February 15 --
County to pay "mountain man" burglar $412,500. Mincho
Donchev, an escaped murderer from Bulgaria who lived for ten years in the
Cascade Mountains of Washington breaking into vacation cabins, has won
a $412,500 settlement of his lawsuit against Snohomish County for excessive
force in his arrest. Two years ago, as Donchev resisted officers
trying to subdue him, a police dog mangled his foot, causing the eventual
loss of two of his toes; he was armed with knives, handguns and a pronged
stick during the affair. The sheriff denies that either his deputies
or the dog did anything wrong, but Donchev's Seattle attorney, Mark Shepherd,
said his client had "been horribly, grotesquely disfigured on his foot,
and that foot will never function properly again"; the settlement money,
he said, would help ease his client's re-entry into society when he's released
from prison this August. Some local residents may have other
ideas for where the money ought to go. "Every time he broke into our
place he cleaned out every bit of our food in the cabinet and the refrigerator
-- pop, any kind of meat we had," said Bob Gardner, whose vacation cabin
was burglarized three times. ("'Mountain-Man' Thief Wins $412K for
K-9 Bite", AP/APB News, Feb.
February 15 --
Bill introduced to curb opportunistic ADA filings. Florida GOP
Representatives Mark Foley and
Shaw have now introduced legislation "designed to block plaintiffs'
lawyers from using the Americans with Disabilities
Act as a mill for grinding out legal fees," reports the Miami Daily
Business Review. As previously reported (see our January
26-27 commentary), more than 600 South Florida businesses have
been hit with charges that their facilities are out of compliance with
the ADA; most of the complaints can be traced to a small network of activists
linked to lawyers who obtain legal fees typically in the thousands of dollars
from defendants eager to settle. The new bill would require that
businesses be given notice of an ADA problem and an opportunity to correct
it before suit could be filed. According to a press
release issued by the Congressmen, a group calling itself Citizens
Concerned about Disability Access appears to consist mainly of "the two
lawyers initiating the suits, and a neighbor and her disabled daughter
who reportedly live across the street from one of the lawyers." Some
of its complaints are premised on the notion that the disabled daughter
encountered barriers while trying to patronize the businesses, which included
a pawn shop, a liquor store and a swimming-pool-supply store -- the latter
an especially curious subject of concern since the disabled daughter "has
no swimming pool." Last month U.S. Attorney General Janet Reno
declined Rep. Foley's request that the Justice Department investigate the
matter. (Dan Christiansen, "Congressmen Rein In 'Rogue' Disabled
Access Suits", Miami Daily Business Review, Feb.
February 15 --
Britons debate false-rape-claim damages. In Newcastle
upon Tyne, England, a four-man, eight-woman jury has ordered Lynn Walker
to pay $630,000 (£400,000) in damages to co-worker Martin Garfoot,
after concluding she had falsely accused him of raping her in a storeroom.
Ms. Walker had waited nine months after the supposed incident to raise
the claim and had sought neither police nor doctors' help; video camera
records from the days after the claimed attack showed her "at ease and
untroubled" as she worked with the accused. Mr. Garfoot, 46, managed
a branch of Boots, the drugstore concern; both Ms. Walker and Mr. Garfoot's
wife Janice are pharmacists. Feminist groups expressed outrage, but
Mr. Garfoot's barrister, Edward Garnier, Q.C., said: "She should not be
able to simply walk away and hide in her tent after she has been found
to be an out-and-out liar. Mr. Garfoot has spent the last few years wearing
a cloak of shame. She twisted and twisted and twisted the knife in Mr.
Garfoot." (Nigel Bunyan, "Woman must pay £400,000 to man she
said raped her", Daily Telegraph (London), Feb.
8; Mark Blacklock, "Rape Claim Woman Lied", Daily Express (London),
February 14 --
Bill Clinton among friendly crowd. The President hit Texas
last week for a fund-raising tour of which the highlight was a $25,000-a-couple
dinner hosted by trial lawyer husband-and-wife Fred Baron and Lisa Blue
at their "palatial" (eleven bathrooms, six wet bars) Dallas home.
The event raised an estimated $500,000 for the Democratic National Committee.
The Reuters report describes Baron only as a "Democratic activist" but
not as a trial lawyer, and none of the papers appear to pick up on his
rather salient role as president-elect of the Association of Trial Lawyers
of America. Needless to say, none of the reporters are so rude as
to mention the controversies over the coaching
of testimony in Baron's asbestos claims practice, either. Maybe
host and guest-of-honor shared tips about their respective successes with
creative witness preparation.
The February 11 Dallas Morning News does report that at the Baron
event "the president had plenty of lawyers to chat with. He was seated
at the head table with trial lawyer Trevor Pearlman, and law partners/life
partners Debbie and Frank Branson, as well as his lawyerly hosts."
("Clinton Says Senate Doing 'Slow Walk' on Nominees, Reuters/Excite, Feb.
9; Madeline Baro Diaz, "Clinton arrives in South Texas to discuss border
issues, raise money", AP/Fort Worth Star-Telegram, Feb.
10; Todd J. Gillman, "In Texas, Clinton blasts GOP", Dallas Morning
News, Feb. 10; Alan Peppard, "Backing Bill all the way", Dallas Morning
News, Feb. 11 (fee-based archive)).
February 14 --
U.S. foreign policy, hijacked by lawsuits. Trial
lawyers' freelance pile-on of WWII-recrimination suits is undercutting
America's effort to maintain a coherent foreign policy, most recently in
Japan, where U.S. Ambassador Thomas S. Foley has joined the Japanese government
in rejecting an attempt to claim compensation in U.S. courts for maltreated
American prisoners in World War II. "The peace treaty put aside all
claims against Japan," Foley pointed out. The continuing claims are
generating dismay and an anti-American backlash among Japanese (as also
among citizens of various European nations). By this point, however,
the American litigation system has grown so vigorous in its assertiveness
that mere treaties may not be very effective at reining it in. (Doug
Struck and Kathryn Tolbert, "US envoy, Japan reject WWII veterans' lawsuits",
Boston Globe (originally Washington Post), Jan. 19, link
now dead; Richard Pyle, "Ex-POWs want Japanese firms to pay for 'slave
labor'", AP/Seattle Times, Sept.
15, 1999; "Anger as court rejects Allied POWs' compensation suit",
26, 1998) (see Sept. 20, Aug.
25, Feb. 5-6 commentaries).
February 14 --
Improvements to our gun-litigation page. We've been continuing
to add links to our subpage on firearms lawsuits.
Included are the useful news-links page on gun issues maintained by the
Shooting Sports Association, the special page on gun controversies
at Jurist: The Law
Professor's Network, a bunch of choicely worded letters
to the editor from the Detroit Free Press last summer responding
to the NAACP's suit, and Robert Levy's Jan. 30 opinion piece for the National
Law Journal, "Blackmail
of gun makers". In response to a suggestion from an attorney
reader who protested, "We're not all against gun rights, you know",
we're also pleased to add a link to the Lawyers'
Second Amendment Society.
February 12-13 --
AOL upgrade's sharp elbows. America
Online's new 5.0 upgrade, like many other pieces of software,
asks whether you want to make it your "default" program for the purpose;
if you say yes, it alters your settings in ways that make it easier to
use AOL but harder to use other Internet service providers you may have
installed. Some users have found that the AOL "default" setting makes
it remarkably difficult indeed to use rival ISPs, and some ISPs report
spending hours helping frustrated customers trying to use their service
after having installed AOL 5.0 over it.
Enter class-action lawyers, who've filed two distinct lawsuits: one
on behalf of the roughly 8 million AOL customers who've already installed
the new version, and the other on behalf of rival ISPs. The suit
on behalf of individual users rather arbitrarily demands up to $1,000 for
each user, and CNN rose to the bait by describing the suit in its headline
as being for $8 billion -- even though AOL claims that more than 90 percent
of its users do not have accounts with other ISPs, which means they're
unlikely to have run into difficulties (at least if they're not trying
to connect over a LAN or corporate system). AOL says other ISPs'
software does the same thing as its does, and contends that the upgrade
gives users a smoother Net experience which has reduced reports of technical
problems overall. According to USA Today, one of the suits
invokes a federal anti-hacking law which provides both criminal and civil
penalties for anyone "who alters the programs or use of a computer used
in interstate commerce," quoting "Lloyd Gathings, a Birmingham, Ala., lawyer
involved in the case."
SOURCES: Brian McWilliams, "AOL Sued Over Networking Bugs
in AOL 5.0", InternetNews.com, Feb. 2 (& see same site, Oct.
6, 1999, Oct. 12, 1999, and Feb. 8, 2000, all links now dead); "AOL Sued
over 5.0 Install", Reuters/ZDNet, Feb.
2; Slashdot, Feb.
2 (bonus: thread includes link
to this site); "Disgruntled AOL 5.0 users seek up to $8 billion in damages",
2; "AOL sued over latest software", USA Today, Feb. 2; Brooke
A. Masters, "AOL Rivals File Suit Over Its New Software", Washington Post,
8; Donna DeMarco, "AOL 5.0 problems boot up users' ire", Washington
Feb. 9, link now dead; Peter H. Lewis, "Takeover Artist", New York Times,
10. The inevitable website by lawyers organizing the suits is
February 12-13 --
Blue-ribbon excuse syndromes. Former Chicago City Treasurer
Miriam Santos, once a rising star of the Democratic Party, has "blamed
her now-overturned conviction on extortion charges on pre-menstrual syndrome....'I
am human and probably the first woman to go to jail for PMSing,'" she told
a news conference. ("Former treasurer blames PMS for crime", UPI/Virtual
New York, Feb.
7). A lawyer for New York City's Dr. Allan Zarkin, charged with
carving his initials into a sedated patient's belly after delivering her
baby by Caesarean section, says his client "has a "frontal lobe disorder"
called Pick's disease, an Alzheimer-like disease that causes personality
and behavior changes and dementia." ("Doctor charged in carving incident",
10; "Report: Woman Settles with Doctor", Feb.
12). Vancouver Metis Indian Deanna Emard, convicted of stabbing
her common-law husband to death, has gotten off without jail time because
law now recognizes Indians' cultural oppression as a mitigating factor
in sentencing. (Neal Hall, "Metis woman avoids jail term for killing
husband", Vancouver Sun/National Post, Jan.
20). And in a recent U.S. News column, John Leo nominates
1999's top ten claims of victimization, including several discussed previously
in this space as well as additional contenders such as James Moore, a landscape
gardener from upstate New York who raped and strangled a 14-year-old girl
in 1962 and asked a judge last year for release from his life-without-parole
sentence, arguing that exposure to insecticides made him do it. ("The
top ten victims", Jan.
February 12-13 --
The nutty professor. How does University of Wisconsin
law professor Marc Galanter retain his position as the favorite academic
of America's trial lawyers? In part by his willingness to dispense
to reporters quotes like the following: "Some who have studied the issue
say that what Bush has called 'the litigation explosion in Texas' was nonexistent.
'There is really no evidence that frivolous or totally unfounded lawsuits
pose a significant problem,' said [Galanter]." (George Lardner Jr., "'Tort
Reform': Mixed Verdict", Washington Post, Feb.
the Post what you think).
February 10-11 --
Antitrust obstacles to hacker defense. This week's hacker
attacks on Yahoo, E-Trade and other sites are likely to encourage proposals
to establish surveillance of the Net
by federal law enforcers, but a better reaction, according to MIT network
manager Jeff Schiller, would be to roll back existing regulations that
make it hard for operators to coordinate network security. "There
needs to be a way network operators can [work together] in a way that's
immune from Sherman antitrust," he said. "We had a situation at IETF (Internet
Engineering Task Force) where we couldn't have two people in the same room
together by themselves since they were representatives of big competitors."
(Declan McCullagh, "Was Yahoo Smurfed or Trinooed?", Wired News,
8) (second page of story).
February 10-11 --
ADA vs. freedom of expression on the Web. The U.S. Department
of Justice has indicated that a wide range of Internet
activity may be subject to the Americans
with Disabilities Act and its requirement that "reasonable accommodation"
be provided to handicapped users (see Dec.
21 commentary). At a hearing before the House Judiciary Committee
yesterday (Wednesday), panelists explained that a wide range of common
page construction techniques currently cause websites to be "inaccessible",
including the use of undescribed visual and audio elements, image maps
that lack text for hotspots, link text that does not make sense when read
out of context (example: "click here"), graphs and charts that are not
summarized, nondescriptive frames titles, and much more. The editor
of this site, unlike several of the other witnesses, found it alarming
that federal law should presume to enforce such rules on private web publishers.
We'll try to provide a fuller report on the hearing at a later point; in
the mean time, we've posted our editor's
February 10-11 --
"Not-a-Lawyer". Fast Company nominates it as among
"Job Titles of the Future", and it's the official description on Rory Holland's
business card. Mr. Holland works for Canadian
law firm Russell & DuMoulin in Vancouver, helping clients "figure out
what role lawyers should play in their companies". (Erika Germer,
February 10-11 --
Gun litigation roundup. Free-Market.Net's J.D. Tuccille
has assembled a link-rich "Spotlight on Anti-Gun Lawsuits" feature (Jan.
6). At a gun industry trade
show last month in Las Vegas, members vowed greater activism in fending
off attacks on their business, including the formation of a legal defense
fund under the auspices of the National
Shooting Sports Federation to respond to courtroom bullying.
(Melanie Eversley, "Gun dealers take aim at rash of anti-gun suits", Knight-Ridder/Spokane
19). And in a Cato Institute Daily Commentary, David Kopel counters
some myths about the supposed "gun show loophole". One Congresswoman
has charged that 70 percent of guns used in crimes come from gun shows,
but National Institute of Justice figures indicate the figure is 2 percent,
Kopel says. Handgun Control, Inc. "claims that '25-50 percent of
the vendors at most gun shows are unlicensed dealers.' That statistic is
true only if one counts vendors who aren't selling guns (e.g., vendors
who are selling books, clothing or accessories) as 'unlicensed dealers.'"
(David Kopel, "The Facts About Gun Shows", Cato Daily Commentary, Jan.
February 10-11 --
Orange, soured. After representing bankrupt Orange County,
Calif. and other public entities seeking to recoup investment damages,
the L. A.-based law firm of Hennigan, Mercer & Bennett petitioned for
an extra $48.7 million on top of its standard fee. In November U.S.
District Judge Gary Taylor of Santa Ana issued an order allowing a mere
$3 million of that request. What really stung was the judge's language:
he called the firm's arguments for the enhanced fee "flawed", "cynical",
and even "unethical" and "dishonorable". The firm had already been
accorded fees of $26.3 million based on hourly charges of up to $445 an
hour for its work on the cases, but then placed a lien on the county's
recovery in quest of an additional $48.7 million as a "lodestar" multiplier
to reward it for having achieved good results in the face of difficulty.
"If lawyers in cases like these are paid only their straight hourly rates,
they have less reason to maximize results for clients," the firm said in
a court filing, which prompted the judge to ask at oral argument: "Do you
really believe that?" The judge's subsequent fee opinion asserted
that attorneys are obliged to do their best for clients whether or not
the fee arrangement partakes of a contingency element: "anything less would
be unethical and dishonorable." Now there's a revolutionary idea!
A legal ethics expert says the judge is being "idealistic". (Gail
Diane Cox, "Firm Smacked by Judge Over Orange Bankruptcy", Cal Law/The
February 8-9 --
Litigious varsity. "High school sports should be a healthy,
fun lesson in fair play, not a prep course for law school." But parents
and educators are running to court to get referees' calls reversed, says
Globe editorial. The Massachusetts Interscholastic
Athletic Association reports that eight lawsuits arose in the last year
alone from high school games.
After a brawl during a recent hockey game between Melrose and Stoneham,
several players were handed a two-game suspension, but a mother went to
court and got a restraining order letting her son back on the ice, claiming
he hadn't been involved. In a case in Springfield, officials didn't
clear the legal paperwork allowing them to eject an offending player until
the next game was about to begin and the National Anthem was playing, the
player suited up and ready. ("Spoiled sports" (editorial), Boston
Jan. 17, link now dead). And in Brunswick, Ohio, a father sued
the coach of the Brunswick Cobras boy's baseball team for leading the team
to such a poor record. "Charles Settles, whose son, Kevin, was the
catcher on the 16-year-old-and-under team," went to small claims court
asking $2,000, "the estimated value of a seven-day Florida trip the team
could have made had it not lost every game -- most by a 10-run 'mercy'
rule." A magistrate dismissed the action. (Stephen Hudak, "Losing
season prompts dad to sue son's coach", Cleveland Plain Dealer,
February 8-9 --
From the dog's point of view. A week ago we reported
on dogbitelaw.com, a lawyer's website that encourages persons bitten
by dogs to sue the animals' owners (see February
1 commentary). Now, for balance, here's an excerpt from a
Washington Times interview last week with Boston attorney Steven
Wise, who heads an animal-rights group called the Center for the Expansion
of Fundamental Rights. "Over the last 15 years, I have represented
probably 150 owners of dogs who have been ordered executed or banished
from their towns. People may have complained they bit someone or
they bark excessively.
"Most people who have companion animals consider them family members.
They come to me and say one of my family members has been ordered executed.
We've managed to save the lives of every single one except for two people
who didn't stay with us.
"We try to convince judges to say it's a good and safe thing for dogs
to live with their families. We bring in an animal behaviorist and try
to help the judge understand what happened from a dog's point of view."
The judges who hear these cases aren't the only ones giving more consideration
to the dog's point of view; last week Harvard Law School kicked off its
first-ever class in animal-rights law,
with Mr. Wise as instructor. ("Animal rights lawyer unleashes profession",
Washington Times, Feb. 3, link now dead).
February 8-9 --
Emails that ended 20 Times careers. MSNBC has posted
this Wall Street Journal account of the New York Times's
mass firing of 23 employees, all but one of them in the company's Norfolk,
Va. outpost, found to have forwarded offensive e-mails, including sexually
oriented images, blonde jokes and Ebonics jokes. One of the fired
employees, former database security manager Carla Belgrave, "who is black,
says she found the Ebonics jokes funny. 'I don’t speak that way,' she shrugs.
'Who's to tell me what I should be offended by?'".
"Why are the Times and other companies so concerned about e-mail? One
reason is their liability in harassment
suits. One or two explicit e-mail messages typically aren’t enough
by themselves to prove that a workplace environment was hostile. But such
e-mail can bolster other damaging evidence. At a subsidiary of Chevron
Corp., e-mail containing such jokes as '25 reasons beer is better than
women' were used along with other evidence in a sexual-harassment claim
that was settled in 1995 for $2.2 million." (Ann Cairns, "That bawdy e-mail
was good for a laugh — until the ax fell", MSNBC (highlights from WSJ.com),
Feb. 4, link now dead). Also see Lisa Fried, "Employers Crack Down
on Personal Internet Use", New York Law Journal, Jan.
3; Christine A. Amalfe and Kerrie R. Heslin, "Courts start to rule
on online harassment", National Law Journal, Jan.
February 8-9 --
Court insists on summoning nine-year-old girl as juror.
Her Brooklyn parents have been trying to explain for the past year that
she's too young to serve, but the paperwork grinds on as judicial officials
insist that fourth-grader Alyson Fuchs report for her civic duty.
Her mom, who thinks Alyson may have gotten on prospective-juror lists because
she has college savings in a mutual fund, is giving up and bringing her
in to the courthouse, which she's eager to see anyway. (Bridget Harrison,
"A Jury of Peers?", Fox News/New York Post, Feb.
6) (via Reason Express)
February 7 -- Mobile
probes class-action biz. Alabama cases have figured prominently
in complaints of class-action abuse
and the Mobile
Register deserves some sort of prize for the thorough
investigation of the topic it published over the holidays in a five-day
report written by Eddie Curran. The series contains too much good
material to summarize in a single installment, so we'll start with one
chunk for now and come back for more later. (Impatient readers can
find the entire series here:
"On behalf of all others", Mobile Register, Dec. 26-30).
The series includes a thorough airing of the famous BancBoston case
of the mid-1990s, filed in Mobile, in which locally based lawyer John Sharbrough
teamed up with the Chicago class-action firm of Daniel Edelman to accuse
the large lender of retaining excessively high escrows for mortgage borrowers
nationwide, one of many similar class actions filed at the time against
mortgage lenders over escrow practices. Pressured by a rules change
from the federal Department of Housing and Urban Development, BancBoston
and other lenders agreed to reduce the escrows, thus allowing consumers
earlier recoupment of money which they'd eventually have gotten back anyway.
In the case of BancBoston, the repayments that were accelerated were estimated
in the lawsuit at about $42 million, but the actual sum seems to have been
For achieving this result, the class-action lawyers asked for more than
$14 million, all of it deducted directly from consumer accounts; Mobile
County Circuit Court Judge Braxton Kittrell wound up granting them more
than $8.5 million of that request. Thus consumers around the
country were billed what was often $100, $150 and more in exchange for
benefits that included the refund of a few dollars interest (in no case
more than $8.76) and the chance to use their funds somewhat earlier than
would otherwise be the case -- mere weeks or months earlier in the case
of many who were near refinancing or selling their homes at the time.
How'd the lawyers pull it off? They hired as expert witness a
local accountant who testified that the real economic benefit to a consumer
of getting back a lump of money earlier than otherwise is equal to the
total sum at issue -- after all, once he had it in hand he could invest
it and double his money! The lawyers could then claim fees equal
to a third of this notional benefit. The witness also assumed that
the bank would otherwise have held surplus escrows for twenty years before
refunding them, though in fact most loans get paid off through refinances
or home sales within a few years and many of the mortgages were of 15-year
duration. Boston U. law professor Susan Koniak, who's co-authored
a law review article on the case, describes the resulting enrichment of
lawyers as "so outrageous, it's not even a close call". When a Maine
real estate broker and class member named Dexter Kamilewicz stepped forward
to challenge it, however, Chicago lawyer Edelman countersued Kamilewicz
personally for $25 million, cowing him into silence (see Nov.
Prominent class-action lawyer Elizabeth Cabraser, who was not involved
in the case, defended the current state of the system, telling the Register
that the BancBoston case is "like
urban folklore", that it "did happen, but it continues to be brought
out as an example of class action abuse when in fact there's never been
another case like it," in her words. "There's never going to be another
BancBoston case, and there doesn't need to be legislation to prevent that
from recurring. It won't. It was freak in every sense."
But is that so? The Register had no trouble finding escrow
cases against other mortgage lenders that led to outcomes very similar
to those in BancBoston, but were given less publicity. In
these cases, too, consumers found themselves docked hundreds of dollars
for little evident benefit and complained in heated letters to the court.
In truth, "the BancBoston case was not alone...some other Alabama judges
-- such as Montgomery County Circuit Court Judge Sally Greenhaw and Choctaw
County Circuit Court Judge Harold Crow -- approved similar settlements
for the same lawyers, but avoided public scorn." In a case against
Colonial Mortgage, class lawyers asked judge to award them 40 percent of
the escrow sums -- an even higher share than in the BancBoston case.
("You win, you pay", Dec.
29; "Bottom of the class", Dec.
30; "Colonial customers rage at lawyer, judge", Dec.
February 7 -- New
subpage on Overlawyered.com: disabled-rights
law. In which we pull together our reports on how
students with clever parents get extra time
on the SATs, the risk if you're a merchant of not admitting an emotional-support
dog to your shop, courthouses that hear handicap accommodation lawsuits
but fail to comply with the law themselves,
disability suits for boozing student athletes
who don't want to be thrown off the team, and other dispatches from the
front lines of the Americans with Disabilities Act and related statutes.
Incidentally, this Wednesday our editor is going to be a witness at a House
Judiciary Committee hearing on the ADA's
application to the Internet. See our Dec.
21 commentary for a preview of his likely comments about the ominous
implications of letting website publishers get sued on the grounds that
their content isn't sufficiently "accessible" to all users.
February 5-6 --
Don't blame us, we didn't say it: "'If criminals can rehabilitate
themselves, then why can't lawyers?' -- East Lansing attorney Steven A.
Mitchell, quoted in Michigan Lawyers Weekly on a proposal to permanently
disbar lawyers for misconduct." The Detroit News ran the above
item under the heading: "But I Repeat Myself". (Editorial roundup,
February 5-6 --
Weekend reading: columnist-fest. More well-stated cases
from the in-box:
* Laura Pulfer of the Cincinnati Enquirer, who admits to
an occasional weakness for shopping sprees at outlet stores, receives a
notice in the mail saying she's a member of the plaintiff class in a class
action against Polo Ralph Lauren Corporation. "I am allowing
myself to get a little bit excited. This is a defendant with deep, deep
pockets. And Mr. Lauren apparently has done something terrible, something
really bad, something actionable, something expensive to me." However,
the prospective settlement merely promises a discount if she goes back
for another splurge at the store ("Lawsuit just an invitation to go shopping",
3). Bonus: the same columnist comments on animal-rights
law ("Does your dog need services of a lawyer?", Nov.
7) and on warning labels ("It's
impossible to outlaw sheer stupidity",
18, 1999) (NPR
Morning Edition version, Real Audio).
* "There's scarcely an issue in international affairs this
year more likely to induce a feeling of moral superiority in Americans
than that of the dormant Jewish accounts in Swiss banks." Yet the
recently issued Volcker report reveals that the actual sums in such accounts
fall "staggeringly short" of what had been alleged by American class-action
lawyers. More remarkable yet, the United States was at least
as important as Switzerland as a destination for money escaping Nazi rule,
yet somehow escapes scrutiny though it did little after the war to compensate
heirs of dormant accounts (Alexander Cockburn, "Forget About the Swiss;
What About US Banks?", NewsMax, Dec.
* Good general brief overview by CBS News legal correspondent
Andrew Cohen on why this country is so litigious and what might be done
-- he even mentions loser-pays. ("Americans
going nuts for lawsuits", USA Today, undated).
It leads with this grabber: "The Girl Scouts now take customers to small
claims court when cookie payments are not made on time." We hope
he's just referring to one overzealous troop somewhere.
February 5-6 --
200,000 pages served on Overlawyered.com. Thanks for
February 4 -- Special
assignments for special cases? Federal judges
at the U.S. District Court in Washington, D.C. have now voted to require
incoming cases to be assigned randomly among their number. Eyebrows
were raised last year when it was revealed that chief judge Norma Holloway
Johnson had used special procedures to bypass random selection and assign
six Clinton Administration scandal cases to judges appointed by the Clinton
Administration. Included were five fund-raising prosecutions, including
that of presidential friend Charlie Trie, plus the tax evasion case of
Webster Hubbell. In a letter to the editor of a newspaper, Judge
Johnson said that she made the assignments to "move the docket as expeditiously
as possible" and that politics was "never a factor." ("U.S. judges
end controversial rule that let Clinton appointees get Democrats' cases",
AP/Dallas Morning News, Feb.
February 4 -- Jeff
MacNelly. The premier editorial cartoonist
of his generation is currently keeping to a reduced but regular output
schedule while battling health challenges. His website
allows you to send him a get-well message and browse an
archive of his cartoons back to the middle of last year, including
great panels on Microsoft,
(again) and many more. Then there's his oil
painting of lawyers....
February 4 -- Taco
Bell bites back. In 1997 customer Dwonne
N. Carter charged that she had been insulted because of her race by an
employee at a Taco Bell in Oconomowoc, Wisconsin. Plenty of press
coverage resulted, and the restaurant's business fell off sharply.
But Carter's story in her discrimination lawsuit kept changing, and she
turned out to have previously filed and then recanted charges of rape and
abduction in another case. Taco Bell countersued for defamation and
last month a jury found in the company's favor, awarding it a token $1,060
in damages. The tapes from the restaurant's surveillance camera proved
particularly helpful. (Gretchen Schuldt, "Customer defamed Taco Bell,
jury decides", Milwaukee Journal Sentinel, Jan.
February 4 -- Green
cards gather moss. Linus Torvalds, Finland-born
architect of Linux and perhaps the world's most admired programmer, has
been in this country three years. He's still waiting for his green
card. Thousands of engineers and other highly skilled immigrants
in Silicon Valley are in the same predicament, as delays stretch on seemingly
endlessly in the processing of applications for permanent residency.
The average wait for final green card processing has jumped from 21 months
a year and a half ago to 33 months. Holders of H-1B visas can stay
at most six years, which is not always long enough to make it through the
queue. "Real lives are being destroyed," says immigration attorney
Peter Larrabee, and an Immigration and Naturalization Service official
privately calls the situation "a mess". At least no one can accuse
us of discriminating unduly in favor of the talented. (Ken McLaughlin,
"Workers left in limbo by INS", San Jose Mercury News, Jan. 30,
link now dead; Wired News, Feb.
February 3 -- Reason
Online "Featured Site". Overlawyered.com
has just been awarded this honor, bestowed approximately weekly by the
lively website associated with the magazine of "free minds and free markets".
While you're visiting the site, now would be a good time to catch up with
our editor's February
column, which examines the class-action lawyers' assault on the high-tech
business, taking off from the Toshiba
laptop settlement and the private actions
against Microsoft that tagged along in the wake of Judge Jackson's
findings of fact. (main page/archive;
Walter Olson, "Gold Bugs", Reason, February).
February 3 -- Tobacco:
Connecticut AG has "no idea" whether lawyers he hired are overcharging.
Richard Blumenthal, attorney general of Connecticut, is much feared by
that state's business community for his relentless and headline-grabbing
pace of suit-filing; he's known for "demonizing his foes". One group
of business people in the state, however, will "do extraordinarily well"
from his tenure: the "tiny group of private lawyers" whom he hired to represent
the state in the tobacco litigation.
Queried about how much money these lawyers are getting from the deal, Blumenthal
says, "I have no idea." He says he's sure it's "substantially less"
than the generous 25 percent contingency he agreed to bestow on them, which
if followed through would have given them $900 million (the firms agreed
not to insist on that full amount). It happens that the four lucky
law firms he picked to do the work include his own former firm, Silver,
Golub & Teitell of Stamford. (Thomas Scheffey, "Jedi Blumenthal",
Law Tribune, Dec.
1) (see February 16 update: fees
to total $65 million, more details on lucky firms).
February 3 -- Another
bono triumph. Beat cop Jim Gratz says
he was acting on his own initiative when, imitating a practice used by
some other Bay Area police departments, he asked some of the hardest-core
drinkers who slept in San Francisco's Washington Square Park if he could
snap their pictures. Then he had flyers printed up and handed them
to owners of nearby liquor stores, asking them not to sell to these people.
"Someone had to do something to try and save their lives...I have nothing
against booze, but plainly it was killing them," he says. Well, the homeless-advocacy
lawyers were on his case like a duck on a June bug, and soon the city agreed
to settle the resulting litigation by paying each of the ten people approximately
$960, which they spent on...well, what do you think they spent it on?
All are still on the street, Gratz says, and one was admitted to Laguna
Honda Hospital nearly paralyzed with alcohol poisoning. (Scott Ostler,
"Trying to Help Just Doesn't Pay", San Francisco Chronicle, Jan.
February 2 -- "Children's
rights" fee grab. In 1995, following front-page scandals
about child neglect in New York City, a private group called Children's
Rights Inc. filed suit seeking court oversight of the city's child welfare
system. The case ended in a settlement in December 1998. Now
Children's Rights Inc. is asking a court to award it $9.1 million in legal
fees for its work on the case, to be paid from -- where else? -- taxpayer
funds. City child welfare commissioner Nicholas Scoppetta is particularly
steamed about the fee demand because he says the city offered to settle
the case in May 1997 on terms substantially the same as those eventually
reached. Children's Rights Inc. spurned that offer and insisted on
battling for a further year and a half, during which time the group ran
up what it says are $6 million in billable hours. Scoppetta says
$9 million would be enough to hire 230 child welfare caseworkers, put 1,059
children in Head Start for a year or support 1,200 kids in foster care,
if it isn't handed to lawyers instead. ("Children's rights is wrong"
(editorial), New York Daily News, Feb.
1; "Children's Advocacy Pays" (editorial), New York Post, Feb.
February 2 -- Cookies,
dunked. Privacy advocates have been aghast at the recent
disclosure that Internet ad-placement
firm DoubleClick is planning to combine cookie use with access to clients'
site-registration data in ways that will enable it to detect the actual
identity of many users who currently enjoy the customary expectation of
anonymity as they browse its clients' sites. Already a California
lawyer has jumped in to sue the company; his named client does not claim
to have suffered any damages, but he says he wants to "put DoubleClick's
policies under a microscope." Of course his client could just have
to DoubleClick's site and selected the "opt out" feature, which the
company says will bail you out of its cookie-mongering for the life of
your browser or until you delete your cookie file, whichever comes first.
To repeat: if a privacy solution that simple happens to appeal to you,
here and follow the "opt out" link. But that wouldn't be nearly
as much fun as suing, would it? ("DoubleClick defends data
gathering as suit pends", FindLaw/Reuters,
28; "Privacy group eyes DoubleClick", Reuters/Wired News, Feb.
1). Update May 9, 2001:
federal court dismisses one such suit.
February 2 -- Cuomo
menaces gun makers: "death by a thousand cuts". Settlement
talks have broken down between firearms makers
and activist litigators who continue to seek restrictions on gun sales
that go beyond anything they can persuade democratically elected legislatures
to enact. On Monday HUD secretary Andrew Cuomo warned gun companies
that unless they cooperate they'll suffer "death by a thousand cuts" from
lawsuits filed by 28 localities (and vocally backed by his own department).
Could the Cabinet secretary be invoking the cost-infliction threat of litigation
to bully an opponent? Naah -- that would be unethical. (Bill
McAllister, "Gun industry rejects settlement effort", Denver Post,
February 1 -- Welcome
Humorix (and Slashdot) visitors. Humorix,
complete with penguin-graphic adornment, consists of parody and humor articles
geared to aficionados of the Linux open-source operating system.
Last week it ran a piece by Dave Finton and James Baughn about the DVD-copying-code
litigation (see Dec. 31 commentary)
which pointed to this site by way of providing an embedded link for the
phrase "overachieving lawyers". Then yesterday a discussion of the
piece in turn made it onto Slashdot.
Jeepers, do a lot of people ever read Slashdot: next thing we knew we were
beating, by far, this site's previous daily traffic record (assisted by
some other publicity). ("Corporate Media Conglomerate HOWTO", Jan.
February 1 -- Give
us Syracuse. Trial began last week in upstate New York
on Cayuga Indian land claims, the first such Indian case to make it to
a jury for damages. Lawyers for the tribe, backed by the U.S. Department
of Justice, say they're owed at least $335 million in market value and
rental fees for lands in the Finger Lakes region bought from them in 1795
and 1807 in deals which the U.S. Supreme Court in 1985 voided as having
lacked the federal government's go-ahead as required by law. Waiting
in the wings: similar (often larger) claims by the Oneidas, Mohawks, Senecas
and Onondagas. Wrangling over the Onondaga claim promises to be especially
lively because the large tract of land under dispute includes the city
of Syracuse, New York's fifth largest. "It's in total violation,"
says the Onondaga chief, referring to the 160,000-population community.
(James Odato, "Land's value at heart of Cayuga claim case", Albany Times-Union,
25; David L. Shaw, "Damages trial focuses on cash", Syracuse Online,
24; "Claim comes down to numbers", Syracuse Online, Jan.
25; Matthew Purdy, "Tribal Justice? They'd Settle for Syracuse", New
York Times, Jan.
30; see our Oct. 5-6, Oct.
27 commentaries) (via Empire
Page) (see update, Feb. 19-21).
February 1 -- Down,
attorney! Down! Here's a site for you if you're a mailman
tired of having your leg chewed on, or just want to convince the neighbors
to send that ill-tempered yapper of theirs to the glue factory: dogbitelaw.com.
"Attorney Kenneth Phillips is available by e-mail at no charge. He will
respond to your questions about dog bites," explains the promotional copy.
Lots of links, too, such as one to the website of a canine forensics specialist
to testify in your lawsuit: dogexpert.com.
February 1 -- Career
advice: become a lawsuit entrepreneur. Columnist Jim Pinkerton
tells the public-administration class of '00 they're wasting their time
thinking about civil service, when the real action in government today
is in privately managed policy-through-lawsuits. "Why plow through
discrimination cases in a back room at the EEOC, when you can join hands
with Jesse Jackson and sue the pants off of some big company in a civil
rights class action? Why work at the FDA and worry about drug approvals,
when you can work at a law firm and share in billions after the drug is
withdrawn and the suits are settled? Why lobby for gun control, when you
can sue and put the gun makers out of
business?" Why tinker with health care regulation when you can just file
suit against HMOs and make yourself a player at the negotiation table overnight?
Yes, it's a parody, but just barely. (James Pinkerton, "Being a Bureaupreneur",
GovExec.com (Government Executive magazine), January).