bias lawsuits tripled in 1990s”. “Aided by new federal laws, private lawsuits alleging discrimination in the workplace more than tripled during in the 1990s, the Justice Department said.” According to the Department’s Bureau of Justice Statistics, “job bias lawsuits filed in U.S. District Courts soared from 6,936 in 1990 to 21,540 in 1998….The percentage of winning plaintiffs awarded $10 million or more rose from 1 percent in 1990 to 9 percent in 1998.” (AP/FindLaw, Jan. 17; Bureau of Justice Statistics abstract and link to full report, “Civil Rights Complaints in U.S. District Courts, 1990-98”).

January 19 — Santa came late. Faced with outages and high volume, the e-tailing operation of Toys-R-Us failed to deliver many toys by Christmas as promised. Now Seattle attorney Steve Berman has filed a lawsuit seeking class-action status to represent all customers who did not receive their shipments by Dec. 25. According to George magazine’s profile of tobacco lawyers last year (see Aug. 21-22), Berman’s firm is in line to receive roughly $2 billion from representing states in the tobacco settlement — enough to stake a very large number of bets like this one, should he see fit. The named plaintiff is Kimberly Alguard of Lynnwood, Washington. (“ToysRUs.com Sued: Santa Failed”, Reuters/WiredNews, Jan. 12).

January 19 — The costs of disclosure. In 1992 Tacoma, Wash. attorney Doug Schafer fielded what seemed a routine request from businessman-client Bill Hamilton to draw up incorporation papers for a new venture. But the details Hamilton provided convinced Schafer that his client was involved with Tacoma lawyer Grant Anderson in dishonest business dealings arising from Anderson’s milking of an estate. To make things worse — and raising the stakes considerably — Anderson shortly thereafter was elevated to a Superior Court judgeship.

What should a lawyer do in those circumstances? Schafer later decided to go public and seek an investigation of the judge and the transaction, thus beginning a struggle whose eventual results included an order by the Washington Supreme Court throwing Judge Anderson off the bench (for “egregious” misconduct) and a $500,000 recovery by a hospital in a lawsuit against the judge and others over their conduct. But in the state of Washington — as in a majority of other states — a lawyer has no right to breach his obligation of confidentiality to clients even when the result is to bolster public integrity or provide a remedy to defrauded parties. And so next month Doug Schafer will appear before a panel of the Washington State Bar Association to defend himself against disciplinary charges. Moreover, the reputation he’s picked up as a single-minded scourge of the corruption he perceives in the system has helped devastate his legal career, while Judge Anderson, though forced off the bench, has as yet faced no other consequences from bar enforcers, though an investigation is ongoing. (Bob Van Voris, “The High Cost of Disclosure”, National Law Journal, Jan. 4; Mary Lou Cooper, “The Cadillac Judge”, Washington Law & Politics, Sept. 1998; Tacoma News-Tribune coverage, 1998, 1999; Schafer’s website). Update Jul. 26, 2003: Washington Supreme Court suspends Schafer for six months.

January 19 — 175,000 pages served on Overlawyered.com. Thanks for your support!

January 18 — “Never iron clothes while they’re being worn”. That’s the winning entry in Michigan Lawsuit Abuse Watch’s third annual Wacky Warning Label Contest. Bonnie Hay of Plano, Texas, found the warning on an iron. Second place was awarded to a Traverse City, Mich. man’s discovery of “Not for highway use” on his 13-inch wheelbarrow tire, and third place went to “This product is not to be used in bathrooms” on a bathroom heater. M-LAW president Robert B. Dorigo Jones said the contest had a serious point, to illustrate manufacturers’ growing fear of lawsuits and the retreat of principles of individual responsibility. Finalists in earlier years’ contests have included sleeping pills labeled “May cause drowsiness”; a cardboard sunshield to keep sun off a car’s dashboard that warned “Do not drive with sunshield in place”; and a cartridge for a laser printer that warned the consumer not to eat the toner. (CNN/AP, Jan. 13; M-LAW; contest results).

January 18 — Courts mull qui tam constitutionality. The Civil War-era False Claims Act provides stringent civil penalties for anyone who submits inflated or false bills to government procurement officials, and the “relator” provisions of that act allow any private citizen to bring suit to enforce the law and obtain damages for the United States. The relator — who may be an employee of the defendant enterprise, or a complete stranger — can then by law collect a share of between 15 and 30 percent in any recovery obtained by the government, with no need to prove an injury to himself. Qui tam actions have soared in number in recent years, actively solicited by lawyers seeking rich contingency payouts (the law was liberalized in 1986 to provide treble damages). For their part, businesses, hospitals and universities complain that the quality of accusations filed against them is often low (see Sept. 9 commentary) and that the law can actually encourage bad behavior by bounty-hunting employees who (for example) may fail to report billing irregularities promptly to higher management finding it more lucrative to let them mount and then file a legal complaint. In Pennsylvania, eyebrows were raised when one entrepreneur pitched his services to a hospital as a consultant for the prevention of false claims, and then, having been turned down for that job, proceeded to sue that hospital and 99 others as relator based on a statistical analysis of their billing patterns.

Recently the qui tam provisions have come under heightened scrutiny. On November 15, writing for a panel of the Fifth Circuit U.S. Court of Appeals, Judge Jerry Smith struck down as unconstitutional the portions of the act that authorize actions by uninjured parties in the absence of a go-ahead from Washington, ruling that such suits encroach on the Constitutionally guaranteed separation of powers by impairing the executive branch’s right to control litigation that goes on in the name of government interests. The case will be reheard by the full Circuit. Moreover, the decision may have had immediate repercussions at the U.S. Supreme Court, which had already agreed to consider whether the state of Vermont can be sued by one of its own former staff attorneys, acting as relator, for allegedly exaggerating the proportion of its employees’ time that was allocable to federally reimburseable environmental programs. Apparently responding to the Fifth Circuit decision, the Court ordered the lawyers in the Vermont case to brief the issue of whether the relator provisions are unconstitutional. Even if the Court does not go that far, it might rule that the application of the law to states as defendants violates the Constitution. Justice Stephen Breyer called it “one thing” to allow individuals to sue private federal contractors and “quite another” to “set an army of people loose on the states.” Update: The Court later upheld the constitutionality of the act’s relator provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, reprinted at Cadwalader, Wickersham & Taft site) See also April 30, 2001, July 30, 2001.

SOURCES: Peter Aronson, “Whistleblower Breaks New Ground”, National Law Journal, Oct. 27; Susan Borreson, “5th Circuit Slams Qui Tam Suit”, Texas Lawyer, Nov. 22; Vermont Agency of Natural Resources v. United States ex rel. Stevens, Supreme Court case 98-1828; Kenneth Jost, “Qui Tam Comes To the High Court”, The Recorder/CalLaw, Nov. 30; Charles Tiefer, “Don’t Quit on Qui Tam”, Law News Network, Nov. 29. MORE BACKGROUND: Fried, Frank; Steven G. Bradbury, “The Unconstitutionality of Qui Tam Suits”, Federalist Society Federalism and Separation of Powers Working Group Newsletter, v. 1, no. 1; Mark Koehn and Donald J. Kochan, “Stand Down”, Legal Times, Dec. 6, 1999, reprinted at Federalist Society site; Dan L. Burk, “False Claims Act Can Hamper Science With ‘Bounty Hunter’ Suits”, The Scientist, Sept. 4, 1995; Ridgway W. Hall Jr. and Mark Koehn, “Countering False Claims Act Litigation Based on Environmental Noncompliance”, National Legal Center for the Public Interest, Sept. 1999 (PDF format). Pro-qui tam sites, many of which double as client intake sites for law firms, include those of Taxpayers Against Fraud; Phillips & Cohen; Ashcraft & Gerel; Miller, Alfano & Raspanti; QuiTamOnline.com; and Chamberlain & Kaufman.

January 18 — Columnist-fest. Pointed opinions on issues that aren’t going away:

* Major League Baseball, meet Soviet psychiatry? Charles Krauthammer on the John Rocker case, and why it’s dangerous to view racism and general unpleasantness of opinion as suitable candidates for mental-health treatment (“Screwball psychologizing”, Washington Post, Jan. 14)

* John Leo on how courts and legislatures often seize on ambiguous enabling language as a blank check for vast social engineering: vague provisions in state constitutions get turned into an excuse to equalize school funding or strike down tort reform, domestic violence gets federalized on the grounds that it affects interstate commerce, and more. (“By dubious means”, U.S. News & World Report, Jan. 24).

* Clarence Page asks why states fight so hard to keep convicts in prison even after newly emergent DNA evidence clears them of the original rap. Do prosecutors and wardens care more about maintaining high inmate body counts, or about doing justice? (“When Innocence Isn’t Good Enough”, Chicago Tribune, Jan. 3).

January 17 — New York court nixes market-share liability for paint. In a setback for lawyers hoping to make lead paint their next mass-tort breakthrough, a New York appeals court has rejected the plaintiffs’ request that “market-share liability” be applied to the industry. This theory allows claimants to dispense with the need to show whose products they were exposed to, in favor of simply collecting from all defendants who sold the item, in proportions based on their market share. In explaining why such methods of assigning liability would be unjust, the court observed that paint makers did not have exclusive control over risks arising from their products, that makers sold at different times and to different markets, and that the composition of paint differed substantially from one maker to the next. (Jim O’Hara, “Court Sinks Lead Poisoning Case”, Syracuse Online, Jan. 10).

January 17 — Montreal Gazette “Lawsuit of the year”. “Two bagpipers sued Swissair for lost income from tourists at Peggy’s Cove because of the plane crash that killed 229 people in September of 1998. They claim their income declined dramatically while the lighthouse area was closed to the public.” (“Technology”, Dec. 31; Richard Dooley, “Swissair responds to bagpipers’ lawsuit”, Halifax Daily News, June 22, 1999).

January 17 — Dot-coms as perfect defendants. They’re flush with venture-capitalist and IPO cash, they’re run by hormone-crazed kids who bring a party atmosphere to the office, and they haven’t developed big human resources bureaucracies to make sure nothing inappropriate goes on. Why, they’re the perfect sexual harassment defendants! New York contingency-fee attorney David Jaroslawicz, a veteran of securities class actions and now “an aspiring scourge of the Internet“, hopes to spearhead a resulting “Silicon Alley sex-suit wave”. He has filed three suits on behalf of disgruntled female employees, including two against free-access provider Juno.com, one of which has been dismissed, and a third against Internet-TV producer Pseudo.com.

Asked why he happened to ask for the same amount, $10 million, in both lawsuits against Juno, Jaroslawicz says the damage request “is ‘arbitrary, whatever the secretary types in’ — just as long as it has enough zeros”. You ‘put in some high absurd number, because you can always take less,’ Mr. Jaroslawicz explained.” (Renee Kaplan, “The Sexual Harassment Suit Comes to Silicon Alley”, New York Observer, Jan. 17).

January 17 — New improvement to the Overlawyered.com site: better search capability. This weekend we installed the PicoSearch internal search engine, which you’ll find to be a big leap forward from our previous search system: fast results displayed in context, fuzzy logic to catch near-misses, no ads, search boxes available on key pages, and so forth. In addition, the database indexed now includes our editor’s home page (with a wide selection of articles, mostly on legal themes). Give it a test run, either by visiting our search page or just by typing your search into the box in the left column and hitting “return”.