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ARCHIVE -- NOV. 2000 (II)

November 20 -- Flow control.  The Florida Supreme Court has a liberal and activist reputation, which is why many Gore supporters see it as their ace in the hole in the recount controversy (John Fund, "On the Bench for Gore?", OpinionJournal.com (Wall Street Journal), Nov. 15; Robert Alt, "The Florida Supremes", National Review Online, Nov. 16).  "To scrounge for every last vote, Gore has flooded Fort Lauderdale with tough, seasoned Democrats, the sort who are used to keeping wafflers in line and to count and recount votes until they know exactly what it will take to outdo their opponents. Many of the hired hands speak with a Boston brogue," reports the L.A. Times.  A lawyer explains the routine to volunteers: "'It's very, very important that if you see any kind of mark -- a scratch, a dent, a pinprick in Al Gore's column -- that you challenge.'  When someone then asked what they should do if they found a Bush ballot with an indent, the lawyer said: 'Keep your lips sealed.'"  (Elizabeth Mehren and Jeffrey Gettleman, "Seasoned Democratic Army Hits the Shores of Florida", Los Angeles Times, Nov. 17).  "[I]f you're just counting existing ballots, there shouldn't be any chads on the counting-room floor. But, whether by accident or design, the little fellers keep detaching themselves from the ballot, thereby creating more and more new votes."  (Mark Steyn, "Smooth man Gore starts to play rough", Daily Telegraph (UK), Nov. 19; "Gore's law: When you're beaten to the punch, it's the chads that count", Nov. 17).  See also Charles Krauthammer, "Not By Hand", Washington Post, Nov. 17; Jurist special page on election 2000. 

November 20 -- "Judge fines himself for missing court".   "Hamilton Municipal Court Judge Paul Stansel believes he has no more right to skip court than the people who have to appear before him.  Stansel found himself in contempt of court and fined himself $50 -- half a month's salary -- after missing the Sept. 27 monthly court session because he was tending to his sick pony named Bubba and forgot it was court day, he said."  (Harry Franklin, Columbus Ledger-Enquirer, Nov. 7). 

November 20 -- How to succeed in business?   Earlier this fall it was widely reported that Christian Curry received nothing from the settlement of his race and sexual orientation suit against Morgan Stanley Dean Witter, which had fired him after nude pictures of him were published in a sexually explicit magazine.  See, for example, "Curry Drops Suit Against Morgan Stanley Dean Witter" (press release), Yahoo/Business Wire, Sept. 15 (quoting Curry: "I will receive no payment"); Dan Ackman, "L'Affaire Curry Ends In Settlement", Forbes.com, Sept. 15 ("Curry got nothing, and said he was happy with that.").  However, the New York Post reported last month that Curry arrived at a press conference in a new red Ferrari to announce that he had just paid $2 million to buy a Harlem newspaper and "plans to start a modeling agency, a film and TV production company and a hedge fund."  According to the paper, "sources" tell it that the investment firm paid Curry $20 million on condition he keep quiet about the case. "The settlement was brokered in September, right before Morgan Stanley CEO Philip Purcell was to give his deposition."  Curry declined at the press event to comment on the status of his lawsuit; it is not clear how the earlier and more recent accounts can be reconciled with each other.  (Evelyn Nussenbaum, "Curry Buys Newspaper, Has Big Plans", New York Post, Oct. 20). See update, Nov. 23, 2003.

November 17-19 -- Punch-outs, Florida style.   Palm Beach tobacco law magnate Robert Montgomery is a frequent subject of commentaries in this space (see April 12, Aug. 8-9, 2000; Aug. 21, 1999; estimated tobacco fee $678 million), and somehow we knew he'd turn up as a player in the recount mess.  Sure enough he's acting as attorney for embattled county elections director Theresa LePore (Kathryn Sinicrope and Michele Gelormine, "Recount waiting game continues", Palm Beach Daily News, Nov. 16).  Montgomery, a major party donor, recently represented without charge the incumbent Democratic court clerk in Palm Beach against a public records lawsuit filed by Republican challenger Wanda Thayer; in that capacity he gave Thayer reason to feel really sorry she ever filed the action, putting her through a harsh deposition and menacing her with having to pay his $350-$500 /hour fee if she lost.  Someone who represents the clerk of court free of charge against her opponent in a politically sensitive case is likely to stay a pretty popular guy around the courthouse, no?  (Marc Caputo, "Attorneys carry clerk's campaign", Palm Beach Post, Sept. 26). 

In the Broward County recount Republicans have noticed no fewer than 78 of the loose bits of paper known as "chads" lying on the floor of the recount facility and say the punchcard ballots are being over-handled in chaotic fashion by ad hoc election workers, some of them unknown to the official in charge.  They've asked that the recount be halted until more secure procedures can be instituted, but a judge turned them down and a Democratic attorney ridicules their concerns (Sean Cavanagh, "Gore gets 13 more votes so far in Broward recount", Fort Lauderdale Sun-Sentinel, Nov. 16; Marian Dozier, "Chad 'fallout' grows the more ballots are handled", Nov. 15).  "Q.  If lawyers for Democrats and Republicans beat each other's brains out for a few months in Florida, won't that result in fewer lawyers?  Who can argue with that?  A. Like night crawlers, a complete new lawyer grows out of any piece of attorney sliced off in court. Their regenerative powers are frightening."  (Gary Dunford, "Night crawlers", Canoe/Toronto Sun, Nov. 15). 

November 17-19 -- "U.S. Holocaust lawyer plans Austria train lawsuit".   Much-publicized New York attorney Edward Fagan is drumming up business among survivors of the Alpine tunnel calamity, which killed as many as 160.  "The suits most likely would be filed in U.S. courts because they typically could award bigger damages than overseas courts", even though the article cites no nexus whatsoever between the disaster and the United States as regards the great majority of victims, who were of Austrian or German nationality.  Imagine how strange it would seem if a train full of Americans and Canadians crashed in Colorado and some lawyer from Austria flew in to propose that lawsuits be filed in his country.  (Reuters/FindLaw, Nov. 14). 

November 17-19 -- "Tax collector found to owe $3,500 in delinquent taxes".   From Scranton, Pa., another entry for the do-as-we-say file: "I have no defense," says Thomas Walsh, director of the county's Tax Claim Bureau, of the city property tax bill on his home, which he's left unpaid since 1991 and has now mounted to more than $3,500.  "I just got behind."  ("Pay thyself", AP/Fox News, Nov. 13). 

November 17-19 -- "Coca-Cola settles race suit".   The Atlanta-based soft-drink maker has agreed to pay $192.5 million to settle charges of race bias, "described by the plaintiffs as the largest ever in a race discrimination class action suit".  (CNNfn, Nov. 16) (see July 21, July 19). 

November 16 -- Palm Beach County "under control".  "There was evidence that the Gore campaign hoped to muscle up the forces at its disposal. An e-mail circulated to a trial lawyers organization sought at least 500 attorney volunteers to help out with recounts in selected counties."  (David Espo, "Bush Holds Narrow Lead in Fla.", AP/Yahoo, Nov. 15).  "The request was passed along on the Internet E-mail list of the National Association of Trial Lawyer Executives (NATLE) by the executive director of the group, Kathleen Wilson, suggesting they pass along the request to lawyers on the Internet E-mail lists they're on."  The volunteer lawyers would be deployed in Volusia, Miami-Dade and Broward Counties, with the email describing the Gore forces as "comfortable that Palm Beach County is under control."  The organization NATLE "includes many executive directors and other officials with lawyer groups".  ("Gore Campaign Recruiting Lawyers", AP/Washington Post, Nov. 14). 

Judge-shopping?  "Although most of the lawsuits filed to date have been in state court, one Gore supporter filed an action in federal court last week only to withdraw it the same day (apparently out of a concern that the judge assigned to the case, Reagan appointee Kenneth Ryskamp, would not look favorably upon it)."  (Jay Lefkowitz, "It's the Law, Stupid", Weekly Standard, Nov. 20).  Meanwhile, "[a] group with Republican links sued TV networks Tuesday and accused them of discouraging voters from going to the polls in the Florida Panhandle by erroneously projecting Al Gore would carry the state."  ("Group Sues Over Gore Projection", AP/Washington Post, Nov. 14).  "In the Stephen Sondheim song, when something bad happens in the circus, they send in the clowns.  In America's political circus, they send in the lawyers."  (Gavin Esler, "Don’t let the lawyers make a crisis out of America’s Political Drama", The Independent (UK), Nov. 13) (cites our editor). 

November 16 -- Judge shopping, cont'd.   U.S. International Trade Commission administrative law judge Sidney Harris has reprimanded Rambus Inc. for having abruptly withdrawn its patent violation case against Hyundai Electronics Industries Co. after it was assigned to him; the judge, who has a reputation as tough on patent-holders' claims, concluded that the company did not want him to be the one to handle the case and had engaged in "blatant" judge shopping.  The company denies the allegation.  (Jack Robertson, "Rambus Slammed For ITC 'Judge Shopping'", Electronic Buyers News, Nov. 15; Dan Briody, "Litigation headaches send Rambus stock skidding", RedHerring.com, Aug. 30). 

November 16 -- They call it distributive justice.  Following the lead of numerous other overseas governments and other entities that have jumped on the tobacco-suit bandwagon in hopes of finding money, Saudi Arabia's state-owned King Faisal Specialist Hospital says it is preparing litigation against international tobacco companies to recover the costs of treating smokers, to be filed in American courts and elsewhere.  If successful, the litigation will presumably succeed in raising the price per pack paid by poverty-level smokers in Arkansas and West Virginia in order to ship the money off to that very deserving recipient, the government of Saudi Arabia. ("Saudi hospital to sue tobacco firms for $2.6 bn", AP/Times of India, Nov. 8) (& see update, Dec. 10, 2001

November 15 -- Foreign press on election mess.   "'Got a problem? Get a lawyer' has become a maxim of American life, whether you scald yourself with a McDonald's coffee or lose a presidential election." (Philip Delves Broughton, "Lawyers will be winners of contest born in Disneyworld", Daily Telegraph (UK), Nov. 10).  "The confusion over the election results has paved the way for a stealthy and rapid seizure of power in the US. The lawyers have truly taken over."  (Julian Borger, "Lawyers are back: US is on trial", The Guardian (UK), Nov. 11).  "We are not in Florida or Kansas anymore.  We are in . . . Chad." (Mark Steyn, "She held up the ballot and she saw the light", National Post (Canada), Nov. 13). 

November 15 -- Beep and they're out.   DuPage County Associate Judge Edmund Bart "has taken extreme offense to Traffic Court visitors who allow cellular phones or pagers to ring when court is in session. He has dealt with them extremely -- by throwing those visitors behind bars."  ("Time for Some Order from the Court" (editorial), Chicago Tribune, Nov. 11). 

November 15 -- "ATLA's War Room".   Much feared by defendants, the 61 litigation groups of the Association of Trial Lawyers of America enable plaintiff's lawyers to map out joint strategy and share in the "exchange of documents, briefs, depositions, expert testimony, and general plaintiffs'-side lore".  The groups are noted for "Kremlinesque secrecy": "Group chairmen, for instance, are not supposed to identify themselves as such in public, and journalists can only get their names from ATLA by agreeing not to quote them as chairmen. ... The association does not post the list of litigation groups on its public Web site."   However, that list includes (according to Alison Frankel of The American Lawyer): AIDS, automatic doors, bad faith insurance, benzene/leukemia, birth defects, breast cancer, casino gaming, chorionic villus sampling (CVS), computer vendor liability, firearms and ammunition, funeral services, herbicide and pesticide, inadequate security (and its subgroup, the Wal-Mart Task Force), interstate trucking, lead paint, liquor liability, nursing homes, Parlodel, pharmacy, Stadol, tabloid outrage, tap water burns, tires, truck underride, and vaccines.  Recent additions include firefighter and EMS hearing loss, Allercare subgroup of herbicides and pesticides group, laser eye surgery malpractice, MTBE, Propulsid, and Rezulin. (Alison Frankel, "ATLA's War Room", The American Lawyer, Oct. 16). 

November 14 -- Columnist-fest.   People writing about things other than the election mess: 

*  How long would Mark Twain's Tom Sawyer last if he were growing up today?  He's the kind of boy who plays hooky from class, joins a gang and commits petty crime, enjoys violent literature (pirate stories), tortures the family cat and even smokes.  "Doubtless he'd be in therapy three times a week and jacked up on Ritalin.  Or -- most likely -- he'd be in jail."  (Alex Beam, "Tom Sawyer and the end of boyhood", Boston Globe, Oct. 31). 

*  Don't count on the black-reparations bandwagon to provide benefits over the long term to anyone but the lawyers and other middlemen in charge, argues Linda Chavez ("Johnnie Cochran plays his card", TownHall, Nov. 8). 

*  The case for Paula Jones's outraged modesty in that Arkansas hotel room is looking pretty thin now that she's taken her clothes off for Penthouse, but what exactly did reformers think would happen once the law began to turn unsubstantiated sex stories into enormously lucrative potential claims?  "Women like Jones have been lured into becoming the workplace equivalent of Third World terrorists strolling around the office with suitcase bombs."  (Sarah J. McCarthy, "The Victim in the Centerfold", LewRockwell.com, Nov. 11). 

November 14 -- "Fla. DUI Teen Sues Police".   "A teen-age driver seriously injured in an accident is suing the city because a police officer failed to arrest him for drunken driving minutes before the crash."  Richard L. Garcia of Bradenton, Fla. alleges that officers told him to drive home rather than taking him into custody despite his intoxication, which makes it their fault that he got into a serious accident minutes later.  (AP/Yahoo, Nov. 13). 

November 14 -- "Survey: Jurors Anti-Big Business".   "Potential jurors often mistrust corporations and think they must impose billions of dollars in punitive damages to send them a clear message, according to survey results released Friday."  The survey is set to appear in this week's National Law Journal.  (Reuters/CBS News, Nov. 10). 

November 14 -- "Internet Usage Records Accessible Under FOI Laws".   "In an opinion sure to heighten the tension between some parents and school systems over the Internet's role in publicly financed education, a New Hampshire judge has decided that a parent is entitled to see a list of the Internet sites or addresses visited by computer users at local schools."  Unless overturned on appeal, the ruling will entitle parent James M. Knight of Exeter, N.H. to inspect the logs of general student and faculty Internet use, not just those of his own children.  However, the log files will be redacted in an attempt to prevent the identification of individual user names and passwords.  Knight, a proponent of filtering/blocking software, had made the request under the state open records law.  (Carl S. Kaplan, "Ruling Says Parents Have Right to See List of Sites Students Visit", New York Times, Nov. 10 (reg); Slashdot thread). 

November 13 -- Election hangs by a chad.   Once underway in earnest, plenty of observers fear, litigation on the 2000 presidential vote will "only spawn more litigation and drag on and on, to the detriment of the political system."  (R.W. Apple Jr., "News Analysis: Experts Contend a Quick Resolution Benefits Nation and Candidates", New York Times, Nov. 12 (reg)).  With the filing of a federal court action by the Bush people to block a planned "hand recount" in Palm Beach County, the legal battling now officially involves the candidates themselves; earlier, the Gore people had been backing litigation filed in the name of Florida residents without actually filing on their own (David S. Broder and Peter Slevin, "Both Sides Increase Legal Wrangling As Florida Begins Slow Hand Count", Washington Post, Nov. 12).  "There is a well-known trick among statistical economists for biasing your data while looking honest. First, figure out which data points don't agree with your theory. Then zealously clean up the offending data points while leaving the other data alone."  Such a bias would be introduced in the Florida vote by recounting pro-Gore counties like Palm Beach, Broward and Dade so as to validate more ballots by inferring voters' intent, without doing the same for pro-Bush counties like Duval (Jacksonville).  (Edward Glaeser, "Recount 'Em All, or None at All", Opinion Journal (Wall Street Journal), Nov. 11).  "The leverage that the Gore camp has," writes columnist Molly Ivins, "is an injunction to prevent certification of the Florida result until that's settled [namely, its expected demand for a Palm Beach County revote if the pending "hand recount" doesn't do the trick]. Without Florida, Gore wins the Electoral College."  Admittedly, however, "[a] system that managed to acquit O.J. Simpson cannot be counted upon to produce justice."  ("The right to seek justice is undeniable in Florida", Fort Worth Star-Telegram, Nov. 11). 

If you're looking for truly ripe ballot irregularities, George Will suggests, look to the heartland: "Election Day saw Democrats briefly succeed in changing the rules during the game in Missouri: Their lawyers found a friendly court to order St. Louis polls to stay open three hours past the lawful 7 p.m. closing time. Fortunately, a higher court soon reimposed legality on the Democrats and ordered the polls closed at 7:45."  ("It All Depends on the Meaning of 'Vote'", New York Post, Nov. 12).  A nice thing about those emergency public donation funds to hire teams of lawyers: there's no limit on contributions and the parties will be really grateful (David Greising, "Al's Now a Boy Named Sue, and It's Not Helping", Chicago Tribune, Nov. 10).  Meanwhile, we note that a prominent Democratic campaign-law expert is denying that his party is "overlawyering" the Florida situation, while the New York Post's Rod Dreher uses another variant on the same term in discussing mistaken ballots: "Despite what some in this overlawyered culture seem to believe, the courts have no obligation to protect people from their own carelessness."  (Don Van Natta Jr. and Michael Moss, "Counting the Vote: The Nerve Center", New York Times, Nov. 11, quoting Robert F. Bauer, no longer online; New York Post, Nov. 12). 

November 13 -- Vaccine compensation and its discontents.   One of the more recently adopted no-fault compensation systems aimed at displacing personal injury litigation is the federal childhood vaccine compensation program, which since 1988 has paid out $315 million to some 1,445 claimants and turned away another 3,372 claimants on the grounds that they could not prove that the vaccines caused injury.  The system has substantially reduced the number of lawsuits filed against makers of DPT (diphtheria, tetanus and pertussis (whooping cough)), which "dropped from 255 in 1986 to 4 in 1997".  However, the no-fault system itself partakes of some of the drawbacks of litigation, including delay and adversarialism.   One thing it has succeeded in curbing, however, is jackpots for trial lawyers:  "Lawyers representing claimants get paid whether a claim is successful or not, but they get closely monitored hourly rates -- not the jackpots they occasionally win when they sue, say, tobacco or tire companies."  (Doug Donovan, "Needle damage", Forbes, Sept. 4). 

November 13 -- Don't give an inch.   In Sunderland, England, merchant Steven Thoburn has become the first vendor to be prosecuted for sticking to English weights and measures despite an official mandate to convert to European metric alternatives.  To coordinate with European Union rules, "British laws came into effect at the beginning of this year imposing fines of up to $8,000 and possible imprisonment on retailers if they refuse to adopt liters and meters."  ("Defiant Brit Vendor Taken To Court", AP/FindLaw, Nov. 8). 

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