|ARCHIVE -- MAR. 2000 (II)
March 31-April 2 --
Punished for resistance. Gun-suit organizers were hoping
Smith & Wesson's capitulation would bring about a race among other
firearms makers to settle; instead, manufacturers,
dealers and buyers are racing to dissociate themselves from the hapless
company, formerly the market leader. Now -- in a move that counts
as heavy-handed even by the standards of activist attorneys general --
Connecticut AG Richard Blumenthal and New York's Eliot Spitzer are readying
antitrust action against companies in the gun industry for the offense
of shunning S&W. Connecticut reportedly issued subpoenas yesterday;
among possible grievances bruited in the New York Times' account
are that some organizers of shooting matches have told S&W that it
is no longer welcome, that dealers are dropping its wares, and that other
gun companies are unwilling to go on coordinating their legal defense efforts
with S&W, which means it will have to find a new law firm. Blumenthal's
and Spitzer's message to those in the gun business could hardly be clearer:
better go quietly, because we'll crush you if you resist in any organized
way. (Fox Butterfield and Raymond Hernandez, "Gun Maker's Accord
on Curbs Brings Industry Pressure", New York Times, March
30; Peter Slevin and Sharon Walsh, "Conn. Subpoenas Firms in Gun Antitrust
Probe", Washington Post, March
March 31-April 2 --
Terminix vs. consumer critic's website. Pest control company
Terminix retreats from courtroom efforts to swat dissatisfied consumer
Carla Virga, who put up a website
to publicize her unhappiness with its services. After its defamation
suit was dismissed, the company tried again on the theory that Ms. Virga
was infringing its rights by using the word Terminix itself in "metatags"
directed at search engine listings. This succeeded in infuriating many
in the Web community, and now the company has backed off that second action
as well. Other companies that have gone to court against angry-consumer
websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig
Bicknell, "Site No Longer Bugs Terminix", Wired News, Mar.
11; Robyn Blumner, "Welcome to the world of free-speech exterminators",
St. Petersburg Times, Mar.
March 31-April 2 --
Employer-based health coverage in retreat? Report in the
news-side Wall Street Journal last month suggests more big employers
are beginning to "look for an exit strategy from the health-benefits business",
especially since "it's possible that Congress or a court ruling will expose
employers to legal liability in malpractice
cases". Under "defined contribution" models pioneered at Xerox
Corp. and elsewhere, employees are given lump-sum health vouchers and told
to find the plan that's best for them. Sanford C. Bernstein analyst
Kenneth Abramowitz sees the benefits of giving workers choice, but points
out the danger that employees will be cut loose with a "Yellow Pages" outcome:
"Here's $5,000 and the Yellow Pages. You figure it out." "Adding
new liability for companies could prompt some to scuttle their health-benefits
programs and send employees into the market to fend for themselves.
Says Margaret O'Kane, head of a managed-care accrediting organization called
the National Committee for Quality Assurance: 'If employers find themselves
in the path of the trial lawyers, I think you can expect a massive bailout'".
(Ron Winslow and Carol Gentry, "Health-Benefits Trend: Give Workers Money,
Let Them Buy a Plan", Wall Street Journal, Feb. 8, fee-based
March 31-April 2 --
Welcome Milwaukee Journal Sentinel readers. Overlawyered.com
was a featured website earlier this month in Bob Schwabach's "On Computers"
column, which runs in Wisconsin's leading paper and many others nationwide
March 30 -- Hollywood
special: "Erin Brockovich". The words "babelicious" and
"toxic tort" had probably never been used in the same sentence before,
but Julia Roberts' new flick is finally showing that with the right costume
design a litigation movie can ace the box office. Now the Hudson
Institute's Mike Fumento, in an op-ed in Tuesday's Wall Street Journal
expanded considerably into a piece in yesterday's National Post (Canada),
challenges the premise, taken for granted among most reviewers of the film,
that Pacific Gas & Electric was guilty as charged of poisoning the
populace of a small California desert town with chromium-6 in the water.
Fumento says the levels of contamination found were orders of magnitude
lower than those needed to induce health effects in experimental animals;
that the lawyers sought to blame on the water a wide assortment of ailments
among local residents that science has not linked to chromium exposure;
and that health studies found that the plant's own workers, who were likely
exposed to at least as much pollution as neighbors, had a life expectancy
comfortably exceeding the California average. (Michael Fumento, "The
dark side of Erin Brockovich", National Post, March
29; Michael Fumento, "'Erin Brockovich', exposed", Wall Street Journal,
March 28; official
film site; Mr.
Showbiz review; Christine Hanley, "Brockovich's Work Is Just Beginning",
AP/ABC News, March
March 30 -- Hollywood
special: "The Insider". Though nominated for numerous
Oscars, last season's portentous litigation epic The Insider got
shut out in the actual naming of awards. Were Academy voters bothered
by the film's unacknowledged fictionalizations, or did they just share
the views of Adam Heimlich of the New York Press, who last week called
the film "preposterously overheated ... The title character’s big revelation
in this interminable movie -- which treats the looting of tobacco companies
by trial lawyers with enough gravitas to make Judgment at Nuremberg
feel like Oklahoma! by comparison -- is that 'cigarettes are nothing
but a delivery system for nicotine.' ... God forbid someone in Hollywood
or on the Upper West Side speaks out against the selective demonization,
for purposes of state and oligarchic power, of the drugs they don’t happen
to use. Philip Morris should fight back with a drama exposing that
Starbucks lattes are nothing but a delivery system for caffeine and martinis
are nothing but a delivery system for alcohol. If Insider
wins Best Picture ... it’ll prove that Hollywood is nothing but a delivery
system for the propagandistic justification of top-down class warfare."
But it didn't win. (Adam Heimlich, "Heimytown", New York Press,
March 30 -- Al
Gore among friendly crowd. Last Thursday Vice President
Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of
Stanley Chesley, sometimes nicknamed the "Master of Disaster", one of the
country's most prominent plaintiff's trial lawyers. The Cincinnati
Post says that Chesley, known for air-crash, tobacco and Microsoft suits,
"has been a dependable fund-raiser for the vice president and President
Clinton." (Bill Straub, "Gore next to visit Cincinnati to raise funds",
Cincinnati Post, March 22; Sharon Moloney, "Gore bashes Bush tax
plan", Cincinnati Post, March 24); Christopher Palmeri and James
Samuelson, "The Golden Leaf", Forbes, July 7, 1997). For recent
fund-raising by Bill Clinton among trial lawyers, see our Feb.
Forbes Online columnist James Freeman recently took a hard look at Gore's
in-depth support from trial lawyers ("Who's funding Gore?", Feb.
28). Gore's financial backers over the years have included most
of the biggest names in the litigation business, including Wayne Reaud
(asbestos, Toshiba laptops), John O'Quinn (breast implants, many others),
Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc.
Gore hosted Lerach at the White House for coffee in February 1995, Freeman
writes, and Chesley was there for coffee that same day.
March 29 -- Litigator's
bliss: finding opponent's disgruntled former employee. "Assume
the legal lotus position and imagine a happy place. What greater nirvana
could there be than [finding] the disgruntled former employee of an opposing
party? Gruntled or not, a high priority of any good discovery plan
should be to identify and interview former employees as quickly as possible,
before the other side can neutralize or co-opt them." (Jerold S. Solovy
and Robert L. Byman, "Discovery: Ex parte, Brutus?" (practitioners' advice
column), National Law Journal, March 27, not online).
March 29 -- Why
rush that software project, anyway? California adds to
its reputation as a high-hassle state for tech employers
with a law taking effect this year, backed by unions and plaintiff's employment
lawyers, requiring that many computer
consultants be paid overtime rates if they put in more than eight hours
in a day. Many such consultants bill at rates that exceed $50, $100
or even $200 an hour, before the overtime premium is added in. One Bay
Area staffing exec says most of his employer clients are unwilling to trigger
the overtime entitlement and are instead sending home specialists after
eight hours who would previously have worked longer (Margaret Steen, "New
overtime law spurs change in tech firms", San Jose Mercury News,
March 22, link now dead; "Hi, OT Law; Bye, Tech Boom?", Reuters/Wired News,
2; Margaret Steen, "New law means overtime pay for computer consultants",
San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott
and Caroline A. Zuk, "The 8-Hour Day Returns", CalLaw, Jan. 24).
March 29 -- The
bold cosmetologists of law enforcement. The New York Times
took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor
personnel in the task of identifying possible victims of domestic violence
for referral to battered women's shelters and other social service agencies
(see our March 16 commentary). Its report
adds a remarkable new detail regarding the sorts of indicators that Nevada
cosmetologists are being officially encouraged to watch for as signs of
household violence (being licensed by the state, they have reason to listen
with care to what's expected of them). "Torn-out hair or a bruised
eye may signal abuse, but more subtle warning signs may come out in conversation.
One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told
of a client who said: 'My husband doesn't want me to see my friend anymore.
He says she is putting bad ideas in my head.'
"'Emotional abuse, intimidation, control, jealousy, overpossessiveness
and constant monitoring,' she said, can be as sure signs of domestic violence
as physical injuries." Does Ms. Boyd-Frenkel, who holds the title
of "domestic violence ombudsman" for the attorney general of Nevada, really
deem it "emotional abuse" and potential domestic violence when a husband
seeks to warn a wife (or vice versa) away from a friend who's considered
a bad influence? Is such spousal behavior really to trigger the notice
of the official social-service apparatus, and its new deputies in the hair
and nail salons of Nevada? (Jeff Stryker, "Those Who Stand and Coif
Might Also Protect", New York Times, March
March 29 -- Update:
advice to drop medication unavailing. As reported earlier,
subway-push defendant Andrew Goldstein went off his antipsychotic medication
before his recent murder trial on advice of his lawyers, in order to demonstrate
to the jury how deranged he was (see Feb.
26-27 and March 2 commentaries).
Whatever the ethical status of this tactic, it was apparently unavailing
in practice: a New York City jury convicted Goldstein of murder last week.
He will probably serve his sentence in a state prison outfitted to give
him psychiatric care. (Samuel Maull, "Man Convicted in Subway Shove
Case", AP/Excite, Mar. 22).
March 28 -- $65
million Texas verdict: driver at twice the legal blood limit.
"A Galveston, Texas, jury has awarded $65 million to the parents and estate
of a woman who drowned after her car
plunged off a boat ramp and she couldn't disengage her seat belt.
"The jury found defendants Honda of America Manufacturing Co. Inc. and
Honda R & D Co. Ltd. 75 percent responsible for the death of Karen
Norman -- even though after her death, Norman's blood-alcohol level measured
at nearly twice the Texas legal
"After the accident, [Honda attorney Brad] Safon noted, Norman's blood-alcohol
level was measured at 0.17. The Texas drunk driving limit at the time of
the accident was 0.10; it is now 0.08." Plaintiff's lawyers said
the salt water in which Norman drowned might have thrown off the blood
level reading. (Margaret Cronin Fisk, "Fatal Grip of Seat Belt Results
in $65M Verdict", National Law Journal, Mar. 27)(& update
Oct. 13, 2003:
appeals court throws out award, which trial judge has previously reduced
to $43 million).
March 28 -- Call
me a fraud, will you? Why, I'll...I'll hire you!
Last year Big Five accountants Ernst & Young paid $185 million to settle
a bankruptcy trustee's charges that it had mishandled the affairs of the
now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its
former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says
should share the blame. And to prosecute the new suit Ernst has hired
none other than the law firm that sued it in the first round, Snyder, Weiner,
Weltchek & Vogelstein of Pikesville, Md. "Swidler noted that
Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder
Weiner in 'this complaint asserts "E&Y's innocence of the fraud"'".
An Ernst executive shrugs off criticism: "Who knows about the case more
than the firm that argued the other side?" (Elizabeth MacDonald,
"Ernst & Young Sues Law Firm Over Settlement", Wall Street Journal,
March 14 (online subscribers only); James V. Grimaldi, "Accounting Firm
Sues Lawyers", Washington Post, March
March 28 -- Annals
of zero tolerance: don't play James Bond. A fifth-grade
"model student" at Sutton Elementary School in Tecumseh, Michigan faces
expulsion for up to a half year for bringing a plastic toy
gun to school because he wanted to "play James Bond". "You could
see it was plastic," said school superintendent
Rich Fauble. "If you looked at it, you could tell it wasn't a gun."
"I just wanted to play with it at recess," said the boy, in Fauble's account.
"I didn't want to hurt anybody. I play with it at home." Sutton principal
Debra Langmeyer said the board's recommendation of expulsion "might seem
extreme" but is intended to "send a message" about guns. ("Toy gun
may cause student's expulsion", Toledo Blade, Mar. 16).
March 28 -- From
the labor arbitration front. The Connecticut Supreme
Court, over dissents from two of its members, has upheld an arbitrator's
order that David Warren be reinstated to his municipal
job in the town of Groton, from which he was dismissed in 1997 after
pleading no contest to charges of larceny.
Warren was accused of stealing money from the town by selling dumping permits
and pocketing the proceeds himself, but the court saw no reason to disturb
an arbitrator's reasoning that his no contest plea might have reflected
a wish to avoid the cost and inconvenience of trial, rather than actual
guilt. ("'No-contest' not guilty, Supreme Court says", New Haven
21). And the U.S. Supreme Court has agreed to review an arbitrator's
order that a West Virginia mining company rehire a heavy machinery operator
fired after he twice tested positive for marijuana use. The Fourth
Circuit upheld the reinstatement, noting that courts "overwhelmingly" defer
to the results of arbitration in the unionized workplace. (AP/FindLaw,
"Supreme Court to clarify when lower courts can overrule arbitrators",
Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers,
March 28 -- Another
visitor record set. Last week was the busiest yet for
visitors since Overlawyered.com was launched nine months ago ...
thanks for your support!
March 27 -- Welcome
Arts & Letters Daily readers. The best
weblog in the world for coverage of essays and history, biography and
belles-lettres, is put out for a worldwide audience by philosophy professor
Denis Dutton of the University of Christchurch in New Zealand. We
get a featured link today (see right-hand column after link to Sullivan
piece, for which itself see below).
March 27 -- Another
S&W thing. "We want to do a Smith & Wesson-like
thing with DoubleClick," Michigan attorney general Jennifer Granholm said
Thursday, referring to restrictions on Web data collection that she and
attorneys general from New York, Connecticut, and Vermont have been negotiating
with the biggest online ad-placement
company. We suppose this means that she and her colleagues want to
invent far-fetched legal theories to attack business practices that have
long been regarded as lawful; file a great flurry of suits in multiple
courts so as to overwhelm the designated opponent; use the threat of bankrupting
legal expense to muscle it into submission with no need to reach a decision
on the merits; and instill fear into other businesses that the same thing
could happen to them unless they cooperate with the dictates of ambitious
AGs. After all, that's what was done to S&W.
("AGs Eye Privacy", Reuters/Wired News, March
23; "DoubleClick in settlement discussions", Bloomberg News/CNet, March
March 27 -- Philadelphia:
feminist groups to be consulted on whether to classify incidents as rape.
As several high-profile cases in recent years demonstrate, authorities
sometimes charge men with rape or sexual
abuse in cases where there's conflicting or ambiguous evidence as to
whether there was nonconsensual sexual contact (see, for example, the
case of Columbia University grad student Oliver Jovanovic, whose conviction
was overturned by a New York appeals court in December). Now Philadelphia
police commissioner John Timoney has announced that "he will let women's
organizations help police decide when to believe sexual-assault complaints
and how to classify them." Barbara DiTullio, who heads the Pennsylvania
chapter of the National Organization for Women, called the plan "wonderful"
and said it could become a model for police departments across the country.
"We're putting together a committee of women . . . and [will] actually,
quite literally, let this women's group be the final say on our classification
[of cases]" said Timoney in an interview, though the women's groups themselves
expressed doubt as to whether their say would be final. (Mark Fazlollah,
Craig McCoy, and Robert Moran, "Timoney to allow sex-case oversight", Philadelphia
Inquirer, Mar. 21) (via Freedom
March 27 -- Microsoft
Windows downgrade. Be prepared for the Justice Department's
anticipated "remedies" in Reno v.
Gates by visiting this parody
site (Bob Rivers, KISW, Seattle).
March 27 -- Social
engineering by lawsuit. Yale law professor Peter Schuck
"doubts [that Smith & Wesson] would
have lost a court case," according to this New York Times "Week
in Review" piece, which also quotes the editor of this website concerning
the evils of litigation as an end run around democratic process (Barry
Meier, "Bringing Lawsuits to Do What Congress Won't", New York Times,
26). Cato Institute fellow Doug Bandow wonders why undemocratic
lawmaking-by-lawsuit hasn't become a bigger election issue: "Politics is
a bad way to make policy. Litigation is worse." ("Litigative vs.
Legislative Democracy", Cato Daily Commentary, March
20). And Andrew Sullivan warns Britons that unless they watch out,
their country's trend toward "empowerment of lawyers" will lead them to
the state of "hyper-litigation" typified by the U.S. ("A brief warning:
soon lawyers will have Britain by the throat", Sunday Times (London),
Also: we've now put
online our editor's op-ed from last Tuesday on the Smith & Wesson
settlement, which expanded on the arguments made earlier in this space
(Walter Olson, "Plaintiff's lawyers take aim at democracy", Wall Street
March 27 -- Kessler
rebuked. Last week the Supreme Court ruled that former
Food and Drug Administration chief David Kessler had made an improper power
grab when he claimed for his agency "broad powers that had somehow gone
unnoticed for more than half a century" to regulate tobacco,
writes Chicago Tribune columnist Steve Chapman: "This was a startling
revelation indeed. In 1964, the FDA said it had no authority to regulate
tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972,
it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988,
and so on -- until four years ago, when Kessler checked the attic and was
pleasantly surprised to find this prerogative stashed in a box crammed
with eight-track tapes and copies of Look." ("On Target: A Setback
for the Anti-Tobacco Jihad", March 23; Tony Mauro, "For 'Better or Worse'
FDA Can't Regulate Tobacco", American Lawyer Media, March 22).
March 24-26 --
"Trial Lawyers Pour Money Into Democrats' Chests". The
article everyone's talking about: yesterday's New York Times shines
some overdue light on the trial lawyers' frantic shoveling of vast sums
into this year's federal election races. "'It would be very, very
horrifying to trial lawyers if Bush were elected,' said John P. Coale,
a Washington lawyer involved in the tobacco litigation, who has given over
$70,000 to the Democrats. 'To combat that, we want to make sure we have
a Democratic president, House and Senate. There is some serious tobacco
money being spread around.'" "What's different this time around,"
said Michael Hotra, vice president of the American Tort Reform Foundation,
"is that everyone recognizes that the stakes are higher. We have a candidate
who is making legal reform a core issue and we certainly applaud Bush for
that." Also discusses the
website ATRF has set up to monitor trial lawyer campaign spending (Leslie
Wayne, "Trial Lawyers Pour Money Into Democrats' Chests", New York Times,
March 24-26 --
Who wants to sue for a million? A group of disabled Miami
residents has filed a federal lawsuit against Disney and ABC under the
Americans with Disabilities Act, claiming
that the screening process for the hit TV show "Who Wants To Be a Millionaire"
requires the use of a touch-tone telephone and does not make alternative
provision for deaf applicants. "The group is seeking class-action
status for themselves and others who are deaf, blind or paralyzed and have
problems using the phone or hearing the instructions." (Jay Weaver,
"Disabled 4 sue to try for TV million", Miami Herald, March 17).
Update Nov. 7: federal judge dismisses
March 24-26 --
Next: gender-blind stage casting? A federal jury in Nashville
has returned a sex discrimination verdict against a pair of historical
theme restaurants that hired only male
food servers as a part of attempting to convey the atmosphere of 1800s-era
riverboats. The Equal Employment Opportunity Commission sued Cock
of the Walk restaurants in 1996 after a woman named Susan Mathis carried
a secret tape recorder in her purse while applying for a server's job (more
on the curious lack of outrage over this practice). "The servers
had to represent the legendary fighters who brawled for the privilege of
steering the riverboats, which netted them the best-of-the-best title:
'Cock of the Walk'," a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the "Hooters"
sexy-waitress chain, which paid $3.75 million in a settlement in hopes
of not having to hire "Hooters Boys". However, the agency's contention
that entertainment value is an improper basis for sex-casting in the hiring
of food servers "has never been applied [by a court] to a more mainstream
restaurant such as this, which does not have sexual titillation as part
of its theme," said a lawyer for the restaurants. (Stacey Hartmann,
"Restaurants' male-server policy loses in court", The Tennessean
March 24-26 --
Slip, fall, head for court. Roundup of recent Chicago
gravity mishaps, as reported in the Sun-Times and relayed in Jim
Romenesko's irresistible Obscure
Store: "Debbie Jacques was forced to wear paper booties when she tumbled.
Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped
on a Kleenex box left on the stairs. They're all hanging out in civil court,
hoping to get some cash." (Tim Novak, "Health worker blames paper booties
for slip", Chicago Sun-Times, Mar. 21).
March 24-26 --
Welcome visitors. A sampling of the websites that
have linked to Overlawyered.com recently: the distinguished literary
and arts monthly, the New
Criterion; ABC News correspondent John
Stossel's site; the Capital
Research Center, which keeps an eye on politicized philanthopy; Pat
Fish's Luckyfish.com; the Nebraska
Taxpayers for Freedom; Pickaway
County (Ohio) Sportsmen, known for their shooting competitions; and
Turkey's Association for Liberal Thinking (Liberal
March 23 -- Baron's
judge grudge. Dallas asbestos-suit
czar Fred Baron may or may not have added another notch to his belt with
the GOP primary defeat this month of Texas 14th District Court judge John
In 1998 Judge Marshall was presiding over asbestos litigation filed by
Baron & Budd when evidence surfaced that the firm had engaged in extensive
witness-coaching (see "Thanks
for the Memories"); Judge Marshall referred the matter to a grand jury
for possible prosecution, but the charges were eventually quietly buried
without indictments. Baron, who now claims vindication, "made no
secret of the fact he wants Marshall's head," according to alt-weekly Dallas
Observer in a report just before the primary. "As early as last
spring, Baron was casting about, looking for a candidate to back. 'I talked
to half a dozen people. We were looking for any candidate we could get
who would be qualified to run against John Marshall'". It had to
be in the Republican primary, though, which is nowadays tantamount to election
in Dallas County. First-time candidate Mary Murphy of Jenkins &
Gilchrest, the one who eventually stepped forward to challenge Marshall,
"insists she'll be a fine Republican judge even though she wrote a $1,000
check to the Democratic party four years ago" among other past Democratic
ties. "I had nothing to do with getting Mary Murphy to run. That's
a lie, a complete and absolute lie," Baron told the Observer.
Murphy says Baron did try to talk her into running but that it was others
who convinced her. Promptly assembling an ample campaign chest, she
went on to defeat the incumbent Marshall, obtaining 52 percent of the vote.
(Thomas Korosec, "Bench Press", Dallas Observer, March
9; Todd J. Gillman, "Republican judge questions challenger's party
loyalty", Dallas Morning News, Feb. 19; Holly Becka, "Voters sent
message by ousting three judges, experts say", Dallas Morning News,
March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association
of Trial Lawyers of America (we apparently jumped the gun recently in awarding
him the title of president), has in the past been touchy about criticism.
In 1998, when the Dallas Observer ran a
cover-story exposé on his firm, columnist Julie Lyons said Baron
had "bullie[d] the Observer's every effort to investigate his firm's practices,
even taking the newspaper to court to discover sources, in a pattern of
intimidation and paranoia such as the Observer has never experienced before."
(Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, "Toxic
18, 1998; Julie Lyons, "The Control Freak", August
12, 1998. See also earlier Baron coverage on this website: Feb.
14, Jan. 8).
March 23 -- Update:
mistrial in bank robber's suit, more litigation expected.
By a vote of 9 to 3, jurors in their deliberations were of the view "that
the civil rights of Emil Matasareanu, armed
criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers
who didn't get an ambulance to poor Emil quickly enough" after his bloody
shootout with police following a North Hollywood bank robbery (see Feb.
23 commentary). A federal judge declared a mistrial, and an L.A.
Times columnist writes that "the attorney for Matasareanu's survivors is
expected to bring the case against the city and two retired LAPD officers
to court again. By survivors, I mean the dead man's family, not the
people he didn't kill." (Mike Downey, "A World With No Bad Guys,
Just Topsy-Turvy Juries", Los Angeles Times, March 17, link now
March 23 -- Let
them sue us! In the recent media boomlet over "medical
mistakes", it's been easy to forget that hospitals currently must anticipate
years of expensive litigation if they move aggressively to withdraw practice
privileges from perceived "problem doctors". Consider the now-celebrated
"Dr. Zorro" case, in which Dr. Allan Zarkin is alleged to have carved his
initials into a patient's body at New York's Beth Israel Hospital.
The hospital's chairman, Morton P. Hyman, "vowed he would make it harder
for doctors to maintain their privileges at Beth Israel and would see that
hospital procedures were tightened further. ... Doctors disciplined by
the state will be automatically dismissed from the hospital, he announced,
even if their firings leave the hospital liable. 'Let them sue us,'
he said, pounding the table." (Jennifer Steinhauer, "At Beth Israel,
Lapses in Care Mar Gains in Technology", New York Times, Feb. 15,
March 22 -- Next
on the class-action agenda: liquor? Public Citizen, whose
campaigns against American business
often closely parallel those of the organized plaintiff's bar, has for
a while been grouping alcohol and gambling companies with tobacco
and gun makers as "killer industries"
in its distinctively shrill propaganda. ("Killer Industries Fund
Congressional Champions of "Family Values'", press release, Dec.
28, 1998, "Family Values, Killer Industries", undated;
both on Public Citizen website). And the pro-hospitality-business
Guest Choice Network thinks it
has evidence that the previously long-shot idea of mass litigation against
alcoholic beverage makers may be getting to be less of a long shot:
"* The Minnesota DWI Task Force called upon their state’s criminal justice
system to initiate class action litigation against makers of adult beverages.
"* MADD’s [Mothers Against Drunk Driving's]
year-end press conference closed with a comment from president Karolyn
Nunnallee that initiating litigation against alcohol and hospitality companies
'will be an issue of discussion' at an upcoming meeting. Although MADD
did not have plans to sue 'at this time,' she added, 'but never say never!'"
("They're Bellying Up to the Bar!", Guest Choice Network, undated).
Martin Morse Wooster examines the evolution of MADD's views in a new paper
for Capital Research Center ("Mothers Against Drunk Driving: Has Its Vision
Become Blurred?", Feb.
March 22 -- Rise
of the high school sleepover disclaimer. Before having
some of his daughter's tenth-grade classmates out for the weekend to the
family home in East Hampton, a parent at Manhattan's tony Brearley School
had his attorney draft a 765-word "liability waiver and indemnification
agreement" for the other parents to sign and return. It describes
the students' impending visit to the
"house and surrounding property at the above address (the 'premises') without
charge on or about Saturday, November 20, 1999 and Sunday, November 21,
1999 during their weekend trip to East Hampton, NY (such use of the premises,
the 'visit')." Several dense sentences later, it gets to the point:
"Student and parent hereby waive any and all present and future claims
related to or arising out of or in connection with the visit or any losses
they, any other family member or any third party may suffer in connection
therewith..." Apparently enough parents signed and the trip came off with
no problem. ("Gotham: In Loco Parentis", New York, Dec.
6; portions of disclaimer
appear in printed magazine but not online).
March 22 -- Newest
disabled right: audio TV captioning. Decision expected
this summer on Federal Communications Commission proposal that TV networks
be compelled to provide at least four hours of programming a week with
"secondary audio" descriptions of filmed action ("...Rhett takes Melanie
in his arms and carries her to safety as Atlanta burns around them")
in hopes of giving blind viewers an
"equivalent experience" to what sighted viewers are getting. Hollywood
types "say descriptions will stifle creativity and jack up programming
costs by about $4,000 for an hour of airtime"; audio captioning is considerably
more expensive than closed-captioning for the deaf, mandated since 1998,
because descriptions of filmed action call for a modicum of editorial judgment
as opposed to mere transcription. And the National Federation of
the Blind reports that many of its constituents have mixed feelings about
the technique, finding it "irritating, overdone, and full of irrelevant
information" and switching it off after a trial. (FCC
captioning page; Nat'l
Fed. Blind comments; Jonathan Aiken, "FCC proposes descriptive audio
to help blind enjoy TV", CNN, Feb.
24). See also our Feb. 19-21 commentary,
on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters
to install closed captioning for films.
March 21 -- Smith
& Wesson's "voluntary" capitulation. Today's Wall
Street Journal carries our editor's op-ed on the Smith & Wesson
settlement, adapted and expanded from yesterday's
commentary on this site. The piece asks: why aren't Republican members
of Congress and business people expressing more outrage? "It would
surely make a symbolic difference if a few CEOs of companies outside the
gun industry chipped in personal checks
to start a legal defense fund for small gun makers being bulldozed by the
cost of litigation, to give them at least a hope of surviving to fight
the suits on the merits. Or if they let it be known that mayors who've
signed on to the gun-suit jihad should stop passing themselves off as 'pro-business.'
Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind
who's considered ambitious for statewide office, was feted by a Chamber
of Commerce in his local Fairfield County. Hey -- it's someone else's industry
he's working to destroy, right?" (Walter Olson, "Plaintiffs Lawyers
Take Aim at Democracy", Wall Street Journal, March
21 (requires online subscription)).
March 21 -- Ability
to remain conscious not obligatory for train dispatcher, EEOC argues.
"In the case of a former Consolidated Rail Corp. employee with a heart
condition that can cause him to lose consciousness, the Equal Employment
Opportunity Commission told a federal appeals court in Philadelphia that
'while consciousness is obviously necessary to perform' train-dispatcher
tasks, 'it is not itself a job function.'" The worker had sued Conrail
under the Americans with Disabilities Act
and lost in federal court; on appeal, the EEOC argued that the railroad
could have accommodated his condition and that he was not a 'direct threat'
to others, which is the standard employers must meet under the ADA if they
wish to exclude disabled employees from jobs on safety grounds. "The
employee was denied a dispatcher's job that involves directing trains and
taking emergency action to prevent crashes." ("Employment Briefs: Worker
denied promotion sues", Detroit News, March
March 21 -- Furor
just one click away. Outcry over Amazon.com's patent of
"one-click" shopping method rumbles on. Founder/CEO Jeff Bezos says
the company did it in self-defense; he's now proposed an across-the-board
reduction in the length of patent protection for software
and business-method patents. Some veteran intellectual-property lawyers
take issue with that scheme and are also upset at a New York Times Magazine
article by science writer James Gleick questioning some of the patent system's
fundamental assumptions. Until recently it was widely assumed that
business methods -- the discovery of a superior method for laying out the
aisles of a supermarket, for example -- couldn't be patented at all.
What would stores be like today if the idea of a "checkout counter" had
been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, "The Biz-Method
Patent Rush", National Law Journal, Feb.
28; Chris Oakes, "Another Amazon Patent Furor", Wired News,
2; Boycott Amazon
site (Free Software Foundation); Chris Oakes, "Bezos: Patents Were
Self-Defense", Wired News, Mar.
3; Chris Oakes, "Patently Absurd", Wired News, Mar.
open letter, Amazon site; Dugie Standeford, "Book Publisher Launches
Cybercampaign Against Amazon.com", E-Commerce Law Weekly, March
8; James Gleick, "Patently Absurd," New York Times Magazine,
12; "The Harm of Patents", O'Reilly Network, March
13; Omar Perez, "Amazon.com Patents Cast Giant Shadow Over Affiliates",
March 20; Miami Daily Business Review, March Victoria Slind-Flor,
"Bar Reacts To Bezos Patent Reform Plan", National Law Journal,
March 21 -- Whether
they meant to hurt anyone or not. How harsh can the legal
environment become for drunk drivers? North Carolina seems to have
pushed things to the ultimate extreme: its prosecutors seek to execute
them when they cause fatal accidents. (Paula Christian, "Supreme
Court to decide if drunk drivers get death penalty", Greensboro News
& Record, Mar. 12).
March 21 -- New
subpage on Overlawyered.com: Canadian corner. Finally!
A page for our many readers north of
the border who've noticed the nuggets of Canadian content we periodically
slip in and would like them gathered in one spot for convenience.
As befits the differences between the two legal systems, there isn't so
much "overlawyering" apparent in most of the stories we relay from Canada;
but with regard to most other types and varieties of human folly, the two
nations seem to be are in a neck-and-neck race.
March 20 -- Liberty
no longer insured by Smith & Wesson. In an ominous
triumph for brute litigation force -- and a setback for both democratic
governance and Second Amendment liberties -- the Clinton Administration
and lawyers representing city governments on Friday bullied the nation's
largest gun maker into agreeing to a
variety of controls on the distribution of its products, controls that
the Administration had not been able to obtain through the normal legislative
process. The company said its capitulation would preserve the "viability
of Smith & Wesson as an ongoing business entity in the face of the
crippling cost of litigation." As the New York Times reports,
the deal has "opened a new avenue for regulating the firearms industry
without action from Congress, where partisan gridlock has stalled even
modest gun-control legislation in recent months" -- "partisan gridlock"
being here employed by the Times as a pejorative synonym for the
normal democratic process, which when working properly does not result
in the speedy enactment of measures passionately opposed by a large constituency
within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership
to rise up in unmistakable disapproval of the Clintonites' invasion of
their legislative prerogatives, and announce that --whatever one's personal
position on the details of gun control proposals -- the use of litigation
as an undemocratic end run around the legislative process is categorically
wrong and must be fought with appropriate means at Congress's disposal,
such as funding cutoffs. And yet the first round of wire service
stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma,
as reacting to the news, and his quoted words, incredibly, are favorable:
"we hail Smith & Wesson for taking a pro-active approach to the problem
Advocates of gun-control-through-litigation -- not to mention trial
lawyers looking for an eventual payday from gun suits -- view Smith &
Wesson's surrender as a harbinger of more victories ahead. "The legal
fees alone are enough to bankrupt the industry," boasts John Coale, one
of the lawyers masterminding the city suits. "The pressure is going to
be on". Why are so few elected officials standing up to say that
what's going on is wrong?
text at HUD website; Smith
& Wesson statement; Clinton Administration press
release; "U.S. Drops Legal Threat Against Smith & Wesson", Reuters/Excite,
Mar. 17; Knut Engelmann, "U.S. Drops Legal Action Against Gun Maker", Reuters/Excite,
Mar. 17; David Ho, "Officials Praise Smith & Wesson", AP/Excite, Mar.
17; Amy Paulson, "Smith & Wesson agrees to landmark gun safety settlement",
17; Brigitte Greenberg, "Smith & Wesson Gets Preference", AP/Excite,
Mar. 18; Edward Walsh and David A. Vise, "U.S., Gunmaker Strike a Deal",
Washington Post, March
18; James Dao, "Gun Maker Agrees to Curbs in Exchange for Ending Suits",
New York Times, March
18 (requires free registration).
March 20 -- "Study
Shows Breast Implants Pose Little Risk". "An analysis
appearing in Thursday's New England Journal of Medicine suggests
silicone breast implants
are safe, despite widespread perception that the controversial devices
cause health problems" -- not to mention a trial-lawyer-led campaign that
drove the devices off the market and reaped a settlement totaling billions
of dollars from manufacturers. Researchers at the University of North
Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies
and concluded that "'the elimination of implants would not be likely to
reduce the incidence of connective-tissue diseases' such as rheumatoid
arthritis, lupus, or other illnesses caused by the misfiring of the immune
system". (Reuters/ FindLaw, Mar. 15).
March 20 -- Do
as we say, cont'd. Disabled-rights
laws are feared by many private business owners who face the prospect
of heavy fines and lawsuit settlements for noncompliance. As for
the judicial branch, charged with enforcing these selfsame laws?
Well, they're often a wee bit less mindful of 'em. Howard County,
Maryland Circuit Judge James B. Dudley, who isn't disabled, concedes that
his desire to stick close to the courthouse so he could answer jurors'
questions during a trial was "probably not a justification" for his having
chosen to park in a clearly marked handicapped space, a practice also engaged
in by local sheriff's deputies. (Del Quentin Wilber, "Judge parks
in hot water", Baltimore Sun, Mar. 11). And in Massachusetts,
following on the revelation that Boston's opulent new courthouse lacks
wheelchair access to its jury boxes and witness stands (see July
17-18, 1999 commentary), the Cape Organization for Rights of the Disabled
sued over the disabled-unfriendly state of the Plymouth County courthouse;
Barry Sumner couldn't get over the threshold to divorce his wife and had
to ask her to help lift his chair. (Paul Sullivan, "Suit seeks access for
disabled at Plymouth court", Boston Herald, Sept.
10, 1999). Aren't these courts lucky they're not private businesses?
March 20 -- Costs
of veggie-libel laws. Talk show hostess Oprah Winfrey
keeps winning in round after round of litigation filed by cattlemen after
a February 1998 show she did on mad-cow disease. "Ironically, the
more she wins, the more she loses," observes First Amendment specialist
Paul McMasters. Aside from our lack of a loser-pays
rule, the culprit is "agricultural-disparagement" laws enacted in 13 states,
which menace media producers if they knowingly broadcast false and disparaging
statements that harm the salability of perishable farm products.
("Shut up and eat everything on your plate", Freedom Forum Online,
21; Ronald K.L. Collins and Paul McMasters, "Veggie Libel Laws Still
Out to Muzzle Free Speech", Texas Lawyer, March 30, 1998).
Last year the Texas legislature turned back an attempt to repeal that state's
ag-disparagement law, though the Abilene Reporter-News pointed out
that the law is hard to square with the state's successful efforts under
Governor Bush to curb excessive litigation. ("'Veggie libel' law Texas
can live without" (editorial), April 13, 1999; "House lets 'veggie libel'
law stand; Bill seeking repeal voted down 80-57", AP/Dallas Morning
News, May 8, 1999).
March 20 -- 250,000
pages served on Overlawyered.com. Thanks for your
17-19 -- Holiday literary selection: Irish squire's litigious ways."Then
there was a bleach yard near us, and the tenant dare refuse my lady nothing,
for fear of a law-suit Sir Murtagh kept hanging over him about the water
course. With these ways of managing, 'tis surprising how cheap my
lady got things done, and how proud she was of it. ... [The tenants] knew
her way, and what with fear of driving for rent and Sir Murtagh's law-suits,
they were kept in such good order, they never thought of coming near Castle
Stopgap without a present of something or other nothing too much
or too little for my lady eggs honey butter meal
fish game, grouse, and herrings, fresh or salt all went
for something. ... [H]e made a good living of trespassing cattle
there was always some tenant's pig, or horse, or cow, or calf, or goose,
trespassing, which was so great a gain to Sir Murtagh, that he did not
like to hear me talk of repairing fences....
"As for law, I believe no man, dead or alive, ever loved it so well
as Sir Murtagh. He had once sixteen suits pending at a time, and
I never saw him so much himself roads lanes bogs
wells ponds eel-wires orchards trees tythes
vagrants gravel-pits sandpits dung-hills and nuisances
every thing upon the face of the earth furnished him good matter
for a suit. He used to boast that he had a law-suit for every letter
in the alphabet. How I used to wonder to see Sir Murtagh in the midst
of the papers in his office why he could hardly turn about for them.
I made bold to shrug my shoulders once in his presence, and thanked my
stars I was not born a gentleman to so much toil and trouble but
Sir Murtagh took me up short with his old proverb, 'learning is better
than house or land.' Out of forty-nine suits which he had, he never
lost one but seventeen; the rest he gained with costs, double costs,
treble costs sometimes but even that did not pay. He was a very learned
man in the law, and had the character of it; but how it was I can't tell,
these suits that he carried cost him a power of money in the end
he sold some hundreds a year of the family estate but he was a very
learned man in the law, and I know nothing of the matter except having
a great regard for the family. I could not help grieving when he sent me
to post up notices of the sale of the fee simple of the lands and appurtenances
of Timoleague. 'I know, honest Thady,' says he to comfort me, 'what
I'm about better than you do; I'm only selling to get the ready money wanting,
to carry on my suit with spirit with the Nugents of Carrickashaughlin.'"
-- from Chapter 1, Castle
Rackrent, subtitled An Hibernian Tale Taken from Facts, and
from the Manners of the Irish Squires, Before the Year 1782, by Maria
Edgeworth (1800) (biographies: Edgeworth
family site, E-Search
(e-text at Carnegie-Mellon; alternate e-text location, Creighton
U.) (passage is from fourth long paragraph of text).
March 17-19 --
Letterman sign suit. Anna Soares, 79, who lives near the
Manhattan studio where David Letterman tapes his show, filed a lawsuit
last month demanding $12 million from CBS because the network has declined
to remove a giant illuminated sign of Letterman's likeness which shines
into her apartment's window. Network officials say they believe they
have the proper permits for the sign. Reader Gregory Kohs of American
Cynic comments: "what I find preposterous is the $12 million
sum the lady decided would be fair." If the sign does not violate
code, how about asking for the costs of relocating to a less-commercial
neighborhood? "I think a wee bit less than $12 million would be sufficient
to get her belongings into a moving truck." ("People in the news: Woman
files lawsuit over Letterman sign", Boulder Daily Camera, Feb. 19)
March 17-19 --
Go ahead and comment -- if it'll do much good. The Occupational
Safety and Health Administration's proposals on ergonomics "may be the
single most costly employment policy regulation in U.S. history," according
to the Employment Policy Foundation. Now OSHA has thrown open a period
for public comment on the rules, but the Clinton Administration has already
signaled that the option favored by most organized employers
-- not proceeding with the rules at all -- is unlikely to be considered,
no matter what volume of critical comments may come in. (Alice Ann Love,
"Public dialog opens on new workplace safety rules", AP/Fox News, March
14; Michael D. Towle, "OSHA pushing for new regulations aimed at preventing
repetitive motion injuries", CNN, March
proposed standard; Yahoo
Full Coverage; Ron Bird and Jill Jenkins, "Ergonomics Regulation: Vague,
Broad and Costly", EPF Backgrounder, Jan.
12; National Coalition on Ergonomics
(employer alliance); Matt Labash, "Hooked on Ergonomics", Weekly Standard,
28; "OSHA Unveils Ergonomics Standard To Ire of Congress, Employer
Groups", Employment Law Weekly, Nov.
29; comments of Mercatus
Center, George Mason U., National
Association of Manufacturers; (via Junk
Science:) Robert Hahn, "Bad Economics, Not Good Ergonomics," Wall
Street Journal, Nov.
24; David Saito-Chung, "What Price Workplace Safety? New Rules Spark
Debate Over Science, Business Costs", Investor's Business Daily,
Nov. 30; "New
OSHA regs need rethinking" (editorial), Boston Herald, Nov.
26; "OSHAme on them!" (editorial), New York Post Nov. 24; "Repetitive
Bureaucracy Syndrome" (editorial), Chicago Tribune, Nov. 24.
March 16 -- Dave
Barry on tobacco suits, round II. The humorist, who wrote
a priceless column on the federal tobacco
suit last fall (see Oct. 26) now offers an update reflecting on the
news that "so far the states are spending more than 90 percent of the tobacco-settlement
money on programs unrelated to smoking, such as building highways. ...
This is good, because we need quality highways to handle the sharp increase
in the number of Mercedes automobiles purchased by lawyers enriched by
the tobacco settlement." Then there's the new round of class-action
suits contending that smokers themselves deserve money from the states,
which if successful will establish the following cycle:
"1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for
"2. THE TOBACCO COMPANIES would then give the money to THE STATES (and
"3. THE STATES would then give the money to SMOKERS (and their lawyers).
"4. THE SMOKERS would then presumably give the money to THE TOBACCO
COMPANIES in exchange for more cigarettes."
But isn't this inefficient, you may ask? Wouldn't it be easier
to order the tobacco companies to give smokers free cigarettes directly?
"The trouble with that idea is that it would defeat the two main purposes
of the War on Smoking, which are (1) to provide the states with money;
and (2) to provide lawyers with, well, money." Don't miss this one
("War on Smoking always has room for another lawyer", Miami Herald,
March 16 -- Judges
can't charge cost of corruption defense to insurer. "Three
former San Diego Superior Court judges convicted of corruption charges
can't parlay judicial liability insurance into coverage for their criminal
defense, the 9th U.S. Circuit Court of Appeals ruled." In one of
the biggest judicial scandals in California history (see our
editor's 1996 piece on the case), Michael Greer, James Malkus and G.
Dennis Adams were found to have accepted gifts from prominent trial lawyer
Patrick Frega in exchange for favorable rulings in cases. (Jason
Hoppin, "No Coverage for Judges Convicted of Corruption", The Recorder/
CalLaw, March 2).
March 16 -- Your
hairdresser -- and informant? Hairdressers "are often
confidantes for many people," says Veronica Boyd-Frenkel, who holds the
post of "domestic violence ombudsman" in the state of Nevada. All
this is by way of explaining why her office, working with the state attorney
general's office, has launched a program to train cosmetologists to recognize
signs of domestic abuse, the better to steer suspected victims to approved
anti-domestic-violence groups. "They may hear things even someone's
best friend may not hear," says Ms. Boyd-Frenkel, of the hair stylists.
The Las Vegas Review-Journal, in an editorial, thinks it all rather
smacks of the enlistment of ever wider circles of the citizenry as official
informants (Angie Wagner, "State asks hairdressers to help domestic abuse
victims", AP/Las Vegas Review-Journal, Feb.
28; "Down the wrong path" (editorial), Feb.
29; Vin Suprynowicz, "The Libertarian: Watch what you tell your hairdresser"
(expanded version of editorial), March
1; "Training would not make informants of cosmetologists" (letter to
the editor from Ms. Boyd-Frenkel), March
March 16 -- Prof
sues for right to flunk students. The University
of Michigan describes as "utterly without merit" a lawsuit filed by Dental
School associate professor Keith Yohn challenging the university's
refusal to fail two sophomore dental students. Yohn charges that
the school bent its academic rules to allow the two to remain, and that
an assistant dean sent him a belligerent email informing him that poor
grades he and three other professors had given the students would be disregarded.
Acting as his own attorney, Yohn went to federal court to charge the university
with "deprivation of 'freedom of speech'" and disregard of the 'health
care interest' of the public and their children"; he also asks $125,000
for emotional distress. (David Shepardson, "U-M sued over dental
grades", Detroit News, Dec. 30; Hanna Lopatin, "Dental Prof. Sues
U. Michigan for Refusing to Fail Students", Michigan Daily/ StudentAdvantage.com,