Search Results for ‘nader tort museum’

Ralph Nader’s scheme for a Connecticut tort law museum

We have occasionally posted (here, here, and here) about the lawyer advocate’s longstanding plan for a museum in his home town of Winsted, Connecticut, dedicated to the praise and glorification of the American tort law system. The project has now dragged on fitfully through many years of economic stagnation, unexpectedly costly environmental remediation, changes of venue, and community suspicion (“a lot of empty promises”, one resident puts it), which may function as some kind of metaphor, no? [Torrington Register Citizen, Connecticut Law Tribune]

“Nader’s House of Horrors”

“Ralph Nader says an architectural firm is now ‘putting final touches on the plans'” for his long-envisioned Museum of American Tort Law in his hometown of Winsted, Ct. “So far, says Nader, he’s raised half of the $4 million needed to open the museum — adding that he expects the rest to come from the trial-lawyer industry.” A New York Post editorial (Jun. 4) says all that needs to be said about the matter. See also John Leo’s 1998 column on the museum proposal, and our posts for Sept. 27, 1999 and May 16, 2000. P.S. Readers Troy Hinrichs and Walter E. Wallis write in to foretell the headaches the museum’s designers and groundskeepers will face as they try to prepare for opening day; the impending arrival of the world’s most litigious clientele will test to the limit their ability to anticipate slip-fall hazards, handicap compliance problems, potential injuries to burglars trying to sneak into the building after hours, and so forth.

In Albany talking New York’s lawsuit mess

I joined Thomas Stebbins and host Liz Patterson on Wednesday to discuss municipal liability on New York Time Warner Cable’s Capital Tonight, with the conversation reaching such perennial Overlawyered topics as trees and playgrounds. I was in Albany to keynote (and sign books at) the annual meeting of the Lawsuit Reform Alliance of New York, which Stebbins directs; my talk mentioned the recent Saratoga County case in which an adult woman sued her brother after a trampoline injury, Ralph Nader’s Museum of American Tort Law, and many other topics.

The $720 million that New York City paid out in judgments and claims in fiscal 2016 amounts to more than the payouts of the next 19 biggest cities combined, writes Thomas Stebbins in a piece for the Progressive Policy Institute based on a new Governing magazine article by Mike Maciag on the burdens of municipal liability. (Four of the nation’s 24 biggest cities did not respond to the Governing survey and are not included in the calculation.) Trial lawyers’ political clout in New York — which has preserved such throwbacks as the notorious “scaffold law” in construction — is a prime reason, and it doesn’t help that the state’s highest court has begun regularly handing down verdicts driving the law in a pro-plaintiff direction. While serious police brutality suits are only too common in the city, flimsy ones are too:

In past years, New York often agreed to pay out small settlements just to make cases go away. Elizabeth Daitz, who heads the police department’s legal unit, says it got to the point to where protesters would taunt police officers at rallies, telling them about settlements they’d received and threatening to sue again. One settlement in early 2015 drew particular ire from officials. A man wielding a machete had threatened police officers and was shot in the leg during an altercation; the man then accused the police of wrongdoing. The city agreed to a $5,000 settlement, even though the man had plead guilty to menacing an officer. Mayor Bill de Blasio vowed to make changes. “Unfortunately, the reality is, if we stand and fight, we will be spending a lot of time in court, using up a lot of lawyers, and it will cost a lot of money,” he told reporters after the settlement was announced. “But it’s worth it to end the madness of these frivolous lawsuits, which are not fair to the city, and not fair to the officers involved.”

One favorable trend for New York City: payouts by its Health and Hospitals Corporation declined somewhat after the city put the entity in charge of its own legal cases.

About auto litigation (1999)

Archived entries before July 2003 can be found here, where the following brief essay originally appeared:

The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.

To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).

Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers.

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The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (“Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives.

In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.

Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (“‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (“Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (“It Didn’t Start With Dateline NBC“, National Review, June 21, 1993).

On the Ford Pinto case, the best resource is unfortunately not online, but is well worth a trip to the local law library now online: the late Gary Schwartz’s 1991 Rutgers Law Review article “The Myth of the Ford Pinto Case” (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): “everyone’s received ideas about the fabled ‘smoking gun’ memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.”

In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.

In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.

May 2000 archives, part 2


May 18-21 — “A Smith & Wesson FAQ”. An end run around democratic governance, an assault on gun buyers‘ Second Amendment liberties, a textbook abuse of the power to litigate: the Clinton Administration’s pact with Smith & Wesson is all this and more. When this website’s editor looked into the agreement’s details, he found them if anything worse than he’d imagined — for one thing, they could actually increase the number of people hurt because of gun malfunctions. (Walter Olson, “A Smith & Wesson FAQ”, Reason, June; see also David Kopel, “Smith & Wesson’s Faustian Bargain”, National Review Online, March 20, and “Smart Cops Saying ‘No'”, April 19).

May 18-21 — On the Hill: Clint Eastwood vs. ADA filing mills. The Hollywood actor and filmmaker got interested in the phenomenon of lawsuit mills that exploit the Americans with Disabilities Act (see our March 7, Feb. 15, Jan. 26-27 commentaries) when he was hit with a complaint that some doors and bathrooms at his historic, 32-room Mission Ranch Hotel and restaurant in Carmel, Calif. weren’t accessible enough; there followed demands from the opposing side’s lawyer that he hand over more than just a fistful of dollars — $577,000, the total came to — in fees for legal work allegedly performed on the case. “It’s a racket”, opines Eastwood. “The typical thing is to get someone who is disabled in collusion with sleazebag lawyers, and they file suits.” (Jim VandeHei, “Clint Eastwood Saddles Up for Disability-Act Showdown”, Wall Street Journal, May 9 — online subscribers only). The “Dirty Harry” star is slated to appear as the lead witness in a hearing on the bill proposed by Rep. Mark Foley (R-Fla.) to require that defendants be given a chance to fix problems before lawyers can start running the meter on fee-shift entitlements; the hearing begins at 10 a.m. Thursday, May 18 and the House provides a live audio link (follow House Judiciary schedule to live audio link, Constitution subcommittee; full witness list). The National Federation of Independent Business, Chamber of Commerce of the U.S., National Restaurant Association and International Council of Shopping Centers all like the Foley idea. Eastwood told the WSJ he isn’t quarreling with the ADA itself, and the proposed legislation would affect only future cases and not the one against him; but “I just think for the benefit of everybody, they should cut out this racket because these are morally corrupt people who are doing this.”

May 18-21 — “Dialectizer shut down”. “Another fun, interesting and innovative online resource goes the way of corporate ignorance — due to threats of legal action, the author of the dialectizer, a Web page that dynamically translates another Web page’s text into an alternate ‘dialect’ such as ‘redneck’ or ‘Swedish Chef’ and displays the result, has packed up his dialectizer and gone home”, writes poster “endisnigh” on Slashdot (May 17). (Signoff notice and subsequent reconsideration, Rinkworks.com site). Update: it’s back up now — see Aug. 16-17.

May 18-21 — Dusting ’em off. A trend in the making? Complainants in a number of recent cases have succeeded in reviving enforcement of public-morality laws that had long gone unheeded but never actually been stricken from the books. In Utah, Candi Vessel successfully sued her cheatin’ husband’s girlfriend and got a $500,000 award against the little homewrecker (as she no doubt views her) under the old legal theory of “alienation of affection”, not much heard of these last forty or more years. (“Spouse Stealer Pays Price: Wife Wins Case Against Mistress for Breaking Up Marriage”, ABC News, April 27). Authorities in two rural Michigan counties have recently pressed criminal charges against men who used bad language in public, under an old statute which provides that “any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.” (“2nd man hit with anti-cussing statute”, AP/Detroit Free Press, April 27) (same article on Freedom Forum). And Richard Pitcher and Kimberly Henry of Peralta, N.M., “have been formally charged by Pitcher’s ex-wife under the state’s cohabitation law, which prohibits unwed people from living together as ‘man and wife'”. (Guillermo Contreras, “Couple charged with cohabitation”, Albuquerque Journal, March 11) (update: see May 8, 2001 for newer example).

May 18-21 — Campaign regulation vs. free speech. The state of Kentucky’s Registry of Election Finance has ruled that newspapers have a constitutional right to editorialize on behalf of candidates of their choice, rejecting a complaint that characterized such endorsements as “corporate contributions” made by the newspaper proprietors. (“Kentucky election agency: Newspaper editorials aren’t contributions”, AP/Freedom Forum, May 10). A general hail of dead cats has greeted the Congressional Democrats’ lawsuit charging House Majority Whip Tom DeLay with “racketeering” over campaign fundraising practices, with Democratic operative Paul Begala calling the suit “wrong, ethically, legally and politically.” (David Horowitz, “March of the Racketeers”, Salon, May 15; Michael Kelly, “Hammering DeLay”, Washington Post, May 10). And Mickey Kaus, on his recommended Kausfiles.com website, spells out in words of one syllable to pundit Elizabeth Drew why proposed bans on privately sponsored “issue ads” run smack into the Constitution’s guarantee of free speech (“Drew’s Cluelessness: Please don’t let her anywhere near the First Amendment!”, May 7).

May 18-21 — Gotham lawyers upset at efficient jury selection. A few years ago, led by its Chief Justice Judith Kaye, the state of New York began taking long-overdue steps to reform its notorious jury selection system, under which lawyers had often been permitted to browbeat and grill helpless juror-candidates for days at a time in search of the most favorably disposed (not to say pliable) among them. The changes, which bring the Empire State more into line with the practice around the rest of the country, have markedly reduced the time jurors and others must spend on empanelment. So who’s unhappy? The state’s bar association, naturally, which opposed reform in the first place, and now complains that “attorneys are feeling increasingly constrained by time limits and other restrictions”. A survey it conducted “suggests that many lawyers feel that new practices are cramping their style.” Yes, that was the idea (John Caher, “NYS Bar Favors More Voir Dire Leeway”, New York Law Journal, April 12).

May 17 — Not my fault, I. In 1990 Debora MacNamara of Haileybury, Ontario smothered her nine-year-old daughter Shauna as she slept. Found not guilty by reason of insanity, she spent five years in mental institutions before being released. Now she’s suing two psychiatrists and her family doctor for upwards of $20 million, saying they should have prevented her from doing it. The docs say she was “an uncooperative, recalcitrant patient who didn’t take her medication as prescribed, often cancelled appointments, wouldn’t let those treating her share critical medical information and either minimized or lied about both her symptoms and state of mind.” (Christie Blatchford, “Woman sues doctors for not stopping her from killing”, National Post, May 16, link now dead)).

May 17 — Not my fault, II. “Fourteen years after accidentally shooting himself in the hand, 19-year-old Willie K. Wilson of Pontiac is pointing the finger at his father and Smith & Wesson, suing both last week for at least $25,000 in Oakland County Circuit Court.” His lawyer explains that Willie isn’t actually angry at his pa but is just going after the homeowners’ insurance money. Hey, who could object in that case? (Joel Kurth, “Son sues father, Smith & Wesson”, Detroit News, May 16).

May 17 — Comparable worth: it’s back. This time they’re calling it “pay equity”, but a new study by economist Anita Hattiangadi and attorney Amy Habib for the Employment Policy Foundation finds no evidence that the much-discussed pay gap between the sexes owes anything to employer bias, as distinct from women’s individual choices to redirect energy toward home pursuits during childbearing years (EPF top page; “A Closer Look at Comparable Worth” (PDF)). Plus: the foundation’s comments on White House pay equity report (PDF); background on comparable worth; and writings by Diana Furchtgott-Roth of the American Enterprise Institute, “Still Hyping the Phony Pay Gap”, AEI “On the Issues”, March; Roger Clegg (“Comparable Worth: The Bad Idea That Will Not Die”, National Legal Center for the Public Interest, “Briefly…” series, August 1999 (PDF); and the Chicago Tribune‘s Steve Chapman (“Clinton’s Phony Fight for ‘Pay Equity’, Feb. 24).

May 17 — Update: judge frowns on Philly’s Mr. Civility. Following up on our March 13 commentary, federal judge Herbert J. Hutton has imposed sanctions on attorney Marvin Barish, including an as yet uncalculated fine and disqualification in the case, over an incident during a trial recess in which Barish threatened to kill the opposing lawyer with his bare hands and repeatedly called him a “fat pig”. Barish’s attorney, James Beasley (apparently the same one for whom Temple U.’s law school was renamed after a large donation), said if anyone merited sanctions it was the opposing counsel, representing Amtrak, for having engaged in legal maneuvers that provoked his client to the outburst; Barish is “one of the city’s most successful lawyers handling Federal Employers Liability Act cases”. (Shannon P. Duffy, “Judge Hits Lawyer with Fine Over Alleged Threat”, Legal Intelligencer (Philadelphia), May 2).

May 17 — Disabled vs. disabled. Strobe-light-equipped fire alarms — a great idea for helping the deaf, no? A sweeping new mandate to that effect is pending before the federal government’s Access Board, which would affect workplaces, hospitals, and motel rooms, among other places. All of which horrifies many members of another category of disabled Americans, namely those with photosensitive epilepsy and other seizure disorders: In a recent survey, 21 percent of epileptics said flashing lights set off seizures for them. “Should a seizure be caused by stroboscopic alarms during an actual fire emergency, that person would be incapacitated, leading to even more danger both from the seizure and from the emergency itself.” And then there are all the false alarms. … (Epilepsy Foundation, “Legislative Alert“, Capitol Advantage Legislative Advocacy Center; Access Board, Notice of Proposed Rulemaking, relevant section (see s. 702.3)).

May 16 — Federal commerce power genuinely limited, Supreme Court rules. Big win for federalists at the high court as the Justices rule 5-4 to strike down the right-to-sue provision of the Violence Against Women Act on the grounds that the Constitution does not empower Washington to muscle into any area of police power it pleases simply by finding that crime affects interstate commerce. (Laurie Asseo, “High Court: Prosecution of Rapists Up To States”, AP/Chicago Tribune, May 15, no longer online; U.S. v. Morrison, decision (Cornell); Center for Individual Rights; Anita Blair (Independent Women’s Forum), Investors Business Daily, reprinted Feb. 4).

May 16 — Deflated. After suing automakers up one side of the street for the sin of not installing airbags earlier, trial lawyers are now suing them down the other over the injuries the bags occasionally inflict on children and small-framed adults. Last month Ford got hit with a $20 million verdict in a case where an infant was paralyzed by a Mustang’s airbag, but last week a Detroit jury declined to find liability against DaimlerChrysler in a case where an airbag detonation killed 7-year-old Alison Sanders after her father ran a red light and broadsided another vehicle. (“Jurors clear DaimlerChrysler in 1995 air-bag lawsuit case”, Detroit Free Press, May 11, link now dead; Bill Vlasic and Dina ElBoghdady, “Air bag suits unlikely to stop”, Detroit News, May 12).

Who was it that spread the original image of air bags as pillowy, child-friendly devices, the right solution for all passengers in all circumstances? Lawyers now wish to blame Detroit, but Sam Kazman of the Competitive Enterprise Institute quotes the remarks of longtime Ralph Nader associate Joan Claybrook, who headed the National Highway Traffic Safety Administration during the Carter-era rulemaking: “Air bags work beautifully,” she declared, “and they work automatically and…that gives you more freedom than being forced to wear a seat belt.” (Letting people think an airbag might relieve them of the need to buckle up is now, of course, seen as horrifically bad safety advice.) Moreover, quoth Claybrook, the devices “fit all different sizes and types of people, from little children up to…very large males.” (“Only Smart Air Bag Mandate is No Mandate at All”, CEI Update, March 2).

Even more striking, CEI’s Kazman dug up this photo of Ralph Nader, who long flayed manufacturers for their delay in embracing the devices, using an adorable moppet as an emotional prop. Sam says the photo is from a 1977 press conference; he thinks it would make a lovely display in Nader’s planned museum of product liability law in Winsted, Connecticut. [DURABLE LINK]

MORE SOURCES: Bill Vlasic and Dina ElBoghdady, “Dead girl’s dad fights air bags”, Detroit News, March 29; Janet L. Fix, “Father’s heartbreak fueled lawsuit after 1995 accident”, Detroit Free Press, April 5; “The Deployment of Car Manufacturers Into a Sea of Product Liability? Recharacterizing Preemption as a Federal Regulatory Compliance Defense in Airbag Litigation”, Note (Dana P. Babb), Washington U. Law Quarterly, Winter 1997; Scott Memmer, “Airbag Safety”, Edmunds.com, undated web feature; Michael Fumento, “Paper Scares Parents for Politics and Profit”, 1998, on Fumento.com website.

May 16 — “Clinton’s law license”. “The Arkansas Supreme Court should take away Clinton’s law license because he lied under oath,” declares the editorially middle-of-the-road Seattle Times. “It’s unlikely that Clinton will want to practice after he leaves the White House, but this has more to do with the legal community upholding its own ethics than the president’s next career. The American Bar Association’s standards for lawyer sanctions leave little doubt: ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information and causes serious or potentially serious injury to a party. …’ Last April, federal judge Susan Webber Wright found Clinton in contempt for ‘giving false, misleading and evasive answers that were designed to obstruct the judicial process’ while under oath in her presence. She also has filed a complaint with the Arkansas Supreme Court, but did not recommend a specific penalty. …Clinton should surrender his license or the court should take it.” (editorial, May 15). Plus: Stephen Chapman in Slate (“Disbar Bill”, May 12). [DURABLE LINK]

May 16 — The asset hider. Curious profession of a New Yorker whose specialty consists in finding ways to help wealthy men hide assets so as to escape legal obligations to their wives. The proprietor of “Special Services” of E. 28th St. also boasts of his skill in private investigation, which didn’t prevent him from falling for the cover story of a New York Post writer who posed as a divorce-bent Internet millionaire while secretly taping their lunch (Daniel Jeffreys, “The Wealthy Deadbeat’s Best Friend”, New York Post, May 15).

May 15 — Doctor cleared in Lewis cardiac case. A team of cardiologists told basketball star Reggie Lewis that his playing days were over. Then his wife helped get him transferred under cover of darkness to a new team of doctors who said he could go on playing. Then he collapsed on the court and died. And then Donna Harris-Lewis, having already collected on her husband’s $12 million Celtics contract, sued the docs for negligence. One paid $500,000 to settle, but last week Dr. Gilbert Mudge of Brigham & Women’s won vindication from a jury. (Sacha Pfeifer, “The verdict is in: no negligence”, Boston Globe, May 9; Dan Shaughnessy, “Everybody has lost in Lewis case; let’s move on”, May 9; Barry Manuel, “As usual, only lawyers won in Lewis case”, May 11, links now dead). Earlier, Harris-Lewis drew flak by comparing herself to the families of six firefighters who died in a Worcester warehouse blaze. “Lots of money is being raised for those families, and I need to be taken care of, too. Everybody has to say I’m greedy. But I do want my money back this time around. Why should I lose?” Well, ma’am, we could start a list of reasons. … (Steve Buckley, “What was Harris-Lewis thinking?”, Boston Herald, March 28).

May 15 — The four rules of sex harassment controversies. We thought we had ’em memorized after the Anita Hill affair … then we had to unlearn all four during the late unpleasantness with President Clinton … and now they’ve all returned in coverage of the Pentagon’s Claudia Kennedy case. (David Frum, “Breakfast Table” with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday’s near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, “Waiter wins suit against Friday’s”, St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court’s award of $143,715, reduced from a jury’s $1 million, to a computer analyst who “said his boss spanked him with a 4-foot-long carpenter’s level during a bizarre workplace ritual” and then announced “Now, you’re one of us”. The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, “Court upholds $143,715 award for spanking”, Milwaukee Journal-Sentinel, April 18).

May 15 — Convenient line at the time. Tobacco is special, said the state attorneys general who teamed up with trial lawyers to expropriate that lawful industry via litigation and share out the resulting plunder. It’s “the only product that, if used as intended, could be fatal.” And so they categorically dismissed critics’ fears that the tempting new ways of raising revenue without resorting to explicit taxation might soon be aimed at other industries. Who was fool enough to believe them? (Victor E. Schwartz, “Trial Lawyers Unleashed”, Washington Post, May 10).

May 15 — Gloves come off in Mich. high court race. We warned you it would get nasty (see May 9, Jan. 31), but not this soon. At a recent NAACP gathering, the Michigan Democratic Party circulated a flyer stating that incumbent Justice Robert Young opposes the 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ended racial segregation in public schools. Young, who is African-American and whose record on the court has been conservative, terms the flyer “virulent race-baiting” and untrue and has demanded an apology. State Democratic chairman Mark Brewer dares Young to sue, but declines to name a source for the flyer’s characterization of his views on Brown. (Kathy Barks Hoffman, “Race for 3 spots on top court sparks charge of ‘race-baiting'”, AP/Detroit News, May 11; George Weeks, “Election of justices needs changing” (editorial), May 11).

May 12-14 — Microsoft opinion: the big picture. However well they’re doing in Judge Jackson’s court, Janet Reno’s trustbusters are getting slammed in the court of public opinion, which continues lopsidedly opposed to breakup. While a Harris poll finds less than 40 percent of respondents believing that Bill Gates’s company has treated its competitors fairly, that’s still a better rating than Joel Klein’s Antitrust Division gets: only one in three believe the government treated Microsoft fairly. (Paul Van Slambrouck, “High-tech trust-busting a bust with public today”, Christian Science Monitor, May 5; Manny Frishberg, “Public favors MS in antitrust”, Wired News, May 4). The Independent Institute’s Alex Tabarrok calculates that the loss in capital value of Microsoft as an enterprise amounts to $768 for every person in the United States, and that most of this sum can plausibly be attributed to the legal action rather than to business setbacks. (“The Anti-entrepreneurs,” May 1). Given that the rest of the high-tech sector has also taken a thrashing, economics Nobelist Milton Friedman says Silicon Valley “must rue the day that they set this incredible episode in operation” by siccing the government on their Seattle rival (statement reprinted at National Taxpayers Union site, April 28).

Does all this augur a revival of “vigorous”, sock-’em-hard antitrust enforcement, not much seen in the last couple of decades? If so, ABC’s John Stossel has some deserving nominees for breakup far more monopolistic than Windows ever was, including the U.S. Postal Service — yes, it’s still unlawful to compete with it in first-class service (“Give Me a Break: Government Protection?” (video clip), May 5). And Michael Kinsley wonders why the U.S. government, if it really takes trustbusting principles seriously, still takes such an indulgent, price-fixers-will-be-price-fixers approach toward OPEC — a genuinely noxious cartel that inflicts great damage on the American economy, and whose member countries (among them Russia, Norway, Venezuela and the spectacularly ungrateful Kuwait and Saudi Arabia) appear to suffer nary a repercussion in the conduct of U.S. foreign policy (“Readme: Oil Crooks”, Slate, March 27).

May 12-14 — Dismounted. “A therapeutic horse-riding program for 600 mentally impaired Oakland County children and teenagers is in jeopardy this summer, a potential victim of a liability impasse among lawyers and bureaucrats.” Parents praise the Silver Saddles program, but the county is unwilling to accept liability exposure for it, which could be financially catastrophic in the event of an accident to a young rider. (Hugh McDiarmid, Jr., “Riding-therapy program faces liability hurdle”, Detroit Free Press, May 5).

May 12-14 — Steady aim. Everyone who supports democracy — as well as everyone who opposes the abuse of litigation — should favor legislative measures aimed at reserving gun regulation to elected lawmakers rather than the machinations of ambitious trial lawyers, argues Vince Carroll of Denver’s Rocky Mountain News (“Gun bill puts halt to lawsuit abuse”, April 30). And Washington, D.C.’s Sam Smith, who shows regularly that there’s still life on the Left in his remarkable online Progressive Review (which we’re pleased to see often picks up items from this space), has put up a page of reasons “why politicians, moms, and progressives should stop pressing for more gun control laws” (“Wild Shots“).

May 11 — “Ad deal links Coke, lawyer in suit”. Both the Coca-Cola Co. and plaintiff’s attorney Willie Gary are denying a linkage between Gary’s role as a lawyer in the current high-profile race bias litigation against Coke and the company’s just-announced agreement — financial terms not disclosed — to become a major advertiser on a cable channel of which Gary is part owner. Last month amid fanfare the Florida lawyer arrived in Atlanta on his private jet (“Wings of Justice”) to assume representation of several of the original plaintiffs in the much-publicized employee litigation against the beverage company. “I want a settlement that’s fair and just,” he said then. “I don’t come cheap. I think big, real big.” On Tuesday Coke announced a major five-year deal to buy ads on the fledgling Major Broadcasting Cable Network, which Gary helped launch and of which he is chairman and chief executive. Gary says his clients are aware of the deal and says, “There’s absolutely no conflict. We’re not friends. We’re business people. Coke is not giving me anything. … It’s goods in exchange for service. … No way this is a conflict.'”

A sometime fund-raiser for the Rev. Jesse Jackson’s Rainbow/PUSH coalition, Gary is best known in legal circles for the ruinous $500 million verdict he obtained in a Jackson, Mississippi courtroom against the Loewen Group, a Canadian-owned funeral home chain, in what had previously seemed a routine commercial dispute (see our editor’s account). Last week he announced that he was demanding nearly $2 billion from the Burger King Corporation on behalf of Detroit restaurateur La-Van Hawkins, whose UrbanCityFoods business has not fared as well as expected in its operation of franchised hamburger units. Gary’s entry last month into the Coke case came at a time of unpleasant back-and-forth charges between some of the employees who were first to sue and class-action lawyers who had worked to assemble their and others’ complaints into a suit on behalf of the company’s entire black workforce, led by Washington, D.C.’s Cyrus Mehri, of Texaco fame (our account of that one), with the Mehri camp saying the individuals were holding out for too much money for themselves personally as distinct from the class, and a PUSH coalition activist, Joseph Beasley, countering that under the settlement anticipated from the class action the “lawyers get all the money” while “the black community is left high and dry”.

SOURCES: Henry Unger, “Ad deal links Coke, lawyer in suit”, Atlanta Journal- Constitution, May 10 (fee-based archive); Constance L. Hays, “Coke to Advertise on Channel Owned by Lawyer in Bias Suit”, New York Times, May 10, no longer online; Betsy McKay, “For Coke’s Big Race Lawsuit, a New Wild Card”, Wall Street Journal, April 14 (subscription); Beth Miller, “Cable network to focus on black families”, Media Central, Dec. 13; Trisha Renaud, R. Robin McDonald, and Janet L. Conley, “Money, Trust Behind Coke Split”, Fulton County Daily Record, April 14; “Burger King Has Greater Troubles: Internationally Renowned Trial Attorney Willie Gary Asks Burger King for $1.9 Billion”, Excite/PR Newswire press release from Gary’s firm, May 3; Eric Dyrrkopp and Andrew H. Kim, “Prospecting the Last Frontier: Legal Considerations for Franchisors Expanding into Inner Cities”, Franchise Law Journal, Winter 2000, reprinted at Bell, Boyd & Lloyd site.

May 11 — Tort fortune fuels $3M primary win. In Charleston, W.V., attorney and former state senator Jim Humphries has won the Democratic nomination in the Second Congressional District after investing $3 million from the fortune he made in asbestos litigation. Humphries’s “big-budget, slickly produced campaign” overpowered his primary rivals, who included one of the state’s best-known politicians, Secretary of State and former U.S. Representative Ken Hechler, as well as state senator Martha Walker, who chairs the state senate’s health and human resources committee; between them Hechler and Walker split about half the primary vote. The campaign “shattered all state records for spending in a congressional primary election.” Humphries now faces Delegate Shelley Moore Capito, R-Kanawha, who ran unopposed in the Republican primary. (Phil Kabler, “Humphreys’ $3 million pays”, Charleston Gazette, May 10).

May 11 — Stubbornness of mules a given. A federal court in North Carolina has dismissed a lawsuit by the producers of the soon-to-be-released film “Morgan’s Creek” against animal wrangler Alicia Rudd over the refusal of her trained mule to sit down on cue or cooperate in other ways on the set. The producers said the animal’s recalcitrance had prolonged shooting by an extra day, costing upwards of $110,000, but the judge said there was no proof that Rudd breached a promise or misrepresented her ability to control the mule. (“Judge finds stubborn mule no cause for action”, AP/CNN, May 8).

May 2000 archives


May 10 — Another billion, snuffed. You don’t have to be a Microsoft shareholder to wonder whether antitrust law has become a destabilizing influence on the business world. In late March a Paducah, Ky. federal jury ordered U.S. Tobacco, the number one maker of snuff and chewing tobacco, to pay a staggering $1.05 billion to its smaller competitor Conwood in an antitrust dispute. UST, whose annual sales are $1.5 billion — meaning that the verdict equals the entire gross revenue it takes in over eight months of a year — makes such brands as Skoal and Copenhagen, while Conwood manufactures the Kodiak brand. The finding of $350 million in damages will be automatically trebled under antitrust law if not overturned. “Both companies accused each other of removing display racks from stores, making under-the-table cash rebates to win retailers and holding strategy sessions to plot out how to eliminate the other from the lucrative retail-checkout market.” (No! Not strategy sessions!) In addition, “Conwood attorneys accused U.S. Tobacco of spreading rumors that Conwood’s snuff contained stems and was stale.” (“U.S. Tobacco Co. Faces $1.05B Payout”, AP/Milwaukee Journal Sentinel, March 29; Andrew Edgecliffe-Johnson, “US tobacco group faces possible $1bn payout”, Financial Times, March 30)

May 10 — Court okays suit against “flagging” of test conditions. In San Francisco, federal judge William Orrick Jr. has rejected a motion to dismiss a case in which Oakland-based Disability Rights Advocates is suing the Educational Testing Service, charging that it’s discriminatory for ETS to “flag” test scores taken under special conditions. “Accommodations” such as extra or unlimited time, the right to have questions explained, and the right to use calculators have become common in recent years following the aggressive use of disabled-rights law by test-takers; in a majority of cases the operative diagnosis is not a traditional disability such as blindness or paraplegia, but one such as learning disability or attention deficit disorder. If the lawsuit succeeds in banishing the loathed asterisk, test-takers will win the right to conceal from downstream institutions, such as medical schools and employers, the fact that a particular result was achieved with extra time or other assistance. (Michael Breen, “ETS Discrimination Case Goes Forward”, The Recorder/CalLaw, April 14).

DRA director of litigation Sid Wolinsky is also representing parents in a challenge to the state of Oregon’s refusal to allow test-takers to use automatic spell-check on statewide exams. “I see an enormous amount of potential litigation” ahead on such issues, he says. In Woburn, Mass., some special-needs students are given the whole day to complete a writing exam normally administered in ninety minutes, another indication that “two national movements [are] on a collision course: disability rights and educational standards.” (Daniel Golden, “Meet Edith, 16; She Plans to Spell-Check Her State Writing Test”, Wall Street Journal, Jan. 21 (fee-based archive)).

May 10 — This side of parodies. Infant wins one-billionth-litigant prize as America adopts as new motto “It’s not my fault” (Paul Campos, “Everyone suits up for latest litigation”, Rocky Mountain News, May 2). Grim news you always feared about “gateway sodas”: (“Mountain Dew Users May Go On To Use Harder Beverages”, The Onion, April 26). And the colorless, odorless, tasteless industrial solvent and prominent component in acid rain that kills thousands of people each year, most through inhalation but also from withdrawal symptoms given its evident addictiveness. Contamination is reaching epidemic levels — the horror must be stopped! (“Ban dihydrogen monoxide!”, Donald Simanek site, undatedstored Google search).

May 9 — Mother’s Day special: Arizona unwanted-birth trial. At a trial under way in Phoenix, Ruth Ann Burns is suing her family physician and obstetrician for failing to diagnose her pregnancy as early as they should have. She says she’d have aborted her two-year-old toddler Nicholas had she known in time that he was on the way, though he is perfectly healthy and she claims to dote on him now. The doctors say Burns herself didn’t think she was pregnant when she first sought medical attention and say when the pregnancy was discovered she still had time to pursue an abortion, but chose not to. (Senta Scarborough, “Doctors sued for unwanted pregnancy”, Arizona Republic, May 4). A columnist for the Arizona Republic wonders what the boy will think when he grows up and learns that his mother swore out oaths as to his unwanted, impositional nature (E.J. Montini, “Unwanted boy blooms in the future”, May 7).

May 9 — Not with our lives you don’t. More evidence that rank-and-file police aren’t happy about Clintonites’ scheme to skew city gun procurement to punish manufacturers that don’t capitulate to lawsuits (see April 14-16). Many cities presently allow officers a choice of which gun to carry, and Smith & Wesson hasn’t been a popular choice in recent years. “Local officials acknowledge they are reluctant to risk hurting morale by ending officers’ ability to choose their weapon,” the news-side Wall Street Journal reports — “morale” being a bit of a dodge here, since the risks at issue go beyond the merely psychological. In Flint, Mich., the mayor has asked the police department to buy S&Ws, “but the chief’s firearm experts have rated the Sig Sauer as more durable and accurate, and the police rank-and-file prefer the better-known and easier-to-shoot Glock.” Miami-Dade is “considering offering a $100 rebate for selecting a Smith & Wesson”, in effect establishing the kind of experiment of which cost-benefit analysts are so fond, measuring people’s willingness to accept cash payment in exchange for giving up a degree of perceived personal safety. A second obstacle to the scheme is that most jurisdictions have open-bidding laws aimed precisely at keeping politicos from pitching public business to favored contractors on a basis other than price and quality, but Sen. Charles Schumer (Democrat, New York) helpfully plans to introduce legislation to allow bypass of such laws. (Vanessa O’Connell, “Plan to Pressure Gun Makers Hits Some Snags”, Wall Street Journal, April 11, subscription site).

Plus: The gun lawsuits have become an issue in the presidential contest, with Vice President Al Gore, one of their ardent supporters, assailing Texas Governor George W. Bush for not pledging to veto legislation that would curtail them (“Bush, Gore camp trade questions on guns, credibility”, AP/FindLaw, May 5). And: this weekend’s pro-gun-control “Million Mom March” in Washington, D.C. has picked up endorsements ranging from President Bill Clinton to plaintiff’s class-action firm Bernstein, Litowitz, Berger & Grossmann LLP and the Association of Trial Lawyers of America — if that’s much of a range, politically speaking (March sponsors list, link now dead; ATLA endorsement; Terence Hunt, “Clinton Endorses Million Mom March”, AP/Yahoo, May 8, no longer online).

May 9 — In Michigan, important judicial races. Eyes of knowledgeable litigation reformers this fall will be on Michigan where three Supreme Court justices appointed by Republican Gov. John Engler — Clifford Taylor, Robert Young and Stephen Markman — are up for election (see Jan. 31). The trio enjoy a growing reputation as thoughtful jurists who share a skepticism toward expansive new liability doctrines; the state’s trial bar is expected to pour almost limitless funds into its attempt to defeat them. “The head of the Michigan Trial Lawyers’ Association has said privately that individual law firms have pledged as much as $500,000 each for the effort”. (Abigail Thernstrom, “Rule of Law: Trial Lawyers Target Three Michigan Judges Up for Election”, Wall Street Journal, May 8, reprinted at MI site).

May 8 — No more Fenway peanut-throwing? For nineteen years Rob Barry has worked in the stands at Boston’s Fenway Park, tossing bags of peanuts to hungry Red Sox fans. Grown-ups gasp and children cheer at his sure aim in lobbing the bags across intervening rows of spectators, but now he’s in trouble with management: “Aramark, the company that provides remarkably mediocre hot dogs and $4.50 cups of beer, has a rule, and that rule prohibits vendors from throwing food in the stadium.” Although admittedly “there are no recorded cases of catastrophic injury caused by a bag of peanuts,” you can never be too safe: before long some other food vendor might follow his example, “and soon you’ll have a cotton candy spear sticking through some young fan’s eye and a cash settlement that could cost the Red Sox Nomar Garciaparra.” Barry says he’s thinking of just retiring if he can no longer practice the peanut-tosser’s art: his father worked at Fenway for 45 years, while two beer-serving sisters have put in a combined 44 years. (Brian McCrory, “Vendor tossed from the game”, Boston Globe, May 5, link now dead).

May 8 — “Lilly’s legal strategy disarmed Prozac lawyers”. Little-noted story of how drugmaker Eli Lilly & Co. has managed so far to fight off a wave of lawsuits over its antidepressant Prozac, quietly settling some stronger cases while maneuvering aggressively to win a favorable jury ruling in the relatively weak one arising from the Wesbecker (Standard Gravure) shooting-spree in Louisville. (Jeff Swiatek, Indianapolis Star, April 22).

May 8 — Trial lawyers’ political clout. “Invited Speaker: President William Jefferson Clinton” — highlight of the brochure in last week’s mail promoting the Association of Trial Lawyers of America’s 2000 annual convention in Chicago. (Does not currently appear in online version (PDF)). Among other scheduled speakers: Sens. Richard Durbin (D-Illinois) and Max Cleland (D-Georgia). “Who will be the most influential political player making independent expenditures in this year’s presidential election?” asks Wall Street Journal editorialist John Fund. The AFL-CIO, the religious right, the NRA? More likely lawyers flush with new tobacco fees: “a comprehensive study by Citizens Against Lawsuit Abuse found that trial lawyers gave 78 percent of all contributions to the Texas Democratic Party in the 1998 election cycle, when Bush was running for re-election.” (“Invasion of the Party Snatchers”, MSNBC, May 2). Last year by a 4-3 majority, the Ohio Supreme Court tossed out a 3-year-old tort reform package. Per Ohio Citizens against Lawsuit Abuse, “since 1992 the four justices in the majority received $1,528,054 from personal injury attorneys”, compared with $70,704 for the three dissenting justices. Doug Bandow, “Buying Justice: Plaintiffs’ Lawyers Reap Huge Dividends by Investing in Judges and Politicians”, syndicated column, Dec. 16, 1999, reprinted in Cato Daily Commentary, Dec. 28, 1999.

May 8 — Atlantic City mulls bond issuance to finance lawsuit payouts. The New Jersey resort city is so frequently sued, especially in employment and police cases, that it’s considering issuing special bonds to cover a possible $12.3 million exposure from 23 lawsuits. (Henry Gottlieb, “Suit City, Here We Come”, New Jersey Law Journal, April 4).

May 5-7 — Pro malo publico. Elite law firms endlessly congratulate themselves on the pro bono publico work they perform, seeing it as the “penance they pay for serving a capitalist system”, in Judge Laurence Silberman’s words. Too bad so much supposedly public-interest litigation is in reality actively harmful to the public interest as well as to the persons and institutions on its receiving end, argues Heather Mac Donald. Despite its reputation for being done gratis, pro bono work often brings in very rich court-ordered fee awards from opposing parties, and it also helps shape the legal profession’s continuing impulse to use the courtrooms for feats of social engineering. Homeless advocate Robert Hayes, who has fought for a new right of shelter-on-demand for the homeless, was asked why he litigated rather than taking his case to the legislature. “Personally, I don’t like politics,” he replied. “It’s really hard.” (Heather Mac Donald, “What Good Is Pro Bono?”, City Journal, Spring).

May 5-7 — Lion’s share. Tangled class action litigation against commodities brokerage, now the subject of a petition for review before the Supreme Court, in which plaintiffs’ lawyers were accorded $13 million in fees, twice the $6.5 million that their clients wound up getting. “The system stinks,” says Paul Dodyk of Cravath Swaine and Moore. “The class gets screwed.” Also mentions this website (Bernard Condon, “Conspiracy of Silence”, Forbes, May 1).

May 5-7 — Comment of the day. Accepting an award for general excellence at the National Magazine Awards on Wednesday, William L. Allen, editor in chief of National Geographic, said: “I would hug my staff, but our legal department has advised me not to.” (Alex Kuczynski, “Levity Prevails as Awards Are Handed to Magazines”, New York Times, May 4, no longer online).

May 5-7 — Liked your car so much we kept it. Last year New York City seized Pavel Grinberg’s 1988 Acura, Joe Bonilla’s brand-new Ford Expedition, and Robert Morris’s 1989 Grand Prix, on suspicion of their owners’ drunken driving. However, all three men were cleared of the charges in a court of law. So of course the city gave them their cars back, right? Don’t be naive…. (Gersh Kuntzman, “Rudy Driven To Excess in His DWI Crackdown”, New York Post, Feb. 7).

May 4 — Sports lawsuits proliferate. “More and more, the sports section looks like the rest of the newspaper. First commerce swallowed chunks and now the law has come along to take a bite. In the last few days, we’ve read stories about coaches suing players, fans suing players and now another player preparing to sue his league.” Toronto coach Butch Carter has now dropped his suit against Knick forward Marcus Camby (see April 25-26), but it’s still “getting tougher by the minute for pro sports leagues to call their own shots…. The chain of command in sports is being yanked at every opportunity, from all sides, often with the aid of the court system.” (Jim Litke, AP/Excite, April 27; “Raptors’ coach doesn’t get apology”, AP/ESPN, undated).

May 4 — Splash of reality. A judge has imposed sanctions of $10,000 each against New Rochelle, N.Y. attorney Gordon Locke and client Kenneth Lariviere “for bringing a frivolous breach-of-contract action against members of a board that refused to authenticate a work the two men claimed was painted by Jackson Pollock. Justice Emily Jane Goodman dismissed the action as a ‘laughable and clumsy attempt at fraud, by an individual who, like everyone familiar with the artist’s work, wishes he owned a Jackson Pollock painting.'” Cerisse Anderson, “Lawyer Fined for Frivolous Suit Over Artwork”, New York Law Journal, April 12).

May 4 — Harassment-law roundup. “The Internet start-up community is going to be a major target for sexual harassment litigation,” says management-side attorney Gregory I. Rasin of Jackson Lewis Schnitzler & Krupman, though the progress of such legal action is for the moment impeded by a job market so robust that would-be plaintiffs are “getting six job offers on the way to their lawyers’ offices,” as his colleague Garry Mathiason puts it. (Melinda Ligos, “Harassment Suits Hit the Dot-Coms”, New York Times, April 12). The Equal Employment Opportunity Commission has been filing enforcement actions to back up its position that employers violate the law if they fail to move quickly enough in cleaning up sexually and racially offensive graffiti in employee restrooms and preventing recurrence (“Chicago EEOC Makes Second Move Against On-the-Job Racist Graffiti”, Employment Law Weekly, Jan. 20). The case of Boston bar owner Tom English, subject to charges of “hostile public accommodations environment” by the Massachusetts Commission Against Discrimination for putting up allegedly insensitive seasonal bar decorations, calls attention to a troubling collision between bias law and free speech, writes UCLA First Amendment specialist Eugene Volokh (“Watch What You Say, Or Be Ready to Pay”, Jewish World Review, April 13; Federalist Society Free Speech and Election Law Newsletter, sixth March item). And a jury has awarded Staten Island cop Susan Techky $50,000 after she “testified that male officers wouldn’t talk to her, left pornographic magazines in the co-ed bathroom and watched sex videos in her presence in their quarters,” as well as keeping nude pin-ups in their locker area, which she had to walk through to get to hers. “Island cop wins discrimination suit”, Staten Island Advance, April 21).

May 3 — Ministry of love-discouragement. Complete bans on dating among office-mates are “unrealistic and difficult to enforce,” according to an attorney’s advice column on how lawyers representing management can ward off possible harassment-law liability for their firms. “More practical is to prohibit dating between management and nonmanagement personnel and to discourage, but not completely prohibit, romantic relationships between co-workers. This may require co-workers to disclose immediately any relationship to their immediate supervisor.” To reduce the likelihood of later invasion-of-privacy claims against the employer, such policies “should put employees on notice that the company reserves the right to inquire into employees’ personal lives if necessary to determine whether a relationship exists…. [A]n employer may want to include in its nonfraternization policy a statement indicating that in the event of an office relationship, the company may request that employees execute an agreement attesting to the voluntary nature of their relationship” — this to forestall the pattern now becoming familiar in which “an employee may decide, after an unpleasant breakup, that the relationship was not consensual after all.” (Nicole C. Rivas, “Employment law: ‘love contracts'”, National Law Journal, Feb. 7, not online).

May 3 — eBay yanks e-meter auctions. “E-meters” are electrical devices employed by practitioners of the Church of Scientology in counseling church adherents. Although previously used devices have been resold by private owners for years and were apparently not the subject of licensing agreements that would limit resale, the Church now asserts a copyright interest in the objects that would allow it to legally restrict their distribution, and eBay has recently begun pulling auctions of e-meters to avoid a legal run-in with the church, known in the past for frequent court clashes with its opponents. Critics say it’s another example of how the Digital Millennium Copyright Act encourages online providers to err on the side of timidity when presented with copyright assertions. (“eBay E-Meter Auctions Yanked”, Slashdot, April 28).

May 3 — Fee shrinkage. The Second Circuit U.S. Court of Appeals has upheld a federal court’s ruling that two class-action firms representing plaintiffs burned in the Drexel Burnham Lambert fiasco of the 1980s should receive $2.1 million in fees, less than 20 percent of the $13.5 million they sought. The two law firms — Milberg Weiss Bershad Hynes & Lerach and Abbey, Gardy & Squitieri — had argued that it was appropriate to apply a “multiplier” of six to the otherwise going rate for legal fees because a fee recovery of 25 percent was a “benchmark” in the practice of class action law (the recovery for the class was $54 million). However, the appeals panel upheld Judge Shirley Wohl Kram’s reasoning that the case was a promising one with almost certain prospects of a large recovery, so that enhancing rates “would likely result in [counsel’s] overcompensation.” (Mark Hamblett, “Cut in Drexel Case Attorneys’ Fees OK’d”, New York Law Journal, March 31).

May 3 — Little League lawsuits. No, they’re not just figments of tort reformers’ imaginations. In Waynesboro, N.C., Nicolas and Alina Rothenberg are suing the national and local Little League, along with local game officials, over an incident where their son was hit in the mouth with a ball, losing two teeth and experiencing “extreme pain and suffering” and emotional distress. “It was an accident,” said Tammy Meissner, the wife of defendant Michael Meissner. “My husband was hitting the ball just like he’s been hitting the ball for years and years and years.” (“Accident prompts Little League lawsuit”, AP/Winston-Salem Journal, April 23, no longer online). Another clip from mid-1998, datelined Naugatuck, Ct., describes how two teammates, both 8 years old at the time of the incident, wound up in court after Michael Albert swung his bat in the dugout and hit Brittany Gauvin in the head. (“Little League lawsuit pits 10-year-olds against each other”, AP/Danbury News-Times, June 8, 1998).

May 2 — “Access excess”. Our editor’s May Reason column explores the dangers posed by the Americans with Disabilities Act to the freedom of the Net: countless private websites are currently considered “inaccessible” and will apparently be obliged to undergo systematic redesign, an expensive and cumbersome process that will go far to stifle creative freedom in HTML design (see earlier commentaries). This column has already drawn one of the biggest reader reactions of anything we’ve published in a long time — in future updates we’ll try to share highlights from some of the many thoughtful letters that have come in. (Walter Olson, “Access Excess”, Reason, May; also reprinted at Jim Glassman’s Tech Central Station).

May 2 — North Carolina (& Kentucky & Tennessee) tobacco fees. The three leaf-growing states were among the last of the fifty to sign onto the Medicaid reimbursement lawsuits against cigarette companies, and by necessity did little of the heavy lifting in developing the case. North Carolina attorney general Mike Easley picked private lawyer John McArthur to handle the state’s grower-advocacy role in the tobacco negotiations, a task McArthur also performed for the other two states; conveniently, he happened at the time to be coming off a stint as counsel to Easley himself. Now he’s rumored to be in line for $1.5 million in fees, concededly far lower than the take of lawyers who represented other states. Why aren’t more precise figures public? McArthur says it’s because of lawyer-client confidentiality. Easley is favored for the state’s gubernatorial nomination in today’s Democratic primary, and a spokesman for his primary rival, Lt. Gov. Dennis Wicker, has called for more light to be shed on the fee details: “Certainly the people have a right to know if the attorney general’s office is North Carolina’s version of ‘Who Wants to Be a Millionaire'”. Reporter David Rice of the Winston-Salem Journal writes that “Easley has repeatedly talked about his role in the tobacco settlement, but reporters and others always got the impression that the state hired no outside lawyers in the case”; now Easley says his earlier statements indicating that no outside lawyers had been hired were mischaracterized. (David Rice, “Wicker aide calls for the disclosure of attorney’s fee”, Winston-Salem Journal, April 25; Ben White, “Primary Season Resumes in N.C., Ind.”, Washington Post, May 1, links now dead).

May 2 — IRS drops penny-collection efforts. “The Internal Revenue Service has stopped collection procedures against a Roswell[, N.M.] businessman who inadvertently came up 1 penny short on his tax return. Ernest Spence, owner of Valley Glass Co., had been required to pay $286.50 in penalties and interest for the mistake.” Mr. Spence says the error was unintended and resulted from not carrying the fractional penny while doing the arithmetic on the return. (“IRS backs off man’s penalty for 1-cent mistake”, AP/Dallas Morning News, April 30).

May 2 — Columnist-fest. More to catch up on:

* “It’s not about money, most of the plaintiffs or their lawyers will say, it’s about the healing process. Baloney.” Anne Roiphe on the prospect of Columbine litigation (“Feeling Tired? Blue? Cranky? Just Sue!”, New York Observer, May 1, link now dead).

* George Will invokes the many sound arguments against the Victim’s Rights Amendment to the Constitution (“Tinkering Again”, Washington Post, April 23). Will has been on a roll recently with columns on death row innocents, campaign regulation and the First Amendment, the Boy Scouts case, and campaign regulation again.

* Jacob Sullum on S&W’s hapless attempt at a “clarification” of its HUD-brokered settlement: “Perhaps it is dawning on Smith & Wesson’s executives that it can be dangerous to show weakness in the face of statist demands. Too bad they didn’t pay closer attention to the fate of the tobacco companies, whose efforts at appeasement have only whetted their opponents’ appetites.” (syndicated column, April 19).

May 1 — Tort city, USA. Other cities face a handful of slip-fall cases each year, but New York City gets 3,500, paying out $57 million plus large legal defense costs. When all types of injury litigation are included, the total reaches a staggering $420 million plus defense costs. What makes the political climate in New York so hostile to the city’s interest as a lawsuit defendant? One reason is the number of powerful Gotham politicians with ties to tort practice, such as Bronx Republican state senator Guy Velella, whose law firm’s successful cases against New York City include two separate injury suits on behalf of his parents. Or Assembly Speaker Sheldon Silver, who rents office space from well-connected tort firm Schneider, Kleinick, Weitz, Damashek & Shoot. Or Brooklyn Democrat Helene Weinstein, who chairs the state assembly’s Judiciary committee and “is of counsel to her father’s personal-injury firm … It’s rather like having a Microsoft lawyer in charge of the Congressional committee overseeing antitrust policy.” A jury recently took just an hour to reject a $10 million suit against the city by assemblyman John Brian Murtaugh, who had slipped on ice in a city park while walking his dog and broke his wrist. (John Tierney, “In Tort City, Falling Down Can Pay Off”, New York Times, April 15).

May 1 — “Jury flipped coin to convict man of murder”. You think this sort of thing doesn’t really happen, but it did happen last week in Louisville: “A jury unable to decide on a verdict tossed a coin last week to convict a man of murder, prompting a judge to declare a mistrial … The Jefferson County Circuit Court jury of five men and seven women deliberated about nine hours over two days last week before finding Phillip J. Givens II guilty of murder for killing his girlfriend, Monica Briggs, 29, last May.” Givens faced life in prison on the murder rap, but Judge Kenneth Conliffe declared a mistrial after word reached him of the method the jury had used to break its deadlock: one of the jurors told someone, who told a court employee, who told the judge. (Kim Wessel, Louisville Courier-Journal, April 25).

May 1 — Funny hats and creative drawing. As part of a discrimination settlement, employees of Detroit Edison now have been given an in-house “Learning Zone” where they can “map out their careers, create personal Web sites and even work on their resumes.” A reporter notes that the room “looks like a preschool for adults,” with “puzzles, funny hats, puppets and wall-mounted drawing boards.” One of the plaintiffs in the lawsuit, who has now been installed as “facilitator” of the zone, says that it makes “people feel safe, warm and creative … It’s about the employees.” (Brenda Rios, “Building Careers”, Detroit Free Press, April 27).

May 1 — In praise of bugs. “[Computers] should just work, all the time”, opines one popular tech columnist, and many others (including advocates of more stringent bug liability) likewise promote the view that “defects are a moral failing, and a complete absence of defects must be assured, whatever achieving this goal does to the cost and the schedule. But is achieving bug-free software always in the customer’s best interest?” (Gene Callahan, “Those Damned Bugs!”, Dr. Dobb’s Journal, Dec. 3, 1999, adapted as “In Praise of Bugs”, Mises Institute, March 27).


May 18-21 — “A Smith & Wesson FAQ”. An end run around democratic governance, an assault on gun buyers‘ Second Amendment liberties, a textbook abuse of the power to litigate: the Clinton Administration’s pact with Smith & Wesson is all this and more. When this website’s editor looked into the agreement’s details, he found them if anything worse than he’d imagined — for one thing, they could actually increase the number of people hurt because of gun malfunctions. (Walter Olson, “A Smith & Wesson FAQ”, Reason, June; see also David Kopel, “Smith & Wesson’s Faustian Bargain”, National Review Online, March 20, and “Smart Cops Saying ‘No'”, April 19).

May 18-21 — On the Hill: Clint Eastwood vs. ADA filing mills. The Hollywood actor and filmmaker got interested in the phenomenon of lawsuit mills that exploit the Americans with Disabilities Act (see our March 7, Feb. 15, Jan. 26-27 commentaries) when he was hit with a complaint that some doors and bathrooms at his historic, 32-room Mission Ranch Hotel and restaurant in Carmel, Calif. weren’t accessible enough; there followed demands from the opposing side’s lawyer that he hand over more than just a fistful of dollars — $577,000, the total came to — in fees for legal work allegedly performed on the case. “It’s a racket”, opines Eastwood. “The typical thing is to get someone who is disabled in collusion with sleazebag lawyers, and they file suits.” (Jim VandeHei, “Clint Eastwood Saddles Up for Disability-Act Showdown”, Wall Street Journal, May 9 — online subscribers only). The “Dirty Harry” star is slated to appear as the lead witness in a hearing on the bill proposed by Rep. Mark Foley (R-Fla.) to require that defendants be given a chance to fix problems before lawyers can start running the meter on fee-shift entitlements; the hearing begins at 10 a.m. Thursday, May 18 and the House provides a live audio link (follow House Judiciary schedule to live audio link, Constitution subcommittee; full witness list). The National Federation of Independent Business, Chamber of Commerce of the U.S., National Restaurant Association and International Council of Shopping Centers all like the Foley idea. Eastwood told the WSJ he isn’t quarreling with the ADA itself, and the proposed legislation would affect only future cases and not the one against him; but “I just think for the benefit of everybody, they should cut out this racket because these are morally corrupt people who are doing this.”

May 18-21 — “Dialectizer shut down”. “Another fun, interesting and innovative online resource goes the way of corporate ignorance — due to threats of legal action, the author of the dialectizer, a Web page that dynamically translates another Web page’s text into an alternate ‘dialect’ such as ‘redneck’ or ‘Swedish Chef’ and displays the result, has packed up his dialectizer and gone home”, writes poster “endisnigh” on Slashdot (May 17). (Signoff notice and subsequent reconsideration, Rinkworks.com site). Update: it’s back up now — see Aug. 16-17.

May 18-21 — Dusting ’em off. A trend in the making? Complainants in a number of recent cases have succeeded in reviving enforcement of public-morality laws that had long gone unheeded but never actually been stricken from the books. In Utah, Candi Vessel successfully sued her cheatin’ husband’s girlfriend and got a $500,000 award against the little homewrecker (as she no doubt views her) under the old legal theory of “alienation of affection”, not much heard of these last forty or more years. (“Spouse Stealer Pays Price: Wife Wins Case Against Mistress for Breaking Up Marriage”, ABC News, April 27). Authorities in two rural Michigan counties have recently pressed criminal charges against men who used bad language in public, under an old statute which provides that “any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.” (“2nd man hit with anti-cussing statute”, AP/Detroit Free Press, April 27) (same article on Freedom Forum). And Richard Pitcher and Kimberly Henry of Peralta, N.M., “have been formally charged by Pitcher’s ex-wife under the state’s cohabitation law, which prohibits unwed people from living together as ‘man and wife'”. (Guillermo Contreras, “Couple charged with cohabitation”, Albuquerque Journal, March 11) (update: see May 8, 2001 for newer example).

May 18-21 — Campaign regulation vs. free speech. The state of Kentucky’s Registry of Election Finance has ruled that newspapers have a constitutional right to editorialize on behalf of candidates of their choice, rejecting a complaint that characterized such endorsements as “corporate contributions” made by the newspaper proprietors. (“Kentucky election agency: Newspaper editorials aren’t contributions”, AP/Freedom Forum, May 10). A general hail of dead cats has greeted the Congressional Democrats’ lawsuit charging House Majority Whip Tom DeLay with “racketeering” over campaign fundraising practices, with Democratic operative Paul Begala calling the suit “wrong, ethically, legally and politically.” (David Horowitz, “March of the Racketeers”, Salon, May 15; Michael Kelly, “Hammering DeLay”, Washington Post, May 10). And Mickey Kaus, on his recommended Kausfiles.com website, spells out in words of one syllable to pundit Elizabeth Drew why proposed bans on privately sponsored “issue ads” run smack into the Constitution’s guarantee of free speech (“Drew’s Cluelessness: Please don’t let her anywhere near the First Amendment!”, May 7).

May 18-21 — Gotham lawyers upset at efficient jury selection. A few years ago, led by its Chief Justice Judith Kaye, the state of New York began taking long-overdue steps to reform its notorious jury selection system, under which lawyers had often been permitted to browbeat and grill helpless juror-candidates for days at a time in search of the most favorably disposed (not to say pliable) among them. The changes, which bring the Empire State more into line with the practice around the rest of the country, have markedly reduced the time jurors and others must spend on empanelment. So who’s unhappy? The state’s bar association, naturally, which opposed reform in the first place, and now complains that “attorneys are feeling increasingly constrained by time limits and other restrictions”. A survey it conducted “suggests that many lawyers feel that new practices are cramping their style.” Yes, that was the idea (John Caher, “NYS Bar Favors More Voir Dire Leeway”, New York Law Journal, April 12).

May 17 — Not my fault, I. In 1990 Debora MacNamara of Haileybury, Ontario smothered her nine-year-old daughter Shauna as she slept. Found not guilty by reason of insanity, she spent five years in mental institutions before being released. Now she’s suing two psychiatrists and her family doctor for upwards of $20 million, saying they should have prevented her from doing it. The docs say she was “an uncooperative, recalcitrant patient who didn’t take her medication as prescribed, often cancelled appointments, wouldn’t let those treating her share critical medical information and either minimized or lied about both her symptoms and state of mind.” (Christie Blatchford, “Woman sues doctors for not stopping her from killing”, National Post, May 16, link now dead)).

May 17 — Not my fault, II. “Fourteen years after accidentally shooting himself in the hand, 19-year-old Willie K. Wilson of Pontiac is pointing the finger at his father and Smith & Wesson, suing both last week for at least $25,000 in Oakland County Circuit Court.” His lawyer explains that Willie isn’t actually angry at his pa but is just going after the homeowners’ insurance money. Hey, who could object in that case? (Joel Kurth, “Son sues father, Smith & Wesson”, Detroit News, May 16).

May 17 — Comparable worth: it’s back. This time they’re calling it “pay equity”, but a new study by economist Anita Hattiangadi and attorney Amy Habib for the Employment Policy Foundation finds no evidence that the much-discussed pay gap between the sexes owes anything to employer bias, as distinct from women’s individual choices to redirect energy toward home pursuits during childbearing years (EPF top page; “A Closer Look at Comparable Worth” (PDF)). Plus: the foundation’s comments on White House pay equity report (PDF); background on comparable worth; and writings by Diana Furchtgott-Roth of the American Enterprise Institute, “Still Hyping the Phony Pay Gap”, AEI “On the Issues”, March; Roger Clegg (“Comparable Worth: The Bad Idea That Will Not Die”, National Legal Center for the Public Interest, “Briefly…” series, August 1999 (PDF); and the Chicago Tribune‘s Steve Chapman (“Clinton’s Phony Fight for ‘Pay Equity’, Feb. 24).

May 17 — Update: judge frowns on Philly’s Mr. Civility. Following up on our March 13 commentary, federal judge Herbert J. Hutton has imposed sanctions on attorney Marvin Barish, including an as yet uncalculated fine and disqualification in the case, over an incident during a trial recess in which Barish threatened to kill the opposing lawyer with his bare hands and repeatedly called him a “fat pig”. Barish’s attorney, James Beasley (apparently the same one for whom Temple U.’s law school was renamed after a large donation), said if anyone merited sanctions it was the opposing counsel, representing Amtrak, for having engaged in legal maneuvers that provoked his client to the outburst; Barish is “one of the city’s most successful lawyers handling Federal Employers Liability Act cases”. (Shannon P. Duffy, “Judge Hits Lawyer with Fine Over Alleged Threat”, Legal Intelligencer (Philadelphia), May 2).

May 17 — Disabled vs. disabled. Strobe-light-equipped fire alarms — a great idea for helping the deaf, no? A sweeping new mandate to that effect is pending before the federal government’s Access Board, which would affect workplaces, hospitals, and motel rooms, among other places. All of which horrifies many members of another category of disabled Americans, namely those with photosensitive epilepsy and other seizure disorders: In a recent survey, 21 percent of epileptics said flashing lights set off seizures for them. “Should a seizure be caused by stroboscopic alarms during an actual fire emergency, that person would be incapacitated, leading to even more danger both from the seizure and from the emergency itself.” And then there are all the false alarms. … (Epilepsy Foundation, “Legislative Alert“, Capitol Advantage Legislative Advocacy Center; Access Board, Notice of Proposed Rulemaking, relevant section (see s. 702.3)).

May 16 — Federal commerce power genuinely limited, Supreme Court rules. Big win for federalists at the high court as the Justices rule 5-4 to strike down the right-to-sue provision of the Violence Against Women Act on the grounds that the Constitution does not empower Washington to muscle into any area of police power it pleases simply by finding that crime affects interstate commerce. (Laurie Asseo, “High Court: Prosecution of Rapists Up To States”, AP/Chicago Tribune, May 15, no longer online; U.S. v. Morrison, decision (Cornell); Center for Individual Rights; Anita Blair (Independent Women’s Forum), Investors Business Daily, reprinted Feb. 4).

May 16 — Deflated. After suing automakers up one side of the street for the sin of not installing airbags earlier, trial lawyers are now suing them down the other over the injuries the bags occasionally inflict on children and small-framed adults. Last month Ford got hit with a $20 million verdict in a case where an infant was paralyzed by a Mustang’s airbag, but last week a Detroit jury declined to find liability against DaimlerChrysler in a case where an airbag detonation killed 7-year-old Alison Sanders after her father ran a red light and broadsided another vehicle. (“Jurors clear DaimlerChrysler in 1995 air-bag lawsuit case”, Detroit Free Press, May 11, link now dead; Bill Vlasic and Dina ElBoghdady, “Air bag suits unlikely to stop”, Detroit News, May 12).

Who was it that spread the original image of air bags as pillowy, child-friendly devices, the right solution for all passengers in all circumstances? Lawyers now wish to blame Detroit, but Sam Kazman of the Competitive Enterprise Institute quotes the remarks of longtime Ralph Nader associate Joan Claybrook, who headed the National Highway Traffic Safety Administration during the Carter-era rulemaking: “Air bags work beautifully,” she declared, “and they work automatically and…that gives you more freedom than being forced to wear a seat belt.” (Letting people think an airbag might relieve them of the need to buckle up is now, of course, seen as horrifically bad safety advice.) Moreover, quoth Claybrook, the devices “fit all different sizes and types of people, from little children up to…very large males.” (“Only Smart Air Bag Mandate is No Mandate at All”, CEI Update, March 2).

Even more striking, CEI’s Kazman dug up this photo of Ralph Nader, who long flayed manufacturers for their delay in embracing the devices, using an adorable moppet as an emotional prop. Sam says the photo is from a 1977 press conference; he thinks it would make a lovely display in Nader’s planned museum of product liability law in Winsted, Connecticut. [DURABLE LINK]

MORE SOURCES: Bill Vlasic and Dina ElBoghdady, “Dead girl’s dad fights air bags”, Detroit News, March 29; Janet L. Fix, “Father’s heartbreak fueled lawsuit after 1995 accident”, Detroit Free Press, April 5; “The Deployment of Car Manufacturers Into a Sea of Product Liability? Recharacterizing Preemption as a Federal Regulatory Compliance Defense in Airbag Litigation”, Note (Dana P. Babb), Washington U. Law Quarterly, Winter 1997; Scott Memmer, “Airbag Safety”, Edmunds.com, undated web feature; Michael Fumento, “Paper Scares Parents for Politics and Profit”, 1998, on Fumento.com website.

May 16 — “Clinton’s law license”. “The Arkansas Supreme Court should take away Clinton’s law license because he lied under oath,” declares the editorially middle-of-the-road Seattle Times. “It’s unlikely that Clinton will want to practice after he leaves the White House, but this has more to do with the legal community upholding its own ethics than the president’s next career. The American Bar Association’s standards for lawyer sanctions leave little doubt: ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information and causes serious or potentially serious injury to a party. …’ Last April, federal judge Susan Webber Wright found Clinton in contempt for ‘giving false, misleading and evasive answers that were designed to obstruct the judicial process’ while under oath in her presence. She also has filed a complaint with the Arkansas Supreme Court, but did not recommend a specific penalty. …Clinton should surrender his license or the court should take it.” (editorial, May 15). Plus: Stephen Chapman in Slate (“Disbar Bill”, May 12). [DURABLE LINK]

May 16 — The asset hider. Curious profession of a New Yorker whose specialty consists in finding ways to help wealthy men hide assets so as to escape legal obligations to their wives. The proprietor of “Special Services” of E. 28th St. also boasts of his skill in private investigation, which didn’t prevent him from falling for the cover story of a New York Post writer who posed as a divorce-bent Internet millionaire while secretly taping their lunch (Daniel Jeffreys, “The Wealthy Deadbeat’s Best Friend”, New York Post, May 15).

May 15 — Doctor cleared in Lewis cardiac case. A team of cardiologists told basketball star Reggie Lewis that his playing days were over. Then his wife helped get him transferred under cover of darkness to a new team of doctors who said he could go on playing. Then he collapsed on the court and died. And then Donna Harris-Lewis, having already collected on her husband’s $12 million Celtics contract, sued the docs for negligence. One paid $500,000 to settle, but last week Dr. Gilbert Mudge of Brigham & Women’s won vindication from a jury. (Sacha Pfeifer, “The verdict is in: no negligence”, Boston Globe, May 9; Dan Shaughnessy, “Everybody has lost in Lewis case; let’s move on”, May 9; Barry Manuel, “As usual, only lawyers won in Lewis case”, May 11, links now dead). Earlier, Harris-Lewis drew flak by comparing herself to the families of six firefighters who died in a Worcester warehouse blaze. “Lots of money is being raised for those families, and I need to be taken care of, too. Everybody has to say I’m greedy. But I do want my money back this time around. Why should I lose?” Well, ma’am, we could start a list of reasons. … (Steve Buckley, “What was Harris-Lewis thinking?”, Boston Herald, March 28).

May 15 — The four rules of sex harassment controversies. We thought we had ’em memorized after the Anita Hill affair … then we had to unlearn all four during the late unpleasantness with President Clinton … and now they’ve all returned in coverage of the Pentagon’s Claudia Kennedy case. (David Frum, “Breakfast Table” with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday’s near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, “Waiter wins suit against Friday’s”, St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court’s award of $143,715, reduced from a jury’s $1 million, to a computer analyst who “said his boss spanked him with a 4-foot-long carpenter’s level during a bizarre workplace ritual” and then announced “Now, you’re one of us”. The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, “Court upholds $143,715 award for spanking”, Milwaukee Journal-Sentinel, April 18).

May 15 — Convenient line at the time. Tobacco is special, said the state attorneys general who teamed up with trial lawyers to expropriate that lawful industry via litigation and share out the resulting plunder. It’s “the only product that, if used as intended, could be fatal.” And so they categorically dismissed critics’ fears that the tempting new ways of raising revenue without resorting to explicit taxation might soon be aimed at other industries. Who was fool enough to believe them? (Victor E. Schwartz, “Trial Lawyers Unleashed”, Washington Post, May 10).

May 15 — Gloves come off in Mich. high court race. We warned you it would get nasty (see May 9, Jan. 31), but not this soon. At a recent NAACP gathering, the Michigan Democratic Party circulated a flyer stating that incumbent Justice Robert Young opposes the 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ended racial segregation in public schools. Young, who is African-American and whose record on the court has been conservative, terms the flyer “virulent race-baiting” and untrue and has demanded an apology. State Democratic chairman Mark Brewer dares Young to sue, but declines to name a source for the flyer’s characterization of his views on Brown. (Kathy Barks Hoffman, “Race for 3 spots on top court sparks charge of ‘race-baiting'”, AP/Detroit News, May 11; George Weeks, “Election of justices needs changing” (editorial), May 11).

May 12-14 — Microsoft opinion: the big picture. However well they’re doing in Judge Jackson’s court, Janet Reno’s trustbusters are getting slammed in the court of public opinion, which continues lopsidedly opposed to breakup. While a Harris poll finds less than 40 percent of respondents believing that Bill Gates’s company has treated its competitors fairly, that’s still a better rating than Joel Klein’s Antitrust Division gets: only one in three believe the government treated Microsoft fairly. (Paul Van Slambrouck, “High-tech trust-busting a bust with public today”, Christian Science Monitor, May 5; Manny Frishberg, “Public favors MS in antitrust”, Wired News, May 4). The Independent Institute’s Alex Tabarrok calculates that the loss in capital value of Microsoft as an enterprise amounts to $768 for every person in the United States, and that most of this sum can plausibly be attributed to the legal action rather than to business setbacks. (“The Anti-entrepreneurs,” May 1). Given that the rest of the high-tech sector has also taken a thrashing, economics Nobelist Milton Friedman says Silicon Valley “must rue the day that they set this incredible episode in operation” by siccing the government on their Seattle rival (statement reprinted at National Taxpayers Union site, April 28).

Does all this augur a revival of “vigorous”, sock-’em-hard antitrust enforcement, not much seen in the last couple of decades? If so, ABC’s John Stossel has some deserving nominees for breakup far more monopolistic than Windows ever was, including the U.S. Postal Service — yes, it’s still unlawful to compete with it in first-class service (“Give Me a Break: Government Protection?” (video clip), May 5). And Michael Kinsley wonders why the U.S. government, if it really takes trustbusting principles seriously, still takes such an indulgent, price-fixers-will-be-price-fixers approach toward OPEC — a genuinely noxious cartel that inflicts great damage on the American economy, and whose member countries (among them Russia, Norway, Venezuela and the spectacularly ungrateful Kuwait and Saudi Arabia) appear to suffer nary a repercussion in the conduct of U.S. foreign policy (“Readme: Oil Crooks”, Slate, March 27).

May 12-14 — Dismounted. “A therapeutic horse-riding program for 600 mentally impaired Oakland County children and teenagers is in jeopardy this summer, a potential victim of a liability impasse among lawyers and bureaucrats.” Parents praise the Silver Saddles program, but the county is unwilling to accept liability exposure for it, which could be financially catastrophic in the event of an accident to a young rider. (Hugh McDiarmid, Jr., “Riding-therapy program faces liability hurdle”, Detroit Free Press, May 5).

May 12-14 — Steady aim. Everyone who supports democracy — as well as everyone who opposes the abuse of litigation — should favor legislative measures aimed at reserving gun regulation to elected lawmakers rather than the machinations of ambitious trial lawyers, argues Vince Carroll of Denver’s Rocky Mountain News (“Gun bill puts halt to lawsuit abuse”, April 30). And Washington, D.C.’s Sam Smith, who shows regularly that there’s still life on the Left in his remarkable online Progressive Review (which we’re pleased to see often picks up items from this space), has put up a page of reasons “why politicians, moms, and progressives should stop pressing for more gun control laws” (“Wild Shots“).

May 11 — “Ad deal links Coke, lawyer in suit”. Both the Coca-Cola Co. and plaintiff’s attorney Willie Gary are denying a linkage between Gary’s role as a lawyer in the current high-profile race bias litigation against Coke and the company’s just-announced agreement — financial terms not disclosed — to become a major advertiser on a cable channel of which Gary is part owner. Last month amid fanfare the Florida lawyer arrived in Atlanta on his private jet (“Wings of Justice”) to assume representation of several of the original plaintiffs in the much-publicized employee litigation against the beverage company. “I want a settlement that’s fair and just,” he said then. “I don’t come cheap. I think big, real big.” On Tuesday Coke announced a major five-year deal to buy ads on the fledgling Major Broadcasting Cable Network, which Gary helped launch and of which he is chairman and chief executive. Gary says his clients are aware of the deal and says, “There’s absolutely no conflict. We’re not friends. We’re business people. Coke is not giving me anything. … It’s goods in exchange for service. … No way this is a conflict.'”

A sometime fund-raiser for the Rev. Jesse Jackson’s Rainbow/PUSH coalition, Gary is best known in legal circles for the ruinous $500 million verdict he obtained in a Jackson, Mississippi courtroom against the Loewen Group, a Canadian-owned funeral home chain, in what had previously seemed a routine commercial dispute (see our editor’s account). Last week he announced that he was demanding nearly $2 billion from the Burger King Corporation on behalf of Detroit restaurateur La-Van Hawkins, whose UrbanCityFoods business has not fared as well as expected in its operation of franchised hamburger units. Gary’s entry last month into the Coke case came at a time of unpleasant back-and-forth charges between some of the employees who were first to sue and class-action lawyers who had worked to assemble their and others’ complaints into a suit on behalf of the company’s entire black workforce, led by Washington, D.C.’s Cyrus Mehri, of Texaco fame (our account of that one), with the Mehri camp saying the individuals were holding out for too much money for themselves personally as distinct from the class, and a PUSH coalition activist, Joseph Beasley, countering that under the settlement anticipated from the class action the “lawyers get all the money” while “the black community is left high and dry”.

SOURCES: Henry Unger, “Ad deal links Coke, lawyer in suit”, Atlanta Journal- Constitution, May 10 (fee-based archive); Constance L. Hays, “Coke to Advertise on Channel Owned by Lawyer in Bias Suit”, New York Times, May 10, no longer online; Betsy McKay, “For Coke’s Big Race Lawsuit, a New Wild Card”, Wall Street Journal, April 14 (subscription); Beth Miller, “Cable network to focus on black families”, Media Central, Dec. 13; Trisha Renaud, R. Robin McDonald, and Janet L. Conley, “Money, Trust Behind Coke Split”, Fulton County Daily Record, April 14; “Burger King Has Greater Troubles: Internationally Renowned Trial Attorney Willie Gary Asks Burger King for $1.9 Billion”, Excite/PR Newswire press release from Gary’s firm, May 3; Eric Dyrrkopp and Andrew H. Kim, “Prospecting the Last Frontier: Legal Considerations for Franchisors Expanding into Inner Cities”, Franchise Law Journal, Winter 2000, reprinted at Bell, Boyd & Lloyd site.

May 11 — Tort fortune fuels $3M primary win. In Charleston, W.V., attorney and former state senator Jim Humphries has won the Democratic nomination in the Second Congressional District after investing $3 million from the fortune he made in asbestos litigation. Humphries’s “big-budget, slickly produced campaign” overpowered his primary rivals, who included one of the state’s best-known politicians, Secretary of State and former U.S. Representative Ken Hechler, as well as state senator Martha Walker, who chairs the state senate’s health and human resources committee; between them Hechler and Walker split about half the primary vote. The campaign “shattered all state records for spending in a congressional primary election.” Humphries now faces Delegate Shelley Moore Capito, R-Kanawha, who ran unopposed in the Republican primary. (Phil Kabler, “Humphreys’ $3 million pays”, Charleston Gazette, May 10).

May 11 — Stubbornness of mules a given. A federal court in North Carolina has dismissed a lawsuit by the producers of the soon-to-be-released film “Morgan’s Creek” against animal wrangler Alicia Rudd over the refusal of her trained mule to sit down on cue or cooperate in other ways on the set. The producers said the animal’s recalcitrance had prolonged shooting by an extra day, costing upwards of $110,000, but the judge said there was no proof that Rudd breached a promise or misrepresented her ability to control the mule. (“Judge finds stubborn mule no cause for action”, AP/CNN, May 8).


May 31 — From our mail sack: ADA enforcement vignettes. Reader Roger Clegg of the Center for Equal Opportunity tells us that every month or so he visits the Department of Justice to pore over the new batch of publicly released enforcement letters from the department’s Civil Rights Division. Although the letters are made available by the Department in such a way that parties in the disputes are not individually identifiable, they do provide insight into current enforcement priorities and trends. A few highlights that Roger passes on from letters issued by DoJ regarding the enforcement of the Americans with Disabilities Act:

“The Civil Rights Division’s Disability Rights Section has in the last month or so sent a lot of letters to doctors’ offices on behalf of hearing-impaired patients complaining that the doctors don’t have interpreters (a couple of the offices didn’t understand why the doctor and patient couldn’t just write notes to each other) [see also Sept. 29-Oct. 1].

* “A dance studio got a DOJ letter when it refused to continue giving lessons to a student who was prompting complaints from other students’ parents because accommodating her took up so much class time.

“Other interesting issues prompting DOJ letters:

* “A cruise ship that refused to let a blind person on board for a trip unless he had a medical note stating he could safely travel alone;

* “An HIV-positive student who demanded an air-conditioned classroom;

* “A blind person who wasn’t allowed into a doctor’s office because in the past other patients had had an allergic reaction to his guide dog; and

* “A truly tragic case — a man with a ‘manual disability’ who could not pull the trigger on a gun.”

May 31 — Jumped ahead, by court order. A Delaware court has found that Christiana Care Health Services breached its contract with Ahmad Bali, MD, when it demoted him from third-year to second-year resident. Rather than simply allot monetary damages to Dr. Bali for the trouble and expense of having been held back needlessly at the second-year stage, the court took the more unusual step of ordering the hospital to accord him fourth-year residency status as if he’d completed the third-year program. The result is to put him in the same place he’d be if not for the hospital’s earlier breach, which is certainly one kind of fairness for which the law sometimes strives. But what if third-year residency isn’t simply a re-run of second-year, but involves the acquisition of distinctive skills? (Miles J. Zaremski, “Delaware court reinstates terminated resident”, American Medical News, March 20).

May 31 — Columnist-fest. More opinions worth considering:

* Paul Campos weighs in on the “pink-skirt” case, in which a transgendered employee of a Boulder, Colo. bagel shop is suing because its owner wouldn’t let him wear that girlish item of apparel on the job (“The strange land of identity politics”, Rocky Mountain News, May 16; Matt Sebastian, “Bagel shop wouldn’t let him wear pink dress [sic], so he sues”, Scripps Howard News Service, May 11).

* Big American companies whose German operations were seized by the Nazi regime and run with forced labor are now coming under legal pressure to pay “reparations”. “If we Jews care about justice and retribution, we should not take this money,” argues Sam Schulman of Jewish World Review. “It is tainted — tainted with innocence. And taking money from the innocent blurs the line between innocence and guilt.” (“Some Reparations Money is Better Left on the Table”, Jewish World Review, May 18). An earlier Schulman column examines the drift of the campaigns against the Swiss and the Austrians away from the aim of individualized justice for expropriated families and toward the expiation of inherited national guilt by way of large transfer payments. (“David Irving’s Mirror for the Jews”, May 2).

* Rachelle Cohen of the Boston Herald can’t help wondering: does Massachusetts really need to spend tax money setting up a state-sponsored law school? (“Must taxpayers pay to create more lawyers?”, May 24).

May 30 — You were negligent to hire me. “A former Escondido school district administrator who resigned two years ago after revelations of a 1963 rape-related conviction won a $255,000 jury verdict yesterday against Superintendent Nicolas Retana and the district.” Thirty-four years previously, at age 17, William Zamora had been convicted in New Mexico of assault with intent to rape, serving two years in prison and later being pardoned by the governor. When he applied for an $88,000/year administrative job in 1997 with the district near San Diego, he failed to disclose his long-ago conviction on his employment application, later saying he thought the pardon had wiped his record clean. But an FBI fingerprint check turned it up, and Zamora resigned at once: a California law passed the previous year forbade school districts to hire persons with felony sex convictions. He then proceeded to sue the district and supervisor, contending that if they “had done their jobs properly… they would have waited until the crime check came back before hiring him,” and charging that his privacy had been invaded when Retana conversed with an Albuquerque school board member about the conviction. Last week a jury awarded him $15,000 on the negligent hiring claim and $240,000 on the invasion of privacy claim. “Superior Court Judge Lisa Guy-Schall kept jurors from hearing the details of Zamora’s conviction, in which he pleaded guilty. She said she didn’t want to preside over a mini-trial of events that happened 37 years ago.” (Onell R. Soto, “Ex-administrator wins $255,000 verdict against Escondido schools chief, district”, San Diego Union-Tribune, May 24; and earlier Union-Tribune coverage, May 17, May 21, 1999; May 20, 1999).

May 30 — Illegal to talk about drugs? The so-called Methamphetamine Anti-Proliferation Act, which has been moving rapidly through Congress with relatively little public outcry, would make it a felony punishable by ten years in prison “to teach or demonstrate to any person the manufacture of a controlled substance, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of a controlled substance,” knowing or intending that a recipient will use the information in violation of the law. The aim is to shut down the publishing of books, magazines and websites that furnish information on drug manufacture or use, such as High Times magazine and Lycaeum.org. The prohibition on “distribut[ing]” such information “to any person, by any means” could make it unlawful even to post a weblink to offshore sites of this nature. Another provision of the bill would make it a crime to “directly or indirectly advertise for sale” drugs or drug paraphernalia — and whatever the peculiar phrase “indirectly advertise” may mean in practice, it’s probably not good news for the First Amendment. A Washington Post editorial calls the provisions “overly broad” and “so vague as to threaten legitimate speech”: “The mere dissemination of information, especially without specific intent to further crime, seems within the bounds of free speech protections.”

SOURCES: “The Anti-Meth Bill” (editorial), Washington Post, May 26; Amy Worden, “House Bill Would Ban Drug Instructions”, APBNews, May 10; Declan McCullagh, “Bill criminalizes drug links”, Wired News, May 9; Jake Halpern, “Intentional Foul”, The New Republic, April 10; “Senate panel considers ban on Internet drug recipes”, AP/Freedom Forum, July 29, 1999; Debbi Gardiner and Declan McCullagh, “Reefer Madness Hits Congress”, Wired News, Aug. 6, 1999; J. T. Tuccille, “Shall make no law”, About.com Civil Liberties, Aug. 15, 1999; Phillip Taylor, “Marijuana activists denounce proposed ban of drug recipes”, Freedom Forum, Jan. 6.

May 30 — Won’t pay for set repairs. Orkin, the pest control company, is declining to compensate two consumers who’ve requested that it pay for fixing their TV sets after they attacked unusually convincing simulations of cockroaches that ran across the screen in its ads. The company says a Tampa, Fla., woman tried to kill the insect by throwing a motorcycle helmet at her set, while another man damaged his set by throwing a shoe at it. (“‘I felt really stupid’: Orkin cockroach commmercial has some viewers fooled “, AP/Seattle Post-Intelligencer, April 6).

May 30 — Welcome San Jose Mercury News visitors. At Silicon Valley’s hometown paper, columnist John Murrell (“Minister of Information”) proposes this among sites “for your weekend Web wandering pleasure … your darkest visions of out-of-control litigiousness will be confirmed”. (May 26 entry). The weblog at uJoda.com (“From My Desktop”), where you can pick up Macintosh icons and graphics, reports that its author “found a great site called overlawyered.com, though not eye candy, it is rich in content” (May 6 entry). The pro-Second Amendment Fulton Armory featured us as their site of the week a couple of weeks ago, and we’ve also been linked recently by the Australian Public Law page maintained by the law faculty at the Northern Territory University, down under (“Not much to do with public law but we couldn’t help ourselves,” they explain re including us); by the Smith Center for Private Enterprise, a free-market think tank at Cal State, Hayward; by ClaimsPages.com, which offers a vast array of insurance-oriented links; and by the website of attorney Jule R. Herbert, Jr. of Alabama’s Gulf Coast, among many others.

May 26-29 — “Dame Edna’s Gladioli Toss Lands in Court”. “Dame Edna Everage”, the character created by Australian comedian Barry Humphries (website, B’way show), makes a custom of ending her show by flinging gladioli to the crowd, but now a man has hired a Melbourne law firm to undertake legal action, saying a stem of one of the large flowers struck him in the eye. 49-year-old singing teacher Gary May is “seeking unspecified damages for pain and suffering, loss of income and medical expenses.” (Reuters/Excite, May 25, lnk now dead). Last year (see Dec. 7) NBC’s “Tonight Show with Jay Leno” was sued by an audience member who says he was injured by one of the free t-shirts propelled into the crowd.

May 26-29 — “Skydivers don’t sue”. Lively Usenet discussion last month and this among skydiving enthusiasts (rec.skydiving) over recent lawsuits in the sport. In one, Canadian skydiving acrobat Gerry Dyck is suing teammate Robert Laidlaw over a 1991 accident during an eight-man stunt jump near Calgary in which Dyck was knocked unconscious and severely hurt on landing. (Jeffrey Jones, “Canadian skydiver sues teammate for mid-air crash”, San Jose Mercury News, April 24, no longer online). The other followed the death of James E. Martin, Jr., a Hemet, Calif. dentist and veteran of more than 5,000 jumps who perished when a line snagged on his parachute, his fifth time out on that gear. Now his widow’s suing the gear maker, Fliteline Systems of Lake Elsinore, Calif.; vice president Mick Cottle of Fliteline, the first defendant named in the suit, says Martin was a “close friend”. “Few lawsuits over sky diving deaths ever reach judgment,” reports the Riverside Press-Enterprise. And “most makers of sky-diving gear do not carry liability insurance, which reduces the likelihood of plaintiffs gaining a settlement.” About 32 sky-diving deaths occur annually in the U.S., of which about five lead to lawsuits, according to one frequent expert witness in the field; he estimates that plaintiffs have won only 1 or 2 percent of cases he’s seen, though it’s unclear whether he’s including settlements in that estimate. (Guy McCarthy, “Lawsuit blames gear in sky diver’s death”, Riverside Press-Enterprise, May 8, link now dead; Remarq saved thread; Deja.com archive, recent search on “lawsuit” — hundreds of posts in all)

May 26-29 — Insurers fret over online privacy suits. The wave of lawsuits against Yahoo!, DoubleClick and others for privacy sins has insurance companies “concerned they will have to pay for potentially massive torts they didn’t anticipate” in liability policies they’ve written for the dot-com sector. “‘If it’s not the next really big issue, it’s one of the next big issues where we can expect a lot of litigation,’ said Thomas R. Cornwell, VP of the technology insurance group” for insurer Chubb. “Plaintiff’s attorneys are honing their skills and preparing for a boom in such lawsuits,” reports the magazine Business Insurance in its May 22 lead story. “‘Just as the Internet itself is a growth area, Internet law is being recognized as a growth area within the legal profession,’ said David Sobel, general counsel for the Electronic Privacy Information Center in Washington. The nonprofit organization supports plaintiff lawsuits on Internet privacy.” “My guess is that now that the blood is in the water there will be a lot of plaintiffs’ attorneys sniffing it up,” said one lawyer who’s sued Yahoo. (Roberto Ceniceros, “Internet privacy liability growing”, Business Insurance, May 22, fee-based archives). Expect the cost of securing liability insurance for an Internet launch to rise accordingly.

May 26-29 — Suits by household pets? “Somewhere out there — maybe in a Boston zoo or a Fresno research lab — a Bonzo or Fido is biding his time, deceptively peeling a banana or playing dead, quietly getting ready to sue his master,” writes Claire Cooper of the Sacramento Bee. As animal-rights courses proliferate at law schools, activists are quietly looking for test cases in which to assert the singular new notion of standing for nonhuman creatures — with themselves as the designated legal representatives, needless to say. (“Pets suing their masters? Stay tuned, advocates say”, May 13). In March the Seattle Times profiled the Great Apes Legal Project, which views the non-human primate kingdom as plausible rights-bearing clients. This provoked a letter from reader David Storm of Everett, who said the article was “very interesting, but the goal doesn’t go far enough. In addition, we should declare the apes to be lawyers, which would simultaneously improve our legal system.” (Alex Tizon, “Cadre of lawyers working to win rights for apes”, Seattle Times, March 19; letters, March 21). See also Roger Bryant Banks, “Animal Dogma”, SpinTech (online), May 12, on the question: if Chimp v. Zoo is a good case, why not also Chimp v. Chimp, following incidents of violence or harassment?

May 26-29 — EPA’s high courtroom loss rate. Most federal agencies win most of the time when their regulatory decisionmaking is challenged in federal court, but the Environmental Protection Agency in recent years has been a glaring exception, losing a large share of the cases it has defended, including high-profile battles over electric car mandates, gasoline reformulation, and Clean Water Act permit-granting, among many others. Why does it fare so badly? Jonathan Adler of the Competitive Enterprise Institute thinks one reason is that agency policymakers adopt extreme legal positions, partly due to unclear authorizing statutes, partly due to zealousness among political appointees at the top. “Environmental Performance at the Bench: The EPA’s Record in Federal Court”, Reason Public Policy Institute, Policy Study #269; “EPA in Need of Adult Supervision”, CEI Update, March 1; Adler’s home page. Ben Lieberman, also of CEI, calls attention to one of the more unusual confrontations the EPA has gotten into of late: its crackdown on coal-burning utilities has led it into a showdown with the government-owned Tennessee Valley Authority, which means it’s the feds versus the feds. (“EPA’s tug at TVA’s power”, May 19, no longer online).

May 26-29 — Ready to handle your legal needs. Stephen Glass, who resigned in disgrace from The New Republic just over two years ago after being caught making up stories, is graduating this month from Georgetown Law School. The Pop View has posted this summary of the episode for anyone who’s forgotten (via Romenesko’s Media News).

May 25 — Conference on excessive legal fees. In Washington today from 10 to 4 Eastern, the Manhattan Institute, Federalist Society, Hudson Institute and Chamber of Commerce of the U.S. team up to host a conference on ideas for “protecting unsophisticated consumers, class action members, and taxpayers/citizens” from overreaching legal fees (schedule and confirmed speakers at Federalist Society site; live broadcast at U.S. Chamber site requires RealPlayer).

May 25 — Thomas the Tank Engine, derailed. “Children’s online privacy”: the sort of sweetness-and-light notion practically no one’s willing to criticize in principle. Yet regulation is regulation, and seldom lacking in real-world bite. Declan McCullagh at Wired News reports that the popular children’s TV show Thomas the Tank Engine has had to discontinue sending regular email bulletins to legions of young fans because obtaining parental consent individually would be too cumbersome. The show’s website cites the Children’s Online Privacy Protection Act, which took effect last month. Other online publishers are also unilaterally cutting off subscribers under the age of 12, to their distress. (“COPPA Lets Steam Out of Thomas”, May 13; Lynn Burke, “Kid’s Privacy an Act, or Action?”, April 20).

May 25 — “Taking cash into custody”. Local law enforcement agencies systematically dodge the constraints of state forfeiture law to help themselves to proceeds after seizing cash and property in traffic stops and drug busts, according to this Kansas City Star investigation. And though Congress’s enactment of federal-level forfeiture law reform was much trumpeted earlier this year (see April 13, Jan. 31), it’s likely to leave many of the abuses unchecked. (Karen Dillon, Kansas City Star, series May 19-20).

May 25 — What the French think of American harassment law. Pretty much what you’d expect: “Fifteen years after the first harassment trials, puritanism in the office is total,” marvels the New York correspondent of a French paper named Liaisons Sociales. “A suggestive calendar in a man’s locker? Prohibited. Below-the-belt jokes? Totally excluded. Comments about physique? Illegal. The result is that behavior in the workplace has been profoundly changed. The doors of offices are always open. The secretaries are always present during tete-a-tete meetings, in case they need to be witnesses in litigation.” A few feminist French lawyers would like to emulate the American way of doing things but lament that in their country litigation is frowned on, damages are set at a token level, and, as one complains, “current French law makes no mention of things like improper jokes”. (Vivienne Walt, “Curbing Workplace Sexism Evolving Slowly in France,” New York Times, May 24 (reg)). Plus: chief exec of leading British fashion chain canned after inappropriate conduct (Fraser Nelson and Tim Fraser, “Pat on the bottom costs boss £1m job” Sunday Times (London), May 10).

May 25 — His wayward clients. In March, in 275 pages of court filings, Allstate, Geico and other insurers filed a lawsuit charging what they called “the most extensive fraud upon the New York no-fault system that has ever been uncovered,” suing 47 doctors, chiropractors and businessmen all told. But the complaint did not name as a defendant a lawyer who’s given legal advice or assistance to just about every one of those 47 defendants; he’s a former chairman of the State Bar Association’s health committee who rents office space in a politically connected law firm. Among his specialties is to assist chiropractors and others in getting around a New York rule that no one can own a medical practice other than a licensed doctor. The complaint says a Milford, Conn. physician who holds a license to practice medicine in New York had served as the front guy for no fewer than 29 medical practices in the state. (Glenn Thrush, “Black Belt Lawyer Robert B orsody Evades $57 Million Fraud Lawsuit”, New York Observer, March 20).

May 24 — Musical chairs disapproved. “The traditional children’s party game of musical chairs has been accused of breeding violence,” reports the BBC. A booklet produced under the auspices of the British education ministry by a group called the Forum on Children and Violence argues that the diversion rewards the “strongest and fastest” children and suggests that nursery schools consider an alternative game such as “musical statues”. The education spokeswoman for the opposition Tories, Theresa May, called the advice “political correctness gone mad”. (“Musical chairs ‘too violent'”, BBC News, May 23).

May 24 — After the great power-line panic. Eleven years ago reporter Paul Brodeur penned a series of articles for The New Yorker charging that electric power-line fields were causing childhood cancers and other ailments, later published as a book entitled Currents of Death. Trial lawyers promptly went on the warpath, and the resulting binge of scare publicity terrified countless parents. Hundreds of millions in litigation costs later, the suits have mostly fizzled. But have any lessons been learned? Forbes reprints an excerpt from Robert L. Park’s much-discussed new book, “Voodoo Science” (Oxford U. Press). (“Voodoo Science and the Power-Line Panic”, May 15). Among groups that stoked the panic were Trial Lawyers for Public Justice: see, e.g., “Names in the News: Kilovolt Cancer”, Multinational Monitor, March 1992 (second item, quoting TLPJ’s Michael Koskoff).

May 24 — Smudged plumage. The Baltimore Orioles, owned by trial lawyer zillionaire/political kingmaker Peter Angelos, say that in order not to threaten the “goodwill” arising from their exhibition performance against the Cuban national team last year (see Dec. 9, Oct. 19 commentaries), they’ll refuse to hire any baseball player who defects from Cuba. Roger Clegg of the Center for Equal Opportunity calls this stand “morally indefensible — telling those fleeing a totalitarian regime that they are unwelcome and unemployable” — and wonders how well it accords with the federal laws banning employment discrimination on the basis of national origin and lawful-immigrant status. Maybe the team could beat such charges by arguing that it has nothing against Cuban émigrés based on their national origin as such — it might hire them, after all, if they were loyal Castroites playing with Fidel’s approval. (“Peter Angelos in foul territory”, National Review Online, May 18; “Orioles Avoid Cuban Players Who Have Defected”, Reuters/Yahoo, May 17, link now dead).

May 24 — ADA & the web: sounding the alarm. “It’s simply a matter of (Internet) time before pitched battles over accommodations in the virtual world rival their physical counterparts,” writes MIT’s Michael Schrage (“Brave New Work: E-Commodating the Disabled in the Workplace”, Fortune, May 15; quotes our editor). The National Federation of the Blind’s recent lawsuit against AOL is “a 500-pound gorilla that party-goers can’t ignore,” according to a metaphor-happy lawyer with Morrison & Foerster. “…If the court rules that AOL is a public accommodation, it could require anyone engaging in e-commerce to make their Web site …accessible to people with disabilities.” (Ritchenya A. Shepherd, “Net Rights for the Disabled?”, National Law Journal, Nov. 15, 1999). “In a few years, if regulatory history is repeated, any Web site that doesn’t provide government-sanctioned equal access for the handicapped could be declared illegal,” warns an Internet Week columnist (Bill Frezza, “The ADA Stalks The Internet: Is Your Web Page Illegal?”, Feb. 28). Coming soon, we hope: a few highlights from the mail we’ve been inundated with on this topic, much of which we haven’t even had a chance to answer yet (thanks for your patience, correspondents!).

May 24 — Bargain price on The Excuse Factory. Usually we urge you to buy books through our online bookstore, but right now Laissez Faire Books is offering an unbeatable discount on our editor’s book about law and what it’s doing to the American workplace, The Excuse Factory, just $12.25 while they last (hardcover, too). And it makes a good occasion to check out the rest of the LFB catalogue. (Order direct from them.)

May 23 — Steering the evidence. The FBI is probing charges of evidence- and witness-tampering in a liability case that led a San Antonio judge last week to impose sanctions on plaintiff’s attorneys Robert Kugle, Andrew Toscano and Robert “Trey” Wilson. Bridgett and Juan Fabila had sued DaimlerChrysler, demanding $2 billion, over a 1996 accident in Mexico which killed several family members in their Dodge Neon. Their lawyers alleged that the car’s steering column decoupler was defective. But someone anonymously sent DaimlerChrysler evidence of misconduct by its adversaries, and eventually the carmaker succeeded in laying before 224th District Judge David Peeples evidence of the following:

* The steering decoupler was broken by the time the carmaker was allowed to see it, but photographs taken shortly after the accident showed it intact. The plaintiff’s lawyers denied for two years having any knowledge of such photos, and then, when they came to light, moved unilaterally to drop the suit, then argued (unsuccessfully) that the judge had no authority to impose sanctions on them because his jurisdiction ended with the suit. Close inspection of the steering decoupler revealed the minute scrapings of wrench marks and other signs of deliberate tampering.

* One of the attorneys’ investigators “tried to bribe two Mexican highway patrol officers in an attempt to change their testimony and threatened the family of a Red Cross official who said Fabila told him the accident had occurred because her husband fell asleep behind the wheel.”

* The “investigator who took the first set of photographs claim[ed] Wilson told him in March that his firm was ‘running a bluff, but we had our hand called.'” The lawyers said later that their real demand was for $75 million, of which they would get 40 percent as their share, according to the San Antonio paper’s Rick Casey.

Senior partner Robert Kugle of the Kugle Law Firm counter-accused the car company of itself bribing witnesses and tampering with evidence, while Wilson and investigator Stephen Garza “both asserted their Fifth Amendment right not to testify”. After an inquiry, Judge Peeples dismissed the Fabila family’s suit with prejudice, ordered attorneys Kugle, Toscano and Wilson to pay $920,000 in legal expenses that DaimlerChrysler had incurred — it’s not quite impossible for a defendant to recover its legal costs in an American courtroom — and said he planned to report his findings to the state bar and to county prosecutors for possible action. The FBI has seized the vehicle pursuant to further investigation, according to Casey. Kugle continues to declare his innocence of wrongdoing and says he intends to appeal; the other two attorneys were not available to reporters for comment. Ken Glucksman, associate general counsel of DaimlerChrysler, said the case was “the most flagrant example of misconduct I’ve seen in more than 20 years as a lawyer” and said he hoped the attorneys were disbarred. Update: final ruling by judge sets stage for appeal (June 26). Further update (Mar. 17, 2003).

SOURCES: Adolfo Pesquera, “Sanctions issued in tampering case”, San Antonio Express-News, May 18; San Antonio Express-News coverage by Rick Casey, various dates; “Judge Dismisses $2 Bln Suit vs. Daimler”, Reuters/FindLaw, May 18; “DaimlerChrysler wins $920,489 in fines against three Texas attorneys”, AP/Detroit Free Press, May 18; Dina ElBoghdady, “DaimlerChrysler fights baseless suits”, Detroit News, May 19; “Lawyers who sued DC fined”, Detroit Free Press, May 19, link now dead.

May 23 — “Toronto Torch” age-bias suit. Shirley Zegil, 52, has filed a complaint with the Ontario Human Rights Commission, saying she was improperly discharged by a Brantford strip club because of her age. “They told me I was too old and fat,” said Zegil, who has been disrobing for audiences for more than two decades and performs under the nicknames “The Contessa” and “Toronto Torch”. But she still has plenty of loyal fans among older clubgoers: “A girl is never too old to strip,” she says. (Dale Brazao, “Stripper, 52, a winner in my court of appeal”, Toronto Star, May 22, no longer online).

May 23 — Favorite bookmark. Edward E. Potter is president of the Employment Policy Foundation, which plays a prominent role in debates on workplace issues in the nation’s capital. Yesterday the Cincinnati Enquirer asked him to list his favorite bookmarks, and this site made it onto the short list. Thanks! (“Weighing future of work force” (interview), May 22).

May 23 — “Lawyers’ tobacco-suit fees invite revolt”. Arbitrators’ award of $265 million to Ohio tobacco lawyers was the final straw for editors of USA Today, which came out editorially yesterday in favor of limiting attorneys’ tobacco swag. Fee hauls have mounted to $10.4 billion, including $3.4 billion for lawyers representing Florida, $3.3 billion (Texas), $1.4 billion (Mississippi), and $575 million (Louisiana), the latter of which works out, according to a dissenting arbitrator, to $6,700 an hour. The paper calls the “mega-paydays” a “sorry legacy” of the tobacco deal and notes that lawyers “who represented many states are being paid repeatedly for piggyback efforts.” (May 22).

May 23 — “Harvard reenacts Jesus trial”. Among dramatis personae in simulated trial of founder of Christianity: divinity prof Harvey Cox as Pontius Pilate and, as defense lawyer for the man of Galilee, none other than Alan Dershowitz, who “said the role fulfilled a lifelong dream. ‘Jesus is the one client I’ve always wished I could have represented,’ said the law professor whose clients have included O.J. Simpson, Claus von Bulow and Leona Helmsley”. Arguing that crucifixion was too severe a penalty for defying Roman authorities, Dershowitz “came up with a novel substitute punishment. ‘I think it would be appropriate to tie him in litigation and appeals for years,” he said. ‘That way he would spend his life with lawyers, whom he hated.'” (Richard Higgins, Boston Globe/Omaha World Herald, May 13).

May 22 — Texas tobacco fees. “Every three months, like clockwork, another $25 million arrives for the five Texas tobacco lawyers.” The five are fighting tooth and nail to avoid being put under oath by Texas Attorney General John Cornyn, a Republican, about how they came by that money, specifically, “longtime allegations that his predecessor, Dan Morales, solicited large sums of money from lawyers he considered hiring” for the state’s tobacco case. (Wayne Slater, “Trial lawyers give heavily to Democrats”, Dallas Morning News, May 14; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27; Susan Borreson, “Motions Flying Again Over Tobacco Lawyers’ Fees”, Texas Lawyer, July 26, 1999; “Lawyers Challenge AG’s Subpoenas”, Nov. 17, 1999).

So far, according to the Dallas Morning News report, the five have taken in more than $400 million of the billions they expect eventually from the tobacco settlement, and have recycled a goodly chunk of that change into political donations — more than $2.2 million in unrestricted soft money to the Democrats already in this election cycle, with further sums expected. Walter Umphrey, along with members of his Beaumont firm, “has put at least $350,000 into Democratic coffers. ‘The only hope of the Democratic Party is that the trial lawyers nationwide dig down deep and the labor unions do the same thing,’ he said. In addition to Mr. Umphrey and his firm, John Eddie Williams and members of his Houston firm have given $720,000; Harold Nix of Daingerfield, $420,000; Wayne Reaud of Beaumont, $250,000; and John O’Quinn of Houston, $100,000.”

May 22 — Not child’s father, must pay anyway. “Told by his girlfriend that she was pregnant, Bill Neal of Glasgow Village presumed he was the father and agreed to pay child support.” Eight years and $8,000 in payments later, Neal was curious why the child didn’t take after his looks, arranged for a DNA test to be done, and discovered the boy was someone else’s. So far the courts have ruled that he has to keep paying anyway because he didn’t contest the matter earlier. The legal system is big on finality on the matter of paternity, as men have learned to their misfortune in similar cases lately in Ohio, Texas and Pennsylvania. (Tim Bryant, “Man must pay support even though he is not boy’s father”, St. Louis Post-Dispatch, May 17, no longer online). Plus: John Tierney on “throwaway dads” (“An Imbalance in the Battle Over Custody”, New York Times, April 29 (requires registration)).

May 22 — “Jury Awards Apparent Record $220,000 for Broken Finger”. It happened in Atlanta after 41-year-old dental hygienist Linda K. Powers took a spin on the dance floor with Mike D. Lastufka but came to grief when Lastufka “tried a shag-style spin move”; her thumb wound up broken and she sued him. The previously reported Georgia record for a broken finger or thumb was $20,000 to a tennis instructor hurt in an auto accident. (Trisha Renaud, Fulton County Daily Report, Jan. 28).

May 22 — Annals of zero tolerance. In Canton, Ohio, a six-year-old boy has been suspended from school for sexual harassment after he jumped from the tub where he was being given a bath and waved out the window to a school bus that was picking up his sister (Lori Monsewicz, “Boy, 6, jumps from tub into sex harassment trouble”, Canton Repository, May 11). In the latest “finger-gun” incident, the principal of a Boston elementary school visited a class of second-graders to admonish several of them for making the thumb-as-trigger gesture during a supervised play-acting session; the youngsters were not subjected to discipline, however. (Ed Hayward, “School gives hands-on lesson after kids pull ‘finger guns'”, Boston Herald, March 28). And the American Bar Association Journal — who says its views don’t coincide with ours occasionally? — points out that “a child is three times more likely to be struck by lightning than to be killed violently at school” and recounts many noteworthy cases: “A second-grader who accidentally grabbed her mother’s lunch bag containing a steak knife was disciplined despite turning the bag over to her teacher as soon as she realized her mistake. A middle-schooler who shared her asthma inhaler on the school bus with a classmate experiencing a wheezing attack was suspended for drug trafficking.” “Kids are not going to respect teachers and administrators who cannot appreciate the difference between a plastic knife and a switchblade,” says Virginia lawyer Diane Fener. (Margaret Graham Tebo, “Zero tolerance, zero sense”, ABA Journal, April).

December 1999 archives


December 15 — “Two men shot in suspected drug deal win $1.7 million”. Catching up on a story that slipped by us last month: A Miami jury has returned a verdict against Ramada Inn for negligent failure to provide security after the shootings of Eddie Talley and Jerry Woods in the parking lot of a Hialeah, Fla. Ramada Inn in 1995. Damages have not been determined pending an appeal, but the two are seeking a total of $1.7 million for their injuries.

According to Miami Herald and Associated Press accounts of the case, Talley, whose rap sheet includes a Georgia felony conviction for possession of cocaine and marijuana, and Woods were staying at the Ramada while visiting relatives over the holidays. Around 7:20 p.m. on December 18, 1995, they were sitting in the inn’s parking lot in their borrowed Jeep Cherokee accompanied by three-time convicted felon Gerald Lloyd, 42, when after several minutes they were approached by two gunmen who demanded that they hand over their money and almost immediately began firing, wounding Woods and Talley. When police arrived they found that not only the attackers but also their victims had fled the scene. They found no drugs in the Cherokee, but Lloyd’s van, parked nearby, contained a duffel bag containing $38,000 in small bills and an electronic scale. (Lloyd later said the scale was for weighing jewelry and the cash for buying real estate.) They also found “small packets of crack and powdered cocaine in Talley’s jacket inside his hotel room at the Ramada Inn” but did not charge him.

Police Detective Bassam Fadel of the Hialeah force said the department received no cooperation from the three men in the investigation, and the shooters were never found. However, Woods and Talley’s aversion to entanglement in legal process did not extend to a reluctance to engage in civil litigation, and they proceeded to sue the hotel chain charging negligent security; it employed a security guard, but only between the hours of 9 p.m. and 5 a.m. Miami-Dade Circuit Judge Celeste Muir proceeded to exclude from the civil trial, as prejudicial, much of the evidence from the police investigation about the suspected drug deal. Raul E. Garcia Jr., the attorney who represented Woods and Talley in the civil suit, defended the verdict: “I don’t think there was enough evidence to arrive at the conclusion that this was a drug deal gone bad,” an interestingly precise, we might even say lawyerly, wording for him to adopt. (Jay Weaver, “Two men shot in suspected drug deal win $1.7 million”, Miami Herald, Nov. 25; “Jury Rules Against Ramada Inn”, AP/Milwaukee Journal Sentinel, Nov. 25). (Update June 6, 2001: appeals court overturns verdict)

December 15 — From the quote file. “In recent years, the Supreme Court has become the chief human resources director for the nation’s workplaces.” (“Can’t We All Just Work Together?”, the editors, Legal Times (Washington, D.C.), Nov. 8 — not online)

December 15 — Philadelphia Inquirer Tech.life: “Web Winners”. We’re pleased that our topical page on tobacco litigation has been named one of the Philadelphia Inquirer‘s weekly “Web Winners”, part of the paper’s Tech.life section. The feature is also syndicated to other newspapers and appeared in the Atlanta Journal and Constitution. (Nov. 18)

December 14 — Victory in Florida. Circuit Judge Amy Dean yesterday dismissed Miami-Dade County’s lawsuit against the gun industry seeking to recoup the cost of shootings. The ruling was the third tossing out a city gun suit; last week a Connecticut judge dismissed Bridgeport’s claim, and in October an Ohio judge dismissed Cincinnati’s. (Jay Weaver and Don Finefrock, “Miami-Dade gun lawsuit thrown out”, Miami Herald, Dec. 14; Mark Long, “Judge KOs Miami Gun Maker Lawsuit”, AP/Washington Post, Dec. 13, links now dead).

Despite the gun industry’s strong initial showing in the suits, it still faces a potentially ruinous cost of legal defense. Judges in Chicago and Atlanta have signaled a willingness to allow municipal claims to proceed to the stage of pretrial “discovery”, assuring a manyfold jump in the quantum of expense even if the gun makers eventually prevail in full.

A little-noted news report this fall in the Wall Street Journal sheds light on the thinking of some of the lawyers behind the suits. According to the report, one faction of outside lawyers for some of the cities, “especially Los Angeles and San Francisco”, have “argued against an early settlement”. One reason is that they hope to use the litigation, with its compulsory subpoena power afforded by the discovery process, to get at gun makers’ confidential files, correspondence and business documents; coincidentally or not, records obtained that way could prove invaluable to them in further for-profit litigation against the manufacturers even should the cities eventually settle or abandon their claims. And more: “Prolonged litigation and larger legal costs also would increase the financial pressure on the industry to accept new curbs.” In other words, these lawyers are suggesting that the cost of litigation be deliberately employed to bleed gunmakers as a means of gaining leverage over them. (Paul M. Barrett, “Gun Makers, Municipal Representives Ready to Meet on Settlement of Lawsuits”, Wall Street Journal, Sept. 24 (requires online subscription)). Because of this country’s lack of a loser-pays rule, gun manufacturers, like other defendants in litigation, have little hope of holding their persecutors answerable for the use of such tactics.

December 14 — California’s worst? The reform-oriented Civil Justice Association of California has nominated its picks for the most outrageous lawsuits of the decade in the Golden State. A sampling:

* A man sued the city of San Diego for emotional distress occasioned by his extra wait to use the men’s room at an Elton John concert after women began cutting in and using it. He also sued the beer concession for contributing to his repeated use of the facilities. The judge tagged him and his lawyer with sanctions for meritless litigation (sometimes it seems it takes a case this bad before judges’ll do that).

* An Oakland bank robber sued bank, city and police after a tear-gas device hidden in the loot went off and injured him during his getaway.

* The Santa Clara County YMCA was sued for failing to provide a lifeguard at a Jacuzzi that was 3 1/2 feet deep and less than 8 feet per side square.

* Disneyland was sued for emotional distress after a patron’s kids saw the strolling cartoon figures out of character and realized they were just regular people (Civil Justice Association of Calif. release, Dec. 8 — full list)

December 14 — Relax, you’re being taken care of. Is it okay for a lawyer pressing an injury case to set up his client in a free apartment, thus boosting the likelihood that he’ll stay the course to an eventual settlement payday? How ’bout if he pays the client’s electric bill, cable TV bill, gas bill and phone bill too? In Philadelphia, attorney Marvin Barish has been performing those generous services for client John Shade but recently became the target of an ethical challenge from the opponent in the case, who said the relationship violates legal ethics. Mr. Barish describes the assistance as “humanitarian” and says it breaches no rules because he does not have a legal right to recoup the expenses later from Mr. Shade. (Shannon P. Duffy, “Motion to Disqualify Counsel: Isn’t Paying Plaintiff’s Rent, Utilities Against the Rules?”, Legal Intelligencer, Oct. 27 — full story). (Update: court refuses to disqualify Barish from case; see March 13).

December 13 — New improvement to the Overlawyered.com site: we become a desktop. Until now the column running down the left side of this site’s front page has mostly consisted of a blank grey expanse. Starting today it’ll be much less blank since we’re using it to house a series of link clusters — a “portal” or “desktop”, as we think the jargon has it. We’ve picked the links ourselves (well, okay, they’re based on our editor’s bookmarks, but is there something so wrong with that?) and we hope they’ll appeal to readers who share our tastes in law, government and public policy, news and commentary, business, book stuff, science, skepticism, humor, and that sort of thing. At a minimum they provide a jumping-off point for keeping abreast of breaking news, checking out the state of the American legal system, or simply investigating links we’ve found stimulating (we don’t always agree with the sites’ contents, as should prove obvious).

Check out the new additions to the front page’s left column and you’ll see they’re reasonably self-explanatory. The earlier groupings are relatively practical in nature and often relate to the upkeep of this site (search, breaking news, legal news and research, policy and business stuff) while the later ones progress toward opinion writing (including many of our favorite online columnists), and so to matter for leisure, reflection and diversion. Feel free within reason to nominate links we should add, bearing in mind that when it comes to selection choices our whim is as iron, and that (even with teeny-tiny type sizes) space in the list is at a premium.

December 13 — Tobacco bankruptcies, and what comes after. “Tobacco companies may soon deem it rational — perhaps imperative — to seek bankruptcy protection from tort creditors….

“[A tobacco company would, first, want to file in the state in which it was incorporated, such as Delaware. Second, it] would probably want to file the case as a ‘prepackaged plan,’ which would be negotiated with the debtor’s major constituents, such as banks, shareholders and, perhaps, tort claimants before filing. Third — and most important — it would want to continue to manufacture cigarettes after reorganization. It is therefore possible that, under a confirmed plan, tort creditors [such as state governments, trial lawyers, and other key players in the demonization of the companies — ed.] would own interests in a business that, depending on your theory of tobacco company liability, continued to engage in the tortious conduct that created liability in the first place.” (Jonathan Lipson, “Bankruptcy: Tobacco companies”, National Law Journal, Dec. 6 — full story). The crusade against tobacco-selling, in other words, would end with the crusaders getting to own a share of that richly profitable enterprise. For further details, see the close of Orwell’s “Animal Farm”.

December 13 — Pie menace averted. Members of the Community Advent Christian Church in Norwalk, Ct. wanted to bake pies this Thanksgiving and donate them to the city’s emergency shelter, but were told that under a state regulation home-baked pies cannot be donated to the shelter and that any pies that get donated anyway are thrown out, reports the Norwalk Hour. State health officials had informed shelter administrators that only commercially baked pies or pies baked in the shelter’s own kitchen are acceptable. Parishioner Rae Russo termed “ridiculous” the suggestion that she make use of the shelter’s kitchen to bake a pie for donation, asking, “Do you think their oven is cleaner than my own?” (Yvonne Moran, “Home-baked pies shelved”, Norwalk (Ct.) Hour, Dec. 10 — not online)

December 11-12 — Victory in Connecticut. In Waterbury, Ct., Superior Court Judge Robert F. McWeeny has dismissed the city of Bridgeport’s lawsuit against gun makers, which had sought to blame the city’s notoriously high crime rate on those manufacturers as opposed to its own failures of governance. “When conceiving the complaint in this case,” wrote Judge McWeeny, “the plaintiffs must have envisioned [the tobacco settlements] as the dawning of a new age of litigation during which the gun industry, liquor industry and purveyors of ‘junk’ food would follow the tobacco industry in reimbursing government expenditures and submitting to judicial regulation.” But the plaintiffs, he ruled, “have no statutory or common law basis” for a recoupment claim and “lack any statutory authorization to initiate such claims”. The ruling follows a similar rebuke in October to Cincinnati’s attempt to mulct gun makers for the costs of shootings, which Hamilton County Common Pleas Judge Robert Ruehlman likewise dismissed as having no legal basis.

Bridgeport mayor Joseph Ganim, who masterminded the suit and is considered ambitious for statewide office, vowed to appeal. “We have a right, and the people have a right, to have this case heard by a jury,” he spluttered. Okay, Mr. Mayor, we’ll put it in words of one syllable: there’s no such right if you don’t have a law to sue on. And you don’t have one here. So you lose. Now go home. (John Springer, “Judge Dismisses Suit Against Gun Industry”, Hartford Courant, Dec. 11; “Conn. Judge Throws Out Gun Lawsuit”, AP/Washington Post, Dec. 10, link now dead)

December 11-12 — Guest Choice Network Site of the Day. Overlawyered.com was picked as Friday’s Site of the Day by the Guest Choice Network, an informative and often witty website that sticks up for the rights of the hospitality business and its customers against the rampant nannyism that if left unchecked would in time compel every restaurant, hotel and nightspot to be drink-free, smoke-free, red meat-free, wagering-free, sweets- and snacks-free, peanut- and other allergen-free, swordfish-free, flirtation-free, caffeine-free, perfume-free, and in the last analysis freedom-free. Highlights include the “Attack of the Nanny” game (an animation waggles her finger as she comes after you), an explanation of why Ralph Nader’s proposed American Museum of Tort Law would more appropriately be a house of horrors, and a retort against the Food Prudes written by the CEO of — yum! — Ruth’s Chris Steak House.

December 11-12 — Weekend reading: columnist-fest. Bunch of good columns to recommend:

* “Last night, my daughter refused to put on her pajamas until I had checked to make sure there was no WTO under the bed,” writes the Chicago Tribune‘s Steve Chapman. We hear the World Trade Organization “wants to dismantle democracy, starve working people, pave over rain forests, destroy the family farm and clog your bathtub drain,” but a closer look just illustrates once again the reasons why Pat Buchanan and Ralph Nader really deserve each other (“WTO gonna get you mama”, Dec. 2)

* New John Leo column on zero-tolerance policies is especially timely given the latest report: 12-year-old Kyle Fredrikson of Inverness, Fla. stomped his foot in a puddle at school, splashing classmates and a school employee. A nearby deputy arrested and handcuffed the youth, bundled him into a patrol car and whisked him to jail where he spent two hours. (“Zero Sense”, New York Daily News, Dec. 4; “Schoolboy’s puddle stomp gets him cuffed, arrested”, Tampa Tribune, Dec. 9, link now dead)

* Chicago Tribune‘s John McCarron on how the legal jihad against managed care is likely, after destabilizing the current employment-based health insurance system, to lead to the sorts of coverage disruptions and renewed cost inflation that will end with Washington stepping in to impose something on the order of Canadian-style “single payer” care — though there’s little evidence most Americans actually want that outcome (“Paralysis prognosis”, Oct. 11)

December 10 — Not the advertised side? The intersection of law and politics is a dodgy business, isn’t it? On Wednesday we described a recent race for state senate in Louisiana between two attorneys both of whom (we said, relying on the National Law Journal) practice mostly on the defense side in litigation. Now a reader from Baton Rouge writes in to say we were led astray in characterizing one of them that way. For more details, see the correction/addendum we’ve added to our December 8 report.

December 10 — “Case’s outcome may spur many more lawsuits”. A “big” trial is pending in Fayette, Miss. over the diet compound fen-phen. If it ends in as large a verdict as the lawyers hope, it just might lead to the unraveling of a laboriously crafted $4.8 billion settlement between claimants and drugmaker American Home Products. This AP dispatch quotes the editor of this website, who cites Mississippi’s reputation these days as a state where many unpleasant surprises can await out-of-state defendants (Paul Payne, “Case’s outcome may spur many more lawsuits”, AP/Biloxi, Miss. Sun-Herald, Dec. 9 — full story).

December 10 — Sixth most powerful. Only sixth? For the second year in a row Fortune pronounces the Association of Trial Lawyers of America the sixth most powerful interest group in Washington, D.C. That’s ahead of the Chamber of Commerce or National Association of Manufacturers, ahead of the doctors or teachers or realtors or farmers or public employees or auto workers or Hollywood studios. (“The Power 25”, Fortune, Dec. 6). But as Robert Samuelson points out in an excellent column in the current Newsweek, press coverage systematically underrates the influence in Washington of ideological lobbies such as Public Citizen and the National Organization for Women, which often work closely with organized lawyers to press for wider rights to sue. As if to confirm Samuelson’s point, Fortune omits such groups as Public Citizen, NOW, the ACLU, the NAACP and People for the American Way from its list of the capital’s supposed top 100 influence-wielders. (Robert Samuelson, “The Stealth Power Brokers”, Newsweek, Dec. 13, link now dead).

December 10 — Concern for health. On Wednesday the state of Texas executed convicted axe murderer David Martin Long, whom doctors had pronounced to be in serious condition after he ingested a drug overdose two days earlier in an apparent suicide attempt. “Because Long’s doctor deemed such a move ‘risky,’ state officials used an airplane staffed by medical personnel to ensure that he arrived in good health after the 25-minute trip” to the death chamber in Huntsville, reports the New York Times. (Jim Yardley, “Texas Inmate Is Executed Despite Overdose”, New York Times, Dec. 9 (free, but registration required))

December 10 — Driving up housing costs. California has some of the most expensive housing in the United States, and one reason, a legislative panel was told this fall, is the state’s intensely litigious climate with regard to construction-defect suits. Erection of condominiums, townhouses and other high-density residential units plunged in the mid-1980s after a wave of lawsuits led most insurers to stop accepting business from builders of multi-family housing. “We did one condo project and faced six years of lawsuits. We would never do another,” said a former official of a leading nonprofit developer of affordable housing. One lawyer who represents California homebuilders “said that his firm alone had defended 1,500 defect cases since 1989.” (Catherine Bridge, “A Building Controversy”, The Recorder/Cal Law, Oct. 5). In August the state Supreme Court helped matters when it overturned an appeals court decision and ruled by a 5-2 margin that plaintiffs in construction contract disputes are not entitled to damages for emotional distress. (Erlich v. Menezes (FindLaw; see Aug. 23 entry); Civil Justice Association of California release, Aug. 23; Coalition for Quality, Affordable Housing (seeks alternatives to litigation); Miller Law Firm (plaintiffs’ side)).

December 9 — Gun lawsuits: HUD, White House pile on. Not to be rude, but which is more likely to lead to a surge in crime in your neighborhood: the opening of a gun shop, or the opening of a big new low-income housing project subsidized by the federal Department of Housing and Urban Development (Andrew Cuomo, Secretary)? Yet Cabinet member Cuomo has made it a special project of his to enlist the federal government’s legal might behind the theory that gun sellers are the cause of crime, and now the White House has announced that it’s helping prepare a class-action lawsuit against gun makers to be filed by independent local authorities that run subsidized housing projects. “The real question is: Why isn’t the proper role of HUD and local authorities as defendants in lawsuits? They shouldn’t be able to dump their failings on others,” notes University of Chicago law professor Richard Epstein.

“We have safety caps on a bottle of aspirin; it makes no sense not to have safety devices on guns,” said Cuomo, in a line one may suspect his staff has been polishing for the occasion. The obvious responses are that 1) there’s a federal law on the aspirin bottles and no federal law on the other, and if Cuomo doesn’t like it he should go see Congress; 2) the reason there’s cumbersome packaging on aspirin bottles is that those who take aspirin never need to reach it in an emergency where every second counts; where a drug is needed in emergencies, as with asthma inhalers or epinephrine injectors, the childproofing is dispensed with; 3) the Bill of Rights doesn’t include an Amendment about pills or their bottles, meant to prevent a powerful central authority from gathering to itself too complete a monopoly of control over the means of medication; and 4) the childproofing law for pill bottles itself isn’t such a hot idea, because it leads many elderly persons with arthritic hands to transfer their pills to unmarked containers, where they figure in more mix-ups later.

Steve Sanetti, vice president and general counsel of Sturm, Ruger & Co., called the suit “crazy” and an “inversion of responsibility,” noting that the federal government already is in charge of regulating gun sales. Glock general counsel Paul Januzzo termed it “ridiculous”: “I don’t believe that anybody could possibly have a good faith legal basis to file that,” he said. “They call it pressure. I call it blackmail.” Although several gunmakers have filed for bankruptcy protection since the latest round of litigation began, President Clinton denied that the suit was intended to drive them bankrupt — never mind whether that’s the predictable and foreseeable result of his actions. (DURABLE LINK)

Sources: “U.S. preparing to sue gun makers on behalf of public housing residents”, Dallas Morning News (New York Times Service), Dec. 8; Anne Gearan, “White House Preparing Gun Lawsuit”, AP/Washington Post, Dec. 8, link now dead; Christopher Noble, “Gun makers say planned U.S. lawsuit makes no sense”, Reuters/Deseret News, Dec. 8; Mike Dorning, “U.S., Public Housing Agencies Discuss Gun Industry Suit”, Chicago Tribune, Dec. 8; Randall Mikkelsen, “Clinton says not seeking to bankrupt gun makers”, Reuters/Excite, Dec. 8, link now dead; Richard A. Epstein, “Lawsuits Aimed at Guns Probably Won’t Hit Crime”, Wall Street Journal, Dec. 9 (online subscribers only).

December 9 — Czar of Annapolis, and buddy of Fidel. American Spectator profile by Max Schulz of zillionaire asbestos lawyer, political kingmaker, and would-be slayer of lead-paint manufacturers Peter Angelos (see also our October 19 commentary). The article says Angelos’s treatment of the Maryland legislature as his own little fiefdom, which he uses to obtain a steady flow of bills that expand liability in cases he’s suing on, has grown so heavy-handed that even pliant Annapolis lawmakers are murmuring about revolt. Angelos’s stewardship of the Baltimore Orioles has been far from a success (though he’s been adept at milking hometown affection for the team for political advantage) and reached a low point in the recent spring episode in which, after pulling strings at the U.S. State Department, he was allowed to bring the Orioles down to Havana for an exhibition game against the Cuban national team — a major propaganda coup for the repulsive Fidel Castro. The long trail of victims Castro has left strewn behind him over the decades was apparently not of sufficient concern to Angelos to deter him from sitting alongside the dictator, the two chatting amiably in their box seats (Max Schulz, “Baltimore’s Little Caesar”, American Spectator, December 1999, link now dead).

December 9 — “Attorney blames airline for man’s drunken in-flight rage”. “The attorney for a drunken Tennessee man charged with assaulting and swearing at members of a flight crew yesterday blamed the airline for the incident that caused pilots to divert the course of the Dallas- to- London- bound plane and land at Logan International Airport.” Attorney Michael Cerulli of Swampscott, Mass. said that American Airlines’ alcohol policy was to blame for the behavior of his client, Hussam Jaber, 33, who became truculent and had to be calmed down by a co-pilot. Prosecutors, however, said that Mr. Jaber had brought his own bottle of gin onto the plane. (Franci Richardson, “Attorney blames airline for man’s drunken in-flight rage”, Boston Herald, Nov. 27 — full story).

December 9 — 125,000 pages served on Overlawyered.com. If you’d like the counter to spin even faster, why not mention this humble site in your e-newsletter, ask your favorite webmaster to include it on his or her links list, or propose us to directories like Yahoo, DMOZ, Excite and LookSmart in categories where we’re not currently listed and would logically fit?…Thanks for your support!

December 9 — Welcome WTIC News Talk visitors (“Ray and Robin’s picks“). See November 18 item.

December 8 — “‘Lawyer’ Label Hurts at Polls”. In off-year elections held through the South this fall, the National Law Journal reports, many candidates scored with voters by pointing out that their opponents were plaintiff’s lawyers themselves or were backed by that group. All but one of ten Louisiana legislative candidates who were labeled as trial lawyers lost, and losses by two attorney incumbents contributed to the GOP takeover of the Virginia general assembly. One exception to the trend: attorney Bobby Bright was elected mayor of Montgomery, Ala., ousting controversial longtime incumbent Emory Folmar. An Alabama pollster agrees, however, that “‘trial lawyer’ has become a pejorative term.”

Charles R. “Chick” Moore, a former president of the Louisiana Trial Lawyers Association, lost in a challenge to an incumbent who breezed home with 62 percent of the vote. Moore complained that it was unfair for the opposition to call voter attention repeatedly to his status as a trial lawyer, since he was trying to campaign on the issue of education. However, “[o]f Mr. Moore’s first $138,411 in contributions, more than four-fifths came from lawyers, and more than $40,000 donated during the last two weeks of the campaign came from past and present Trial Lawyers Association officers” — rather a lot of interest for his colleagues to take in advancing an education platform. In perhaps the most remarkable episode, two lawyers who practice on the defense (as opposed to plaintiff’s) side [see note below] ran as opposing candidates in a New Orleans race for state senate; both proceeded to accuse each other of being soft on you-know-who. “The Trial Lawyers Are Desperate to Beat John Hainkel,” declared one side, while a brochure distributed by the other was titled, “How LOW Will The Trial Lawyers…Go To Defeat Jimmy DeSonier?” (“Sen. Hainkel won handily.”) (Mark Ballard, National Law Journal, Nov. 18 — full story).

Correction/addendum: the above characterization of candidate Jimmy DeSonnier as practicing on the defense side followed the National Law Journal‘s description of him as “a GOP litigator who often represents slip-and-fall defendants”. Writes Dan Juneau from Baton Rouge, La.: “Hainkel, the winner in the election, is a defense attorney, but DeSonnier is a plantiff attorney who until right before the election served on the board of directors of the Louisiana Trial Lawyers Association. Hainkel will now become president of the Louisiana State Senate, much to the chagrin of the trial lawyers who poured huge contributions into the campaign against him. Hainkel won with 75% of the vote.”

December 8 — Update: toilet of terror. As we reported in this space December 1, Canadian tourist Edward Skwarek and his wife Sherrie have sued the Starbucks coffee chain for $1.5 million, alleging that an intimate part of Mr. Skwarek’s anatomy was caught and mangled while he was seated on the toilet seat of a Starbucks outlet in the Chelsea neighborhood of Manhattan. The Smoking Gun has now posted a copy of the 4-page complaint, signed by attorney Stuart A. Schlesinger of the law firm of Julien & Schlesinger P.C., along with a photo of the offending commode (“Is this the most dangerous toilet in America?”).

December 8 — Annals of zero tolerance: scissors, toy-gun cases. In Newport News, Virginia, senior Shiana Floyd has been suspended for 11 days under a zero-tolerance weapons policy after a teacher observed a pair of scissors that had fallen out of her purse. Ms. Floyd, interested in fashion, says she often uses the scissors to cut illustrations of clothes out of magazines. And in Columbus, Ohio, a federal judge has upheld Westland High School’s expulsion of 17-year-old Stephen Koser after a deputy patrolling the school parking lot noticed a plastic toy gun, which the deputy mistook for a real one, underneath the seat of the car belonging to Koser’s mother, which he had driven to school. Young Koser, who’d had disciplinary problems in the past, got himself in more trouble by losing his temper and spouting profanities when confronted about the supposed weapon; his family said the toy gun had been left in the car by a neighbor child and that Koser was unaware of it (Stephanie Barrett, “Suspended for carrying scissors”, Hampton Roads, Va. Daily Press, Dec. 7, link now dead; Robert Ruth, “Judge Upholds Student’s Expulsion for Toy Handgun”, Columbus Dispatch, Dec. 3)

December 8 — Welcome Bedtime Stories visitors. Offbeat news tidbits, Internet humor, and the occasional bit of inspiration or uplift: all are found on this free twice-a-day email service, edited by Milan Vydareny, consisting of “anecdotes, humor, and commentary on the human condition”.

December 7 — The fateful t-shirt. Stewart Gregory of Cincinnati, Ohio, is suing NBC, the “Tonight Show” and host Jay Leno, saying he was “battered” and “forcefully struck” in the face on Sept. 11, 1998 when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. Gregory, who is representing himself without a lawyer, seeks damages in excess of $25,000 for his “pain and suffering, disability, lost wages, emotional distress, humiliation and embarrassment”, as well as punitive damages. Court papers say audience members are frequently pelted with freebie paraphernalia as part of the warm-up. (Ann W. O’Neill, “Fan Slaps Leno With Suit After In-Your-Face T-Shirt Giveaway”, Los Angeles Times, Dec. 5, link now dead; Amy Reiter, “Does Carrey Need to Exercise?” (second item), Salon, Dec. 7) (& see update, Dec. 22)

December 7 — Rolling the dice (cont’d). Latest lawsuit by an Internet gambler seeking to blame his losses on the credit card companies that advanced him the money: Frank Marino’s action in San Rafael, Calif., against American Express and Discover. We last reported on this genre of suits in August. An “American Express spokeswoman said the company has not been served with a complaint yet and added it prohibits merchants from accepting the American Express card via the Internet for gambling purposes.” (Yahoo/Reuters, “American Express And Discover Sued for Online Loans”, Dec. 7, link now dead)

December 7 — “Power Tools: America’s Children at Risk”. We thought this parody, with its motto “It Feels Good to Give Up a Little Freedom for a Lot of Safety” and its invention of the litigious pressure group M.I.L.T. (Moms Insisting on Licensed Tools), was a pretty funny take-off on anti-gun hysteria. A scary aspect, however, was how often visitors have taken it for real. (part of Robert Frenchu site).

December 7 — Welcome Association of Trial Lawyers of America. We certainly appreciate the traffic you’ve sent us via a recent link in an online mailing from ATLA-NET, even if we fear that our efforts do not always succeed in pleasing your membership (“Your site is a pack of lies,” began one polite and elegant missive we received yesterday from a Texas correspondent who described himself as a “lawyer and damn proud of it”).

December 6 — “Dial ‘O’ for Outrage”: some highlights from this site. Our editor’s November column in Reason, newly online, retells a few of the more colorful tales to appear on this site during its first weeks this summer. Among the highlights: the prosecution of the Florida man accused of felony parrot-dunking, the unusual relief sought by devout Hindu vegetarians in a lawsuit against Taco Bell, the “psychiatric disability dog” account that may have sounded like a shaggy-dog story unless you were the defendant, the legal woes of a California housing developer dragged to court for “discriminating” against lawyers, and a Canadian feminist’s complaint against Bugs Bunny. (Walter Olson, “Dial ‘O’ for Outrage, the Sequel: Tales from an Overlawyered America”, Reason, Nov. 1999 — full column).

December 6 — When agencies like getting sued. The Environmental Protection Agency gets sued a whole lot by private environmental groups, and according to Ben Lieberman of the Competitive Enterprise Institute we should not assume that it necessarily finds these suits unwelcome or resists with full vigor. “In fact, every time EPA ‘loses’ one of these cases, the result is an expansion of the agency’s power and authority.” The resulting settlement or court order obliges the agency to regulate some new area, while affording it political cover against the inevitable outcry from regulated parties. The ceaseless litigation enables lawyer-wielding activist groups to “set the nation’s environmental agenda to an extent few outside Washington realize.” One sign of whether the agency is unduly upset over its role as frequent defendant: “agency records…reveal that it hands out millions of taxpayer dollars to the very organizations that routinely take it to court.” (Ben Lieberman, “Environmental Sweetheart Suits”, Competitive Enterprise Institute Update newsletter, Oct. 21 — full article).

December 6 — “Patients’ rights”: a double standard? “Ironically, although the [Patients’ Bill of Rights] bill would allow people to bring tort lawsuits against private-sector plans, it does not grant similar rights to Medicare beneficiaries or to those participating in the government’s health plan for federal workers.” Under present law, if Medicare disallows coverage for treatment it deems medically unnecessary, a beneficiary can go though an appeals process and eventually sue, but only for the cost of the treatment, the same as is now the case with private health plans under ERISA. Malpractice-like suits for pain and suffering and other “consequential” damages are barred. The same is true of beneficiaries under medical programs for federal employees.

“If it is good policy to give private workers the chance to recover noneconomic damages from their employers (directly or indirectly), why shouldn’t individuals covered under these federal programs have the same rights? The answer, of course, is that the federal government is not prepared to try to persuade taxpayers that the increased cost this would entail is a good use of their tax money or to persuade the beneficiaries to accept reduced benefits to offset these additional litigation costs. It is easier for the government to force private employers (and their employees, stockholders and customers) to bear them. If Medicare beneficiaries and federal employees demanded rights equal to those extended in the Patients’ Bill of Rights, the cost of the new legislation would be better appreciated.” — Washington attorney John Hoff, “Patients’ Rights: A Double Standard”, National Center for Policy Analysis “Brief Analysis” # 307, Dec. 3 (full paper).

December 3-5 — If true, then all the better. “Lawyers make claims not because they believe them to be true but because they believe them to be legally efficacious. If they happen to be true, then all the better; but the lawyer who is concerned primarily with the truth value of the statements he makes on behalf of clients is soon going to find himself unable to fulfill his professional obligation to zealously represent those clients.

“Another way of putting this is to say that inauthenticity is essential to authentic legal thought. Practicing lawyers must often maintain a peculiar mental state in which they fail — authentically — to recognize the inauthenticity of their claims. A lawyer must be authentically inauthentic, so much so that he can honestly (?) echo Samuel Goldwyn’s observation that the most important quality in successful acting is sincerity. ‘Once you’ve learned to fake that,’ Goldwyn observed, ‘you’ve got it made.’ It is, to say the least, an awkward state of mind, but it is the essence of the legal form of thought. And it is this form of thought that, ironically, preserves the lawyer’s sanity in the face of the madness of law.”

— From Jurismania: The Madness of American Law (Oxford, 1998) by Paul F. Campos, professor of law at the University of Colorado and director of the Byron R. White Center for American Constitutional Study; the book is now out in paperback (via Across the Board, Oct.).

December 3-5 — Microsoft roundup. We’ve found the Yahoo Full Coverage compilation to be the most useful overall starting point in keeping up with the siege of Redmond, and can also recommend the pages that Reason and the Financial Times put up collecting their own output on the case. Robert Samuelson argues in the Washington Post that the company’s hardball tactics toward competitors didn’t harm end-users (Nov. 17) and two antitrust boosters fired back with a response that ran Nov. 30 (links now dead). Money magazine’s Walter Updegrave asks (Nov. 15) why the Justice Department doesn’t try its hand at breaking up some monopolies that are considerably more resistant to innovation and competition as well as closer to its home base, such as the MS-Monopoly.comU.S. Postal Service (100 percent market share!), the Social Security system, and the U.S. Mint. And a group calling itself the DoJ (Department of Jest) has put out a MS-Monopoly board game that raised a smile. Like everyone else they’re kinda worried about getting sued, so much so that, anticipating that occurrence, they provided (it’s been removed) a handy form for visitors to use to sue them. Update: they have indeed had to pull down the page after legal saber-rattling by Hasbro, which puts out the real Monopoly game: see Aug. 16-17, 2000.

December 3-5 — Piece of the action. The Georgia Supreme Court has ruled that Liberty County Tax Commissioner Carolyn Brown should not have paid herself nearly $1 million in commissions from taxes she collected over a period of seven years. The ruling follows a crackdown on the practice that some Georgia local officials had pursued of diverting a share of tag fees and other public revenues to their own personal accounts, by way of a commission. Ms. Brown’s official stipend now stands at about $64,000 a year, but she’d been doing considerably better than that from the commission set-up. It’s no wonder a state would feel obliged to crack down on practices like this — otherwise, just to take one example, lawyers representing government entities might soon imagine that they had a right to pocket a share of the sums they recovered representing the public. Wait a minute — you mean they already do? (Lawrence Viele, “Tax Official Can’t Pocket $1M in Fees”, Fulton County Daily Record, Oct. 20 — full story).

December 3-5 — Weekend reading: evergreens. Pixels to fall back on after the bouts of cider-mulling and tree-trimming:

* Party of the first part wishes to make goo-goo eyes at party of the second part: if you get into the dangerous situation of feeling romantically attracted to someone at the office, lawyers at the firm of Littler Mendelson will help draw up a “love contract” designed to protect you and your employer from liability should things not work out. It will stipulate that you “independently and collectively desire to undertake and pursue a mutually consensual social and amorous relationship.” (Alex Fryer and Carol M. Ostrom, “Office sex almost never puts CEOs out of work”, Seattle Times, Sept. 28, 1998; James Lardner, “Cupid’s Cubicles”, U.S. News & World Report, Dec. 14, 1998; John A. Lehr, “Office Affairs”, Ventura County (Calif.) Star, Sept. 28, 1999, link now dead.)

* Probate and trust perils: This four-part investigation, entitled “Final Indignities”, won a Pulitzer Prize in 1995 for the St. Petersburg Times‘s Jeffrey Good. It found surprisingly lax oversight of probate abuses in the nation’s leading retirement state. (August 28 and successive Sundays, 1994).

* Race car great Bobby Unser got in trouble under environmental laws when his snowmobile got lost and broke down in a blizzard and was later found in a protected wilderness area. Was it the Sierra Club that sicked the feds on him? (Unser statement and discussion at oversight hearing on the Wilderness Act, April 15, 1997; David Wallis, “Bobby Unser: Race Car Champion as Scofflaw”, Salon, June 6, 1997; Unser testimony before the House Judiciary Committee May 7, 1998, reprinted in Federalist Society Environmental Law and Property Rights Working Group newsletter, v. 3, issue 1). Unser was convicted and made to pay to a small fine after a judge ruled that the prohibition against motorized vehicles in the 1964 Wilderness Act does not require an intent to break the law.

December 3-5 — Welcome KPRC talk radio visitors. Our Houston- and coastal Texas-specific stories include coverage of the junk fax saga in the Houston courts, the Toshiba settlement in Beaumont, and the doings of famed lawyer John O’Quinn.

December 2 — Connecticut, sue thyself. Connecticut attorney general Richard Blumenthal keeps Schuming up headlines by boosting lawsuits against gun manufacturers; he’s filed an amicus brief to support Bridgeport’s suit, and threatened to make his state the first of the fifty to join various big-city mayors in seeking to recover the costs of shootings. One especially ironic aspect of his aggressive role is that the very same state government he represents has itself been involved quite recently and deeply in promoting the manufacture of firearms. In 1990, the state was so concerned that the Colt Mfg. Company might close its doors that it invested $25 million in state workers’ pension fund money to finance a bailout plan. The investment proved disastrous, with the state losing all but $4 million of its outlay, and the fiasco played a major role in discrediting the then-popular idea of “social investment” of pension funds. There’s no doubt, however, that both its intended and actual result was to ensure the production of more guns by Colt — some of which inevitably found their way onto the scene of accidental or deliberate shootings. Nor did the state use its dominant financial position in the deal to attach many of the kinds of strings to gun distribution that the suits now blame gunmakers for not attaching. We eagerly await the Nutmeg State’s lawsuit against itself.

Connoisseurs of irony will also enjoy learning about the subsequent job history of then-Connecticut state treasurer Francisco Borges, who was a leading figure in the Colt pension-investment debacle. Mr. Borges has now moved on to become treasurer of none other than the National Association of Colored People, which has filed a much-publicized lawsuit against gun makers. The NAACP presumably should not be expected to add Mr. Borges to its list of named defendants, given that, if it obtains a cash settlement for its complaint, it will be putting him in charge of spending the resulting windfall.

Sources: Diane Scarponi, “Blumenthal supports Bridgeport’s lawsuit against gunmakers,” AP/Danbury, Ct. News-Times, Sept. 8; Marc L. Kaplan and Salo L. Zelermyer, “Conflict and Interest: An Analysis of the President’s Social Security Proposal”, National Taxpayers Union Foundation Issue Brief #109; Eric V. Schlecht, “Government-Sponsored Gun Lawsuits By The Numbers — Five Things You Probably Didn’t Know, But Should”, NTUF Issue Brief #118; Statement of Maureen Baronian, House Subcommittee on Social Security, March 3, 1999.

December 2 — “Actions without class”. Sizzling editorial in today’s Washington Post should lay to rest once and for all the notion that outrage at the overreaching of the Fourth Branch is somehow confined to the editorial writers at the Wall Street Journal. “One could hardly ask for a better portrait of everything that is predatory about class-action plaintiff’s lawyers” than the new Microsoft suits, the Post declares. “Cases such as these have next to nothing to do with the interests of consumers but are essentially commercial ventures within the judiciary.” The supposedly represented victims “are likely to get some token payment while their self-declared champions get millions of dollars. It is simple buzzardry.” As for HMOs, the tactic of torpedoing the companies’ stock price to get them to settle “isn’t law. It’s an extortion racket…..[W]here the interests of the consumers are so obviously being subordinated to those of their self-declared lawyers, class actions affect policy with far less democratic legitimacy than even those cases brought by advocacy groups acting on behalf of the public interest as they see it. It is long past time to reform this system.” If you agree, write to say so — you can bet the other side is preparing its letters (full editorial).

December 2 — “Who’s Afraid of Dickie Scruggs?” Big Newsweek profile of “Richard Furlow Scruggs, ‘Dickie’ to his friends, [who] may be the most influential man in America that you’ve never heard of,” and whose success in managing the political side of the tobacco heist from his base of operations in Pascagoula, Miss. had nothing whatever to do with the fact that he’s the brother-in-law of Senate Majority Leader Trent Lott. He’s now planning to apply to HMOs the lessons of the legal playbook that emerged from asbestos and tobacco: “Raise the stakes so high that neither side can afford to lose,” so there’ll have to be a settlement. Couldn’t Scruggs’s firm have been a little less grabby, and kept for itself less than $900 million or so in fees from the tobacco deal? “‘Then we wouldn’t have anything for the next round,’ he says.'” Aside from HMOs, any future projects? “After seeing what Wal-Mart has done to once thriving downtowns, Scruggs is toying with the idea of going after the giant retailer on antitrust grounds. ‘They’ve damaged the fabric of American life,’ he says. ‘It offends me.'”

Surprise revelation: as part of the HMO settlement he’s pushing, Scruggs actually favors capping annual damage payouts by the managed-care companies. That way “one or two ruinous judgments won’t bankrupt the industry (and leave companies unable to settle with trial lawyers)”. All is explained — when adopted for the right kinds of reasons, caps on damages turn out to be okay after all (Adam Bryant, Newsweek, Dec. 6, link now dead).

December 2 — Toshiba and Ford, in the same boat. “For years, America’s high-tech industry has been largely untouched by the worst excesses of mass litigation.” But after the one-two punch of the Toshiba settlement and Microsoft class actions, it’s time for Silicon Valley to realize it’s in the same boat on this issue with “smokestack” industry. An editorial in Financial Times draws an interesting parallel between the Toshiba laptop case and another “no-harm” mass-product-defect class action, against Ford Motor in California; which recently ended in a mistrial; the lawyers had gone to court to represent a class of car owners injured by the prospect that an alleged stalling defect might someday manifest itself in their Ford vehicles, though in practice they had never encountered it. (“Microsoft: Fighting Back”, Dec. 1 — full editorial)

December 1 — Indications of turbulence. An arbitrator has awarded veteran captain Wayne O. Witter, “known by his initials as ‘Captain WOW,'” partial back pay in his protracted dispute with Delta Air Lines. “The Atlanta-based carrier had removed him from duty and questioned his mental fitness to fly after he got into an argument with his co-pilot and flight engineer in the cockpit. That incident followed his arrest and commitment to a psychiatric hospital after he was accused of threatening his wife….His case was the subject of a page-one article in The Wall Street Journal in 1996, highlighting the difficulties airlines and regulators face in determining when a pilot’s mental state is grounds for removing him from duty.” Eventually Capt. Witter won a battle with the Federal Aviation Administration to get back his medical certificate, but too late to resume flying Delta passengers, since he’s now past the FAA’s age limit of 60 for commercial pilots. (Martha Brannigan, “Grounded Delta Pilot Wins Back Pay Following Dispute Over Mental Fitness”, Wall Street Journal Interactive Edition, Nov. 19 (online subscription required)).

December 1 — Starbucks toilet lawsuit. Nominated by reader acclamation: Lawyers for 37-year-old Canadian tourist Edward Skwarek are suing Starbucks over an August incident in which they say their client was seated on a toilet in one of the coffee chain’s outlets in Manhattan when a highly personal part of his anatomy got caught between the seat and the bowl. Skwarek is asking for $1 million for what he describes as dire and permanent injuries to the affected organ, and his wife is also requesting $500,000 as compensation for loss or impairment of his husbandly services. How much would they have to pay you, esteemed reader, to allow your name to be permanently associated with a news story of this sort in publications worldwide? (Reuters/Excite, Nov. 29, link now dead)

December 1 — Hurry with those checks. U.S. News & World Report reports in its “Whispers” column that the Association of Trial Lawyers of America is “begging” members to get those campaign contribution checks in the mail. “In South Carolina, ATLA executive Ken Suggs E-mailed members: ‘We are about to default on our pledge to the Gore campaign, something ATLA has never done before.’ In his note titled ‘future of the profession,’ he adds: ‘If any of you can afford any contribution (it has to be personal money), I would greatly appreciate it. Checks should be made to Gore 2000. Send them to me and I’ll get them to the campaign.'” (Dec. 6)

December 1 — Drunks have rights, too. In Kenner, Louisiana, this summer, a “drunken bicyclist who was seriously injured when he ran a stop sign and pedaled into the path of a police cruiser speeding to a call was awarded $95,485.” Judge Bob Evans ruled that a Kenner police officer shared responsibility for the accident with bicyclist Jerry Lawrence. “Lawrence’s lawyer, Rusty Knight, said the ruling proves that ‘drunks have some rights, too'”. Police said they would appeal. (“Drunken bicyclist awarded $95,485”, Spokane.Net, June 17; Canoe/AP) (update July 24, 2000: appeals court throws out verdict).

December 1 — Welcome The Occasional readers. This new literary review edited by Andrew Hazlett has plenty of content worth checking out, including writing by Richard Mitchell, Cathy Young and Lynne Munson and outbound links that will lead you to such wonders as — we would never make this kind of thing up — the early calypso music of Louis Farrakhan, complete with audio clips. We are its “Recommended Site of the Week”.


December 31, 1999-January 2, 2000 — New safety rule likely to increase death toll. “The National Transportation Safety Board — acting out the Clinton Administration’s desire to inject children into every political issue — declared 1999 the ‘Year of Child Passenger Safety'”. The Federal Aviation Administration accordingly reversed its longstanding policy and decided to prohibit children under the age of two from riding in their parents’ laps (a practice that saved parents the price of a ticket). Instead they’ll have to be placed in separate child restraint seats. But the cost of the additional tickets will induce many families to drive rather than fly, and an earlier FAA study found that “while mandatory child restraints might prevent five fatalities over the next 10 years, an estimated 82 children and adults would perish on the nation’s roads as families sought cheaper transportation alternatives.” (“The cost of toddler restraints” (editorial), Detroit News, Dec. 23; Jacob Sullum, “Little Restraint” (syndicated column), Reason Online, Dec. 22)

December 31, 1999-January 2, 2000 — NYC subtenants from hell. Susan Teeman’s gruesome ordeal in the New York City housing courts began when she gave her subtenants Stuart and Susan Levy one month’s notice that she needed to reclaim from them her $550-a-month, one-bedroom apartment on E. 76th St. That was back in 1985. It took eleven years of litigation to get them out, followed by a few more years’ worth of tag-on court proceedings, during which time they engaged in tactics that judges labeled “outrageous,” “abject nonsense,” “vexatious” and “reprehensible”. Don’t read this one unless you want to get upset (Dareh Gregorian and Erika Martinez, “Subtenants from Hell Gave Her a New Lease on Strife”, New York Post, Dec. 30)

December 31, 1999-January 2, 2000 — More assertions of link liability. In a suit filed in California Superior Court in Santa Clara County, lawyers for the DVD Copy Control Association are seeking a restraining order against some 72 programmers and websites, attempting to block dissemination of software that allows consumers to de-encrypt the digital movie format for purposes of copying. The suit targets not only websites which make the software available on their servers for download, but also popular discussion sites such as Slashdot and Usenet archive Deja which have allowed the posting of web addresses where the software may be found. “If linking to data is ever ruled a liable offense, then the Web is effectively worthless. I think the courts will recognize this,” said Rob Malda, one of the founders of Slashdot. On Wednesday Judge William J. Elfving denied the request for a temporary restraining order; a hearing on the request for a permanent order is scheduled for January 14. (Slashdot reporting and discussion; Chris Oakes, “Case Hinges on Reverse Hack”, Wired News, Dec. 28 and “DVD Round One Goes To Hackers”, Dec. 29; Mike Musgrove, “Suit Targets DVD-Copying Software”, Washington Post, Dec. 29, link now dead).

December 31, 1999-January 2, 2000 — “Love contracts” spreading to U.K. An unnamed British company is following the lead of some U.S. firms by drawing up “love contracts” for employees to sign if they become romantically involved with co-workers, to protect the company from later charges of sexual harassment (see Dec. 3 commentary). The BBC says there’s a question “whether such contracts will rile employees by killing off what many see as a harmless facet of office life”. (“Beware of the ‘love contract'”, BBC News, Dec. 30).

December 31, 1999-January 2, 2000 — Free expression, with truth in advertising thrown in? A federal judge ruled on Tuesday that Roseville, Minn. personal-injury attorney Todd Young has a constitutional right to fly the pirate flag, the Jolly Roger, outside his office to advertise his practice. Town officials had objected to the flag as a banner prohibited by its advertising-sign ordinance. Municipal attorney Joel Jamnik said the town was not planning an appeal but would instead attempt to reword its ordinance more carefully to remedy what the judge saw as impermissible vagueness. “These are essential rights,” said Young. (John Welsh, “Avast, ye swabs! Jolly Roger to fly freely in Roseville”, St. Paul Pioneer Press, Dec. 29)

December 29-30 — Class action toy story. Toys-R-Us, Mattel, Hasbro, and other toy companies agreed this year to settle antitrust charges brought by private class action lawyers and the attorneys general of 44 states, which accused them of having conspired to allow only a limited selection from the manufacturers’ toy lines to be sold in warehouse discount stores (for example, toys destined for those stores were often grouped in “combination packs” for customers willing to buy several at a time). The terms of the settlement included $3.25 million for the private lawyers, $1.8 million to be recycled into the budgets of the state AGs, $335,000 for the National Association of Attorneys General, and $12.8 million to be distributed among the states for children’s programs. In addition, the companies agreed to furnish toys from their inventory with a nominal value of tens of millions of dollars to be distributed to poor kids at Christmas, an agreement that gave the state attorneys general the perfect occasion for issuing self-congratulatory press releases (samples: Calif. (link now dead), N.Y., Texas, Tenn., Idaho, Iowa). “At Christmastime in 1998, 1999 and 2000,” notes Forbes‘s Dan Seligman, “the attorney general of just about every state gets to play Santa Claus, and has a chance to dwell publicly on the wonderfulness of attorneys general who bring toys to the kids.” Meanwhile, actual customers who bought toys during the period get $0.00 — it would be impractical to identify them, explains the settlement notice — and some even suspect those customers will foot the bill in the end as companies pass on the cost of such litigation in higher prices. (Dan Seligman, “Mutant Ninja Lawsuits”, Forbes, Oct. 18).

December 29-30 — Down repressed-memory lane I: costly fender-bender. A jury in Milford, Connecticut has ordered George B. Daniels to pay Andrea Karlsen more than a half million dollars over a low-speed auto collision that, Karlsen’s attorney argued, caused her post-traumatic stress disorder by bringing back memories of childhood abuse. Daniels, himself a sitting judge in New York who has been nominated to the federal bench by President Clinton, acknowledged that the mishap on the Boston Post Road in Orange, Ct. on Dec. 29, 1991 had been his fault. “But he testified that the accident was so minor that neither an ambulance nor a tow truck was needed afterward”. Plaintiff’s attorney Loren Costantini, however, sought more than $6 million in damages, arguing that the incident had “triggered post-traumatic stress disorder in Karlsen and memories of childhood abuses so severe that she became ill — both mentally and physically — and unable to work as a flight attendant.” Ms. Karlsen, a former model and Playboy bunny, became distraught after the verdict, “screaming and crying in disappointment that she was not awarded more money”, and yelling at defense attorney John Costa, “You’re a murderer. He tried to kill me.” (Heather O’Neill, “$523k awarded for fender bender”, Connecticut Post, Nov. 6; “Judge must pay accident victim $500,000”, AP/Norwalk, Ct. Hour, Nov. 7 (not online); Thomas Scheffey, “All in her head”, Connecticut Law Tribune, Nov. 16).

December 29-30 — Down repressed-memory lane II: distracted when she signed. A Canadian judge has granted a woman’s request to nullify a 1990 separation agreement with her ex-husband which she had signed under mental duress; the duress was occasioned, she said, by reemergent memories of childhood sexual abuse. Accepting the woman’s claim of incapacitation, Mr. Justice Donald Taliano found that she was “so overcome by mental illness that she was incapable of dealing with even the simplest of life’s demands, let alone the complexities of a separation agreement” and ordered her ex-husband to repay her $180,000 (Canadian), although his earning capacity is limited since he is retired and in the early stages of Alzheimer’s disease. (Donovan Vincent, “Man ordered by court to repay ex-wife $180,000”, Toronto Star, Sept. 7, not online)

December 29-30 — Just like the Bourbons. Ah, those editorial-writers at the New York Times, who for so long have learned nothing and forgotten nothing. “It has become fashionable to depict the proliferation of lawyers and lawsuits as something negative — both symptom and cause of a self-indulgent ‘culture of rights'”, rumbles the paper’s Dec. 24 editorial. “This fashion may pass… At the moment, though, Congress and the current Supreme Court seem determined to exploit this misconception in mischievous ways…” There in a nutshell you have the Times‘s editorial philosophy on the litigation issue: sure, Americans may be dragging each other through the misery of courtroom battles in “proliferating” ways, but it’s a “misconception” to view that as “something negative”. (“The Expanding Reach of Civil Rights”, Dec. 24, not online)

December 29-30 — Spreading to Australia? “Children exposed to their parents’ smoking may soon begin suing them”, predicts a prominent Australian lawyer. Note, however, the real financial target: “Children would be reluctant to bring such claims, he conceded, but not if the parents’ home and contents insurers were the opponents.” Indeed, it’s not hard to imagine some parents conniving at suits against themselves as a way of scooping cash for their offspring out of their homeowners’ policies. Attorney Eugene Arocca also predicts Australia may follow the lead of some U.S. courts which count smoking as a factor against parents in child custody battles. (Darwin Farrant, “Children may sue smoking parents”, The Age (Melbourne), Dec. 27 (via Junk Science)). (more on smoking and custody: SmartDivorce.com, TOTSE, ASH) (& see Jun. 3-4, 2002).

December 27-28 — “Year’s Weirdest News”. News of the Weird columnist Chuck Shepherd includes two litigation stories in his ten-oddest list this year. (“A Look At…The Year’s Weirdest News”, Washington Post, Dec. 26). Under the heading “Now That’s a Return on Investment”: “A jury in Birmingham, Ala., ruled in favor of Barbara Carlisle and her parents in their lawsuit against two companies that overcharged them $1,224 for two satellite TV dishes, awarding the threesome $581 million. After cries of ‘jackpot justice,’ the judge slashed the award to a mere $300 million.” (quoting Associated Press, May 11, Aug. 27) And: “A judge in Tampa denied tobacco-litigation lawyer Henry Valenzuela his $20 million share (out of $200 million in legal fees from the state’s 1997 settlement with cigarette companies) because he was late in paying his $2,500 share of a litigation expense”. (Larry Dougherty, “Lawyer won’t get tobacco money”, St. Petersburg Times, July 27). The $200 million refers to the fee obtained by the former law firm of Yerrid, Knopik & Valenzuela; collectively, law firms were awarded $3.4 billion for representing the state of Florida.

December 27-28 — Zero tolerance roundup. Scott Hogenson, writing at Conservative News, recalls the time a sixth-grade classmate in his small Minnesota town stabbed him in the hand with a pencil. “I probably deserved it. Perhaps I teased her one too many times”. Both parties have since grown into happy, productive adults; how lucky they are that it happened thirty years ago, at a time when the consequences for her did not include a serious police record, expulsion, etc. (Scott Hogenson, “Assault With a Deadly Pencil”, Conservative News, Dec. 10.) In Windsor, Ont., the Children’s Aid Society promptly launched an investigation after an 11-year-old girl turned in a story for her 6th grade class about a fictional family with a violent father. “This accusation was just thrown at me,” said the girl’s mother, Laura Scalia, who is single, describing the visit of an official who showed up at her door. “No effort was made to substantiate who I or my daughter are….It seems so easy for them to screw someone’s life up.” (Don Lajoie, “11-year-old’s school essay sparks children’s aid probe”, Windsor Star/National Post, Dec. 17).

The Christian Science Monitor says a zero tolerance policy may work best if it “allows principals some leeway to define what ‘zero’ is”, which might seem to retreat from the original concept, no? (Peter Grier and Gail Russell Chaddock, “Schools get tough as threats continue”, Nov. 5.) And we recently stumbled across a site entitled “Zero Tolerance = Zero Common Sense = Zero Justice“, which hasn’t been updated much lately but has scores of links and clips from the period 1996-98 documenting the trouble kids were getting into when found in the possession of lunchbox bread knives, water pistols, cough drops, and so on. (H. Churchyard site).

December 27-28 — “Bug lawyers” prosper. The Montgomery, Ala. law firm of Crosslin, Slaten & O’Connor has found a happy niche representing exterminating companies. (Its website: www.buglaw.com.) Several of its attorneys have themselves become certified pest control operators, and the firm has its own plane, which it dubs Bug One, to reach clients quickly. “Reflecting the general trend toward litigiousness, pest control operators are being sued more.” (Richenya A. Shepherd, “‘Bug Lawyers’ Invade the South”, National Law Journal, Dec. 13).

December 27-28 — You shoulda flunked me! Derek Boult, a former student at Murrietta Valley High School near Riverside, California, has sued the school and his football coach, saying he was improperly given passing grades and promotions as part of a policy of according favorable treatment to student athletes. The lawsuit, which also names the school’s former football coach, charges that overly lenient grading deprived Boult of the right to an education as provided by the state constitution. Eventually Boult proved unable to keep up the requisite minimum 1.5 grade point average, had to switch to a remedial school and was unable to graduate with his class. His attorney, Anthony D. Weber, of Palm Desert, charges that the school should have given him failing grades at an earlier point and taken him off the team. “He deserved to have bad grades,” he said. “He didn’t deserve to play football.” (Daniel G. Jennings, “Athlete Sues School for Letting Him Pass”, San Francisco Daily Journal, Oct. 25 — not online)

December 27-28 — “Few Settlement Dollars Used for Tobacco Control”. The year’s most durable shock-the-naive story: states are spending only a minor share of their enormous tobacco-settlement booty on causes dear to anti-smoking activists, such as those billboards and TV ads that hector smokers and vilify cigarette executives. “Of the 23 states that have decided how to spend their money, the majority appear to view the dollars primarily as a hefty new revenue source to be spent on whatever the state needs.” How many serious observers imagined it would be otherwise? In Rhode Island, putatively in the vanguard of children’s-health activism as the first state to sue lead paint makers, “teen smoking has increased from 21% in 1993 to 34% in 1999,” if the numbers from a state Health Department survey are to be believed. (Alissa Rubin, “Few Settlement Dollars Used for Tobacco Control”, Los Angeles Times, Dec. 25).

December 27-28 — 150,000 pages served on Overlawyered.com. Thanks for your support!

December 23-26 — Christmas lawyer humor. A selection culled from around the web:

Xmas stocking“Merry Christmas from the Legal Department” (Yuletide wishes consisting entirely of disclaimers):

Though we, the “Greetor,” wish you well
In our Holiday Entreaty,
We limit all your claims, Dear Friend
(Hereinafter called the “Greetee”).

We wish you dreams of Sugar Plums
And dancing Christmas Lights,
But if these Fancies come to Naught
You have no Vested Rights… ” (more)

— LaughNet; attributed to Edward G. McManus.


Xmas stocking“What hath a lawyer to do with Christmas? For Christmas is a joyous festival of loving and giving, in a dark, cold time of year; when we forget ourselves in all kinds of silliness as we try to forget our troubles, a time of wild abandon learnt from our pagan ancestors, and at bottom hath no logick to it. Whereas your lawyer is a crabb’d and serious fellow, who hath studied his eyes out reading the Law and aspires to be old and blind before his time, and knows no more of wild abandon than a fence-post; a sober black-coated mole of a man, who’s always teaching us to be ungenerous, and always writing mean-spirited documents that turn square corners and won’t give a poor fellow an inch; who wouldn’t give away one of his old scintillas without he gets a proper quid pro quo for’t. He wouldn’t know jollity if it bit him, and never, never can forget himself; and if a handsome wench should catch him ‘neath the mistletoe would cavil and demur and plead in bar ’till he’s made her sign a solemn oath that she won’t sue him for sexual harassment….” (more)

— “Joys of the season for divorce lawyers” by Virginia attorney Richard Crouch. Notwithstanding the puckish tone of the above, the piece goes on to offer serious and sensible advice on how to avoid letting holiday strains turn someone you love into a potential client of the divorce biz.


Xmas stocking“The night before Christmas” (attorney’s version): “Whereas, on an occasion immediately preceding the Nativity festival, throughout a certain dwelling unit, quiet descended, in which could be heard no disturbance, not even the sound emitted by a diminutive rodent related to, and in form resembling, a rat;…” (link now dead) (HumourNet, Dec. 6, 1995, from NEA Journal, Dec. 1960)

“A lawyer’s Christmas” (same idea): “…Hosiery was meticulously suspended from the forward edge of the woodburning caloric apparatus… ” (more) (TnT Web Design site)


Xmas stocking“Restructuring at the North Pole” “As you know, the eight maids-a-milking concept has been under heavy scrutiny by the Equal Employment Opportunity Commission. A male/female balance in the workforce is being sought….The four calling birds will be replaced by an automated voice mail system with a call waiting option. An analysis is underway to determine who the birds have been calling, how often and how long they talked….The two turtle doves’… romance during working hours could not be condoned. The positions are therefore eliminated….Regarding the lawsuit filed by the attorney’s association seeking expansion to include the legal profession (‘thirteen lawyers-a-suing’) action is pending.” (more) (author not known, Don Tolin webpage)

December 23-26 — “Trial lawyers on trial”. Trevor Armbrister’s outstanding new Reader’s Digest article scrutinizing the plaintiff’s bar is now online at the Digest website. It’s got drop-your-jaw numbers on campaign contributions, hard-hitting coverage of the tobacco-fee scandal and the Florida and Maryland laws retroactively expanding tobacco liability, a concise summary of the Norplant and breast-implant outrages, new and pithy quotes from such keen observers as John Langbein, Stuart Taylor, Jr. and Marc Arkin, a few words from the editor of this site on the need for a loser-pays rule, and much, much more. Don’t even think of missing this one (Trevor Armbrister, “Trial lawyers on trial”, Reader’s Digest, Jan. 2000).

December 23-26 —“Fen-Phen Settlement Might Be Off”. Not for the first time, lawyers rely on the Mississippi courts to get unusually favorable results that they hope to roll out nationwide. This Associated Press article also quotes this site’s editor (who’s clearly on a roll today) (Paul Payne, AP/Excite, Dec. 22, link now dead)

December 23-26 —“In race to sue Microsoft, some trip”. In the legal siege of Redmond, “the race to sue — and stake a claim in this hoped-for gold rush — is producing some memorable legal bloopers,” reports David Segal of the Washington Post. “Lawyers behind one suit filed in a California state court, for instance, seemed momentarily confused about Microsoft’s core business. The complaint drafted by San Diego’s Krause & Kalfayan suggests at one point that the software maker is actually competing in the generic drug market. ‘These arrangements have enabled Microsoft Corporation to exclude other developers of Intel-compatible PC operating systems from obtaining the supply of such generic drugs’ active pharmaceutical ingredient (“API”),’ the complaint states on Page 2.” Partner James C. Krause sheepishly admits that the firm copied out the pleadings from an earlier class action and forgot to change the relevant verbiage. And it wasn’t the only law firm caught up that way: the suit filed by the law firm of Shelby & Cartee in Birmingham, Ala. describes’ Microsoft’s principal business as being “within the State of Texas” and asserts its right to represent customers injured by past purchases of Windows 2000 (which hasn’t gone on sale yet) and customers of “‘MacIntosh Computer Company’ (it meant Apple Computer Inc.)”

Waite, Schneider, Bayless & Chesley, the Cincinnati firm of famed master-of-disaster Stanley Chesley, charged that Microsoft’s actions “prevent[ed] development of a Windows 95 version of Netscape Navigator”, but one was introduced years ago; a lawyer with the firm explains that by “prevent” he meant “delay”. “It seems like all of these cases were written under the influence of an active pharmaceutical ingredient,” Microsoft spokesman Mark Murray told the Post. “The only people who are going to benefit from these cases are lawyers.” (David Segal, “In race to sue Microsoft, some trip”, Washington Post, Dec. 21 — full story)

December 23-26 — Jovanovic conviction overturned. A New York appeals court has overturned the kidnapping and sex abuse conviction of Columbia University graduate student Oliver Jovanovic. (“New York appeals court throws out conviction of ‘Cybersex’ defendant”, AP/CNN, Dec. 22). This site briefly commented at the end of July on the unfairness of Jovanovic’s trial, at which the judge, applying New York’s “rape shield” statute, forbade the defendant’s lawyers to introduce as evidence emails from the accuser which cast doubt on her story; for more details, see coverage in the New York Post, by Post columnist Steve Dunleavy, and by Brian and Elisabeth Carnell for the Women’s Freedom Network. Jovanovic has served 20 months of a 15-year sentence. Update: all remaining charges dropped against Jovanovic on Nov. 1, 2001 (see Jan. 9-10, 2002)

December 23-26 — New subpage on Overlawyered.com: legal ethics in crisis. Okay, we admit that if we pulled together everything on this site raising questions of legal ethics we’d have a subpage too big to use. So we’ve just gathered here links and commentaries on a range of topics that includes witness-coaching, ethical billing practices, civility, conflicts of interest, champerty and the role of contingent fees, “pay for play”, discipline of errant lawyers by the bar, client protection, judicial ethics, and other matters likely to come up in a course on professional responsibility.

December 22 — A question of t-shirt velocity. On December 7 we summarized the “flying t-shirt” suit filed by Stewart Gregory of Cincinnati against NBC’s “Tonight Show” and host Jay Leno, alleging he was “battered” and “forcefully struck” when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. The next day the AP ran a short item on the case, which added a new detail or two (earlier reports had Gregory alleging that he was hit in the face, the new one says eye) and quoted the 56-year-old plaintiff: “It’s not frivolous when you get hit with a hard object traveling 800 feet per second.” (“‘Tonight’ Audience Member Sues”, AP/Washington Post, Dec. 8). Reader Bob Kanyok from St. Louis writes: “800 feet per second is 545 miles per hour, the speed of a jetliner. A ‘hard object’ the size of a t-shirt at 800 feet per second would have done a lot more than injure his eye, it would have torn his head off. Odd how no one else has picked up on this. Are all the reporters out there innumerate?”

December 22 — Popular continuing-legal-education course: “How to Hammer Allstate”. Seminars with that title have been playing to overflow crowds of trial lawyers around the country. The big insurance company has angered plaintiff’s attorneys by taking a hard line in defending claims filed against its auto policyholders, especially where vehicle damage is minimal and the claim is of soft-tissue injury. “There’s a sense of righteous indignation,” says Robert I. Reardon Jr., who organized one such seminar for the Connecticut Trial Lawyers Association which drew 320 lawyers. Allstate lawyer William Vainisi agrees that the company has been mounting a tough defense effort but says it is directed against “inflated demands and built-up medicals”. (Mark Ballard, “Hot CLE Class: Hammering Allstate”, National Law Journal, Dec. 10). The company has also infuriated attorneys in recent years by contacting persons who have been involved in crashes with its policyholders and urging them to consider settling the claim without a lawyer, a step that its opponents charge violates rules against the unauthorized practice of law. (Danielle Rodier, “Allstate Sheds UPL Claim, Still Faces Consumer Protection Suit”, Legal Intelligencer, April 14; ArkTLA; W.V. bar (link now dead); Phila. Trial Lawyers Assn.; NYSTLA; Conn.; Insure.com). More: Apr. 18, 2000.

December 22 — Pay us for this service. Dr. Xavier J. Caro was stunned recently when lawyers for his wife Cora, from whom he is seeking a divorce, demanded $550,000 from him as a “community loan” as a prepayment of costs for her forthcoming criminal defense. Cora Caro is in the Ventura County, Calif. jail on charges that she murdered three of the couple’s four sons, ages 5, 8 and 11, on Nov. 22 before turning the gun on herself (she survived). The demand letter from Agoura Hills attorney Rand E. Pinsky “lists $600,000 to $800,000 as the equity value of the couple’s Presilla Road home as well as investments and properties they own”, according to the L.A. Times. “The normal procedure in a criminal matter is that defense costs are prepaid,” Pinsky said. Dr. Caro has countersued his wife. “Doctor Files Wrongful Death Suit Against Wife”, L.A. Times, Dec. 16).

December 22 — Tobacco fee fight looms in Mass. Massachusetts Attorney General Thomas F. Reilly is vowing to fight “with every resource we have” to prevent the Boston law firm of Brown Rudnick Freed & Gesmer from collecting roughly $500 million, which the firm says is its share of a $2 billion contingent fee owed by the state over 25 years to five firms that represented it in the tobacco-Medicaid litigation. Reilly says the Brown firm has already been awarded $178 million for the representation: “At some point, enough is enough.” (Frank Phillips, “Reilly to fight claim of lawyers”, Boston Globe, Dec. 20).

December 21 — Accessible websites no snap. It’s hard to think of a better way to slow the growth of the Net than to menace web providers with exposure to liability for mounting or running ordinary, garden-variety websites or online services. Yet under prevailing interpretations of the Americans with Disabilities Act, both large and small e-tailers, online publishers, and applications providers may be open to damage suits on the grounds that their offerings are not accessible (as the term goes) to disabled users. Last month the National Federation of the Blind filed a lawsuit against America Online, charging that it has not moved with sufficient vigor to make its services fully available to sightless users (“Lawsuit: AOL Ignores Blind”, Reuters/Wired.com, Nov. 5, link now dead). AOL is a big business, of course, but there’s no reason to think that accessibility obligations under the ADA do not extend all the way down to many “mom-and-pop” ISPs, applications providers, online magazines and journals, e-stores, and so forth.

What exactly, does it mean for a site or service to be accessible? Disability advocates have declared many commonly encountered features in web design to be unacceptable barriers to one or another group of users. Among them are displays that depend on color to convey information, common methods of employing tables and graphics to assist in page layout, navigational designs that respond to mouse but not keyboard commands, and streaming audio when not accompanied by text translation. (Adam Clayton Powell III, “Is Your Site Accessible?”, Reason, July 1999; W3C, Web Accessibility Initiative). Web operators who ignore the advice of experts in this field must be seen as setting themselves up at some point for potential costly lawsuits. Yet the alternative of giving top priority to ADA compliance is hardly attractive either, since it might involve tearing down existing nonconforming webpages pending future redesign, refusing to employ developers who haven’t gone through special courses aimed at helping unlearn common page-construction habits, and abandoning decentralized publishing models in which many different employees, group members or customers are permitted to erect free-form content on a site. Almost incidentally, another effect would be to involve publishers of all shapes and sizes — First Amendment or no — in ongoing, intimate negotiations with government agencies and private pressure groups over questions of what they will and will not be allowed to publish.

But not to worry, say many disabled advocates — “Bobby” will save the day! Available at the Center for Applied Special Technology site, “Bobby” is a free program with sponsorship from leading businesses that will review any website and automatically diagnose where it needs to be fixed to provide handicap accessibility. Sounds easy enough, right? To be sure, the wave of favorable publicity We are not Bobby approvedabout Bobby this summer revealed the embarrassing fact that many of the federal government’s own major websites, including the White House site itself, were not Bobby-compliant — this even though the U.S. Justice Department was rattling its sword to call private companies’ attention to the issue of high-tech accessibility. (To see the ways in which this site falls short on Bobby, click here; to see how badly the White House still flunks, here).

Given that pretty much everyone’s website seems to be out of compliance, ADA or no ADA, it was with much interest that we noticed the splashy, full-page ads recently announcing the launch of a major new website, evidently with substantial financial backing behind it, that would be specifically geared to the needs of disabled users. The site, called WeMedia, is affiliated with We magazine and aims to create an online community of disabled users for purposes of both service and advocacy. Finally, a chance to see how the experts themselves deal with the accessibility problem! You can therefore imagine how crestfallen we were to find the following notice blazoned on the site’s front page: “Currently, We Media’s site is not 100% ‘Bobby’ compliant. However, we are working very hard over the next few weeks to make sure that it becomes so.” [Update: a check on 2/7/00 finds that WeMedia now displays a Bobby approval button.]

December 21 — “Lawyers stealing less, clients say.” Now there’s a jolly, upbeat headline for you! “For the first time in its 16-year history”, the fund that reimburses victimized clients when Empire State attorneys commit theft or fraud is experiencing a sharp drop in payouts, according to the New York Law Journal. Officials say they believe the drop in client-cheating is genuine and credit, in part, two major reforms: banks are now directed to notify the client-protection fund when lawyers bounce checks from their escrow account, and insurance companies that pay to settle personal-injury claims are now directed to notify the claimants themselves about the payments rather than rely on their lawyers to tell them. (John Caher, “Lawyers stealing less, clients say”, New York Law Journal, Nov. 19).

December 21 — Oops! Didn’t mean nothing by that, ma’am. At D. McRae Elementary School in Fort Worth, Tex., counselor Seth Shaw got in trouble, according to his account, after he said “Hello, good looking” to a female newcomer he encountered in the office. She turned out to be an outside consultant there to conduct a training workshop on sexual harassment. Officials asked Shaw, a nine-year veteran, to resign over the incident, but school trustees settled for a 20-day unpaid suspension. (Martha Deller, “Fort Worth school counselor assessed 20-day unpaid suspension”, Fort Worth Star-Telegram, Dec. 17).

December 20 — Pack your toothbrush, son. Five years ago young law clerk Richard Poff decided to blow the whistle on questionable practices he’d seen firsthand at his employer, the influential Birmingham, Ala. plaintiff’s firm of Roden, Hayes & Carter. The firm, he said, had been paying hospital and police employees for leads in injury cases, and charging gambling and golf junkets, Royal Caribbean cruises and liquor store bills against client accounts. What happened next? All three name partners drew bar suspensions and pled to misdemeanors after arguing, in part, that the expense-charging had not affected clients’ eventual take from their cases.

So was Poff given a hero’s thanks by a local legal profession grateful for his help in cleaning itself up? Not exactly: he became virtually unemployable, was hit with a still-pending $1 million default judgment for libeling his old boss, got thrown in Birmingham jail for three days, and was ordered sent for psychiatric examination. “It seemed as though every judge in town was warning him to pack a toothbrush.” For a while, a judge even ordered the state’s press not to report on the proceedings. The state’s Supreme Court has yet to rule in the affair, but the lesson’s been made crystal clear for anyone who might be tempted to emulate Poff: don’t try to fight the legal fraternity. (Michael Goldhaber, “Crazy in Alabama”, National Law Journal, Dec. 15).

December 20 — Cute names for laws: enough, already. One example of the triumph of sentiment over dispassion in contemporary law is the naming of new criminal statutes after the victims they’re meant to avenge. Thus we got the “Megan’s Law” sex offender registries, followed more recently in New York by “Buster’s Law”, a felony animal abuse statute named after a murdered cat. We’re not alone in our dislike for this practice: Albany lawyer Terence Kindlon says you shouldn’t “give cute names to law…Can you see the words ‘Buster’s Law’ coming out of the mouth of Oliver Wendell Holmes?” Currently defending a Rensselaer Polytechnic student who faces a possible two-year jail sentence for breaking his dog’s leg during what he says was an attempt at discipline, Kindlon believes the law’s headline-friendly nomenclature is presenting him with an uphill battle. “It is sort of a celebrity law, it is a law with a built-in press agent.” (Joel Stashenko, “Attorney questions practice of naming laws after victims”, AP/Schenectady Gazette, Dec. 19)

December 20 — Those Bronx juries. “In civil cases, they are extraordinarily generous. ‘Let’s face it: the Bronx civil jury is the greatest tool of wealth redistribution since the Red Army,’ said attorney Ron Kuby, who won a $43 million civil judgment against subway gunman Bernie Goetz from six Bronxites.” (“Bronx juries: all things to all people”, AP/Newsday, Dec. 18).

December 20 — Stroller-parking: then and now. Last Tuesday a Manhattan jury rejected a Danish woman’s claim “that New York City police officers had falsely arrested her outside an East Village restaurant after she left her baby daughter in a stroller on the sidewalk to go inside for a drink”. It did, however, award Anette Sorensen $6,400 in compensatory damages for the cops’ failure to inform her that she had the right to summon help from the Danish consulate, plus $60,000 in punitive damages — an outcome that, perhaps oddly, both sides in the case appear to view as vindication for the police. In today’s New York Times, Sven Larson writes a letter from Hvidovre, Denmark, to dispute Sorensen’s claim that she was only following the practice in her home country: “While many [in Denmark] leave carriages outside shops for a couple of minutes, no one parks a baby outside a restaurant after 6 p.m. for as much as an hour.” The difference, he says, is that in Copenhagen “the police would have asked her kindly to bring the carriage inside and nothing more would have happened”. (Benjamin Weiser, “Damages but No False Arrest in Stroller Case”, New York Times, Dec. 15; letter, Dec. 20). By coincidence, we happened to be visiting James Lileks’s Institute of Official Cheer, an online archive of vintage ad images, and found this 1950 A&P grocery store ad from Life treating it as a selling point for the market that so many mothers left their baby prams out front.

December 20 — News flash: Bill Clinton endorses loser-pays! He now thinks parties charged with wrongdoing should be able to collect for the burdensome cost of their legal defense, if they’ve prevailed in the end. Whoops, scratch that…turns out Bill wants his legal fees covered re the independent counsel investigation, but everyone else who gets dragged into court and eventually prevails can just go fish. (Charles Babington, “Clinton May Ask U.S. to Pay Legal Fees”, Washington Post, Dec. 18)

December 20 — Welcome Robot Wisdom readers. We got a mention yesterday on Jorn Barger’s weblog, one of the earliest, most eclectic and most widely followed examples of the genre.

December 17-19 — Splitsville, N.Y. Cover story in last week’s New York on the city’s big-league divorce biz arrives at a consensus view of the broad legal trends (“equitable distribution” keeps getting messier and more expensive, “lawyers have to play constant catch-up as new, intangible assets are added to the marital-property pot”, judges have vast discretion so it’s hard to predict what they’ll do), celebrity tactics (on the oft-used gambit of threatening to send dirt to the tabloids, the “bullet of embarrassment only has cash value when it’s in the chamber”), the cushy, cash-vacuuming role of minor players (asset evaluators and guardians of children’s interests, appointed by the court and paid out of the marital estate, can “make a fortune”, agrees the city’s top judge) and social strain (guest at East Side dinner party bursts into tears on finding she’s been seated beside lawyer who’d represented her husband, but it wasn’t easy to re-seat him: “At a table for ten,” he explains, “I’d done five divorces”).

Bitter clients? No trouble finding those: “Being the best divorce lawyer in New York is like being the best devil in Hell,” says publisher Judith Regan, whose own split has cost more than $1 million over seven years. “It means you’re avaricious, conniving, and vicious….Divorce law is not about justice or fairness or protecting anyone’s rights or what’s best for a child; it is big business.” “The first thing they get is a net-worth statement,” says another unhappy customer, plastic surgeon Ronald Linder. “Then they make sure they get your total net worth.” Lawyers counter that unreasonable clients often spurn settlement and insist on fighting every issue, though attorney William Beslow notes that “there’s a built-in incentive to keep litigation going by either purposely misadvising clients or telling them what they want to hear, which solidifies the relationship but ensures conflict”.

Attorney Raoul Felder, as is his wont, dispenses extreme quote. Of charges that threats of publicity constitute extortion: “Isn’t every lawsuit a form of legal extortion? The law is constructed that way. Pay me or go to court.” According to New York, a “low point” in Felder’s career came when he “[p]ublicly declared Robin Givens wanted nothing from Mike Tyson one day after privately demanding an $8 million settlement.” “On one level, it’s sleazy,” he says. “On another, I’m not robbing supermarkets.” (Michael Gross, “Trouble in Splitsville”, New York, Dec. 13).

December 17-19 — Truth in recruitment? An Essex County, N.J. jury yesterday awarded more than $10 million to former New York Giant football player Philip McConkey on the grounds that he had been lied to when he was recruited for a management job at an insurance brokerage which was in talks to sell itself to a larger company. McConkey said he would never have taken a job at Alexander & Alexander in May 1996 had he realized the firm would be bought in December of that year by insurance company Aon Corp. The job offered base pay and benefits of $352,000 a year, with a chance of commissions of $3 million to $5 million a year. The following March he was fired from the job, he said. Frank G. Zarb, chairman of A&A at the time, testified that when he interviewed McConkey he’d already engaged in preliminary talks with Aon, but considered A&A’s management as the side that would come out on top if the two companies were combined.

The company also pointed to McConkey’s employment contract, which it said demonstrated that he was an “at-will” employee who could be dismissed for any reason. In vain: the jury voted the former wide receiver and Navy helicopter pilot $3 million for lost income, $2 million for emotional distress, and $5 million in punitive damages. Zarb himself, however, “was dismissed as a defendant before the trial started”; he is now chairman of the National Association of Securities Dealers, which runs the NASDAQ stock market. The case may represent a breakthrough for employment plaintiff’s attorneys who have for years been pushing “recruitment fraud” theories of recovery. (Jeffrey Gold, “Jury Finds NASD Chairman Lied”, AP/Excite, Dec. 16)

December 17-19 — Transit shutdown. A jury has awarded $50 million to Shareif Hall, who lost a foot in an escalator accident on the Philadelphia subway system, and $1 million to his mother, Daneen. Robert T. Wooten, a board member of the Southeastern Pennsylvania Transportation Authority (SEPTA), called the jury verdict a “very, very serious financial blow” to the finances of the transit agency, and predicted service cuts and fare increases if the award or any substantial fraction of it is upheld on appeal.

According to the boy’s lawyer, Thomas Kline, the jury was angered when memos emerged from the transit agency that stated that the escalators were in poor and deteriorating condition. State law limits personal-injury awards against public entities, but Kline successfully recharacterized the claim as in part one of deprivation of the boy’s civil rights; $25 million of the jury’s award was to compensate the boy for that purpose, and therefore is not subject to the limit. (“Boy awarded $50 million in Pennsylvania escalator accident”, AP/CNN, Dec. 15, link now dead; Claudia N. Ginanni, “Documents Uncovered Mid-Trial Fuel $51 Million Injury Verdict v. SEPTA”, PaLawNet, Dec. 15 (subscription))

Update: After the verdict, 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 Jan. 29-30 commentary).

December 17-19 — “New Mexico county is ordered to use non-English-speaking jurors”. A judge ruled this fall “that potential jurors in Dona Ana County cannot be eliminated simply because they do not speak English”. Now officials are wrestling with questions like: should each juror get his own translator? How will the presence of translators in the jury room influence deliberations? What if a juror facing a language barrier asks to be excused from sitting on a case? Court-paid translators can expect to get a workout, given that all the testimony, documents and exhibits, lawyers’ arguments and judges’ instructions in cases will commonly be in English. And Spanish is not the only language that must be accommodated; one prospective juror spoke a particular Indian dialect the translation of which would have required the services of a specialty translator at $180 an hour, had the juror not been excused for health reasons. (AP/FindLaw, Dec. 13)

December 17-19 — Most unsettling thing we’ve heard about Canada in a while. We knew political correctness held great sway in the public life of our northern neighbor, but didn’t realize the following: “Canada’s most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is ‘likely to expose a person or group of persons to hatred or contempt’ because of ‘race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.’ Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful.” (Steven Pearlstein, “In Canada, Free Speech Has Its Restrictions: Government Limits Discourse That Some May Find Offensive”, Washington Post, Dec. 12)

December 16 — Got milk? Get sued. Physicians Committee for Responsible Medicine, a veggie-oriented group of litigious bent that claims 5,000 physician supporters, last figured in these columns on Sept. 25 when it urged the federal government to file a tobacco-style lawsuit against “Big Meat”. Now comes word that PCRM expects Massachusetts state senator Dianne Wilkerson to join it in a lawsuit it has organized charging that the federal government is being racist by distributing milk to schoolchildren. The reasoning? Black children are more likely than white children to display lactose intolerance, a condition that prevents them from digesting one of the major nutrients in milk. Wilkerson was also concerned to learn that a large cereal manufacturer was sending free cereal to the Boston schools, thus encouraging more milk consumption. “I want us to become health-food conscious, lactose-free public schools,” Wilkerson told the Boston Globe. “There are other options, like calcium-fortified juice.” (“Got milk? Minority schoolchildren do, and maybe they shouldn’t”, AP/Boston Globe, Dec. 13, link now dead (via Lucianne.com))

December 16 — GM verdict roundup. Marion Blakey, who used to run the National Highway Traffic Safety Administration, finds it remarkable that verdicts like this summer’s Anderson v. General Motors (see our July 10, August 27 commentaries) allow lawyers to shift legal responsibility for accidents away from drunk drivers to automakers with their deeper pockets, at the eventual expense of car buyers. (“Drunken drivers make mockery of justice”, Detroit News, Dec. 9). The Los Angeles jury’s initial award of $4.9 billion, since reduced by the judge to a putatively more reasonable $1.2 billion, “surpasses the combined gross domestic product of Afghanistan and Albania”, writes op-ed contributor Jim Lafferty (“Two astronomical lawsuit awards may be start of dangerous trend”, San Diego Union-Tribune, Nov. 14). The Federalist Society has mounted a series of panel discussions around the country on the lessons of the Anderson case, and has posted transcripts of the proceedings on its website. And on Monday the Christian Science Monitor ran an op-ed point-counterpoint about the case between R. David Pittle, technical director of the remorselessly pro-litigation Consumers Union, and classic-car auctioneer Mitch Silver. (R. David Pittle, “Fix car design before lawsuit“, and Mitch Silver, “Create wise policy, not crash-proof cars“, Dec. 13). Update Aug. 3, 2003: case settled on undisclosed terms.

December 16 — Gotta regulate ’em all. Quebec Language Minister Louise Beaudoin has threatened legal action against the makers of Pokémon trading cards for allowing them to be sold in the province without French-language packaging or instruction. Ms. Beaudoin said a French version of the popular cards is sold in France itself, Belgium and Switzerland, but is not available in la belle province despite local laws mandating use of the language: “I don’t understand and I can’t accept it … we hope this ultimatum will result in our law being respected.” The cards’ manufacturer, Wizards of the Coast of Renton, Wash., says rights to sell the Japanese-origin cards are divvied up geographically, and that it has North America; it completed an English-language translation first, and now has finished work on a French version which it expects to have on sale in Quebec by February. (Sean Gordon, “Quebec minister demands French version of Pokemon”, National Post (reprinted from Montreal Gazette), Dec. 10) (earlier Pokémon coverage: Oct. 13, Oct. 1-3).

October 1999 archives, part 2


October 30-31 — Bad tee times figure in $2 million award. A Boston jury of seven men and seven women has awarded nearly $2 million to nine female golfers who said the Haverhill Country Club had discriminated against them by depriving them of desirable tee times and other club benefits. They also contended that the club had allowed only a few women to move up to a more exclusive, and expensive, premium membership. (“Women awarded almost $2 million in Boston club discrimination case”, AP/Court TV, Oct. 28) (& update June 7, 2000)

October 30-31 — Sue as a hobby. Sad portrait from Chicopee, Mass. of that familiar figure in many American courtrooms, the perennial pro se litigant. This one’s been at it for 21 years, suing over union and town issues, utility bills and medical insurance, devoting about 20 hours a week to the truculent pastime. Some snicker, but “the tortured souls on the other end of Brown’s lawsuits take him very, very seriously — or risk a legal thumping.” One neighbor, a former mayor, stops to chat: “I think we got a good relationship, considering he’s sued me numerous times.” (Jeff Donn, “An American Portrait: Amateur lawyer hooked on suing habit”, AP/Fox News, Oct. 25)

October 30-31 — Annals of zero tolerance: cannon shots banned. Officials at Nevis High School in west-central Minnesota, citing a zero-tolerance policy, have refused to permit the school yearbook to publish a picture showing senior Samantha Jones perched on a cannon. The school’s policy bans not only weapons themselves from school grounds — including squirt guns — but even depictions of weapons, in the interpretation of school board members. “We don’t recognize weapons to be of any importance to the functions of the district,” said superintendent Dick Magaard. “Whether it’s in military, recreational or sporting form, anything shaped like a gun or knife is banned.” Ms. Jones is planning to enter the army on graduation, and the photo shows her sitting on a howitzer outside a nearby Veterans of Foreign Wars post. (“Senior upset that school won’t allow her yearbook photograph”, Minneapolis Star-Tribune, Oct. 29, link now dead) (update Nov. 26-28: school relents on policy, provided cannon is draped by U.S. flag)

October 30-31 — Those naughty Cook County judges. Another one is in trouble, this time over allegations of “handling cases involving a friend and a relative, forging a former law associate’s name on his tax returns and violating disclosure laws.” (Charles Nicodemus, “Judge faces misconduct charges”, Chicago Sun-Times, Oct. 27 — link now dead).

October 30-31 — Abuses of restraining orders. Interesting discussion has developed on Overlawyered.com‘s discussion forums since author Cathy Young joined to discuss her new Salon article on how restraining orders in domestic relations cases can become a tactical weapon.

October 29 — 52 green-card pickup. The Equal Employment Opportunity Commission has just announced that it will start pursuing discrimination claims for back pay on behalf of illegal alien workers who had no lawful right to take or hold the jobs in the first place (see yesterday’s commentary) That turns out to be only one of the legal headaches for employers considering noncitizen job applicants. As the newsletter of the National Legal Center for the Public Interest points out, managers also are in big trouble if they insist on particular methods of documenting job eligibility. “A Boston restaurant paid a $5,000 penalty for insisting that a job applicant provide a green card when it should have accepted his passport, which had an Immigration and Naturalization Service (INS) stamp, as proof of eligibility. A meatpacking company paid $8,500 for insisting that an applicant get INS documentation that his alien registration card was legitimate. It is illegal to insist on any particular form of documentation or to reject documents that appear to be genuine, says DOJ [the U.S. Department of Justice].” (NLCPI July 1999 newsletter, about 4/5 of way down page)

And more recently: “The Office of Special Counsel (OSC) of the Civil Rights Division of DOJ continues its offensive against ‘immigration discrimination,’ assessing a Maryland food processor $380,000.” It seems the company had been asking noncitizens to show INS documents when it “should have been content with any acceptable documents. The company’s view: Since most applicants already had their INS ID in hand (to fill out the mandatory INS I-9 form), hirers might say, ‘Let me see your Green Card,’ but would readily accept other documents if no Green Card were available. OSC calls this ‘document abuse,’ and fined the company for ‘discriminating’ against people that it actually hired.” (NLCPI Sept. 1999 newsletter, about 2/3 of way down page). Moral: be careful you don’t hire illegals, but don’t be too careful.

October 29 — Urge to mangle. Sometimes you’re better off disregarding the “care labels” on garments you buy that prescribe pricey dry cleaning or tedious hand washing, according to Cheryl Mendelson’s newly published encyclopedia of housekeeping, Home Comforts. For example, observes a reviewer, “a blouse labeled ‘dry clean’ might be equally tolerant of the washing machine”, while lingerie may survive perfectly well even if you don’t set aside an evening to “handwash separately, dry flat, do not wring or squeeze.” Why are labels so overcautious? They’re put on by “manufacturers whose primary goal is to avoid lawsuits”. (Cynthia Crossen, “The Dirt on Domesticity”, Weekend section book review, Wall Street Journal, Oct. 15, requires online subscription.)

October 29 — Founders’ view of encryption. To hear some officials tell it, only drug lords and terrorists should object to the government’s efforts to control encryption. Yet historians say James Madison, Thomas Jefferson and James Monroe all wrote letters to each other “in code – that is, they encrypted their letters — in order to preserve the privacy of their political discussion….What would Thomas Jefferson have said about [the current encryption controversy]? I suspect he would have said it in code.” (Wendy McElroy, “Thomas Jefferson: Crypto Rebel?”, The American Partisan, Oct. 23).

October 28 — EEOC okays discrimination claims for illegal aliens. Back pay! Punitive damages! And — if amnesty and a green card can be obtained in the mean time — even reinstatement! In a “major policy turnaround”, the Equal Employment Opportunity Commission throws its full backing behind damage claims for lost pay by workers who knew quite well they had no legal right to take a job in the first place. The agency promises that it “will not inform other government agencies if an immigrant is here illegally” — thus turning its role from that of a law enforcement agency to one committed to foiling law enforcement when that helps generate a caseload. Remarkably, a public statement by Immigration and Naturalization Service spokesman Don Mueller says the agency is “going to support” the new policy of keeping it in the dark about violations of the laws it’s supposed to enforce. Why? Because its role as scourge of employers is more important. “Our public enemy are the smugglers and employers who exploit these people.”

Rep. Lamar Smith (R-Texas), who chairs the House Judiciary Committee’s subcommittee on immigration, called the new policy “absurd”: “These rules would, for example, require employers to hire back individuals who had been fired when it is illegal to have hired them in the first place.” “To me it should be a nonstarter because an illegal alien by definition is in the country unlawfully,” said attorney John Findley of the conservative Pacific Legal Foundation. “That individual has no right to the job in question. To force an employer to rehire an individual with back pay and subject the employers to sanctions seems to me ridiculous.” An editorial in yesterday’s Chicago Tribune says that if the agency “was looking for a way to make itself seem ridiculous — even pernicious — it could hardly have found a better one….[EEOC chairwoman Ida Castro] has all but invited Congress to step up and clip the wings of an arrogant, overreaching government agency”.

Rep. Smith and some others predicted that the new rules would encourage illegal immigration, but the more accurate view would seem to be that of the AFL-CIO, which lobbied tirelessly for the new rules based on the expectation that giving this group more lawsuit-filing rights will discourage, not promote, its hiring. (A prominent element in the labor group’s tender concern for undocumented workers has been the desire to make sure they don’t get hired in the first place.) Backers of expansive employment law have often been reluctant to admit that giving a group of workers wider rights to sue — disabled or older workers, for example — can discourage employers from hiring that group. Update Apr. 3-4, 2002: Supreme Court rules that back pay for illegal is in violation of immigration law.

Sources: Stephen Franklin, “EEOC Seeks To Protect Undocumented”, Chicago Tribune, Oct. 26; Andrew Buchanan, “EEOC Helps Undocumented Workers”, AP/Washington Post, Oct. 27; “This EEOC Policy Goes Out of Bounds”, editorial, Chicago Tribune, Oct. 27; Steven Greenhouse, “U.S. to Expand Labor Rights to Cover Illegal Immigrants”, New York Times, Oct. 28.

October 28 — We’re outta here. The weekend was fast approaching, and after a long Friday of deliberations some of the jurors really wanted to finish the case, a negligence suit against a hospital, so as not to have to come back Monday. How badly did they want that? Badly enough to switch their votes to the defense side, according to the plaintiff’s lawyer who wound up losing, and one of the jurors backs up his complaint. (Jeff Blumenthal, “Did Civic Duty Go Awry?”, The Legal Intelligencer (Philadelphia), Sept. 15)

October 28 — Lost in translation. Lawsuit by entertainment guide WhatsHappenin.com against Hispanic portal QuePasa.com, on grounds that latter’s name roughly coincides with Spanish translation of the former, greeted disrespectfully by Suck.com (“Frivolous lawsuits don’t come much more frivolous…we think there is a possibility, however remote, that que pasa might just be a familiar and usable phrase in the Spanish language.” (“Hit and Run”, Oct. 14 — also see Wired News, Oct. 18).

October 28 — Virtual discussion continues. On Overlawyered.com‘s discussion forums, conversation continues with author Cathy Young about her Salon article on abuses of restraining orders in domestic relations cases (see yesterday’s announcement).

October 28 — Welcome National Post (Canada) readers and About.com Legal News readers. For our reports on Pokémon-card class actions, click here (Oct. 13) and here (Oct. 1-3). For our report on Houston litigation over “blast-faxing”, click here (Oct. 22)

October 27 — “Virtual interview guest” at Overlawyered.com discussion forums: author Cathy Young. As we mentioned yesterday, the Detroit News columnist and author of Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality has a provocative article in the new Salon about the ways restraining orders in domestic disputes can sometimes trample the rights of their targets. Several participants in our recently launched discussion forums expressed interest in the issue, and the author herself has now agreed to drop by the forums, beginning this afternoon, to field comments, reactions and questions and generally get a conversation going. Remember that it’s not live chat, so comments may not get an immediate response. The main discussion will be in the Divorce Law forum, but there may be spillover to other topics such as Harassment Law. Everyone can read what gets posted, but if you want to join in with your own reactions you’ll need to register, an easy step to take. [forums now closed]

October 27 — “This is all about power”. The Albany Times-Union furnishes more details about the little-publicized legal action (see Oct. 5-6 commentary) in which Indian tribes have sued to dispossess tens of thousands of private landowners in upstate New York; it seems that generations ago the state purchased reservation lands without obtaining federal approval as required by law, and the U. S. Supreme Court ruled in 1985 that proper title therefore never passed. The value of the innocent owners’ homes and farms has of course plunged drastically, and tribal spokesmen want the state government to step in with an offer on their behalf. “You have to get the state to get serious about negotiation”, explains Oneida leader Ray Halbritter. “The pain of not settling has to be greater than the pain of settling….This is all about power.” Very wealthy from its tax-free casino operations, the Oneida tribe donates abundantly to politicians, many of whom tread gingerly around its interests. To the fury of the local landowners, the U.S. Department of Justice has joined the Indians and is assisting their legal claim. (James M. Odato, “Tribe plays high-stakes game with landowners”, Oct. 25; plus sidebars on Mr. Halbritter and orchard owner/protest leader Tony Burnett; via Empire Page.) (see also Feb. 1 commentary).

October 27 — Why doesn’t Windows cost more? During the trial “the government’s economic expert got up on the stand and said that if Microsoft was charging all the market would bear, it would be charging about three or four times what it does today for an operating system. That’s kind of curious.” Why would Bill Gates leave that much money on the table? ‘Cause he’s a charitable kind of guy? No, the fact “probably suggests that Microsoft is facing a form of competition that keeps its prices low. And, in fact…what the evidence proved is that that competition comes in the form of platform competition — the desire to be the next generation of technology in an area where technology turns over in a matter of months, not a matter of years. And that competition … keeps prices down, keeps Microsoft on its toes, keeps innovation going.” — former Assistant Attorney General for Antitrust Charles Rule, now of Covington & Burling, speaking at “What Are We Learning from the Microsoft Case?”, a Federalist Society conference held in Washington Sept. 30 (full transcript)

October 27 — Zone of blame. Two years ago a former mental patient slew New Jersey state trooper Scott Gonzalez, first ramming his cruiser head-on, then killing him with two shotgun blasts through the car’s windshield. So who’s his widow suing? The killer’s parents; the makers of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; and the Ford Motor Co., because the deployment of its airbags on collision allegedly delayed his exit from the car. (Eric D. Lawrence, “Widow’s suit blames auto, gun makers for cop’s death”, Easton, Pa. Express-Times/Lehigh Valley Live, Oct. 26 — full story). Update Jan. 3, 2004: jury finds for Ford.

October 27 — Welcome Progressive Review readers. Looking for the cow items mentioned there? Click here (foam-rubber cow recall) and here (Canadian brouhaha over insensitive cow-naming).

October 26 — Rhode Island A.G.: let’s do latex gloves next. Rhode Island Attorney General Sheldon Whitehouse just made headlines by enlisting his state as the first to sue lead paint and pigment makers in partnership with trial lawyers. But that’s not all he’s been up to, according to a report in Business Insurance: “In an August letter to another attorney general, Rhode Island’s Whitehouse proposed ‘going after’ the latex rubber industry over health problems possibly caused by latex allergies, a copy of the letter shows. The states could seek ‘a couple of billion dollars’ to fund latex allergy education and research programs, Mr. Whitehouse suggested.” (more about latex allergies)

With tobacco fees beginning to flow, the article also reports renewed interest in an old trial lawyer project that now may attract co-sponsorship from state or city officials: getting courts to hold automakers liable for not installing “speed governors” on passenger cars that would cut off added acceleration if the driver tried to take the vehicle above a certain set miles-per-hour. If courts accept such a theory, Detroit could potentially be on the financial hook for most or all high-speed crashes that take place in cars now on the road. (Douglas McLeod, “Suits by public entities expected to increase,” Business Insurance, Oct. 18)

October 26 — Dave Barry on federal tobacco suit. “As a result of [companies’] clever deception, the Justice Department contends, smokers did not realize that cigarettes were hazardous. This is undoubtedly true of a certain type of smoker; namely, the type of smoker whose brain has been removed with a melon scoop. Everybody else has known for decades that cigarettes are unhealthy….

“Cigarette companies are already selling cigarettes like crazy to pay for the $206 billion anti-tobacco settlement won by the states, which are distributing the money as follows: (1) legal fees; (2) money for attorneys; (3) a whole bunch of new programs that have absolutely nothing to do with helping smokers stop smoking; and (4) payments to law firms. Of course, not all the anti-tobacco settlement is being spent this way. A lot of it also goes to lawyers…” (Dave Barry, “Few — Hack! — Thought Their Habit Safe,” Spokane Spokesman-Review, Oct. 24. Plus: novelist Tom Clancy’s critical take on the feds’ tobacco suit (“Curing the Smoking Habit”, Baltimore Sun, Oct. 17, reprinted from Los Angeles Times).

October 26 — “Hitting below the belt”. Readers of this website were alerted twelve days ago to Cathy Young’s powerful Detroit News critique of abuses of restraining orders in divorce and custody cases. Now the author of Ceasefire appears in the October 25 Salon with a much-expanded version, including more on the Harry Stewart case (he’s serving a six-month sentence for violating a restraining order by seeing his son to the front door instead of waiting in the car), new detail on traps (conduct violative of an order “includes contact that is clearly accidental, or even initiated by the purported victim: Even if you came over to the house at your ex-spouse’s invitation, you don’t have a legal excuse”) and on tactics (“There are stories of attorneys explicitly offering to have restraining orders dropped in exchange for financial concessions”).

One startling quote comes from a New Jersey judge addressing his peers at a 1995 conference: “Your job is not to become concerned about the constitutional rights of the man that you’re violating as you grant a restraining order,” said the Hon. Richard Russell. “Throw him out on the street, give him the clothes on his back and tell him, see ya around …The woman needs this protection because the statute granted her that protection … They have declared domestic violence to be an evil in our society. So we don’t have to worry about the rights.” But a growing number in the field are worried about the rights, and don’t think protecting the rights of potential abuse victims should have to mean sacrificing those of the accused. “I don’t think there’s a lawyer in domestic relations in this state who doesn’t feel there has been abuse of restraining orders,” says Needham, Mass. attorney Sheara Friend. “It’s not politically correct — lawyers don’t want to be pegged as being anti-abused women, but privately they agree.” (full story)

October 26 — “The Reign of the Tort Kings”. Trial lawyers now wield political clout “unthinkable” four years ago, and have nearly doubled their contributions to federal candidates over that period, report Marianne Lavalle and Angie Cannon in a big spread on the emergent Fourth Branch in the new U.S. News & World Report (Nov. 1)

October 25 — Gun litigation: a helpful in-law. Time magazine, in its issue out today, reports that Hugh Rodham, brother of Hillary Rodham Clinton and brother-in-law of President Clinton, has now popped up to assist lawyers suing the gun industry in brokering a settlement. Earlier, lawyers suing the tobacco industry cut in Rodham — despite his glaring lack of experience in mass-tort litigation — as a participant in their activities; he proceeded to use the occasion of a Thanksgiving dinner at the White House to approach his sister’s husband directly, which helped lead to the settlement that’s shaken loose billions in fees for those lawyers. Rodham told Time, “It was totally unforeseen, when we joined…that there would be any connection with politics.” (full story)

October 25 — From the Spin-to-English Guide, a service of Chris Chichester’s Empire Page. Phrase: “It’s important to preserve and enhance access to justice.” Translation: “We’ve come up with a great way to allow the trial lawyers to file more lawsuits, win more big settlements, and give us more campaign contributions.” Among others in the series — Phrase: “The only poll that counts is the one on Election Day. Translation: We’re a bunch of losers headed for a trouncing on Election Day.” And — Phrase: “We’re not going to dignify that with a comment. Translation: We really got slammed and can’t think of a response.” (page now removed) The Empire Page, started last year by former legislative and gubernatorial staffer Christopher Chichester, has quickly become the one-stop Web jumping-off point for news of New York politics and government; it’s alerted us to several items used on this page (item no longer online).

October 25 — Better than reading a lunchtime novel. Sylvia Johnson was fired from her job with the IRS after it was discovered she’d improperly accessed taxpayers’ personal returns some 476 times. Now she’s suing the U.S. Treasury to get her job back and for punitive as well as compensatory damages. A Merit Systems Protection Board administrative judge previously rejected her discrimination and due process claims, saying that while other employees caught peeking in files had been given a second chance, the agency regarded her misuse of the system as far more extensive. (Gretchen Schuldt, “Ex-IRS employee sues to regain job”, Milwaukee Journal Sentinel, Oct. 14 — full story)

October 25 — Guest column in Forbes by Overlawyered.com‘s editor. The column blasts the Clinton Justice Department’s recent suit against tobacco companies (see Sept. 23 commentary), in particular the suit’s premise that it was legally wrongful for the companies to send out press releases and commission research in an effort to defend their position. “If partisan science is racketeering, whole echelons of the Environmental Protection Agency should be behind bars. But the novel legal doctrines being advanced in the suit can’t — and won’t — be applied evenhandedly.” (“Reno’s Racket”, Forbes, Nov. 1 — full column).

Plus: op-ed in today’s Wall Street Journal by Jonathan Rauch, adapted from his earlier National Journal column, assesses the suit’s threat to free speech by business and quotes this site’s editor (requires online subscription).

October 23-24 — Inmates’ suit cites old videos. A federal judge considers a suit by inmates complaining of inhumane conditions in Philadelphia’s antiquated House of Corrections. The report makes it sound difficult for the inmates’ lawyer to elevate their gripes to the level of a Constitutional violation, however: “Very few toilets have seats, and the video movies they get are outdated, the inmates told the judge.” (Jim Smith, “Inmates: Prison chow’s bad, videos are old”, Philadelphia Daily News, Oct. 8)

October 23-24 — Zero tolerance strikes again. “Student suspended after cutting cake with pocket knife”, reads the headline over this AP story datelined Monroe, N.C., where a 14-year-old boy in the Union County schools was given a five-day suspension. “When a student is in possession of a knife, it’s a clear-cut violation,” said assistant principal David Clarke. “We can’t have weapons in our schools”. The incident occurred at the end of a school day when a teacher shared a leftover cake with students and needed something to cut it with. (Raleigh News & Observer, Oct. 22; “Cake-Cutting Ends in Suspension”, Excite/Reuters, Oct. 22)

October 23-24 — Weekend reading: evergreens. Pixels to catch up with on the raft or schooner, if you missed them the first time around:

* Prescient (3 1/2 years ago) op-ed by Bruce Kobayashi, of George Mason University Law School, argues that holding gunmakers liable for shootings “would create new injustices…ensnare the morally innocent and erode the crucial distinction between responsible and irresponsible behavior.” Besides, why “place the financial burden on law-abiding firearms owners who have not misused firearms? If the litigation explosion has taught us anything, it is that using the tort system to provide social insurance entails large (and largely hidden) premiums — usually in the form of less output and less justice.” (Orange County Register, April 21, 1996, reprinted by Independent Institute — full column)

* Melrose Place (1997, 5th season) plot lines revolving around staged-accident fraud — you may have to know the characters for the synopses to make sense (Ken Hart: 3/10/97, 3/17, 3/31, 4/7, 4/14, 4/21, 4/28, 5/5/97; EPGuides/Pam Mitchelmore: 3/17/97, 3/31, 4/7, 4/14, 4/28, 5/5/97; Peter Goldmacher: 3/10/97, 3/17, 4/7, 4/14, 4/21/97)

* Denver probate-court nightmare: tangle of guardianship proceedings leaves 83-year-old Letty Milstein “virtually a prisoner in her own home” as she struggles against efforts to have her declared incompetent. By the time an appeals court steps in, court-appointed lawyers, health-care personnel and others have consumed most of her $650,000 estate. One lawyer, Michael Dice, later pleaded guilty to stealing money from numerous clients. Alternative weekly Westword covered the story tenaciously (Steve Jackson, “Mommy Dearest”, May 22, 1997; Steve Jackson, “Letty Wins”, Feb. 12, 1998; other coverage, all links now dead).

October 22 — In Houston, expensive menus. “Junk” (unsolicited) faxes are a widely loathed medium of advertising, tying up a target’s machine and using his own paper to do it. In 1995 some Houston lawyers filed suit against more than seventy local defendants which they said had patronized blast-fax ad services despite a 1991 federal ban. Though filing in state court, they sought to invoke a penalty specified in federal law of $500 for each unwanted fax sent, and triple that if the offense was willful. They also asked for certification as a class action, entitled (they said) to recover the $500 or $1500 figure for every fax sent on behalf of any defendant during the period in question — a sum estimated at $7 billion.

The list of named defendants is heavy on restaurants (many of them presumably sending menus or coupons) but also includes car dealers and some national businesses like GTE Mobile and Pearle Vision Centers. Defendants’ lawyers variously argue that no laws were broken, that their clients should not be held liable for the sins of ad agencies, that ad sponsors had been assured that all recipients had opted in to a tell-me-about-discount-offers arrangement, and that there is no evidence that the named plaintiffs received faxes from their clients or complained at the time; plaintiffs, however, point to records from the agencies as providing a paper trail of how many were sent on whose behalf. Thus a local Mexican restaurant which advertised in more than 50,000 faxes is potentially on the hook for $25 million dollars and change — three times that if deliberate defiance of the law can be shown.

One larger defendant, Houston Cellular, paid a reported $400,000 this spring to be let out of the case; plaintiff’s attorneys requested one-third of that amount as their fee. Last month another eight defendants reportedly chipped in a collective $125,000 to get out. Steven Zager, an attorney at Brobeck, Pfleger and Harrison who’s representing some defendants, said the federal statute provided the $500/$1,500 fines so as to allow individual grievants an economic means to vindicate their interests in a small-claims format and never contemplated aggregation into one grand class action: “This statute was not meant to be Powerball for the clever.” (Ron Nissimov, “Company settles over ‘junk faxes’; Houston Cellular to pay $400,000; others to fight”, Houston Chronicle, April 29; Mark Ballard, “Junk fax ban taken seriously”, National Law Journal, May 17; Ron Nissimov, “Some firms settle in ‘junk faxes’ case”, Houston Chronicle, Sept. 4; “That Blasted $7 Billion Fax“, Citizens Against Lawsuit Abuse — Houston) (update April 3, 2000: judge dismisses case).

October 22 — Foam-rubber cow recall. Computer maker Gateway used to distribute cute foam-rubber squeezable “Stress Cows” as a corporate promo, but now…well, you just can’t be too careful in today’s climate. “A few conscientious parents have alerted us that small children can tear or bite off parts of the stress cow, creating a potential choking hazard. In response to that concern, and in cooperation with the Consumer Product Safety Commission, Gateway has voluntarily stopped distributing this product and is recalling all Stress Cows previously given to clients.” (“Important Safety Notice“, Gateway Corp. website; the picture alone is worth the click).

October 22 — Canadian cow-naming update. See below entry (Oct. 21) for further developments in the brouhaha about whether Ottawa’s Central Experimental Farm may assign its bovine wards human names like “Bessie” and “Elsie”.

October 21 — Deal with us or we’ll tank your stock. With trial lawyers now launching a high-profile attack on managed care, HMO stocks have fallen by one-half or more from this year’s highs. Lawyers are seizing on this development in itself to “prod” the industry into “a swift settlement” of the actions, reports Owen Ullmann in yesterday’s USA Today. Trial lawyer potentate Richard Scruggs, tobacco-fee billionaire and brother-in-law of Senate Majority Leader Trent Lott (R-Miss.), “said Tuesday that economic pressure from investors” could force the companies to the table. “Trial lawyers have been telling Wall Street analysts that if the lawsuits are upheld, ‘they would put them (companies) out of business'” — and making such a pitch to those analysts, of course, helps along the process of getting the stocks to drop. Karen Ignagni, president of the American Association of Health Plans, said the situation “borders on extortion”, while Washington lawyer and veteran tort reformer Victor Schwartz said companies could wind up settling based not on the legal merits but on concern for stock price. (Owen Ullmann, “Wall Street may play part in HMO suits”, USA Today, Oct. 20 — fee-based archive).

Meanwhile, yesterday’s Boston Globe quotes experts who say the continuing onslaught of new trial lawyer initiatives, fueled by tobacco fees, could have a major depressing effect on the market more generally. “Many analysts think the lawyers will have trouble making the [HMO] suits stick. Still, no one can say for sure what will happen, and on Wall Street, uncertainty is trouble. ‘Until we get some clarity, I think the attitude of some investors will be, ‘I don’t need to own these stocks,'” says Linda Miller, manager of John Hancock’s Global Health Sciences Fund.” Shares in several paint and chemical companies also dropped sharply after trial lawyers launched a new wave of lead-paint litigation with Rhode Island as their first state-government client. (Steven Syre and Charles Stein, “Market’s new worry: lawsuits; Analysts believe wave of litigation just beginning”, Boston Globe, Oct. 20)

October 21 — Minnesota to auction seized cigarettes. State officials seized several thousand dollars’ worth of cigarettes, cigars and other tobacco items from the Smoke Shoppe and Book Nook in Brainerd, Minn. for nonpayment of taxes. On Saturday they’re scheduled to auction off that inventory for the state’s benefit, though Minnesota took the lead in suing cigarette makers and in hand-wringing generally over the continued legal sale of such products. Lynn Willenbring of the state Department of Revenue said the sale was required by state law but admitted the matter was “kind of a sticky wicket”. (Conrad DeFiebre, “State to sell smokes at delinquent-taxes auction”, Minneapolis Star-Tribune, Oct. 16).

October 21 — New Jersey court system faces employment complaint. The various branches of government that have taken on the mission of riding legal herd on private employers have themselves long faced an above-average rate of complaint from their own employees. Latest instance: the New Jersey courts, which along with California’s have won renown as the nation’s most inventive in finding new ways to let employees sue their bosses, face a complaint from their own clerks’ union alleging misclassification of workers, retaliation for collective bargaining activity and other sins. (Padraic Cassidy, “Judiciary Workers’ Union Files Unfair Labor Practices Charges”, New Jersey Law Journal, Sept. 20)

October 21 — Sensitivity in cow-naming. In a temporary advance for Canadian feminism, higher-ups last year ordered the Central Experimental Farm, an agricultural museum and research center in Ottawa, to stop giving cows human-female names like Elsie and Bessie because such names “might give offense to women,” the Boston Globe reports. “Some people are … sensitive to finding their name on an animal. I am, for example,” said Genevieve Ste.-Marie, who issued the order as director of the National Museum of Science and Technology. “Let’s say you came in and found your name on a cow, and you thought the cow was old and ugly.” Names like Clover, Rhubarb and Buttercup were still deemed okay, with borderline cases such as Daisy being decided on a “cow-by-cow basis”. Also cited as acceptable was “Bossy”. (Oct. 16 Sydney (Australia) Morning Herald, reprinting Colin Nickerson, “Canadian bureaucrats get bossy over Bessie”, Boston Globe, Oct. 13).

Sequel: on Oct. 15 the museum announced it would reverse its policy and go back to letting cows have human names, after having received a torrent of public comment, with “not one letter” favoring its sensitivity policy. (Kate Jaimet, “She’s no lady; Stephani’s a cow”, Montreal Gazette, Oct. 16).

October 20 — For this we gave up three months of our lives? No wonder the jurors’ eyes looked glazed — the patent infringement dispute between Honeywell and Litton Industries required them to master the numbing intricacies of ring laser gyro mirror coatings, “an optical film used to reflect laser beams in aircraft and missile guidance systems”. After a three-month trial they voted a mammoth verdict of $1.2 billion against Honeywell, a record for a patent infringement case, but that award later got thrown out. The U.S. is the only country that uses juries to decide complex patent cases; in 1980 the Third Circuit expressed the opinion that “the Seventh Amendment does not guarantee the right to jury trial when the lawsuit is so complex that jury will not be able to perform its task of rational decision making with a reasonable understanding of the evidence and the relevant legal rules.” (Kevin Livingston, “Junking the Jury?”, The Recorder/Cal Law, Oct. 19).

October 20 — The art of blame. A three-year-old is left unattended and forgotten in a van in 95-degree heat, and the van’s interior grows hotter and hotter until at last he dies of hyperthermia. Who deserves the blame? You may be a suitable candidate for practicing law if you guess the Ford Motor Co., for not designing and installing systems that would cool the air in parked cars. (Ben Schmitt, “Suit Demands Ford Add Safety Device to Cool Cars”, Fulton County Daily Report, Oct. 4).

October 20 — Spreading to Canada? A disgruntled fan has sued Ottawa Senators hockey captain Alexei Yashin and Yashin’s agent, Mark Gandler, over the Russian-born player’s refusal to show up at training camp to play with the team. Retired commercial real estate magnate Leonard Potechin is demanding a combined $27.5 million dollars (Canadian) of the two for having spoiled the season, to which Potechin held season tickets. (Ken Warren, “Fan files $27.5M suit against Yashin, agent”, Ottawa Citizen, Oct. 5) (update, Jan. 12: judge allows case to proceed).

October 19 — Maryland’s kingmaker. According to Peter Angelos, the state of Maryland owes him a cool billion dollars for representing it in the tobacco settlement, and it seems a distinct possibility that he’ll get it. The state legislature has gestured toward cutting in half his contracted 25 percent contingency fee, but that move is uncertain to stand up in court. In the mean time, Angelos’s refusal to recede from his fee means that tobacco booty which otherwise would flow into state coffers will sit in an escrow account over which he’ll exert partial control until the state resolves his claim.

In a March 28 profile, Washington Post reporters Daniel LeDuc and Michael E. Ruane write that Angelos is “viewed by many political insiders as the most powerful private citizen in Maryland.” Immensely wealthy from asbestos plaintiffs’ work — a 1997 National Law Journal list of influential lawyers (link now dead) describes him as “a perennial candidate for any list of the best-paid attorneys in the nation” — he branched out to buy the beloved hometown Baltimore Orioles and to become one of the most munificent donors to Democrats nationally as well as in Maryland. He now sports his own private lobbyist; glove-close relations with the governor and labor leaders; and a host of statehouse connections, such as with the state senate president pro tem, who happens to be a lawyer at Angelos’s firm.

Among the marks of his success has been the ability to steer “Angelos bills” through each year’s legislature whose effect is to enable him to extract more money from the defendants he sues. When a state appellate court ruled to limit damages on some of his asbestos cases earlier this year, for example, the Post reports, Angelos personally drafted a bill overturning the opinion and had two of his allies in Annapolis introduce it. (Those allies happened to be the Senate finance committee chairman and the House majority leader.) The bill reinstated higher damages for asbestos cases and for those cases only — most of which happen to be under Angelos’s control in the state. “Every time, it’s a bill that lines Peter Angelos’s pocket,” grumbles House Minority Whip Robert Flanagan (R-Howard). In the most remarkable episode, Maryland lawmakers (like Florida’s) agreed to change the rules retroactively to extinguish tobacco company legal defenses. We’ll all be living with that precedent for a long time: once legislators get a taste of the power to declare their opponents’ actions unlawful after the fact, it’s unlikely tobacco companies will be the last target. For his part, Angelos presents his statehouse efforts as essentially conservative and restorative: “The legislation I introduce is meant to reinstitute the litigation rights our citizens once had,” he told the Post of this year’s asbestos bill.

Angelos’s legislator-allies say the bills should be seen not as special interest legislation benefiting one person, but as a boon to an entire sector of the Maryland economy, which is what the lawyer’s far-flung operations have come to be. “Peter Angelos in and of himself is a major economic interest in the state,” explains one enthusiastic ally, House Majority Leader John Hurson (D-Montgomery). “His empire has grown so large, his benevolence so vast, they say, that to help Angelos is to help the whole state.” Daniel LeDuc and Michael E. Ruane, “Orioles Owner Masters Political Clout”, Washington Post, March 28; Daniel LeDuc, “Angelos, Md. Feud Over Tobacco Fee”, Washington Post, Oct. 15.

October 19 — Change your county’s name or I’ll sue. In 1820, an Ohio county was named after Revolutionary War hero Isaac Van Wart, but there’d been a spelling slip-up along the way, and the county’s name was rendered “Van Wert”. A few years ago a descendant of the original Van Wart family discovered the link and began writing letters to Ohio officials high and low asking that the error in the place name be corrected and the a replaced with an e. County officials demurred, saying the cost of changing title deeds and other documents would be far too high (aside from which, one presumes, after 170-odd years people had grown attached to the new name). Now Jeff Van Wart has begun approaching legal assistance groups in hopes they will help him launch a court action to force a name change: “I’m not going to let it drop.” (William Claiborne, “A War of Van Warts”, Washington Post, Oct. 12).

October 18 — Nominated by reader acclamation. Six months after their son barged into the Columbine High School cafeteria with guns and bombs and began killing people, Thomas and Susan Klebold have filed a lawsuit arguing that their neighbors should pay them. They say the school district and Jefferson County sheriff’s department mishandled warning signs about the behavior of their son Dylan and his pal Eric Harris before the massacre. Widely greeted as a memorable contribution to the annals of chutzpah, the Klebolds’ action could alternatively be construed as an effort to save themselves from ruin, since they’re being sued themselves by victim families; their statements imply that their suit is aimed at shifting those bills to public authorities, as opposed to actually making money from the slaughter. Either way they’ve helped establish a new record for this website, since never before have so many readers written in to suggest we take note of a case. Incidentally, the family of Cassie Bernall, best-known of the Columbine victims and a heroine to many Christians, has declined to press lawsuits: “We just made a family decision,” said father Brad Bernall. (Kevin Vaughan, “Klebold family plans to sue Jeffco“, Rocky Mountain News, Oct. 16; Tracy Connor, “Columbine HS Killer’s Parents Stun School with Lawsuit”, New York Post; Steve Dunleavy, “I Mean, Talk About Chutzpah!”, New York Post).

October 18 — Couple ordered to pay $57,000 for campaign ads criticizing judge. Robert and Olga Osterberg of El Paso, Texas, were dissatisfied with how litigation of theirs had been handled by state judge Peter Peca, so they bought TV ads advocating his defeat in a Democratic primary. But Texas law allows candidates to file private lawsuits against ordinary citizens charging them with campaign-law violations, and Judge Peca (who won the primary despite the ads) proceeded to sue the Osterbergs, charging them with having missed a disclosure deadline. On July 29 the Texas Supreme Court by a 7-2 margin ruled in the judge’s favor, and ordered the Osterbergs to pay him $57,390 — twice what they’d spent on the commercials. Dissenting justice Craig Enoch said the decision left the couple unfairly open to penalties for expenditures they may not have realized were illegal. Another justice expressed concern that the disclosure requirements of Texas election law “may be so cumbersome for ordinary citizens that they unduly burden free speech”, but voted to uphold the award anyway. (“Texas judge gets revenge, couple ordered to pay $50,390 [sic] in damages for missing report deadline”, Political Finance and Lobby Reporter, Aug. 25 — link now dead (PDF document, Adobe Acrobat needed to view; scroll down to p. 7)).

October 18 — Format changes at this site. We installed a number of format improvements to Overlawyered.com over the weekend, mostly inconspicuous ones relating to how the site’s archives work. Items will now be archived the same day they appear, which eases life for anyone wishing to cite or link to a recent commentary (we recommend pointing to the archives address rather than this front page). The front page will now maintain only a few days’ worth of items, down from eight, which will mean faster loading for readers with slow connections. Table widths have been tinkered with to provide better display for readers with small usable screen sizes. You’ll also notice a new tell-a-friend-about-this-site service, which appears on more pages than before.

October 18 — Times’s so-called objectivity. Sent this morning: “Letters to the Editor, The New York Times, To the Editor: A quick computer survey of the last three years’ worth of the Times‘s national coverage indicates that your editors have generally taken care to restrict the pejorative formula ‘so-called…reform’ to the editorial portions of the paper, and that it has been employed there almost exclusively by letter-writers and columnists frankly hostile to the measures under discussion (‘so-called campaign finance reform’, ‘so-called welfare reform’, etc.). But there’s one glaring exception: twice now in recent months your reporters (‘How a Company Lets Its Cash Talk’, Stephen Labaton, October 17, and ‘State Courts Sweeping Away Laws Curbing Suits For Injuries’, William Glaberson, July 16) have employed the phrase ‘so-called tort reform’ in prominent news stories. No other national domestic issue has been accorded this slighting treatment. What is it about the movement to rein in trial-lawyer excesses that causes the Times to forget its usual journalistic standards? Very truly yours, etc.” — our editor. [Never ran.]

October 18 — Trop d’avocats.com. Belated thanks to the English-language Montreal Gazette, which recommended this site September 18 in its “Quick Clicks” column: “Students of the excesses of the litigious United States should check out this site, recently launched by Manhattan Institute senior fellow Walter Olson. He said he wanted to document ‘the need for reform of the American civil justice system.’ The page is updated regularly with legal horror stories and links.”

October 16-17 — Illinois tobacco fees. Chicago’s Freeborn & Peters and Seattle’s Hagens & Berman complain bitterly at an arbitration panel’s decision to give them a mere $121 million for representing the state of Illinois in its tobacco-Medicaid suit when they felt they deserved closer to $400 million. The arbitrators pointed out that the firms hadn’t submitted any time records of hours spent on the state’s case and had done “relatively little” to advance the Illinois claims toward trial, not even having taken any depositions. The state’s attorney general, Jim Ryan, had signed the pact with the two firms and later was the one who agreed to settle the state’s case, thus triggering their fee entitlement; his “close ties to Freeborn & Peters had come under earlier scrutiny”, reports the Chicago Sun-Times’s Dave McKinney (“Law firms decry cut in tobacco fees”, Oct. 12 — link now dead; John McCarron, “Fee Frenzy”, Chicago Tribune, July 26) (see also tobacco-fee coverage for Kansas (Oct. 11, below), New Jersey, Wisconsin).

October 16-17 — Hey, what is this place, anyway? The term “weblog” refers to a running diary of interesting stuff found around the Web, usually with some degree of annotation. Overlawyered.com, for all its fancy policy pretensions, basically follows this format. There are now hundreds if not thousands of weblogs being published and a site called jjg.net has pulled together most of the ones you’ll want to know about. We immediately spotted a bunch of our favorites like the elegant Arts & Letters Daily, the Junk Science Page, Jim Romanesko’s Media Gossip and Obscure Store, Bifurcated Rivets and leftish Robot Wisdom before going on to check out fun unfamiliars like postsecondary.net (higher education) and Deduct Box (Louisiana politics).

jjg.net is put out by a Southern Californian named Jesse James Garnett who inevitably has his own weblog Infosift, a good one. We quote in its entirety an entry for October 11, hyperlinks and all: “According to the Pez people, my use of the word Pez in this sentence is a violation of Pez trademarks and makes me subject to prosecution by Pez Candy in defense of the Pez name. Pez Pez Pez. Pez.”

October 16-17 — Wide world of federal law enforcement. The National Journal news service is reporting (not online) that the House Judiciary Committee on Wednesday gave its approval to H.R. 1887, which would impose federal prison sentences of up to five years and fines on anyone who distributes depictions of animal cruelty unlawful under state law. The bill is aimed at “purveyors of so-called ‘crush videos’ who cater to foot fetishists by selling videos of women crushing small animals with high-heeled shoes.” Insect-crushing is also featured in some videos. The bill would, however, apparently ban a much wider array of films and printed matter, raising the possibility that it might become illegal to broadcast news programs on bullfighting in Spain or elephant poaching in Africa, so lawmakers hastily added an amendment exempting depictions with “journalistic, religious, political, educational, historic or artistic value”. (Not mentioned in reporting was whether home videos of pet snakes being given their daily feeding of live mice would remain legal.) A succession of legal authorities from Chief Justice Rehnquist on down have warned that too many crimes are being federalized, but after testimony that included a plea from Hollywood animal lover Loretta Swit, legislators decided the crush-video crisis demanded national action (“Ban Sought on Animal ‘Crush Videos'”, AP/APB News, Aug. 24; “Bill Cracks Down on Animal-Torture Videos”, AP/APB News, Oct. 1).

October 16-17 — “Health care horror stories are compelling but one-sided”. They call us anecdotal, but when it comes time to press for new rights to sue you can bet boosters of litigation don’t linger for long over dry statistics about how the health care system is performing as a whole; instead we get wrenching stories of how when Mrs. Jones got cancer she couldn’t get her HMO to cover experimental treatment, or how the Children’s Hospital of San Diego sent little Steve home when they should have known he was very sick. Fair enough, you figure, both sides can play. But Tuesday’s New York Times reports a problem in checking many of the HMO horror stories: “The health plans and providers cannot discuss individual cases because of patient confidentiality laws. And although patients can waive such restrictions, they generally do not.” So only the one side makes it onto the public record. A Ralph Nader group has been vigorously circulating the little Steve story for four years but concedes it can’t insure its veracity.

It’s not always that the Times does this good a job of shedding light on a major litigation issue. So why’d they bury this piece without a byline on page A29 — especially when a few months back they devoted a big front-page spread to reporter Bill Glaberson’s charges that the case for tort reform was merely anecdotal? (“Health Care Horror Stories Are Compelling But One-Sided”, unbylined, New York Times, Oct. 12)

October 1999 archives


October 15 — Reform stirrings on public contingency fees. U.S. Chamber of Commerce readies a push to curb governments’ growing habit of teaming up with private lawyers to sue businesses (tobacco, guns, lead paint) and share out the booty. “We think this is one of the biggest threats facing American industry today,” says Jim Wootton, executive director of the Chamber’s Institute for Legal Reform. Its proposed reform package targets such abuses as political corruption (states would be barred from hiring an outside lawyer who “contributed more than $250 to the campaign of a public official”) and retroactivity (states couldn’t enact legislation affecting their chances of winning pending or contemplated suits).

Our editor’s take on this issue appeared in his 1991 book The Litigation Explosion, excerpted at the time in Policy Review (parts one, two). Briefly: contingency fees for representing governments are a corrupting analogue to the widely deplored practices of “tax farming” (letting tax collectors keep a share of the revenue they take in) and of hinging traffic cops’ bonuses on the volume of tickets they write. There’s no historical reason to permit such devices at all: lawyer’s contingency fees developed in this country as an exception arising from our lack of a loser-pays rule (most other countries flatly ban them as unethical) and until not long ago were carefully limited here to the cases where they were considered a necessary evil, in particular cases where an impoverished client could not afford hourly fees. That ruled out contingency representation of governments. In addition, several court decisions suggest that it violates due process to delegate public law enforcement functions to persons financially interested in their outcomes, which is why we don’t allow D.A.s year-end bonuses based on their success in nailing defendants.

Interesting gossip tidbit from today’s front-page New York Times coverage of the reform push: Prof. Jack Coffee of Columbia says he “would not be surprised if” public entities like cities signed up with the trial lawyers’ campaign to sue HMOs. (Barry Meier and Richard A. Oppel, Jr., “States’ Big Suits Against Industry Bring Battle on Contingency Fees”, New York Times, Oct. 15 — full story)

October 15 — Dog searches of junior high lockers. Yes, they’re doing random canine sniffs of twelve-year-olds’ possessions in York, S.C., not on any focused suspicion but just on principle, maybe to remind kids not to expect privacy: “It’s just a further measure to enhance safety at the schools,” beams principal Ray Langdale (Tracy Smith, “K-9 debuts in locker search at junior high”, Rock Hill, S.C. Herald, Oct. 12).

October 15 — A mile wide and an inch deep. “The Environmental Protection Agency has placed a portion of the Platte River in central Nebraska on the ‘Impaired Waters’ list. Their reason: It gets too hot. The source of the heat: the sun….” (“The Miller Pages” by Jeff Miller, webzine, Sept. 30 — full column)

October 14 — Covers the earth with litigation. Trial lawyers’ long-prepared campaign against lead paint and pigment makers gets its liftoff with the state of Rhode Island agreeing to serve as the first designated statewide plaintiff, and doubtless not the last. Picked by attorney general Sheldon Whitehouse to represent the state on a contingency fee basis are Providence’s Decof & Grimm and Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole, the latter of which is reaping somewhere between hundreds of millions and billions of dollars (estimates vary) from its role in earlier rounds of asbestos and tobacco litigation. Named as defendants are the Lead Industries Association, an industry trade group, along with eight manufacturers: American Cyanamid, Atlantic Richfield, duPont, The O’Brien Corporation, Imperial Chemical Industries’ Glidden Co., NL Industries, SCM Chemicals, and Sherwin-Williams. Lawyers are also planning to enlist cities as plaintiffs in the manner of the gun litigation, perhaps starting with Milwaukee, where a favorable state law may help their cause. Baltimore asbestos/tobacco tycoon Peter Angelos, who owns the baseball Orioles, has filed suit in Maryland; and a suit against paint makers by New York City has also been chugging along in the Gotham courts for years with little publicity or apparent success.

Sources (most links now dead): Gillian Flynn, AP/Washington Post, Oct. 13; David Rising, “R. I. Sues Lead Paint Makers”, Washington Post, Oct. 13; Yahoo/Reuters, “R.I. files suit against 8 lead paint makers”, Oct. 13; Whitehouse’s Oct. 13 press release; companies’ Oct. 13 press release; Baltimore: “Lawyer Goes After Lead Paint Makers,” AP/Washington Post, Sept. 21; Felicia Thomas-Lynn, “Pittsburgh lawyers pick Milwaukee for building lead-paint suit,” Milwaukee Journal-Sentinel, June 2; Greg Borowski, “City Moves Toward Suing Paint Industry”, Milwaukee Journal-Sentinel, Oct. 6; and coverage on the industry site Paints and Coatings.com.

October 14 — Injunctive injustice. Restraining orders in family and divorce law can protect potential targets of domestic abuse, but they can also wind up becoming the instrument of legalized violence themselves. “Men have been jailed for sending their kids a Christmas card or returning a child’s phone call,” comments Detroit News columnist Cathy Young, author of the recent Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality. “Harry Stewart, a lay minister who has never faced criminal charges of assault, is serving a six-month jail term for violating a restraining order. His crime? When bringing his 5-year-old son back to the mother after visitation, he walked the boy to the apartment building and opened the front door. The restraining order forbade him to exit his car near his ex-wife’s residence.”

Procedural protections for targets are few, and judges can often issue temporary restraining orders ex parte without either the presence of the defendant or any allegation of actual violent behavior. “In 1993, Elaine Epstein, then president of the Massachusetts Bar Association, warned that ‘[in] many [divorce] cases, allegations of abuse are now used for tactical advantage'” and that courts were handing down restraining orders too readily. Some fathers’-rights activists in the Bay State have recently launched a wide-ranging legal challenge to the state’s family-court practices. “Charges of domestic violence, by women or men, must be taken seriously,” writes Young. “But sensitivity to victims should never turn into a presumption of guilt.” (“Do ‘protection orders’ actually violate civil rights?”, Detroit News, reprinted Jewish World Review Sept. 30 — full column)

October 14 — 60,000 pages served on Overlawyered.com. Traffic zips right along, both on the fast news days and the slow … thanks for your support!

October 13 — “Doctor sues insurer, claims sex addiction.” “A former Paducah gynecologist who claims he is a sex addict is suing his insurance company to collect disability benefits because he can’t practice his specialty,” reports the Louisville Courier-Journal. Dr. Harold Crall voluntarily gave up his practice after instances of inappropriate contact with patients came to light; he now treats male patients at the Kentucky department of corrections and is under orders from a state licensing board never to see female patients without a chaperone. His lawsuit in federal court says the Provident Life & Accident Insurance Co. should pay him disability benefits because his sexual addiction prevents him from pursuing his chosen profession. (Mark Schaver, Louisville Courier-Journal, Oct. 8)

October 13 — “This wretched lawsuit”. The Clinton Administration’s new tobacco suit “is, without a doubt, the most impressive legal document of our day,” writes Jonathan Rauch in National Journal. “Examining this lawsuit is like watching a drunken driver who, before crashing into a church during high Mass, also manages to shred an ornamental garden, knock down two traffic lights, uproot a fire hydrant, and clip a police station.” To begin with, given its revenues from cigarette taxes and its savings on pension benefits, “[t]he government suffered no net damages. There is nothing to recover. Just the opposite.” Moreover, the government undertook the expenses of Medicare at a time when it was well aware that smoking was a cause of disease. If it followed the rules, the Clinton Justice Department would have no legal case at all; so it’s trying to pull what the Florida legislature pulled and rewrite the rules retroactively to turn a losing case into a winner.

All of which leads up to the suit’s “brassy” finale: its attempt to redefine an unpopular interest group’s issue advocacy as itself unlawful, as in the 25 racketeering counts that are based simply on the tobacco industry’s issuance of press releases. The columnist generously quotes the “entertaining and often startling Web site www.overlawyered.com” (blush) as having observed that “there can scarcely be a better way to silence one side than to concoct a theory that exposes it to charges of ‘racketeering’ for disseminating views its opponents consider erroneous.” (see our Sept. 23 commentary). In short, Rauch writes, by turning the anti-tobacco crusade into an assault on freedom of political expression, the administration “has given all Americans — … not excluding tobacco-bashers — a vital stake in the defeat of this wretched lawsuit.” (“Bob Dole, Tobacco Racketeer”, Oct. 1 — link now gone). For the columnist’s 1993 book Kindly Inquisitors, which Kirkus called a “compelling defense of free speech against its new enemies”, click here.

October 13 — Pokémon cards update. Adorable Japanese monster craze for the younger set, or illegal gambling racket ripe for class-action lawsuits? An alert reader points out regarding our Oct. 1-3 commentary that while the Nintendo company owns licensing rights to Pokémon characters, it’s smaller companies that actually make the collectible card packs that lawyers are suing over (the lawsuits’ theory is that since some cards are deemed more valuable than others, buying a pack of the cards constitutes “gambling”). Each pack, this reader tells us, contains “precisely one ‘rare’ card.” For those who want to see what the full cast of characters looks like, we found a copiously illustrated guide at the Topeka Capital-Journal‘s site (link now dead).

“If Americans were this obsessed with suing everybody in the 1950s, then the parents of millions of baby boomers would have taken Topps (TOPP) and other baseball-card makers to court because kids spent countless dollars trying to track down an elusive Mickey Mantle rookie card,” writes Paul La Monica at Smart Money. Meanwhile the aggressive San Diego class-action firm of Milberg, Weiss, Bershad, Hynes and Lerach, which has indeed been filing lawsuits against Topps, the National Football League, Major League Baseball and other defendants on theories that the sale of trading cards to kids amounts to a gambling enterprise, ran into an embarrassment Sept. 23 when it discovered that it had announced its intention to sue one of its own clients, a company named 4Kids that is among the clients in Milberg Weiss’s little-known practice representing (as opposed to suing) businesses. “If you think this makes me happy, it doesn’t,” said Melvyn I. Weiss, New York-based co-managing partner of the firm; the firm was obliged to withdraw from the action. (San Diego Union-Tribune coverage: Bruce V. Bigelow, “Suit alleges Pokemon is illegal game”, Sept. 21; Don Bauder, “Law firm discovers it sued own client in Pokemon case”, Sept. 24.) (our Oct. 1-3 commentary)

October 13 — Bright future in some areas of practice. Even his own lawyer describes Paul Converse as a “pain in the neck.” But should he be awarded a license to practice law anyway? The Nebraska State Bar Commission says no, citing his consistently “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening or turbulent” behavior in school. Converse’s lawyer says his client’s civil rights are being violated and has appealed to the state’s high court (Kevin O’Hanlon, “Temperament Bars Man From Law Test”, AP/Washington Post, Sept. 29; Aileen O’Connell, “Setting the Bar High”, Newsweek, Sept. 30).

October 12 — Proud history to end? Sam Colt invented the revolver, but his namesake Colt’s Manufacturing Company is retreating from much of its business of selling handguns to consumers. “It’s extremely painful when you have to withdraw from a business for irrational reasons,” said an executive with the company. The only municipal lawsuit to reach the merits, Cincinnati’s, was soundly rejected by the judge last week (see Oct. 8 commentary, below), but given America’s lack of a loser-pays rule the process itself becomes the punishment: the May 17 New Yorker cites estimates that defense costs to the industry as a whole in the suits could soon run a million dollars a day.

Quoted in APB News, spokeslawyer John Coale denied that the suits would shut down the handgun industry. “It can’t be done, and it’s not a motive, because as long as lawful citizens want to buy handguns, and as long as the market’s there, there’s going to be someone filling it,” he said. But surely Coale is aware of the thorough suppression by our litigation system of other products that remain lawful. It’s completely lawful to sell the morning sickness drug Bendectin, for example, and many consumers would be glad to buy it, but no company is willing to produce it for U.S. sale because trial lawyers have been too successful in organizing lawsuits against it.

Upwards of a hundred workers are expected to be laid off at Colt’s Hartford-area facilities. The company will continue to sell to the police and military, perhaps foreshadowing future arrangements in which only government agencies will be lawfully allowed to obtain small arms. (“Colt exiting consumer handgun business — Newsweek”, CNN/Reuters, Oct. 10; Hans H. Chen, “Colt’s Handgun Plan Heats Up Debate”, APB News, Oct. 11). (Note: the Colt company took issue with some aspects of the Newsweek report. It said its dropping of various handgun lines did not constitute an exit from the consumer market, gave a number for layoffs of 120-200 rather than 300, as first reported, and suggested that the lines would have been dropped at some point even without the litigation pressure. See our Nov. 18-19 commentary, as well as Nov. 9)

October 12 — Property owners obliged to host rattlesnakes. “A New York court recently ruled that New York’s endangered species law requires private landowners to host threatened rattlesnakes on their property.” Family-owned Sour Mountain Realty had erected a “snake-proof” fence with the rattlers on one side of it and its mine on the other, but the state Department of Environmental Conservation pointed to a provision of New York law that prohibits “disturbing, harrying, or worrying” an endangered species and said that the owners were violating that provision by prevent the creatures from traversing the land freely. A court agreed and ordered Sour Mountain to tear down the fence, thus giving the rattlers a sporting chance to “disturb, harry or worry” the humans who’d been on the other side of it. An appeal is pending (Pacific Legal Foundation, Key Cases, Environmental Law Practice Group)

October 12 — After the HMO barbecue. Our favorite syndicated columnist explains why last week’s House passage of a bill promoting lawsuits over denial of coverage was a really bad idea. “Managed care arose because we can’t have it all, much as we would like to.” Now, thanks to the shortsightedness of America’s organized medical profession, we’re back on track toward an eventual federal takeover of the area. (Steve Chapman, “The Unadvertised Wrongs of ‘Patients’ Rights'”, Chicago Tribune, Oct. 10)

October 12 — Down the censorship-by-lawsuit road. First Amendment specialist Paul McMasters decries the current courtroom push to assign liability to entertainment companies for acts of violence committed by their viewers or readers. “The idea that we can blame books, movies and other media for crime turns the courtroom search for justice into a search for blame and deep pockets….Down that road lies cultural homogeneity, social and intellectual stagnation, and the possibility that we will be not only living with the tyranny of the majority but the tyranny of the aggrieved.” (“Will we trade our freedom for civility?”, Freedom Forum, Sept. 27)

October 12 — Free-Market.Net “Freedom Page of the Week”. We’re proud to be named this week’s honoree in Free-Market.Net‘s “Freedom Page of the Week” series. Editor Eric Johnson calls Overlawyered.com “thorough, well-organized, and, if you are capable of enjoying an occasional laugh at the ridiculousness of some lawsuits, very entertaining….truly invaluable to anyone interested in the absurdities of our legal system”. In turn, we highly recommend Free-Market.Net, a browser’s delight of libertarian resources on almost every conceivable policy topic as well as a one-stop jumping-off point to reach just about any liberty-oriented website you might be looking for. (full award text)

October 11 — My dear old tobacco-fee friends. Among the first dozen state attorney generals to jump on the tobacco-Medicaid suit bandwagon — and the very first Republican — was Kansas’s Carla Stovall. To represent the state, Stovall hired three law firms, two from out-of-state and one from within. The two out-of-state firms were Ness, Motley of Charleston, S.C. and Scruggs, Millette of Pascagoula, Miss., both major players in the suit representing a large number of other states. And the lucky Kansas firm selected as in-state counsel, entitled to share with the others in a contingency fee amounting to 25 percent of the state’s (eventual estimated $1.5 billion-plus) haul? Why, that firm just happened to be Entz & Chanay of Topeka, Attorney General Stovall’s own former law firm. Stovall has insisted that her old firm was the only one willing to take the case on the terms offered. It’s still unclear what total fees the three firms will reap from the Kansas work, but the sum very likely will exceed the $20 million that the state legislature vainly (after the ink was dry on the contingency contract) attempted to decree as a fee cap for the lawyers. This spring, Stovall stared down Rep. Tony Powell (R-Wichita), chairman of an appropriations panel in the Kansas House, who’d sought to impose competitive-bidding rules as well as a requirement of lawmaker approval on the state’s future letting of outside law-firm contracts. (Topeka Capital-Journal coverage: Roger Myers, “Fees likely to exceed cap”, Jan. 22; “State will be rewarded for early entry to suit”, March 12; Jim McLean, “Battle between Stovall, critic a draw”, March 13) (see also commentaries on New Jersey, Wisconsin tobacco fees)

October 11 — Free Kennewick Man! The Native American Graves Protection and Repatriation Act (NAGPRA) is “a 1990 law intending to protect Indian burial sites and help tribes reclaim the remains of ancestors stored in museums”. But the law has emerged as a serious threat to the pursuit of pre-Columbian archeological knowledge (as well as an infringement of property owners’ rights). Symbolic is the fate of 9,000-year-old Kennewick Man, discovered in 1996 but soon seized by the U.S. Army Corps of Engineers on behalf of Indian claimants — even though, astonishingly, the skeleton appeared to be of Caucasian descent. “If [the battle over similar relics] continues much longer,” writes John J. Miller, “irreplaceable evidence on the prehistoric settlement of the Americas will go missing, destroyed by misguided public policy and the refusal to confront a troubling alliance between multiculturalism and religious fundamentalism.” (Intellectual Capital, Sept. 23)

October 11 — Are you sure you want to delete “Microsoft”? “Welcome to the postmodern world of high-tech antitrust where big is once again bad, lofty profit margins are a wakeup call to government regulators, executives are brought to heel for aggressively worded e-mails, pricing too high is monopolistic, pricing too low is predatory, propping up politically wired competitors is the surreptitious aim, bundling products that consumers want is illegal, and successful companies are rewarded by dismemberment.” The Cato Institute’s Robert Levy blasts the Microsoft suit (“Microsoft Redux: Anatomy of a Baseless Lawsuit”, Cato Policy Analysis, Sept. 30 — full paper).

October 11 — State supreme courts vs. tort reform. J.V. Schwan, for the Citizens for a Sound Economy Foundation, decries the quiet evisceration of no fewer than 90 tort reform statutes by state supreme courts, most recently Ohio’s, which refuse to acknowledge their legislatures’ role as makers of the civil law. Whatever happened to the separation of powers? (“Rapid-Fire Assault on the Separation of Powers,” Citizens for a Sound Economy Foundation Capitol Comment #251, Sept. 9)

October 9-10 — The Yellow Pages indicator. “For a number of years I have been using a simple test to gauge the health of local culture and economy, as well as that of the country in general. I grab the yellow pages and tally up the number of pages advertising attorneys and compare them with the number and types of ads for doctors, engineers and insurance companies. I recently counted 62 pages of attorneys in my Tampa area, with 20 of the pages being full page, multi-color ads that are exorbitantly expensive to run….When there are nearly twice as many lawyers and legal firms than doctors and engineers combined, this is not a good sign.” (“Please Don’t Feed the Lawyers,” Angry White Male, Sept. 1999)

October 9-10 — Piggyback suit not entitled to piggybank contents. Last month the Second Circuit U.S. Court of Appeals reversed an award of $1 million in legal fees to class action lawyers who had sued Texaco in a “piggyback” shareholder action over its involvement in charges of racial discrimination. Writing for a unanimous panel, Senior Judge Roger Miner said the proposed settlement involved “therapeutic ‘benefits’ that can only be characterized as illusory” and that plaintiff’s counsel, which included the firm of Milberg Weiss Bershad Hynes & Lerach and several other law firms, had “in an effort to justify an award of fees” emphasized the extreme long-shot nature of the contentions they had made on behalf of shareholders, but had succeeded only in raising the question of whether those contentions “had no chance of success and, accordingly, were made for the improper purpose of early settlement and the allowance of substantial counsel fees.” (Mark Hamblett, “$1 Million Fee Award Reversed”, New York Law Journal, Sept. 15)

October 9-10 — Grounds for suspicion. Reasons the Drug Enforcement Administration has given in court for targeting individuals, according to one published list:

Arrived in the afternoon
Was one of the first to deplane
Was one of the last to deplane
Deplaned in the middle
Purchased ticket at airport
Made reservation on short notice
Bought coach ticket
Bought first class ticket
Used one-way ticket
Used round-trip ticket
Carried no luggage
Carried brand-new luggage
Carried a small bag
Carried a medium-sized bag
Carried two bulky garment bags
Carried two heavy suitcases
Carried four pieces of luggage
Dissociated self from luggage
Traveled alone
Traveled with a companion
Acted too nervous
Acted too calm
Walked quickly through the airport
Walked slowly through the airport
Walked aimlessly through the airport
Suspect was Hispanic
Suspect was black female.

— Sam Smith’s Progressive Review, July 30, quoting David Cole in Insight. We’ve been unable to track down Cole’s article or any earlier appearances of the list; further clues on the list’s provenance and authenticity are welcome.

October 8 — Victory in Cincinnati. The first of the municipal gun lawsuits to reach a decision on the merits results in a sweeping victory for gun manufacturers and a stinging rebuke to the city of Cincinnati, which had sued the makers along with three trade associations and a distributor. “The Court finds as a matter of law that the risks associated with the use of a firearm are open and obvious and matters of common knowledge,” writes Hamilton County Common Pleas Judge Robert Ruehlman in a five-page opinion dismissing the city’s claims in their entirety. “[They] cannot be a basis for fraud or negligent misrepresentation” or for failure to warn. Nor does the theory of nuisance apply since gun makers and distributors “have no ability to control the misconduct of [the responsible] third parties”. Moreover, the city’s complaint had attempted to “aggregate anonymous claims with no specificity whatsoever,” and was an attempt to pursue essentially political goals without the need to consult voter majorities: “In view of this Court, the City’s complaint is an improper attempt to have this Court substitute its judgment for that of the Legislature, something which this Court is neither inclined nor empowered to do.” Judge Ruehlman dismissed the lawsuit “with prejudice,” which means that if the city loses an expected appeal it will be barred from filing a new or amended suit. (Kimball Perry, “Judge tosses out city’s gun suit”, Cincinnati Post, Oct. 7; Dan Horn and Phillip Pina, “Judge dismisses city’s gun lawsuit”, Cincinnati Enquirer, Oct. 8; John Nolan, “Ohio judge dismisses Cincinnati’s lawsuit against gun industry”, AP/Akron Beacon Journal, Oct. 7).

October 8 — Demolition derby for consumer budgets. Higher car insurance premiums are on the way, warns Consumer Federation of America automotive expert Jack Gillis, because of an Illinois jury’s decision on Monday that it was improper for State Farm, the nation’s largest auto insurer, to purchase generic rather than original-brand replacement parts when reimbursing crash repairs. While the insurer plans to appeal the decision, it has in the mean time changed its policy and agreed to buy original-maker parts, which are already more expensive than generics and are likely to become more so now that GM, Toyota and other original-brand makers can contemplate the prospect of a legally captive market obliged to pay virtually any price they care to charge for replacement hoods and other items. The jury voted $456 million in supposed damages, a number built up from various accounting fictions; additional damages based on purported fraud are yet to be decided. Because State Farm is a mutual enterprise that periodically returns surpluses to customers in the form of dividends, eventual success on appeal for the class action would mostly shift money around among policyholders’ pockets (minus big fees for lawyers), for the sake of driving up the cost structure of providing coverage.

Various consumer groups often at odds with the auto insurance industry took State Farm’s side in the case, to no avail. The use of generic parts has been standard practice among auto insurers; Ann Spragens of the Alliance of American Insurers found it “particularly objectionable” that the jury was allowed to second-guess a practice that “state insurance regulators have examined time and again and have permitted to be followed”. Though filed in state court, the class action presumed to set policy nationwide, and tort reformers said the case illustrated the need to move nationwide class actions into federal court, as a pending bill in Congress would do. (“No replacement parts for State Farm”, AP/Washington Post, Oct. 8; Keith Bradsher, “Insurer Halts Disputed Plan for Coverage of Auto Repairs”, New York Times, Oct. 8; Michael Pearson, “State Farm Verdict Angers Industry”, AP/Washington Post, Oct. 5.) Update Aug. 19, 2005: Ill. high court unanimously decertifies class and nullifies $1.2 billion award.

October 8 — White-knuckle lotto. Yesterday a federal jury awarded 13 American Airlines passengers a total of $2.25 million for psychological trauma suffered when a 1995 flight from New York to Los Angeles ran into a thunderstorm over Minnesota, experienced 28 seconds of severe turbulence and had to make an emergency landing in Chicago. The award appears to be the biggest yet for emotional distress in airliner incidents; none of the passengers sued for serious personal injuries. Those onboard included movie director Steven Spielberg’s sister Nancy, who with her two small children was awarded a collective $540,000; Louis Weiss, the retired chairman of the William Morris Agency, who with his wife was voted a collective $300,000; and Garry Bonner of Hackensack, N.J., who co-wrote the song “Happy Together” for the Turtles. (Gail Appleson, “Spielberg’s sister gets damages from airline”, Reuters/Excite, Oct. 7, link now dead; Benjamin Weiser, “Airline Ruled Liable for Distress on Turbulent Flight”, New York Times, Oct. 8, link now dead).

October 8 — Star hunt. Clever way for Southern California attorneys to fulfill their pro bono publico charitable obligation: donate free assistance to screenwriters or musicians looking for their first sale or deal. That way, once the clients are established, the lawyers come into a lucrative future vein of paid work. Should this sort of thing really be called pro bono at all? (Di Mari Ricker, “When Pro Bono Is More Like an Investment”, California Law Week, Sept. 27)

October 7 — Yes, it is personal.I’M AN ENGINEER. If you believe in stereotypes, I’m a mild-mannered egghead with a pocket protector. But if you believe the lawyers, I’m a killer.” Despite the fiction that liability suits are only aimed at faceless companies and enable society to spread risk, etc., a real-life community of individual design professionals does in fact feel a keen sense of personal accusation — and of injustice — when juries are fed dubious charges of auto safety defects (Quent Augsperger, “Lawyers declare war on automotive engineers”, Knight-Ridder/ Tribune/ Detroit Free Press, Oct. 5 — full column).

October 7 — Kansas cops seize $18 grand; no crime charged. The Topeka Capital-Journal reports that county sheriffs outside Emporia found and seized $18,400 after searching and having a dog sniff a four-door Ford Tempo that was traveling on Interstate 35. No arrests were made, and the two occupants of the car, who hail from St. Louis and El Paso, Tex., have not been charged with any offense. Forfeiture law allows law enforcers to seize money on suspicion that it’s linked to crime, and the owners must then sue to get it back. The officer who made the stop found the money in a hidden compartment in the vehicle, a circumstance he seemed to think constituted a crime in itself, but an attorney for the county says he isn’t aware of any law against hidden compartments. (“Lyon County Sheriff’s Department seizes more than $18,400 on I-35”, CJ Online, Aug. 21; Jon E. Dougherty, “Is possession of cash a crime?”, WorldNetDaily, Sept. 14).

October 7 — Family drops Sea World suit. The family of Daniel Dukes has voluntarily dropped its lawsuit against Sea World over Dukes’ death from hypothermia and drowning while apparently taking an unauthorized dip with the largest killer whale in captivity (see Sept. 21 commentary). No explanation was forthcoming, but a park spokesman said a settlement had not been paid. (“Killer Whale Lawsuit Is Dropped”, Excite/Reuters, Oct. 5)

October 7 — Israeli court rejects cigarette reimbursement suit. “Tel Aviv District Court Judge Adi Azar ridiculed the suit, saying that accepting the claim would make it impossible to sell anything but lettuce and tomatoes in Israel, the local army radio reported.” Could we bring that judge over here, please? (“Health Fund Loses Case Against Cigarette Manufacturer”, AP/Dow Jones, Sept. 15 — full story)

October 7 — Copyright and conscience. Goodbye to the Dysfunctional Family Circus, a four-year-old parody site which posted artwork panels of the familiar “Family Circus” cartoon and invited readers to submit their own new (often rude and tasteless) captions for them. Lawyers for King Features, which owns rights to the cartoon, lowered the boom last month, leading to coverage in the Arizona Republic, AP/CBS (links now dead), Wired News, Phoenix New Times, Editor & Publisher, and, among webzines, the ineffably named HPOO: Healing Power of Obnoxiousness. Most recent development: though advised by some that copyright law’s liberal parody exemption might afford him some opening for a defense, webmaster Greg Galcik decided to fold after he spoke on the phone for an hour and a half with Bil Keane, cartoonist of the real-life “Family Circus”, heard firsthand that the parody had made Keane feel really bad about the use to which his characters had been put, and decided he hadn’t the heart to continue.

October 7 — Knock it off with that smile. “There’s nothing funny about this injury,” said attorney Mark Daane, who’s representing University of Michigan social work professor Susan McDonough in her lawsuit against Celebrity Cruises. The suit contends that if the cruise line had taken better care, a passenger on an upper deck would not have dropped a cumbersome Coco Loco specialty drink over the railing, thence to descend on Ms. McDonough’s head. The drink is served in a hollowed-out coconut and comes with a little parasol. In August a federal judge declined to dismiss the lawsuit, which seeks over $2 million for brain trauma. We told you to cut it out with the smile already (Frances A. McMorris, “A Loaded Coconut Falls Off Deck, Landing One Cruise Line in Court”, Wall Street Journal, Sept. 13 — requires online subscription).

October 5-6 — “Big guns”. October column in Reason by Overlawyered.com‘s editor explores the origins of the municipal firearms litigation (the first point to get clear: it wasn’t the mayors who dreamed it up.) Valuable accounts that appeared in the New Yorker and The American Lawyer over the summer establish the close links in personnel and technique between the anti-gun jihad and the earlier tobacco heist, including key methods of manipulating press coverage and enlisting the help of friendly figures in government (full column). Also in the same excellent magazine, the online “Breaking Issues” series has come out with a new installment covering the federal tobacco suit (Sept. 23).

October 5-6 — State of legal ethics. Less than three months to go before entries close, and the law firm of Schwartzapfel, Novick, Truhowsky & Marcus P.C. of Manhattan and Huntington, L.I. holds the lead in the race for most reprehensible law-firm ad of 1999. Its prominent full-page ad near the front of the Sept. 20, 1999 issue of New York magazine beckons unwary readers into the heartbreaking, destructive meltdown that is will-contest litigation. Printed against a background picture of a serene blue sky (or are those storm clouds?) the copy reads: “Bring back to life a lost inheritance. If you believe that a will is invalid, that your rights in an estate or trust have been impaired or need advice to explain your rights, please call us today at [number].” Won’t enough warfare go on among former loved ones without giving it artificial encouragement? Shame on New York for printing this one.

October 5-6 — Chief cloud-on-title. Speaking of destructive forms of litigation, redundant though that phrase may be, are there many kinds that are worse than the revived assertion of old Indian land claims in long-settled communities? In upstate New York, Indian and non-Indian communities that have lived together peaceably for generations are now a-boil with rage, in what some locals (no doubt hyperbolically) call a mini-Balkans or Northern Ireland in the making. Repose and adverse possession count for surprisingly little in the eyes of a legal system that seems to welcome each new proposal for the dispossession of generations’ worth of innocent Euro-descendant inheritors. Old friendships have broken up, petty vandalism and threats are escalating, and — for all our legal establishment’s fine language about how litigation provides an alternative to conflict in the streets — the lawsuits are clearly exacerbating social conflict, not sublimating it. (Hart Seely and Michelle Breidenbach, “CNY communities split over land claims”, Syracuse Online, Sept. 26) (see also Oct. 27, Feb. 1 commentaries)

October 5-6 — FCC as Don Corleone. “They are engaged in shakedowns, extortions, and things that fall outside the formal regulatory process” That’s strong language to use about the Federal Communications Commission, the often-considered-dull regulatory agency in charge of broadcast, telephone, cable, and the Internet. It’s even stronger language considering that it comes from one of the FCC’s own commissioners, Harold Furchtgott-Roth, the only economist among the panel’s five members. Speaking at a Wyoming conference, Mr. Furchtgott-Roth explained that the commission exploits its discretion to withhold permission for mergers and other actions in order to levy unrelated demands that service be extended to politically favored communities. (Declan McCullagh, “The Seedy Side of the FCC”, Wired News, Sept. 28)

October 5-6 — This side of parodies. It’s always a challenge to come up with extreme fictional accounts of litigation that outrun the extreme real-life accounts. The online Hittman Chronicle visualizes the results of a legal action filed by a protagonist who was “in the middle of a three day drinking binge when he tried to clean out his ear with an ice pick”. Editor Dave Hitt says it was inspired by a story on this page… (“Pick Your Brain”, August — full parody)

October 4 — Brooklyn gunman shoots three, is awarded $41 m. A jury last week awarded $41.2 million to Jason Rodriguez in his excessive-force suit against New York City. Rodriguez was shot and paralyzed by off-duty police officer David Dugan in an incident in which Rodriguez had been “armed with a gun and firing at a number of individuals,” said Police Department spokeswoman Marilyn Mode. Rodriguez’s lawyer acknowledged that his client had just shot three persons at the time of his apprehension but said the three had assaulted him and that he had tried to surrender. Rodriguez later pleaded guilty to charges of reckless endangerment over the shootout. A New York Post editorial calls it “appalling” that he “should end up profiting from the aftermath of an incident in which he shot three people”. (Bill Hutchinson, “City Loses $41 M Suit to Shooter”, New York Daily News, Oct. 1; “The Growing Need for Tort Reform”, editorial, New York Post, Oct. 2). Compare New York’s “mugger millionaire” case, in which Bernard McCummings was awarded $4.8 million after he committed a mugging on the subway and was shot by police trying to flee.

October 4 — Not so high off the hog. Will big livestock operations join the list of targets of mass tort actions? Amid publicity about the baneful environmental effects of large-scale hog farming, 108 Missouri neighbors of a big Continental Grain swine operation joined in a suit charging that it had inflicted on them “horrendous odor, infestations of flies, water contamination and medical problems” up to and including strokes and a heart attack. Their lawyers saw fit to file the action 200 miles away in downtown St. Louis, a distinctly non-agricultural (but pro-plaintiff) jurisdiction. After a three-and-a-half-month trial, the jury there returned an award of $5.2 million — a substantial sum, but far less than the neighbors said was due them.

Writing in Feedstuffs magazine, attorney Richard Cornfeld of Thompson Coburn, who handled Continental’s defense, outlines some of the reasons the case did not prove as strong as it might have sounded. While residents said they were fearful the farms had tainted their water supply, most hadn’t bothered to order simple $15 tests from the state, and when they had the tests had come back negative. And though Continental admitted there was sometimes an odor problem, neighbors who did not sue testified that they rarely smelled it and that it wasn’t severe. Neighbors came to hunt and fish amid the hog farms, and some of the plaintiffs continued to buy more land near the farms, build decks onto their homes and host large social events despite the allegedly unbearable odor. “One woman opened a restaurant with outdoor dining near some of the plaintiffs’ homes.” Continental requested that the court allow the jury to take an actual trip to the farms, and jurors themselves asked to do so during deliberations, but the plaintiff’s lawyers opposed the idea and the judge said no. Frustratingly for Continental, it was not allowed to inform the jury that it had favored a visit and its opponents had not. (Richard S. Cornfeld, “Case serves as good example of shifting legal landscape,” Feedstuffs, Aug. 9)

October 4 — “Judge who slept on job faces new allegations.” This one may belong in the disability- accommodation category, since family-law judge Gary P. Ryan of Orange County, Calif. Superior Court had “blamed his courtroom slumber on a breathing disorder that disrupted his sleep at night”. However, matters took a turn for the worse last month when the judge was accused of dozing off in court again despite his insistence that his medical problem had been taken care of, and also was arrested by Newport Beach police on suspicion of drunken driving. (Stuart Pfeifer, Orange County Register, Sept. 26)

October 1-3 — Pokémon-card class actions — For those who haven’t been paying attention to the worlds of either nine-year-olds or class action lawyers, here’s the situation. Pokémon (“pocket monsters”) are lovable characters developed in Japan that have become a craze among kids. Nintendo sells packs of trading cards that feature the characters, but some of the cards are much rarer than others. Kids who want to collect the whole set wheedle their parents for money so they can buy lots of packs in search of the rare ones, which are sometimes resold for sums well in excess of their original cost.

Enter the class-action lawyers, who’ve now filed numerous suits against Nintendo and other trading-card makers. “You pay to play … there is the element of chance, and you’ve got a prize,” said attorney Neil Moritt of Garden City, N.Y. “It’s gambling.” Moritt represents the parents of two Long Island nine-year-olds who, per the New York Post, “say they were forced to empty their piggy banks” to collect the cards (the use of the word “forced” here might seem Pickwickian, but maybe the boys’ mothers are just bringing them up to talk like good litigants.) On ABC’s Good Morning America, another plaintiff’s lawyer said he sued on behalf of his son after noticing that the lad’s collecting had reached the point where “it was no longer fun”. Interviewer Charles Gibson raises the CrackerJack analogy (aren’t these really like the prizes found in CrackerJack boxes?). And an editor with Parents magazine says it would be “great” if the law could force Nintendo to sell complete sets at a modest price. Hmmm — would she favor having the law force her to keep back issues of her magazine in print, for those who want to assemble full sets? (Kieran Crowley, “Lawsuit Slams Pokémon as bad bet for addicted kids”, New York Post; Good Morning America transcript, “Poké-Mania lawsuit”, Sept. 27) (Oct. 13 sequel)

October 1-3 — Don’t call us professionals! The Fair Labor Standards Act exempts many sorts of creative, professional or executive jobs from its overtime provisions. But suits demanding retroactive overtime, claiming jobs were misclassified (though their occupants may have made no objection at the time) have increasingly become part of the routine arsenal of employment litigation. That means disgruntled workers are put in the peculiar position of having to bad-mouth the level of creativity they’ve exercised in their positions, as with these two Atlanta TV news reporters who now say, for purposes of litigation at least, that their work on screen amounted to little more than assembly-line hackery (Ben Schmitt, “TV News — Factory Work or a Profession?”, Fulton County Daily Report, June 4)

October 1-3 — “Boardwalk bonanza”. Hard-hitting exposé by Tim O’Brien in New Jersey Law Journal of the tobacco-fee situation in the Garden State, where the lawyers representing the state in the Medicaid settlement are in for $350 million in fees. “Remarkably,” writes O’Brien, “five of [six] had little or no tobacco litigation or mass tort experience. The one who did was bounced off the case on a conflict for much of the time. Moreover, most of the substantive legal work, including court arguments, was done by a South Carolina lawyer who brought up her own team….Finally, none of the local lawyers had anything to do with the national settlement talks that ultimately awarded New Jersey $7.6 billion over 25 years.”

The consortium set up to handle the suits included five former presidents of ATLA-NJ, the state trial lawyers’ association, and was hatched in a “brainstorm sitting around the convention center having a couple of drinks”. At first it heralded the role of a nonprofit foundation ostensibly set up for charitable and public-interest purposes, “[b]ut the foundation’s role was later quietly eliminated, if it ever existed.” Meanwhile, nearly $100,000 in campaign contributions were flowing in a six-month period from ATLA-NJ’s PAC to Republican legislators, including $4,350 in checks written the day after the lawyers got the contract.

“Sometimes you’re just in the right place at the right time,” says one rival. “Now they’re sitting in Fat City.” Don’t miss this one — and ask your newspaper whether its reporting on tobacco fees has been as diligent. (Tim O’Brien, “A $350M Boardwalk Bonanza”, New Jersey Law Journal, Sept. 27)


October 30-31 — Bad tee times figure in $2 million award. A Boston jury of seven men and seven women has awarded nearly $2 million to nine female golfers who said the Haverhill Country Club had discriminated against them by depriving them of desirable tee times and other club benefits. They also contended that the club had allowed only a few women to move up to a more exclusive, and expensive, premium membership. (“Women awarded almost $2 million in Boston club discrimination case”, AP/Court TV, Oct. 28) (& update June 7, 2000)

October 30-31 — Sue as a hobby. Sad portrait from Chicopee, Mass. of that familiar figure in many American courtrooms, the perennial pro se litigant. This one’s been at it for 21 years, suing over union and town issues, utility bills and medical insurance, devoting about 20 hours a week to the truculent pastime. Some snicker, but “the tortured souls on the other end of Brown’s lawsuits take him very, very seriously — or risk a legal thumping.” One neighbor, a former mayor, stops to chat: “I think we got a good relationship, considering he’s sued me numerous times.” (Jeff Donn, “An American Portrait: Amateur lawyer hooked on suing habit”, AP/Fox News, Oct. 25)

October 30-31 — Annals of zero tolerance: cannon shots banned. Officials at Nevis High School in west-central Minnesota, citing a zero-tolerance policy, have refused to permit the school yearbook to publish a picture showing senior Samantha Jones perched on a cannon. The school’s policy bans not only weapons themselves from school grounds — including squirt guns — but even depictions of weapons, in the interpretation of school board members. “We don’t recognize weapons to be of any importance to the functions of the district,” said superintendent Dick Magaard. “Whether it’s in military, recreational or sporting form, anything shaped like a gun or knife is banned.” Ms. Jones is planning to enter the army on graduation, and the photo shows her sitting on a howitzer outside a nearby Veterans of Foreign Wars post. (“Senior upset that school won’t allow her yearbook photograph”, Minneapolis Star-Tribune, Oct. 29, link now dead) (update Nov. 26-28: school relents on policy, provided cannon is draped by U.S. flag)

October 30-31 — Those naughty Cook County judges. Another one is in trouble, this time over allegations of “handling cases involving a friend and a relative, forging a former law associate’s name on his tax returns and violating disclosure laws.” (Charles Nicodemus, “Judge faces misconduct charges”, Chicago Sun-Times, Oct. 27 — link now dead).

October 30-31 — Abuses of restraining orders. Interesting discussion has developed on Overlawyered.com‘s discussion forums since author Cathy Young joined to discuss her new Salon article on how restraining orders in domestic relations cases can become a tactical weapon.

October 29 — 52 green-card pickup. The Equal Employment Opportunity Commission has just announced that it will start pursuing discrimination claims for back pay on behalf of illegal alien workers who had no lawful right to take or hold the jobs in the first place (see yesterday’s commentary) That turns out to be only one of the legal headaches for employers considering noncitizen job applicants. As the newsletter of the National Legal Center for the Public Interest points out, managers also are in big trouble if they insist on particular methods of documenting job eligibility. “A Boston restaurant paid a $5,000 penalty for insisting that a job applicant provide a green card when it should have accepted his passport, which had an Immigration and Naturalization Service (INS) stamp, as proof of eligibility. A meatpacking company paid $8,500 for insisting that an applicant get INS documentation that his alien registration card was legitimate. It is illegal to insist on any particular form of documentation or to reject documents that appear to be genuine, says DOJ [the U.S. Department of Justice].” (NLCPI July 1999 newsletter, about 4/5 of way down page)

And more recently: “The Office of Special Counsel (OSC) of the Civil Rights Division of DOJ continues its offensive against ‘immigration discrimination,’ assessing a Maryland food processor $380,000.” It seems the company had been asking noncitizens to show INS documents when it “should have been content with any acceptable documents. The company’s view: Since most applicants already had their INS ID in hand (to fill out the mandatory INS I-9 form), hirers might say, ‘Let me see your Green Card,’ but would readily accept other documents if no Green Card were available. OSC calls this ‘document abuse,’ and fined the company for ‘discriminating’ against people that it actually hired.” (NLCPI Sept. 1999 newsletter, about 2/3 of way down page). Moral: be careful you don’t hire illegals, but don’t be too careful.

October 29 — Urge to mangle. Sometimes you’re better off disregarding the “care labels” on garments you buy that prescribe pricey dry cleaning or tedious hand washing, according to Cheryl Mendelson’s newly published encyclopedia of housekeeping, Home Comforts. For example, observes a reviewer, “a blouse labeled ‘dry clean’ might be equally tolerant of the washing machine”, while lingerie may survive perfectly well even if you don’t set aside an evening to “handwash separately, dry flat, do not wring or squeeze.” Why are labels so overcautious? They’re put on by “manufacturers whose primary goal is to avoid lawsuits”. (Cynthia Crossen, “The Dirt on Domesticity”, Weekend section book review, Wall Street Journal, Oct. 15, requires online subscription.)

October 29 — Founders’ view of encryption. To hear some officials tell it, only drug lords and terrorists should object to the government’s efforts to control encryption. Yet historians say James Madison, Thomas Jefferson and James Monroe all wrote letters to each other “in code – that is, they encrypted their letters — in order to preserve the privacy of their political discussion….What would Thomas Jefferson have said about [the current encryption controversy]? I suspect he would have said it in code.” (Wendy McElroy, “Thomas Jefferson: Crypto Rebel?”, The American Partisan, Oct. 23).

October 28 — EEOC okays discrimination claims for illegal aliens. Back pay! Punitive damages! And — if amnesty and a green card can be obtained in the mean time — even reinstatement! In a “major policy turnaround”, the Equal Employment Opportunity Commission throws its full backing behind damage claims for lost pay by workers who knew quite well they had no legal right to take a job in the first place. The agency promises that it “will not inform other government agencies if an immigrant is here illegally” — thus turning its role from that of a law enforcement agency to one committed to foiling law enforcement when that helps generate a caseload. Remarkably, a public statement by Immigration and Naturalization Service spokesman Don Mueller says the agency is “going to support” the new policy of keeping it in the dark about violations of the laws it’s supposed to enforce. Why? Because its role as scourge of employers is more important. “Our public enemy are the smugglers and employers who exploit these people.”

Rep. Lamar Smith (R-Texas), who chairs the House Judiciary Committee’s subcommittee on immigration, called the new policy “absurd”: “These rules would, for example, require employers to hire back individuals who had been fired when it is illegal to have hired them in the first place.” “To me it should be a nonstarter because an illegal alien by definition is in the country unlawfully,” said attorney John Findley of the conservative Pacific Legal Foundation. “That individual has no right to the job in question. To force an employer to rehire an individual with back pay and subject the employers to sanctions seems to me ridiculous.” An editorial in yesterday’s Chicago Tribune says that if the agency “was looking for a way to make itself seem ridiculous — even pernicious — it could hardly have found a better one….[EEOC chairwoman Ida Castro] has all but invited Congress to step up and clip the wings of an arrogant, overreaching government agency”.

Rep. Smith and some others predicted that the new rules would encourage illegal immigration, but the more accurate view would seem to be that of the AFL-CIO, which lobbied tirelessly for the new rules based on the expectation that giving this group more lawsuit-filing rights will discourage, not promote, its hiring. (A prominent element in the labor group’s tender concern for undocumented workers has been the desire to make sure they don’t get hired in the first place.) Backers of expansive employment law have often been reluctant to admit that giving a group of workers wider rights to sue — disabled or older workers, for example — can discourage employers from hiring that group. Update Apr. 3-4, 2002: Supreme Court rules that back pay for illegal is in violation of immigration law.

Sources: Stephen Franklin, “EEOC Seeks To Protect Undocumented”, Chicago Tribune, Oct. 26; Andrew Buchanan, “EEOC Helps Undocumented Workers”, AP/Washington Post, Oct. 27; “This EEOC Policy Goes Out of Bounds”, editorial, Chicago Tribune, Oct. 27; Steven Greenhouse, “U.S. to Expand Labor Rights to Cover Illegal Immigrants”, New York Times, Oct. 28.

October 28 — We’re outta here. The weekend was fast approaching, and after a long Friday of deliberations some of the jurors really wanted to finish the case, a negligence suit against a hospital, so as not to have to come back Monday. How badly did they want that? Badly enough to switch their votes to the defense side, according to the plaintiff’s lawyer who wound up losing, and one of the jurors backs up his complaint. (Jeff Blumenthal, “Did Civic Duty Go Awry?”, The Legal Intelligencer (Philadelphia), Sept. 15)

October 28 — Lost in translation. Lawsuit by entertainment guide WhatsHappenin.com against Hispanic portal QuePasa.com, on grounds that latter’s name roughly coincides with Spanish translation of the former, greeted disrespectfully by Suck.com (“Frivolous lawsuits don’t come much more frivolous…we think there is a possibility, however remote, that que pasa might just be a familiar and usable phrase in the Spanish language.” (“Hit and Run”, Oct. 14 — also see Wired News, Oct. 18).

October 28 — Virtual discussion continues. On Overlawyered.com‘s discussion forums, conversation continues with author Cathy Young about her Salon article on abuses of restraining orders in domestic relations cases (see yesterday’s announcement).

October 28 — Welcome National Post (Canada) readers and About.com Legal News readers. For our reports on Pokémon-card class actions, click here (Oct. 13) and here (Oct. 1-3). For our report on Houston litigation over “blast-faxing”, click here (Oct. 22)

October 27 — “Virtual interview guest” at Overlawyered.com discussion forums: author Cathy Young. As we mentioned yesterday, the Detroit News columnist and author of Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality has a provocative article in the new Salon about the ways restraining orders in domestic disputes can sometimes trample the rights of their targets. Several participants in our recently launched discussion forums expressed interest in the issue, and the author herself has now agreed to drop by the forums, beginning this afternoon, to field comments, reactions and questions and generally get a conversation going. Remember that it’s not live chat, so comments may not get an immediate response. The main discussion will be in the Divorce Law forum, but there may be spillover to other topics such as Harassment Law. Everyone can read what gets posted, but if you want to join in with your own reactions you’ll need to register, an easy step to take. [forums now closed]

October 27 — “This is all about power”. The Albany Times-Union furnishes more details about the little-publicized legal action (see Oct. 5-6 commentary) in which Indian tribes have sued to dispossess tens of thousands of private landowners in upstate New York; it seems that generations ago the state purchased reservation lands without obtaining federal approval as required by law, and the U. S. Supreme Court ruled in 1985 that proper title therefore never passed. The value of the innocent owners’ homes and farms has of course plunged drastically, and tribal spokesmen want the state government to step in with an offer on their behalf. “You have to get the state to get serious about negotiation”, explains Oneida leader Ray Halbritter. “The pain of not settling has to be greater than the pain of settling….This is all about power.” Very wealthy from its tax-free casino operations, the Oneida tribe donates abundantly to politicians, many of whom tread gingerly around its interests. To the fury of the local landowners, the U.S. Department of Justice has joined the Indians and is assisting their legal claim. (James M. Odato, “Tribe plays high-stakes game with landowners”, Oct. 25; plus sidebars on Mr. Halbritter and orchard owner/protest leader Tony Burnett; via Empire Page.) (see also Feb. 1 commentary).

October 27 — Why doesn’t Windows cost more? During the trial “the government’s economic expert got up on the stand and said that if Microsoft was charging all the market would bear, it would be charging about three or four times what it does today for an operating system. That’s kind of curious.” Why would Bill Gates leave that much money on the table? ‘Cause he’s a charitable kind of guy? No, the fact “probably suggests that Microsoft is facing a form of competition that keeps its prices low. And, in fact…what the evidence proved is that that competition comes in the form of platform competition — the desire to be the next generation of technology in an area where technology turns over in a matter of months, not a matter of years. And that competition … keeps prices down, keeps Microsoft on its toes, keeps innovation going.” — former Assistant Attorney General for Antitrust Charles Rule, now of Covington & Burling, speaking at “What Are We Learning from the Microsoft Case?”, a Federalist Society conference held in Washington Sept. 30 (full transcript)

October 27 — Zone of blame. Two years ago a former mental patient slew New Jersey state trooper Scott Gonzalez, first ramming his cruiser head-on, then killing him with two shotgun blasts through the car’s windshield. So who’s his widow suing? The killer’s parents; the makers of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; and the Ford Motor Co., because the deployment of its airbags on collision allegedly delayed his exit from the car. (Eric D. Lawrence, “Widow’s suit blames auto, gun makers for cop’s death”, Easton, Pa. Express-Times/Lehigh Valley Live, Oct. 26 — full story). Update Jan. 3, 2004: jury finds for Ford.

October 27 — Welcome Progressive Review readers. Looking for the cow items mentioned there? Click here (foam-rubber cow recall) and here (Canadian brouhaha over insensitive cow-naming).

October 26 — Rhode Island A.G.: let’s do latex gloves next. Rhode Island Attorney General Sheldon Whitehouse just made headlines by enlisting his state as the first to sue lead paint and pigment makers in partnership with trial lawyers. But that’s not all he’s been up to, according to a report in Business Insurance: “In an August letter to another attorney general, Rhode Island’s Whitehouse proposed ‘going after’ the latex rubber industry over health problems possibly caused by latex allergies, a copy of the letter shows. The states could seek ‘a couple of billion dollars’ to fund latex allergy education and research programs, Mr. Whitehouse suggested.” (more about latex allergies)

With tobacco fees beginning to flow, the article also reports renewed interest in an old trial lawyer project that now may attract co-sponsorship from state or city officials: getting courts to hold automakers liable for not installing “speed governors” on passenger cars that would cut off added acceleration if the driver tried to take the vehicle above a certain set miles-per-hour. If courts accept such a theory, Detroit could potentially be on the financial hook for most or all high-speed crashes that take place in cars now on the road. (Douglas McLeod, “Suits by public entities expected to increase,” Business Insurance, Oct. 18)

October 26 — Dave Barry on federal tobacco suit. “As a result of [companies’] clever deception, the Justice Department contends, smokers did not realize that cigarettes were hazardous. This is undoubtedly true of a certain type of smoker; namely, the type of smoker whose brain has been removed with a melon scoop. Everybody else has known for decades that cigarettes are unhealthy….

“Cigarette companies are already selling cigarettes like crazy to pay for the $206 billion anti-tobacco settlement won by the states, which are distributing the money as follows: (1) legal fees; (2) money for attorneys; (3) a whole bunch of new programs that have absolutely nothing to do with helping smokers stop smoking; and (4) payments to law firms. Of course, not all the anti-tobacco settlement is being spent this way. A lot of it also goes to lawyers…” (Dave Barry, “Few — Hack! — Thought Their Habit Safe,” Spokane Spokesman-Review, Oct. 24. Plus: novelist Tom Clancy’s critical take on the feds’ tobacco suit (“Curing the Smoking Habit”, Baltimore Sun, Oct. 17, reprinted from Los Angeles Times).

October 26 — “Hitting below the belt”. Readers of this website were alerted twelve days ago to Cathy Young’s powerful Detroit News critique of abuses of restraining orders in divorce and custody cases. Now the author of Ceasefire appears in the October 25 Salon with a much-expanded version, including more on the Harry Stewart case (he’s serving a six-month sentence for violating a restraining order by seeing his son to the front door instead of waiting in the car), new detail on traps (conduct violative of an order “includes contact that is clearly accidental, or even initiated by the purported victim: Even if you came over to the house at your ex-spouse’s invitation, you don’t have a legal excuse”) and on tactics (“There are stories of attorneys explicitly offering to have restraining orders dropped in exchange for financial concessions”).

One startling quote comes from a New Jersey judge addressing his peers at a 1995 conference: “Your job is not to become concerned about the constitutional rights of the man that you’re violating as you grant a restraining order,” said the Hon. Richard Russell. “Throw him out on the street, give him the clothes on his back and tell him, see ya around …The woman needs this protection because the statute granted her that protection … They have declared domestic violence to be an evil in our society. So we don’t have to worry about the rights.” But a growing number in the field are worried about the rights, and don’t think protecting the rights of potential abuse victims should have to mean sacrificing those of the accused. “I don’t think there’s a lawyer in domestic relations in this state who doesn’t feel there has been abuse of restraining orders,” says Needham, Mass. attorney Sheara Friend. “It’s not politically correct — lawyers don’t want to be pegged as being anti-abused women, but privately they agree.” (full story)

October 26 — “The Reign of the Tort Kings”. Trial lawyers now wield political clout “unthinkable” four years ago, and have nearly doubled their contributions to federal candidates over that period, report Marianne Lavalle and Angie Cannon in a big spread on the emergent Fourth Branch in the new U.S. News & World Report (Nov. 1)

October 25 — Gun litigation: a helpful in-law. Time magazine, in its issue out today, reports that Hugh Rodham, brother of Hillary Rodham Clinton and brother-in-law of President Clinton, has now popped up to assist lawyers suing the gun industry in brokering a settlement. Earlier, lawyers suing the tobacco industry cut in Rodham — despite his glaring lack of experience in mass-tort litigation — as a participant in their activities; he proceeded to use the occasion of a Thanksgiving dinner at the White House to approach his sister’s husband directly, which helped lead to the settlement that’s shaken loose billions in fees for those lawyers. Rodham told Time, “It was totally unforeseen, when we joined…that there would be any connection with politics.” (full story)

October 25 — From the Spin-to-English Guide, a service of Chris Chichester’s Empire Page. Phrase: “It’s important to preserve and enhance access to justice.” Translation: “We’ve come up with a great way to allow the trial lawyers to file more lawsuits, win more big settlements, and give us more campaign contributions.” Among others in the series — Phrase: “The only poll that counts is the one on Election Day. Translation: We’re a bunch of losers headed for a trouncing on Election Day.” And — Phrase: “We’re not going to dignify that with a comment. Translation: We really got slammed and can’t think of a response.” (page now removed) The Empire Page, started last year by former legislative and gubernatorial staffer Christopher Chichester, has quickly become the one-stop Web jumping-off point for news of New York politics and government; it’s alerted us to several items used on this page (item no longer online).

October 25 — Better than reading a lunchtime novel. Sylvia Johnson was fired from her job with the IRS after it was discovered she’d improperly accessed taxpayers’ personal returns some 476 times. Now she’s suing the U.S. Treasury to get her job back and for punitive as well as compensatory damages. A Merit Systems Protection Board administrative judge previously rejected her discrimination and due process claims, saying that while other employees caught peeking in files had been given a second chance, the agency regarded her misuse of the system as far more extensive. (Gretchen Schuldt, “Ex-IRS employee sues to regain job”, Milwaukee Journal Sentinel, Oct. 14 — full story)

October 25 — Guest column in Forbes by Overlawyered.com‘s editor. The column blasts the Clinton Justice Department’s recent suit against tobacco companies (see Sept. 23 commentary), in particular the suit’s premise that it was legally wrongful for the companies to send out press releases and commission research in an effort to defend their position. “If partisan science is racketeering, whole echelons of the Environmental Protection Agency should be behind bars. But the novel legal doctrines being advanced in the suit can’t — and won’t — be applied evenhandedly.” (“Reno’s Racket”, Forbes, Nov. 1 — full column).

Plus: op-ed in today’s Wall Street Journal by Jonathan Rauch, adapted from his earlier National Journal column, assesses the suit’s threat to free speech by business and quotes this site’s editor (requires online subscription).

October 23-24 — Inmates’ suit cites old videos. A federal judge considers a suit by inmates complaining of inhumane conditions in Philadelphia’s antiquated House of Corrections. The report makes it sound difficult for the inmates’ lawyer to elevate their gripes to the level of a Constitutional violation, however: “Very few toilets have seats, and the video movies they get are outdated, the inmates told the judge.” (Jim Smith, “Inmates: Prison chow’s bad, videos are old”, Philadelphia Daily News, Oct. 8)

October 23-24 — Zero tolerance strikes again. “Student suspended after cutting cake with pocket knife”, reads the headline over this AP story datelined Monroe, N.C., where a 14-year-old boy in the Union County schools was given a five-day suspension. “When a student is in possession of a knife, it’s a clear-cut violation,” said assistant principal David Clarke. “We can’t have weapons in our schools”. The incident occurred at the end of a school day when a teacher shared a leftover cake with students and needed something to cut it with. (Raleigh News & Observer, Oct. 22; “Cake-Cutting Ends in Suspension”, Excite/Reuters, Oct. 22)

October 23-24 — Weekend reading: evergreens. Pixels to catch up with on the raft or schooner, if you missed them the first time around:

* Prescient (3 1/2 years ago) op-ed by Bruce Kobayashi, of George Mason University Law School, argues that holding gunmakers liable for shootings “would create new injustices…ensnare the morally innocent and erode the crucial distinction between responsible and irresponsible behavior.” Besides, why “place the financial burden on law-abiding firearms owners who have not misused firearms? If the litigation explosion has taught us anything, it is that using the tort system to provide social insurance entails large (and largely hidden) premiums — usually in the form of less output and less justice.” (Orange County Register, April 21, 1996, reprinted by Independent Institute — full column)

* Melrose Place (1997, 5th season) plot lines revolving around staged-accident fraud — you may have to know the characters for the synopses to make sense (Ken Hart: 3/10/97, 3/17, 3/31, 4/7, 4/14, 4/21, 4/28, 5/5/97; EPGuides/Pam Mitchelmore: 3/17/97, 3/31, 4/7, 4/14, 4/28, 5/5/97; Peter Goldmacher: 3/10/97, 3/17, 4/7, 4/14, 4/21/97)

* Denver probate-court nightmare: tangle of guardianship proceedings leaves 83-year-old Letty Milstein “virtually a prisoner in her own home” as she struggles against efforts to have her declared incompetent. By the time an appeals court steps in, court-appointed lawyers, health-care personnel and others have consumed most of her $650,000 estate. One lawyer, Michael Dice, later pleaded guilty to stealing money from numerous clients. Alternative weekly Westword covered the story tenaciously (Steve Jackson, “Mommy Dearest”, May 22, 1997; Steve Jackson, “Letty Wins”, Feb. 12, 1998; other coverage, all links now dead).

October 22 — In Houston, expensive menus. “Junk” (unsolicited) faxes are a widely loathed medium of advertising, tying up a target’s machine and using his own paper to do it. In 1995 some Houston lawyers filed suit against more than seventy local defendants which they said had patronized blast-fax ad services despite a 1991 federal ban. Though filing in state court, they sought to invoke a penalty specified in federal law of $500 for each unwanted fax sent, and triple that if the offense was willful. They also asked for certification as a class action, entitled (they said) to recover the $500 or $1500 figure for every fax sent on behalf of any defendant during the period in question — a sum estimated at $7 billion.

The list of named defendants is heavy on restaurants (many of them presumably sending menus or coupons) but also includes car dealers and some national businesses like GTE Mobile and Pearle Vision Centers. Defendants’ lawyers variously argue that no laws were broken, that their clients should not be held liable for the sins of ad agencies, that ad sponsors had been assured that all recipients had opted in to a tell-me-about-discount-offers arrangement, and that there is no evidence that the named plaintiffs received faxes from their clients or complained at the time; plaintiffs, however, point to records from the agencies as providing a paper trail of how many were sent on whose behalf. Thus a local Mexican restaurant which advertised in more than 50,000 faxes is potentially on the hook for $25 million dollars and change — three times that if deliberate defiance of the law can be shown.

One larger defendant, Houston Cellular, paid a reported $400,000 this spring to be let out of the case; plaintiff’s attorneys requested one-third of that amount as their fee. Last month another eight defendants reportedly chipped in a collective $125,000 to get out. Steven Zager, an attorney at Brobeck, Pfleger and Harrison who’s representing some defendants, said the federal statute provided the $500/$1,500 fines so as to allow individual grievants an economic means to vindicate their interests in a small-claims format and never contemplated aggregation into one grand class action: “This statute was not meant to be Powerball for the clever.” (Ron Nissimov, “Company settles over ‘junk faxes’; Houston Cellular to pay $400,000; others to fight”, Houston Chronicle, April 29; Mark Ballard, “Junk fax ban taken seriously”, National Law Journal, May 17; Ron Nissimov, “Some firms settle in ‘junk faxes’ case”, Houston Chronicle, Sept. 4; “That Blasted $7 Billion Fax“, Citizens Against Lawsuit Abuse — Houston) (update April 3, 2000: judge dismisses case).

October 22 — Foam-rubber cow recall. Computer maker Gateway used to distribute cute foam-rubber squeezable “Stress Cows” as a corporate promo, but now…well, you just can’t be too careful in today’s climate. “A few conscientious parents have alerted us that small children can tear or bite off parts of the stress cow, creating a potential choking hazard. In response to that concern, and in cooperation with the Consumer Product Safety Commission, Gateway has voluntarily stopped distributing this product and is recalling all Stress Cows previously given to clients.” (“Important Safety Notice“, Gateway Corp. website; the picture alone is worth the click).

October 22 — Canadian cow-naming update. See below entry (Oct. 21) for further developments in the brouhaha about whether Ottawa’s Central Experimental Farm may assign its bovine wards human names like “Bessie” and “Elsie”.

October 21 — Deal with us or we’ll tank your stock. With trial lawyers now launching a high-profile attack on managed care, HMO stocks have fallen by one-half or more from this year’s highs. Lawyers are seizing on this development in itself to “prod” the industry into “a swift settlement” of the actions, reports Owen Ullmann in yesterday’s USA Today. Trial lawyer potentate Richard Scruggs, tobacco-fee billionaire and brother-in-law of Senate Majority Leader Trent Lott (R-Miss.), “said Tuesday that economic pressure from investors” could force the companies to the table. “Trial lawyers have been telling Wall Street analysts that if the lawsuits are upheld, ‘they would put them (companies) out of business'” — and making such a pitch to those analysts, of course, helps along the process of getting the stocks to drop. Karen Ignagni, president of the American Association of Health Plans, said the situation “borders on extortion”, while Washington lawyer and veteran tort reformer Victor Schwartz said companies could wind up settling based not on the legal merits but on concern for stock price. (Owen Ullmann, “Wall Street may play part in HMO suits”, USA Today, Oct. 20 — fee-based archive).

Meanwhile, yesterday’s Boston Globe quotes experts who say the continuing onslaught of new trial lawyer initiatives, fueled by tobacco fees, could have a major depressing effect on the market more generally. “Many analysts think the lawyers will have trouble making the [HMO] suits stick. Still, no one can say for sure what will happen, and on Wall Street, uncertainty is trouble. ‘Until we get some clarity, I think the attitude of some investors will be, ‘I don’t need to own these stocks,'” says Linda Miller, manager of John Hancock’s Global Health Sciences Fund.” Shares in several paint and chemical companies also dropped sharply after trial lawyers launched a new wave of lead-paint litigation with Rhode Island as their first state-government client. (Steven Syre and Charles Stein, “Market’s new worry: lawsuits; Analysts believe wave of litigation just beginning”, Boston Globe, Oct. 20)

October 21 — Minnesota to auction seized cigarettes. State officials seized several thousand dollars’ worth of cigarettes, cigars and other tobacco items from the Smoke Shoppe and Book Nook in Brainerd, Minn. for nonpayment of taxes. On Saturday they’re scheduled to auction off that inventory for the state’s benefit, though Minnesota took the lead in suing cigarette makers and in hand-wringing generally over the continued legal sale of such products. Lynn Willenbring of the state Department of Revenue said the sale was required by state law but admitted the matter was “kind of a sticky wicket”. (Conrad DeFiebre, “State to sell smokes at delinquent-taxes auction”, Minneapolis Star-Tribune, Oct. 16).

October 21 — New Jersey court system faces employment complaint. The various branches of government that have taken on the mission of riding legal herd on private employers have themselves long faced an above-average rate of complaint from their own employees. Latest instance: the New Jersey courts, which along with California’s have won renown as the nation’s most inventive in finding new ways to let employees sue their bosses, face a complaint from their own clerks’ union alleging misclassification of workers, retaliation for collective bargaining activity and other sins. (Padraic Cassidy, “Judiciary Workers’ Union Files Unfair Labor Practices Charges”, New Jersey Law Journal, Sept. 20)

October 21 — Sensitivity in cow-naming. In a temporary advance for Canadian feminism, higher-ups last year ordered the Central Experimental Farm, an agricultural museum and research center in Ottawa, to stop giving cows human-female names like Elsie and Bessie because such names “might give offense to women,” the Boston Globe reports. “Some people are … sensitive to finding their name on an animal. I am, for example,” said Genevieve Ste.-Marie, who issued the order as director of the National Museum of Science and Technology. “Let’s say you came in and found your name on a cow, and you thought the cow was old and ugly.” Names like Clover, Rhubarb and Buttercup were still deemed okay, with borderline cases such as Daisy being decided on a “cow-by-cow basis”. Also cited as acceptable was “Bossy”. (Oct. 16 Sydney (Australia) Morning Herald, reprinting Colin Nickerson, “Canadian bureaucrats get bossy over Bessie”, Boston Globe, Oct. 13).

Sequel: on Oct. 15 the museum announced it would reverse its policy and go back to letting cows have human names, after having received a torrent of public comment, with “not one letter” favoring its sensitivity policy. (Kate Jaimet, “She’s no lady; Stephani’s a cow”, Montreal Gazette, Oct. 16).

October 20 — For this we gave up three months of our lives? No wonder the jurors’ eyes looked glazed — the patent infringement dispute between Honeywell and Litton Industries required them to master the numbing intricacies of ring laser gyro mirror coatings, “an optical film used to reflect laser beams in aircraft and missile guidance systems”. After a three-month trial they voted a mammoth verdict of $1.2 billion against Honeywell, a record for a patent infringement case, but that award later got thrown out. The U.S. is the only country that uses juries to decide complex patent cases; in 1980 the Third Circuit expressed the opinion that “the Seventh Amendment does not guarantee the right to jury trial when the lawsuit is so complex that jury will not be able to perform its task of rational decision making with a reasonable understanding of the evidence and the relevant legal rules.” (Kevin Livingston, “Junking the Jury?”, The Recorder/Cal Law, Oct. 19).

October 20 — The art of blame. A three-year-old is left unattended and forgotten in a van in 95-degree heat, and the van’s interior grows hotter and hotter until at last he dies of hyperthermia. Who deserves the blame? You may be a suitable candidate for practicing law if you guess the Ford Motor Co., for not designing and installing systems that would cool the air in parked cars. (Ben Schmitt, “Suit Demands Ford Add Safety Device to Cool Cars”, Fulton County Daily Report, Oct. 4).

October 20 — Spreading to Canada? A disgruntled fan has sued Ottawa Senators hockey captain Alexei Yashin and Yashin’s agent, Mark Gandler, over the Russian-born player’s refusal to show up at training camp to play with the team. Retired commercial real estate magnate Leonard Potechin is demanding a combined $27.5 million dollars (Canadian) of the two for having spoiled the season, to which Potechin held season tickets. (Ken Warren, “Fan files $27.5M suit against Yashin, agent”, Ottawa Citizen, Oct. 5) (update, Jan. 12: judge allows case to proceed).

October 19 — Maryland’s kingmaker. According to Peter Angelos, the state of Maryland owes him a cool billion dollars for representing it in the tobacco settlement, and it seems a distinct possibility that he’ll get it. The state legislature has gestured toward cutting in half his contracted 25 percent contingency fee, but that move is uncertain to stand up in court. In the mean time, Angelos’s refusal to recede from his fee means that tobacco booty which otherwise would flow into state coffers will sit in an escrow account over which he’ll exert partial control until the state resolves his claim.

In a March 28 profile, Washington Post reporters Daniel LeDuc and Michael E. Ruane write that Angelos is “viewed by many political insiders as the most powerful private citizen in Maryland.” Immensely wealthy from asbestos plaintiffs’ work — a 1997 National Law Journal list of influential lawyers (link now dead) describes him as “a perennial candidate for any list of the best-paid attorneys in the nation” — he branched out to buy the beloved hometown Baltimore Orioles and to become one of the most munificent donors to Democrats nationally as well as in Maryland. He now sports his own private lobbyist; glove-close relations with the governor and labor leaders; and a host of statehouse connections, such as with the state senate president pro tem, who happens to be a lawyer at Angelos’s firm.

Among the marks of his success has been the ability to steer “Angelos bills” through each year’s legislature whose effect is to enable him to extract more money from the defendants he sues. When a state appellate court ruled to limit damages on some of his asbestos cases earlier this year, for example, the Post reports, Angelos personally drafted a bill overturning the opinion and had two of his allies in Annapolis introduce it. (Those allies happened to be the Senate finance committee chairman and the House majority leader.) The bill reinstated higher damages for asbestos cases and for those cases only — most of which happen to be under Angelos’s control in the state. “Every time, it’s a bill that lines Peter Angelos’s pocket,” grumbles House Minority Whip Robert Flanagan (R-Howard). In the most remarkable episode, Maryland lawmakers (like Florida’s) agreed to change the rules retroactively to extinguish tobacco company legal defenses. We’ll all be living with that precedent for a long time: once legislators get a taste of the power to declare their opponents’ actions unlawful after the fact, it’s unlikely tobacco companies will be the last target. For his part, Angelos presents his statehouse efforts as essentially conservative and restorative: “The legislation I introduce is meant to reinstitute the litigation rights our citizens once had,” he told the Post of this year’s asbestos bill.

Angelos’s legislator-allies say the bills should be seen not as special interest legislation benefiting one person, but as a boon to an entire sector of the Maryland economy, which is what the lawyer’s far-flung operations have come to be. “Peter Angelos in and of himself is a major economic interest in the state,” explains one enthusiastic ally, House Majority Leader John Hurson (D-Montgomery). “His empire has grown so large, his benevolence so vast, they say, that to help Angelos is to help the whole state.” Daniel LeDuc and Michael E. Ruane, “Orioles Owner Masters Political Clout”, Washington Post, March 28; Daniel LeDuc, “Angelos, Md. Feud Over Tobacco Fee”, Washington Post, Oct. 15.

October 19 — Change your county’s name or I’ll sue. In 1820, an Ohio county was named after Revolutionary War hero Isaac Van Wart, but there’d been a spelling slip-up along the way, and the county’s name was rendered “Van Wert”. A few years ago a descendant of the original Van Wart family discovered the link and began writing letters to Ohio officials high and low asking that the error in the place name be corrected and the a replaced with an e. County officials demurred, saying the cost of changing title deeds and other documents would be far too high (aside from which, one presumes, after 170-odd years people had grown attached to the new name). Now Jeff Van Wart has begun approaching legal assistance groups in hopes they will help him launch a court action to force a name change: “I’m not going to let it drop.” (William Claiborne, “A War of Van Warts”, Washington Post, Oct. 12).

October 18 — Nominated by reader acclamation. Six months after their son barged into the Columbine High School cafeteria with guns and bombs and began killing people, Thomas and Susan Klebold have filed a lawsuit arguing that their neighbors should pay them. They say the school district and Jefferson County sheriff’s department mishandled warning signs about the behavior of their son Dylan and his pal Eric Harris before the massacre. Widely greeted as a memorable contribution to the annals of chutzpah, the Klebolds’ action could alternatively be construed as an effort to save themselves from ruin, since they’re being sued themselves by victim families; their statements imply that their suit is aimed at shifting those bills to public authorities, as opposed to actually making money from the slaughter. Either way they’ve helped establish a new record for this website, since never before have so many readers written in to suggest we take note of a case. Incidentally, the family of Cassie Bernall, best-known of the Columbine victims and a heroine to many Christians, has declined to press lawsuits: “We just made a family decision,” said father Brad Bernall. (Kevin Vaughan, “Klebold family plans to sue Jeffco“, Rocky Mountain News, Oct. 16; Tracy Connor, “Columbine HS Killer’s Parents Stun School with Lawsuit”, New York Post; Steve Dunleavy, “I Mean, Talk About Chutzpah!”, New York Post).

October 18 — Couple ordered to pay $57,000 for campaign ads criticizing judge. Robert and Olga Osterberg of El Paso, Texas, were dissatisfied with how litigation of theirs had been handled by state judge Peter Peca, so they bought TV ads advocating his defeat in a Democratic primary. But Texas law allows candidates to file private lawsuits against ordinary citizens charging them with campaign-law violations, and Judge Peca (who won the primary despite the ads) proceeded to sue the Osterbergs, charging them with having missed a disclosure deadline. On July 29 the Texas Supreme Court by a 7-2 margin ruled in the judge’s favor, and ordered the Osterbergs to pay him $57,390 — twice what they’d spent on the commercials. Dissenting justice Craig Enoch said the decision left the couple unfairly open to penalties for expenditures they may not have realized were illegal. Another justice expressed concern that the disclosure requirements of Texas election law “may be so cumbersome for ordinary citizens that they unduly burden free speech”, but voted to uphold the award anyway. (“Texas judge gets revenge, couple ordered to pay $50,390 [sic] in damages for missing report deadline”, Political Finance and Lobby Reporter, Aug. 25 — link now dead (PDF document, Adobe Acrobat needed to view; scroll down to p. 7)).

October 18 — Format changes at this site. We installed a number of format improvements to Overlawyered.com over the weekend, mostly inconspicuous ones relating to how the site’s archives work. Items will now be archived the same day they appear, which eases life for anyone wishing to cite or link to a recent commentary (we recommend pointing to the archives address rather than this front page). The front page will now maintain only a few days’ worth of items, down from eight, which will mean faster loading for readers with slow connections. Table widths have been tinkered with to provide better display for readers with small usable screen sizes. You’ll also notice a new tell-a-friend-about-this-site service, which appears on more pages than before.

October 18 — Times’s so-called objectivity. Sent this morning: “Letters to the Editor, The New York Times, To the Editor: A quick computer survey of the last three years’ worth of the Times‘s national coverage indicates that your editors have generally taken care to restrict the pejorative formula ‘so-called…reform’ to the editorial portions of the paper, and that it has been employed there almost exclusively by letter-writers and columnists frankly hostile to the measures under discussion (‘so-called campaign finance reform’, ‘so-called welfare reform’, etc.). But there’s one glaring exception: twice now in recent months your reporters (‘How a Company Lets Its Cash Talk’, Stephen Labaton, October 17, and ‘State Courts Sweeping Away Laws Curbing Suits For Injuries’, William Glaberson, July 16) have employed the phrase ‘so-called tort reform’ in prominent news stories. No other national domestic issue has been accorded this slighting treatment. What is it about the movement to rein in trial-lawyer excesses that causes the Times to forget its usual journalistic standards? Very truly yours, etc.” — our editor. [Never ran.]

October 18 — Trop d’avocats.com. Belated thanks to the English-language Montreal Gazette, which recommended this site September 18 in its “Quick Clicks” column: “Students of the excesses of the litigious United States should check out this site, recently launched by Manhattan Institute senior fellow Walter Olson. He said he wanted to document ‘the need for reform of the American civil justice system.’ The page is updated regularly with legal horror stories and links.”

October 16-17 — Illinois tobacco fees. Chicago’s Freeborn & Peters and Seattle’s Hagens & Berman complain bitterly at an arbitration panel’s decision to give them a mere $121 million for representing the state of Illinois in its tobacco-Medicaid suit when they felt they deserved closer to $400 million. The arbitrators pointed out that the firms hadn’t submitted any time records of hours spent on the state’s case and had done “relatively little” to advance the Illinois claims toward trial, not even having taken any depositions. The state’s attorney general, Jim Ryan, had signed the pact with the two firms and later was the one who agreed to settle the state’s case, thus triggering their fee entitlement; his “close ties to Freeborn & Peters had come under earlier scrutiny”, reports the Chicago Sun-Times’s Dave McKinney (“Law firms decry cut in tobacco fees”, Oct. 12 — link now dead; John McCarron, “Fee Frenzy”, Chicago Tribune, July 26) (see also tobacco-fee coverage for Kansas (Oct. 11, below), New Jersey, Wisconsin).

October 16-17 — Hey, what is this place, anyway? The term “weblog” refers to a running diary of interesting stuff found around the Web, usually with some degree of annotation. Overlawyered.com, for all its fancy policy pretensions, basically follows this format. There are now hundreds if not thousands of weblogs being published and a site called jjg.net has pulled together most of the ones you’ll want to know about. We immediately spotted a bunch of our favorites like the elegant Arts & Letters Daily, the Junk Science Page, Jim Romanesko’s Media Gossip and Obscure Store, Bifurcated Rivets and leftish Robot Wisdom before going on to check out fun unfamiliars like postsecondary.net (higher education) and Deduct Box (Louisiana politics).

jjg.net is put out by a Southern Californian named Jesse James Garnett who inevitably has his own weblog Infosift, a good one. We quote in its entirety an entry for October 11, hyperlinks and all: “According to the Pez people, my use of the word Pez in this sentence is a violation of Pez trademarks and makes me subject to prosecution by Pez Candy in defense of the Pez name. Pez Pez Pez. Pez.”

October 16-17 — Wide world of federal law enforcement. The National Journal news service is reporting (not online) that the House Judiciary Committee on Wednesday gave its approval to H.R. 1887, which would impose federal prison sentences of up to five years and fines on anyone who distributes depictions of animal cruelty unlawful under state law. The bill is aimed at “purveyors of so-called ‘crush videos’ who cater to foot fetishists by selling videos of women crushing small animals with high-heeled shoes.” Insect-crushing is also featured in some videos. The bill would, however, apparently ban a much wider array of films and printed matter, raising the possibility that it might become illegal to broadcast news programs on bullfighting in Spain or elephant poaching in Africa, so lawmakers hastily added an amendment exempting depictions with “journalistic, religious, political, educational, historic or artistic value”. (Not mentioned in reporting was whether home videos of pet snakes being given their daily feeding of live mice would remain legal.) A succession of legal authorities from Chief Justice Rehnquist on down have warned that too many crimes are being federalized, but after testimony that included a plea from Hollywood animal lover Loretta Swit, legislators decided the crush-video crisis demanded national action (“Ban Sought on Animal ‘Crush Videos'”, AP/APB News, Aug. 24; “Bill Cracks Down on Animal-Torture Videos”, AP/APB News, Oct. 1).

October 16-17 — “Health care horror stories are compelling but one-sided”. They call us anecdotal, but when it comes time to press for new rights to sue you can bet boosters of litigation don’t linger for long over dry statistics about how the health care system is performing as a whole; instead we get wrenching stories of how when Mrs. Jones got cancer she couldn’t get her HMO to cover experimental treatment, or how the Children’s Hospital of San Diego sent little Steve home when they should have known he was very sick. Fair enough, you figure, both sides can play. But Tuesday’s New York Times reports a problem in checking many of the HMO horror stories: “The health plans and providers cannot discuss individual cases because of patient confidentiality laws. And although patients can waive such restrictions, they generally do not.” So only the one side makes it onto the public record. A Ralph Nader group has been vigorously circulating the little Steve story for four years but concedes it can’t insure its veracity.

It’s not always that the Times does this good a job of shedding light on a major litigation issue. So why’d they bury this piece without a byline on page A29 — especially when a few months back they devoted a big front-page spread to reporter Bill Glaberson’s charges that the case for tort reform was merely anecdotal? (“Health Care Horror Stories Are Compelling But One-Sided”, unbylined, New York Times, Oct. 12)