|ARCHIVE -- APR. 2000 (II)
April 20 -- Not
tonight, gotta coach my kids. "Children as young as 7
and 9 were coached to fake injuries in a car insurance fraud case in western
Arkansas, a lawyer for the state Insurance Department said." Eleven
people in the Fort Smith area were charged with setting up liability claims
by staging accidents so as to make it appear that other drivers were at
fault. "Clay Simpson, an attorney for the department, said some used
children as passengers and trained them to act injured after the staged
crashes". One of the adults evidently decided to add realism, according
to Simpson, and "physically struck one of the small children in the head
so he would have an injury ... and be able to go to the hospital."
(Arkansas Insurance Department press release, April
13; Chuck Bartels, "Eleven Charged for Staging Crashes", AP/Excite,
Apr. 13; "The youngest grifters", AP/ABC News, Apr. 14).
April 20 -- Web-advertisers'
apocalypse? Most noteworthy tidbit in WSJ news
story a while back on wave of privacy
suits against cookie-deploying Web ad firms, quoting Fordham Law's
Joel Reidenberg, a specialist on the topic: "Even advertisers could have
some liability to the extent they benefited from and participated in the
DoubleClick network. 'Anybody in the chain of information who participated
in the passing off of information to others would be potential targets,'
Mr. Reidenberg says." (Richard B. Schmitt, "Online Privacy: Alleged
Abuses Shape New Law", Wall Street Journal, Feb. 29, 2000, fee-based
April 20 -- Arm
yourself for managed care debate. How much higher will
medical costs go when Congress makes
it easier to sue, and how many more families will get priced out of health
insurance? How coherently will a cost control system work once it's
geared to whichever jury gets angriest? Resources: Krishna Kundu,
"The Norwood-Dingell Liability Bill: Health Insurance at Risk", Employment
Policy Foundation cost study, Mar.
24; "The Problems with Punitive Damages in Lawsuits against Managed-Care
Organizations", New England Journal of Medicine, Jan.
27; Health Benefits
April 20 -- Letourneau
scandal: now where's my million? "The teen-ager who fathered
two children by his former grade school
teacher, Mary Kay Letourneau, is seeking damages from a suburban [Seattle]
municipality and school district. Vili Fualaau, now 16, and his mother,
Soona, are seeking damages of at least $1 million for emotional suffering,
lost income and the cost of rearing the girls, who are in the care of the
boy's mother." The suit charges school officials with failing to
protect the boy from the amorous advances of his teacher, 38, who's now
serving a 7 1/2 year sentence for her involvement with him. "The
teen, his mother and Letourneau previously have said in television appearances
and in a book that the relationship was consensual."
("Teen-age boy seeks damages in Washington state teacher sex case", AP/CNN,
April 19 -- All
dressed up. James and Cynthia Harnage of Norwich, Ct.
are seeking $21 million in damages from Publisher's Clearing House, the
magazine sweepstakes company, which they say in or around last December
sent them repeated notices marked "Document of Title'' and "official correspondence
from the Publisher's Clearing House board of judges" with messages such
as "Congratulations! Your recent entry was a winner! And Approved for $21
Million!" The Harnages say they came to be convinced that they would
receive the grand prize in person on Super Bowl Sunday and even got all
dressed up to wait for the knock on the door, but it never came.
According to a local paper, Mr. Harnage describes himself as devastated
by the letdown; the lawsuit alleges fraud and breach of contract and says
the couple suffered emotional distress. ("Disappointed couple sues
Publisher's Clearing House", AP/Newsday, Apr. 14; "Couple sues Publisher's
Clearing House", New London (Ct.) Day, Apr. 16).
April 19 -- From
the incivility frontier. Richard F. Ziegler, writing in
the Feb. 7 National Law Journal: "Until recently, the classic example
of incivility in litigation was famed
Texas lawyer Joe Jamail's defense of a deposition witness in the 1993 Paramount-QVC
Network-Viacom takeover battle. According to the excerpts of the
deposition transcript included in an addendum to an opinion by the Delaware
Supreme Court, Jamail told the examining lawyer that he could 'gag a maggot
off a meat wagon' and made other vituperative remarks that the Delaware
court labeled 'extraordinarily rude, uncivil and vulgar.' . ... Mr. Jamail's
'maggot' rhetoric has now been displaced by a new classic in incivility:
a pre-suit letter sent by a New York litigator that threatened the prospective
defendant with the 'legal equivalent of a proctology exam' if the plaintiff's
claim weren't satisfied without litigation. That wording, plus some
other aggressive tactics by the same lawyer, ended up costing the would-be
proctologist a $50,000 sanction (now on appeal)." The sanctions were
handed down last November by federal judge Denny Chin against litigator
Judd Burstein, in a case called Revson v. Cinque & Cinque P.C.
However, prospective targets of legal intimidation should not get their
hopes up too high: a few years ago the Second Circuit, which includes New
York, "sustained as proper a pre-suit letter that sought to encourage settlement
by threatening the opposing party with harmful publicity." (Richard
F. Ziegler, "Litigation: The Price of Incivility", National Law Journal,
April 19 -- Microsoft
case: commentators. A gamut of views, ranging from the
moderately appalled to the fully appalled:
* Robert Samuelson on the clash between the living thing that is the
New Economy and the seemingly robotic lurch of antitrust enforcement ("Puzzles
of the New Economy", Newsweek, April 17);
* Tom Watson, though declaring himself "no cyberlibertarian," laments
that the suit "has permanently created a Federal presence in the development
of networked software in the United States. And that means, of course,
lots of lawyers getting lots of hourly fees to litigate in an area they
clearly don't understand." ("Justice Department Saves the Internet,
Film at 11", AtNewYork, April
6 -- via Q Queso);
* Michael Kinsley has fun with a New York Times reporter on the
question of whether it was shocking for Bill
Gates to try to fend off Justice Department assault by -- eeeuw! --
hiring lobbyists ("The Timesman With a Microchip on His Shoulder", Slate,
April 19 -- $60,000
battle over $5 t-shirt. In Westerly, Rhode Island, court
wrangling has now gone on for two years over whether then-sophomore Robert
Parker's heavy-metal t-shirt ("White Zombie", number 666 on back) was unnecessarily
disruptive and thus in violation of the school
dress code. (Michael Mello, "RI 'Satanic' T-Shirt Case Continues",
AP/Washington Post, Apr. 10). Update Aug.
29-30: case has settled.
April 18 -- Brockovich
story, cont'd: the judges' cruise. Picking up where we
left off yesterday with more highlights from Kathleen Sharp's investigation
* Not long after the case settled with its lucrative $133 million
lawyers' fee, the two L.A. lawyers who'd teamed with the Masry/Brockovich
firm to handle the PG&E case, Thomas Girardi of Girardi & Keese
in Los Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century
City, "organized a weeklong Mediterranean cruise for 90 people, including
11 public and private judges. The three PG&E arbitrators were among
those invited," reports Sharp. "One judge called it 'absolutely incredible.'
A luxury yacht floated on azure waters; tuxedoed butlers balanced silver
trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed
deck, according to retired Judge [William] Schoettler, who was a guest.
As another bare-chested judge remarked at the time: 'This gives decadence
a bad name.'"
"The cruise was organized under the banner of Girardi and Lack's Foundation
for the Enrichment of the Law. Girardi told the Los Angeles Times
that the cruise included 'an extensive professional program,'" which would
make it allowable under judicial rules, but retired judge Schoettler can't
recall anyone he knew actually attending a lecture. "The cost was
about $3,000 per person, about half the normal rate; Girardi told the Times
he and Lack had received a discount for chartering the entire Cunard cruise
ship. After some confusion, all of the judges on the trip paid their way,
save two unrelated to the PG&E case who were invited to lecture."
* Some of the judges in the arbitration had an unusually friendly relationship
with Girardi: one had officiated at his second wedding, Schoettler had
flown in his Gulfstream to attend the World Series, and so forth.
"'I became aware that I should absolutely stay away from [arbitration firm]
JAMS or its retired judges when it came to any dealing with Tom Girardi,'
said Laurence Janssen, a partner in the Los Angeles office of Washington
law firm Steptoe & Johnson. ... 'The common lore imparted to me was
that it would be crazy to get in front of any JAMS arbitration with Girardi.'"
The outcry over the post-Hinkley-case cruise helped spur a California Supreme
Court inquiry into the arbitration system. (Kathleen Sharp, "Erin
Brockovich: The Real Story", Salon, April
Incredibly -- given all the above -- some in the White House and in
the Al Gore campaign are hoping to ride the success of the celluloid "Erin
Brockovich" into a chance to seize the initiative on behalf of the wonders
of the beneficent tort system and the wickedness of the mean old tort reformers
who'd like it to be regulated and supervised more closely. That came
across in both a relatively light column by the New York Times's
Maureen Dowd ("The Erin Factor", April
5) and a thuddingly heavy one by Salon's Joe Conason, whose
writings often sum up the theme-of-the-week of the Clinton/Gore attack
machine ("Lessons from 'Erin Brockovich'", March
28). Given the revelations in Kathleen Sharp's article -- which, if
there's any justice, should be in contention for the next round of journalistic
prizes -- it now may be time for Gore's backers to hope that public opinion
doesn't start focusing on the Hinkley case. Also recommended:
Dennis Byrne, writing in the Chicago Sun-Times that "as I sat through
the movie with a reporter's skepticism, I was uneasy about how one-sided
it was," and offering a list of "movies you'll never see come out of Hollywood",
("A feel-good story with a bad taste", April 12, link now dead); and Michelle
Malkin, "The truth about Erin Brockovich", syndicated/ Jewish World
April 18 -- Catfight!
This store's not big enough for two tigers. Federal appeals
court reinstates Kellogg Co.'s suit against Exxon over the two companies'
use of cartoon tigers, both of which date back to the 1950s. For
years Exxon's "tiger in your tank" was mostly seen at the gas pump, but
more recently the petroleum company has moved him indoors to tout food
items at its convenience stores, angering the Battle Creek-based cereal
company, which uses Tony the Tiger to sell its Sugar Frosted Flakes.
("Kellogg Renews Suit Against Exxon over Tiger", AP/Washington Post,
April 18 -- Update:
trial lawyers' war on Allstate. Plaintiff's attorneys
score some advances in campaign against big insurer known for lawyer-averse
claims practices (see "How To Hammer Allstate", Dec.
22). A New Haven, Ct. federal judge has refused to dismiss a
lawsuit claiming that that company committed fraud by discouraging third
parties involved in accidents with its insureds from retaining lawyers.
A Seattle judge agreed with trial lawyer arguments that for Allstate to
urge such third-party claimants not to hire lawyers amounts to the unauthorized
practice of law and is thus illegal. And a Nassau County, N.Y. judge
has levied sanctions against the company for insisting on its policyholder's
day in court against a claim where it should in the judge's view have conceded
liability. (Mark Ballard, "Allstate Tactics Under Fire," National
Law Journal, Jan. 31; Thomas Scheffey, "Allstate Suit Gets Nod From
Connecticut Court", Connecticut Law Tribune, Feb. 14; Michael A.
Riccardi, "Appeal Battle Over Allstate Sanction Case May Help Tort Plaintiffs",
New York Law Journal, Mar. 22). Update Apr.
25, 2004: insurer prevails in Connecticut federal case.
April 17 -- Brockovich
story breaks wide open. Salon scoops competition
with journalist Kathleen Sharp's impressive investigation of the real lawsuit
that inspired "Erin Brockovich". In the Hollywood tale, after our
spunky heroine vanquishes nasty Pacific Gas & Electric, the residents
of Hinkley, Calif. win big. In the real world, many of the Hinkley
clients feel they got the royal shaft from the lawyers who represented
them, and are now proceeding to sue those lawyers, specifically Brockovich's
firm of Masry & Vititoe, headed by Ed Masry:
* Of the $333 million settlement paid by PG&E, the lawyers kept
a handsome 40 percent ($133 million) share, plus another $10 mil to cover
expenses, yet were short (the clients say) on detail to back up the latter
largish number. Worse, they say Masry, Brockovich & Co. held
on to their money for six months after the settlement, a delay that appears
highly irregular to the experts Salon
checks with, while not paying interest or even returning their phone calls
(the lawyers claim the payments did include interest). Some with
large awards also got steered toward certain financial planners, among
whom was Ed Masry's son Louis.
* When the payouts eventually came, many clients found the division
of spoils mysterious, arbitrary-seeming or worse. Divided among the
650 plaintiffs, the announced $196 million would provide about $300,000
per client. However, an outside lawyer who interviewed 81 of the
plaintiffs says he was told they received an average of $152,000, and Salon
reports that many long-term residents with presumably documented medical
ailments got payments of $50,000 or $60,000. The numbers are in fact
secret, which means clients can't get an accounting of who received what
-- you've gotta protect the privacy of the other plaintiffs, right?
Moreover, "there was no mention of the criteria, formula or method by which
the money would be divided," other than a statement that the amounts would
be based on clients' medical records. Yet some residents say their
medical records were never solicited. One elderly, ailing resident
"blew up at one of the attorneys, who didn't like his attitude," according
to a fellow townsman, and "got a real bad deal," allotted in the end only
$25,000: "fairly or not, some residents say they saw a pattern in the distribution
method. 'If you were buddies with Ed and Erin, you got a lot of money,'
said [client Carol] Smith. 'Otherwise, forget it.'"
* Even while the case was pending, many clients (as well as the
outside press) found themselves unable to keep tabs on its progress; it
was resolved in arbitration, which takes place off the public record.
"We had no idea what was going on and weren't allowed to watch," said one
plaintiff. Yet with help from the plaintiffs' lawyers, Universal
Studios managed to obtain a copy of the trial transcript -- more than many
of the actual plaintiffs in the case have yet managed to do. When
journalist Sharp attempted to interview the lawyers on the Brockovich team,
the resulting conversations were "short and explosive and terminated abruptly
by the lawyers." And when an outside lawyer took an interest
in the disgruntled clients' case, Masry and fellow lawyers at once seized
the offensive, suing him for allegedly slandering them and interfering
with their business relationship with the clients; this slander suit was
filed, then dropped two weeks later, then reinstated, then dropped again.
* What about the science? (see April
14 and March 30 commentaries) Fumes
from the application of chromium-6 in industrial settings are indeed dangerous
to workers who inhale them, but the crux of the Hinkley controversy was
what kind of health risk the substance poses as a trace water pollutant.
Sharp quotes toxicologist Sharon Wilbur at the U.S. Department of Health
and Human Services, who flatly contradicts Brockovich on whether the contaminant
could have caused the various health problems sued over.
* Sharp also unearths allegations leveled by the Brockovich-side
lawyers and by others that the first set of lawyers PG&E had used on
the case had engaged in potentially serious misconduct, including privacy
invasion by hired gumshoes. It's hard to know how much weight to
give these allegations, but if credited even in part they might suggest
a motive for the utility to accept a hasty settlement of the case on unfavorable
Some of Sharp's sources evidently have a bit of an ax to grind against
arbitration as an institution, but the article is still a triumph of sheer
reportorial legwork, too rich in detail to summarize in one day. Tomorrow:
the judges' posh Mediterranean cruise, mounting press interest in the case,
and the politics of it all. (Kathleen Sharp, "Erin Brockovich: The Real
Story", Salon, April
April 17 -- Annals
of zero tolerance: kindergartners' "bang, you're dead".
Four kindergartners playing "cops
and robbers" at Wilson School in Sayreville, New Jersey were given three-day
suspensions after they pretended their fingers were guns
and played at shooting each other. "This is a no tolerance policy. We're
very firm on weapons and threats," said district superintendent William
L. Bauer. "Given the climate of our society, we cannot take any of these
statements in a light manner." ("N.J. kindergartners suspended for
threats during playground 'cops and robbers' ", AP/Court TV, April
6; see also Nov. 20 commentary).
April 17 -- Another
sampling of visitors. The hundreds of diverse websites
that link to us include the Wyoming
Libertarian Party ("I'd say this country is overlawyered, but some
trial lawyer will probably sue me for saying it"), Arrosage
Lemay, a pest control and lawn maintenance enterprise in Notre-Dame-
de- la-Salette, Québec (catch the antennae-wiggling animations),
and Ridgefield Focus, a community
site serving a town of which we're very fond, Ridgefield, Ct.
April 14-16 --
Great moments in defamation law. At a sentencing hearing
for James Hermann, who'd pled guilty to armed robbery, defense lawyer Robin
Shellow argued that despite her client's extensive criminal record (six
previous adult convictions) he deserved to be treated with some leniency
because he'd been struggling with a heroin problem. But this last
statement of hers was mistaken: though Mr. Hermann admitted in a probation
report that he was high on crack cocaine and Valium when he'd used a shotgun
to rob a Milwaukee custard store owner, his drug use did not include heroin.
Hermann proceeded to sue her for defamation, and although the judge in
the criminal case said her slip hadn't affected the length of the sentence
either way, Hermann proceeded to line up an expert witness willing to testify
that he'd "suffered psychological harm as the result of being called a
heroin addict instead of a cocaine addict", according to Shellow's lawyer,
Randal Arnold. Psychologist Paul M. Smerz told the court that Hermann
had suffered "lessened sense of self-confidence, self-esteem and overall
self-image" and even symptoms of post-traumatic stress disorder as a result
of his attorney's groundless comment. The case dragged on for two
years and finally settled this spring as it was approaching trial when
Shellow agreed to refund $500 of her original legal fee to Hermann.
(Cary Spivak, "'Hey, I use coke, not H', robber says in suit v. his lawyer",
National Law Journal, Mar. 27).
April 14-16 --
"Erin Brockovich": plume of controversy. Julia Roberts's
screen appeal is undeniable, but how good's the science? The New
York Times' Gina Kolata joins the fray (title says it all: "A Hit
Movie Is Rated 'F' in Science", April
11), while Brockovich herself, who's currently traversing the country
helping organize toxic tort suits,
spars with critic Michael Fumento in the letters column of the Wall
Street Journal (letters exchange reprinted
at Fumento website; Raphael Lewis, "Opening in a toxics case near you,
Erin Brokovich" [sic], Boston Globe, Apr. 1; Edward Lewine, "Writer's
Slam Angers Real Erin Brockovich", New York Daily News, Apr. 2;
this site's March 30 commentary).
April 14-16 --
"Saints, sinners and the Isuzu Trooper". Column by Washington
Post's Warren Brown on Consumer Reports/Isuzu
Trooper dustup (see April 10) finds
plenty to criticize on both sides. "If anything is to be learned
from the Isuzu-CU conflict, it is, perhaps, that both David and Goliath
deserve equally aggressive scrutiny because both are equally capable of
screwing up." ("Saints, Sinners and the Isuzu Trooper", April
13 -- online chat with Brown scheduled for Monday
11 a.m. EST at Post site).
April 14-16 --
Police resent political gun-buying influence. Part of
the developing plan for strong-arming independent gunmakers
into a Smith & Wesson-type settlement is to get cities and counties
to redirect police-gun purchases toward favored manufacturers such as S&W
and any companies that sign similar agreements. But many on police
forces see it as playing politics with their lives to select guns based
on anything other than their optimality for police use, which requires
ease of control and use, speed, accuracy and reliability under extreme
conditions. (Smith & Wesson has not been a popular brand in police
use.) "Adherence to a particular political philosophy" shouldn't
play a part in gun purchases, Gilbert G. Gallegos, national president of
the Fraternal Order of Police, told the Los Angeles Times.
A few jurisdictions like Atlanta, Berkeley and San Mateo County, Calif.
have signed onto the program, but the L.A. County Sheriff's Department
is planning to stick with its 9-mm Berettas. "Politics aren't going
to enter into how we choose our firearms," said Capt. Garry Leonard of
the department. "When you think of what we do for a living, we just can't
Glock general counsel Paul Jannuzzo said that, in a recent phone call,
Housing Secretary Cuomo asked about his company's sales to police and "made
it fairly clear" that those sales would be at risk if the company didn't
play ball. "I think the expression he used was, 'I have a lot of push with
these Democratic mayors,'" said Jannuzzo. "There was no doubt in my mind
that I'd just been threatened with economic extortion". Told about
the charge, Secretary Cuomo, ever the model of grace in controversy, retorted:
"It's an interesting response from the subject of an antitrust investigation,"
referring to the trade-restraint probe recently launched against the gun
industry for allegedly shunning S & W (see March
31). (Richard Simon and Eric Lichtblau, "Police Feel Pressure to Choose
the 'Code'", Los Angeles Times, Apr. 9).
April 13 --
Judge dismisses suit blaming entertainment biz for school shootings.
U.S. District Judge Edward Johnstone has dismissed an action on behalf
of school shooting victims in
Paducah, Ky. against 25 enterprises whose movies, videogames and Internet
sites had allegedly incited teenage gunman Michael Carneal to go on his
rampage ("Federal judge dismisses lawsuit against movie, video game makers",
AP/Freedom Forum, April 7; "Suit blaming media for Kentucky killings dismissed",
CNN/Reuters, April 7; see July 22 and
Nov. 2 commentaries). Plaintiffs vowed to appeal the ruling, which
came shortly after a Senate hearing at which conservative Sen. Sam Brownback
(R-Kansas) lent a sympathetic ear to the lead plaintiff's charges against
the videogame industry ("Witness tells Senate panel: Video games taught
teen killer how to shoot", AP/Freedom Forum, March 22).
Other litigation continues to move forward around the country seeking
to blame the media and game makers for school violence, including the Columbine
High School massacre in Colorado. Lt. Col. David Grossman, a former
Army psychologist signed as an expert witness by the plaintiffs in the
Carneal case, has been much in the press lately denouncing such games as
Doom and Quake ("The Games Kids Play", John Stossel/ABC News 20/20,
Mar. 22). And Vermont state senator Tom Bahre (R-Addison) has introduced
legislation in that state which would hold makers of graphically violent
movies and other media liable for the costs of acts of real-life violence
that their products are deemed to have incited. An AP report says
Bahre's bill would "place the burden of proof on those producers to show
that their depictions of violence did not cause an actual event." ("Vermont
lawmaker wants to hold media responsible for violence", AP/Freedom Forum,
April 13 --
Bill Gates and the Nasdaq: why didn't the Munchkins sing?
"When the wicked witch is dead, you expect the Munchkins to break out in
song. But that was not the reaction in the technology sector this week,
after a federal judge found Microsoft
Corp. guilty of behaving like a bully." Nasdaq, composed heavily
of tech firms that Microsoft is supposed to have victimized, fell off a
cliff. Paradoxical? "Economists Thomas Hazlett of the American
Enterprise Institute and George Bittlingmayer of the University of California
at Davis recently published a study in the Journal of Financial Economics
documenting that whenever the government's antitrust suit scores a victory,
an index of non-Microsoft computer stocks falls -- and when Microsoft wins
a round, computer stocks rise." (Steve Chapman, "The Real Cost of the Microsoft
Verdict", Chicago Tribune, April 6).
April 13 --
"Congress passes asset forfeiture bill". Long awaited
reforms will make it harder for the government to seize assets first and
ask questions later. "The legislation would shift the burden of proof
in asset forfeiture cases from the property owner to the government. ...
It allows federal judges to release property to the owner if continued
government possession causes substantial hardship to the owner, extends
the time a property owner has to challenge a seizure in court and ends
the requirement that a person seeking to recover property post a bond with
the court worth 10 percent of the property value." (AP) To
placate prosecutors, however, the bill also gives law enforcement officials
a number of new powers. (Jim Abrams, "Congress passes asset forfeiture
bill", AP/Topeka Capital-Journal, April
12; Stephen Labaton, "Congress Raises Burden of Proof on Asset Seizures",
New York Times, April
April 13 --
Regulation through litigation: opinion pieces. The topic's
starting to arouse significant attention among the commentariat, and not
a moment too soon:
* We think he's joking dept.: Univ. of Colorado law prof
Paul Campos (Jurismania) foresees a gigantic class-action suit against
"Big Auto" ("Where are next brave lawyers?", Rocky Mountain News
* "First, tobacco. Then, guns. Now, Microsoft. Does anyone seriously
believe the class-action legal industry will stop there?" asks Wall
Street Journal editorialist John Fund, who sees reformist sentiment
rising: "In North Dakota and Texas, new 'sunshine' laws give the legislature
oversight of government contracts with outside lawyers." ("Litigation gold
rush", MS/NBC, April 4).
* Today's less-than-spontaneous agitations against each newly
designated Industry-To-Hate remind the Kansas City Star's E. Thomas
McClanahan of China's old "mass political campaigns" in which the populace
was whipped up to support a purge of the "Four Bads" or of "capitalist
roaders". Quotes this site's editor, too ("Bypassing the checks and
balances", Apr. 10 (click "columns", then scroll list))
* "None dare call it extortion" is the Las Vegas Review-Journal's
take (editorial, April
April 12 --
Gore amid friendly crowd (again). Bill Clinton and Al
Gore have been racing around the country to attend a seemingly unending
series of fund-raisers thrown by such prominent personal-injury lawyers
as Dallas's Fred Baron (see Feb. 14)
and Cincinnati's Stanley Chesley (see Mar.
30). Last Thursday it was the turn of Palm Beach, Fla. tobacco-fee
tycoon Robert Montgomery (see Aug. 21-22),
for a $10,000-a-plate dinner graced by the Veep.
The Washington Post's Ceci Connolly writes that at yet another
recent lawyer-hosted fund-raiser -- this one at the home of Houston's Denman
Heard -- Democratic National Committee Chairman Ed Rendell said, with Gore
looking on, "we are proud as a party to have the support of the trial lawyers.
It is nothing we apologize for". "Gore summed up the differences
this way: 'We fight for the working people, for those who don't have the
resources," he said. Republicans 'draw from the wealthiest, most powerful
To be sure, Mr. Montgomery, who hosted last Thursday's Gore event, could
give most GOPers a lesson or two about what it means to be powerful and
well-heeled: together with some colleagues he pulled off the Florida tobacco
caper, representing the state government and nabbing what was at the time
the biggest legal fee in history, $3.4 billion, his own share amounting
(per George magazine's estimate) to some $678 million. Montgomery
is also a longtime donor to political candidates ranging from the Kennedy
family to Hillary Rodham Clinton. Maybe it's not so surprising after
all that the Democratic National Committee raised more money in the first
quarter than its Republican counterpart. (Ceci Connolly, "Democrats
Have No Argument with Trial Lawyers", Washington Post, April
9; Jonathan Salant, "Democrats raise more money than Republicans",
A proper account of the Florida tobacco
affair for a national readership remains to be written. For an introduction,
check out the following 1998 coverage by Lucy Morgan in the St. Petersburg
Times: "Tobacco trial lawyers say they had to hire [Governor
Lawton] Chiles' friends", March
25, 1998; "Tobacco team lawyer is called to account", March
31, 1998 ("Did lawyers hired by Florida to fight the tobacco industry
cough up more than $100,000 for the Clinton/Gore campaign in hopes of currying
favor with the administration? And were those campaign contributions
illegally disguised as legal expenses -- and actually paid by the tobacco
industry?" -- with eyebrow-raising details about a Fort Lauderdale meeting
between the tobacco trial team and Vice President Gore on Oct. 15, 1996,
shortly before the 1996 election); as well as "Tobacco and torts" (editorial
by the paper), Dec.
19, 1998 (calling the eventual arbitration award to lawyers "breathtakingly
excessive ... It's almost disgusting to think of such riches going to a
few people who gave relatively little time and expertise to 'earn' them.
... receiving billions of dollars in fees for a case that never went to
trial is utterly unconscionable. ... [the lawyers have put] a face on greed".)
April 12 -- Triumph
of plastic foliage. New York Times home and
garden section advises that artificial plants are making inroads in both
interior commercial decor and landscaping; unlike the live kind, "they
don't house pests or provoke allergic reactions (and subsequent lawsuits)".
(William L. Hamilton, "The Flowers That Bloom in Spring, Ha Ha", New York
April 12 --
Cops shoot civilian; city blames maker of victim's gun.
In a suit filed last week, the city of Riverside, Calif. says gunmaker
Lorcin Engineering should bear legal responsibility for the shooting by
Riverside police of 19-year-old Tyisha Miller of Rubidoux, because it sold
the weapon she had on her lap at the time she was shot in a locked, idling
car. Officers from the force were later fired for the tactics they
used in the shooting, which led to a wrongful-death lawsuit by Miller's
survivors. The city is now seeking to dodge that suit by impleading
Lorcin on the theory that had it provided better user training Miller might
have known not to keep a gun on her person in a way that approaching officers
might interpret as threatening to them, though her gun was later found
to be inoperable. Lorcin shuttered its plant in nearby Mira Loma
and declared bankruptcy last year, but an attorney for the city suggests
it still has money. "Every single claim against Lorcin was dismissed,
but at a very expensive cost of $100,000 here, $100,000 there" in legal
fees, said owner James Waldorf. (Lisa O'Neill Hill and John Welch,
Riverside Press-Enterprise, April 7) (discuss at Press-Enterprise
April 12 -- Endorsed
again. "oh man, this is great. overlawyered.com.
check the left side for 'personal responsibility' ..." -- thus one of the
April 10 entries on Array,
a weblog specializing in art and applied digital technology, but with a
wide miscellany of other topics in there too.
April 11 --
Stuart Taylor, Jr., on Smith & Wesson deal.
His new column on law-stretching gun
and tobacco suits is must reading
even aside from the handsome plug it gives this website (see below).
"One thing I am sure of is that the Framers of the Constitution created
Congress -- and assigned to it 'all legislative powers herein granted'
-- to set policy for the nation on such complex questions of social engineering
[as gun control]. They also made it hard to enact legislation unless backed
by a fairly broad national consensus. That's a far cry from what's going
"[T]he gun litigation represents a deeply disturbing way of making public
policy. It was started by private lawyers and municipalities with big financial
interests at stake. The courts have largely been bystanders as the Clinton
Administration and its allies have sought to bludgeon gunmakers into settling
before trial." (Stuart Taylor Jr., "Guns and Tobacco: Government
by Litigation", National Journal, March 27; NJ yanks these
free columns after offering them briefly as a teaser, so catch this one
P.S. Okay, and now about that plug: "For a fuller
taste of these and other peculiar workings of our legal system, with copious
links to news reports, check out an amusingly depressing Web site called
Overlawyered.com, created and edited
by Walter K. Olson of the conservative-libertarian Manhattan
Institute," writes Taylor. "Amusingly depressing" -- an ideal
slogan for our banner ads (if we ever get around to devising them;
someone wanna help volunteer?).
April 11 -- Oops:
D.A.'s and judge's fwding of sex pic deemed "unfortunate event".
Dateline Las Vegas: "A pornographic photograph sent by e-mail to dozens
of Clark County employees originated from a deputy district attorney's
computer. The e-mail was then forwarded to a senior judge who passed
it on to other county workers." Apparently the sexually explicit
photo was meant to reach only one or two recipients, but was inadvertently
blind-cc'd to a longer list. County manager Dale Askew said those
involved likely would be suspended without pay. "Needless to say
employees were not happy receiving it because it came across their computer
unsolicited," said county spokesman Doug Bradford, who called the episode
"an unfortunate event." How lucky for all concerned that they weren't
at a big private firm, where skittishness over harassment
liability might have gotten the senders fired. (Adrienne Packer,
"Obscene e-mail traced to deputy DA", Las Vegas Sun, Feb.
9). (DURABLE LINK)
April 11 --
Krugman on MS: his "blood runs cold". "I don't know anyone
outside Seattle who is really pro-Microsoft.
But a lot of us are, at least mildly, anti-anti-Microsoft. That is, we
worry that the crusade against Bill Gates sets a bad, even dangerous precedent.
"The anti-anti-Microsoft case does not deny that there is some truth
to that story [that Redmond's market dominance and hard-guy tactics caused
a climate of fear among its competitors], but asserts that taking punitive
action will be the worse of two evils because it will create a different,
and worse, climate of fear -- fear that success itself will be punished.
Today Microsoft, tomorrow Intel and eventually (as soon as somebody figures
out what it does) Cisco."
"... [W]hen I hear that a coalition of states is demanding damages from
Microsoft, as if Windows caused lung cancer; well, my blood runs cold.
I know that there is an intellectually respectable case against Microsoft,
but I've got a bad feeling about where we are going." (Paul Krugman, "Rights
of Bill", New York Times, April
April 11 -- Chat
into the microphone, please. Securities and Exchange Commission
announces plans to acquire automated software to trawl websites, Usenet
and Yahoo/AOL-type bulletin boards searching for phrases like "get rich
quick" and "free stock" which might signal illicit securities promotion.
The results, including email addresses and other identifying information
about posters, will be copied into a giant
database and indexed for the convenience of SEC investigators whose
job is to file civil charges against persons suspected of stock-jobbing.
One company invited to submit bids on the system, the big accounting firm
of Pricewaterhouse Coopers LLP, has already bowed out of consideration,
saying it had "serious concerns about the implications for the privacy
of individuals". The proposal "is equivalent to, in my opinion, wiretapping
... the equivalent of planting a bug," said Larry Ponemon, a partner at
the firm in charge of privacy issues. Members of Congress have begun
to express concern: "Engaging in such a wide level of monitoring will have
a chilling effect on free speech online," Rep. Bob Barr (R-Ga.) wrote to
SEC Chairman Arthur Levitt. "While I understand the need to prevent securities
fraud, federal agents should not be allowed to sift through the conversations
of millions of innocent parties in order to do so."
Levitt says there's little difference in principle betwen current practice
-- in which flesh-and-blood SEC attorneys laboriously traverse the Web
looking individually for possible indicia of fraud -- and the new proposal.
The commission also says it will keep the data confidential and throw out
information that does not establish wrongdoing. Other federal agencies
are eager to follow the SEC's lead, such as the Commodity Futures Trading
Commission, which has begun talking to vendors: "For us it's a very exciting
prospect," says acting CFTC director of enforcement Phyllis J. Cela. (Michael
Moss, "SEC's Plan to Snoop for Crime on Web Spraks a Debate Over Privacy",
Wall Street Journal/ZDNet, March
28; Marcy Gordon, "SEC Plans Web Surveillance System", AP/Excite, March
29; Michelle Finley, "SEC Plan: Free Speech Violation?", Wired News,
29; "House panel questions automated surveillance by SEC", Reuters/Excite,
April 4). (DURABLE LINK)
April 11 --
Attention librarians. Starting immediately, we'll be dividing
each new month's archives into three, rather than two, sections; that way
readers with low bandwidth won't have to wait quite so long for those pages