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ARCHIVE -- OCT. 2000 (II)

October 19 -- Sexual harassment: ask the experts (if that'll help).   CNN.com asks authorities on harassment law for advice on handling common workplace situations and gets strikingly contradictory answers.  Should employers ban consensual dating between supervisors and subordinates?  Yes, says employment-law attorney Anne Covey; no, says business professor Dennis Powers.  Does a desk photo of a wife or girlfriend in a bikini count as harassment?  Yes, says Covey ("You wouldn't allow somebody in a bathing suit to be in the office. So I don't think the picture is appropriate either"); no, says Powers.  Although the number of harassment complaints filed with the EEOC has been flat recently, sums of money recovered through the agency's efforts have more than doubled since 1995.  And don't expect a potential complainant to tell you you're doing something wrong before taking a gripe to management, says Covey: "An employee does not have an obligation to walk up to you and educate you about your behavior that they find to be inappropriate".  (Larry Keller, "Sexual harassment: Serious, subtle, stubborn", CNN.com, Oct. 3). 

October 19 -- All shook up.   Music student Anna Lloyd, 22, was among the 136 survivors of a fiery 1999 American Airlines plane crash at the Little Rock airport that killed 10 passengers and the pilot.  Her attorney acknowledges that she is physically fine after the minor injuries she sustained at the time, but he says the psychological scars of the experience have left her emotionally disconnected, anxious, prone to angry outbursts, and socially withdrawn.  American Airlines thought $330,000 in compensation was sufficient for her situation, but Lloyd asked a jury for $15 million, and last week it gave her $6.5 million.  ("Jury awards woman $6.5 million in plane crash trial", AP/FindLaw, Oct. 13; "Plane crash traumatized college student for life, lawyer argues", AP/CNN.com, Oct. 11; passenger and crew list, Flight 1420 (Arkansas Democrat-Gazette)).  In August, in the first lawsuit over the Little Rock crash to go to trial, Lloyd's friend Kristin Maddox was awarded nearly $11 million; see Aug. 31

October 19 -- Courtroom crusade on drug prices?   We've lost count of the number of fields of litigation that eager lawyers have nominated as the "next tobacco": guns, lead paint, casinos, HMOs, class actions against Microsoft, and so on.  One more to add to the scrapbook, which we missed earlier: class action suits over pricing of pharmaceutical drugs. "Chicago lawyer Robert Green ... says [they] could eventually dwarf current tobacco litigation.  'There's much more money at stake, if you can believe that,' he said."  (Mark Curriden, "Drug firms' price-setting investigated", Dallas Morning News, Dec. 7, 1999). 

October 18 -- Historically inauthentic?  Book her.   Betty Deislinger, age 70, fixed up an 1870s house in a historic district of Little Rock, Ark., but declined to take the burglar bars off the front, the way the preservation code requires.  She was arrested, fingerprinted and booked.  (Suzi Parker, "Bars bring long arm of the law", Dallas Morning News, Oct. 14). 

October 18 -- Yahoo pulls message board.  "Within hours of a Miami appellate court's order that Yahoo and America Online must disclose the identities of eight Web critics who allegedly defamed former Hvide Marine boss J. Erik Hvide, Yahoo shut down the Hvide Marine company's message board where the offending words were posted.  The board, where thousands of messages about the ups and downs at international marine services company Hvide Marine of Fort Lauderdale, Fla., were posted during the past few years, was also removed from the Web, and previously posted messages are no longer accessible."  "It may be a matter of Yahoo deciding they don't want to create a headache for themselves by continuing this forum that has resulted in litigation," said one of the lawyers in the case. (Dan Christensen, "Yahoo Pulls Marine Services Company Message Board", Miami Daily Business Review, Oct. 17; Catherine Wilson, "Anonymous Net Posting Not Protected", AP/Excite, Oct. 16; John Roemer, "The Battle Over John Doe", Industry Standard/Law.com, Oct. 13; Slashdot thread on anonymous message-board speech).

October 18 -- Birth cameras not wanted.   In a recent survey, 40 percent of obstetricians said they had prevented families from using videocameras to record births, and 80 percent of those cited legal concerns.  Such videotapes, or edited snippets from them, may be placed before juries in case of later malpractice suits. (Geraldine Sealey, "Lights, Camera, Lawsuit", ABC News, Oct. 3) (& see Dec. 26). 

October 18 -- Product liability: Americanization of Europe?   An expected European Community directive will expand rights to sue under product liability law, and business is worried about having to face "a whole new continent of potential plaintiffs."  Among ideas being considered are "the introduction of class actions and market-share liability, and the elimination of both the 70 million euro cap on damages and the 'state-of-the art' defense."  However, European consumer groups point out that earlier rounds of liberalization have not resulted in sky-high American-style litigation levels: "Even if these latest pro-plaintiff reforms pass, companies still won't face juries and punitive damages, the most unpredictable aspects of the U.S. system" -- not to mention two other significant aspects of the U.S. system, the lawyer's contingency fee and the failure of costs to follow the event. (Ashlea Ebeling, "Sue Everywhere", Forbes, Oct. 16). 

October 16-17 -- George W. Bush on lawsuit reform.   The Bush campaign has put up this page explaining the Governor's point of view on civil justice reform, his record on the issue in Texas, and his plans for tackling it at the federal level if elected (disclosure: this site's editor has been involved as an advisor to the campaign).  (George W. Bush for President official site; Issues; Civil Justice Reform).  And: Wall Street Journal lead editorial Monday assails the Democratic Party for its "captivity" to trial lawyers.  "Mr. Gore walked into it again when his claimed visit with the FEMA head to inspect fire-damaged Parker County turned out never to have taken place. As the world now knows, he was in Houston for a fund-raiser with the head of the Texas trial lawyers association." ("The Lawyer Issue", Oct. 16). 

October 16-17 -- European roundup.  "The rights of pets in divorce cases would be similar to those of children under proposals in Switzerland, where campaigners have 250,000 signatures for two petitions demanding substantial new rights for pets and other animals."  (Claire Doole, "Animals' rights could make an ass of Swiss law", Sunday Times (London), Oct. 8).  In Britain, where the exemption of police jobs from the Disability Discrimination Act is set to expire in 2004, "police officers with part of a leg missing are likely to be pounding the beat and one-eyed drivers could be at the wheel of pursuit cars in four years' time," to the dismay of the Metropolitan Police Federation, which represents rank-and-file officers (James Clark, "Disability law exposes police to one-legged recruits", Sunday Times (London), Oct. 8; see also Sept. 29).  And in France, the resort town of Le Lavandou attempted to cope with a lack of space in its cemetery by passing a law making it unlawful for persons who lack a cemetery plot to die within town limits; the mayor acknowledges that there will be no levying of penalties against those who violate the law by dying without authorization ("Death be not proud", AP/Fox News, Sept. 21). 

October 16-17 -- "Is $30,000 an hour a reasonable fee?"   Readers of this space are familiar with the controversy in which attorney Peter Angelos is demanding $1 billion for representing the state of Maryland in the tobacco-Medicaid litigation, while the state is trying to get off with paying him a mere $500 million (see Dec. 9 and Oct. 19, 1999).  One tidbit of which we had been unaware: "[A]fter a Baltimore Sun lawsuit forced Angelos to disclose his billing records, the public learned that the lawyer (and Orioles owner) had used $12-an-hour lawyers from a temp agency for nearly 25 percent of the hours he billed. From $12 to $15,000 is a markup of 1,250,000 [sic] percent."  (Phillip Bissett (Baltimore Regional Citizens Against Lawsuit Abuse), Washington Post, Aug. 13).  Reader A. J. Thieblot of Baltimore points out that the actual markup number, based on the above calculations, was in fact only 125,000 percent, so in fact Angelos "showed restraint ... Doesn't that make you feel better about him?" 

October 16-17 -- Fed prosecutors chafe at state ethics rules.   Two years ago Congress passed a law requiring U.S. Attorneys to obey the ethical rules applicable to lawyers in the states in which they work.   The bill was named after its sponsor, Pennsylvania Republican Joseph McDade, who became a critic of overzealous prosecution after the Justice Department targeted him in an eight-year racketeering probe which ended in his acquittal by a jury.  The new law is having a major effect in some states: in Oregon, for example, the state supreme court has forbidden all lawyers as an ethical matter to lie, cheat, or misrepresent themselves.  Federal prosecutors complain that kind of restriction deprives them of many cherished investigative techniques, but House Judiciary Chairman Henry Hyde (R-Ill.) says he's not inclined to repeal the McDade law. (Chitra Ragavan, "Federally speaking, a fine kettle of fish", U.S. News & World Report, Oct. 16). 

October 16-17 -- Hasty tire judgments.   Does Ford's Explorer suffer a higher rate of tire-related accidents even when equipped with Goodyear tires, as opposed to the Firestones implicated in the recent furor?  Last Monday the Washington Post reported that it did, only to report two days later that some of the vehicles in the data base it had been looking at were equipped with Firestones after all.  "In its rush to judge the Explorer a deathtrap, the Post engaged in what social scientists call 'confirmation bias."" writes Jack Shafer of Slate ("The Washington Post Blows the Blowout Story", Slate, Oct. 11; Dan Keating and Caroline E. Mayer, "Explorer Has Higher Rate of Tire Accidents", Washington Post, Oct. 9; "Ford Cites Flaws in Tire Data", Oct. 11). 

Should the tire problem have been obvious from road statistics?  It may depend on how you slice those statistics, says mathematician John Allen Paulos: crashes associated with tire failure are so rare as a percentage of all crashes that it can be easy to lose them in the data ("Statistics and Wrongdoing", ABC News, Oct. 1).  Reports of accidents and deaths "linked to" the tires flooded into the federal government's National Highway Traffic Safety Administration after the furor broke, not because the crash rate had suddenly jumped, but because informants rushed to inform the agency of previously unreported older cases; and the phrase "linked to" itself elides issues of causation that can be resolved only by case-by-case investigation (Dan Ackman, "Tire Deaths Linked To Tough Questions", Forbes.com, Sept. 7). 

Also shedding light on the degree to which the origin of the tire problems remains less than fully obvious: "[p]laintiff's lawyers have been trading theories, information and documents for more than a year in lawsuits related to the tires", the news-side Wall Street Journal's Milo Geyelin reported in August, but "so far they have yet to reach a consensus".  Some think the lower tire pressure recommended by Ford is a key factor, others downplay its significance; there's no agreement as to whether the problem is specific to tires manufactured at Firestone's Decatur, Ill. plant; and so on.  (Milo Geyelin, "Theories Mount Regarding Root of Tire Defects", Wall Street Journal, Aug. 23 (fee-based archive)).  See also Melanie Wells and Robyn Meredith, "Nothing Comes Between Me and My SUV", Forbes.com, Oct. 16; FindLaw page on tire litigation

October 16-17 -- "Judge Lenient With Perjurer, Cites Clinton Case".   "Chief U.S. District Judge James A. Parker told prosecutors last week that it was unfair of them to ask for a strict prison sentence in a New Mexico perjury case, pointing out that President Clinton recently asked for leniency for lying under oath."  Ruben Renteria Sr. had been acquitted of drug conspiracy but was convicted on a count of perjury related to the investigation.  (Guillermo Contreras, Albuquerque Journal, Oct. 14) (via Drudge). 

October 13-15 -- Place kicker awarded $2 million.   "A jury awarded a female place-kicker $2 million in punitive damages Thursday, ruling Duke University cut her from the team solely because of her gender."  Heather Sue Mercer, a walk-on player, had sued for damages that included emotional distress, humiliation and periods of depression after being dropped from the college team.  Team members testified that Mercer was not a powerful kicker; the jury voted her $1 in compensatory damages and $2 million in punitives. ("Jury rules Mercer was cut because of gender", AP/ESPN, Oct. 12; Reuters/Yahoo; "Ex-coach says he admired kicker's 'spunk'", AP/ESPN, Oct. 11; "Woman sues Duke over being cut from team", Oct. 4).  Update Dec. 30, 2002: appeals court overturns punitive damage component of verdict. See also Nov. 3-5 commentary. 

October 13-15 -- (Civil court) policeman to the world.   Among the many foreign powers and principalities considered suitable targets for correction by way of lawsuits in American courtrooms: perpetrators of ethnic atrocities in Bosnia ("Jury returns $4.5 billion verdict against ex-Bosnian Serb leader Karadzic", AP/CNN, Sept. 26); Chinese dictators who repressed pro-democracy demonstrators in Tienanmen Square (Edward Wong, "Chinese Leader Sued in New York Over Deaths Stemming From Tiananmen Crackdown", New York Times, Sept. 1); Cuba, Iran, and other regimes that sponsor acts of terrorism in third countries ("Senate votes to allow compensation for terror victims, re-authorizes Violence Against Women Act", CNN.com, Oct. 11; Seth Lipsky, "Justice for Alisa", Opinion Journal (WSJ), Sept. 27); and OPEC, for fixing the international price of oil, which would become an offense suable in American courts under a bill okayed by a Senate panel ("Senate panel bill would allow lawsuit against OPEC", Reuters/FindLaw, Sept. 21).  Few of the American backers of these legal actions have been eager to point out the mirror-image corollary they would logically entail, namely suits against our own government and its elected officials in the courts of unfriendly foreign nations. 

October 13-15 -- Man sues over "Ladies' Nights".   Christopher Langdon, a 48-year-old businessman, has filed federal lawsuits against nearly a dozen Orlando bars saying that their offering of "Ladies' Night" discounts to women constitutes unlawful sex discrimination.  He wants up to $100,000 and an end to the promotions.  (Tyler Gray, "Man makes his move on ladies night", Orlando Sentinel, Oct. 10). 

October 13-15 -- "Philly looking for a few good lawsuits".   More reaction to the plans of Philadelphia's city solicitor Kenneth Trujillo, a class-action specialist, to establish a special legal strike force to hit up business defendants for money through offensive litigation (see Oct. 5).  Quotes our editor (Patrick Riley, Fox News, Oct. 10). 

October 13-15 -- "Stop driving my car".   If you live in one of five states -- New York, Rhode Island, Connecticut, Maine, and Iowa -- "vicarious liability" laws make you automatically liable for the driving of anyone to whom you lend your car, even if the borrower has a clean record and there are no other advance signs of trouble.  (In other states, lawyers who want to sue you as the owner must allege that you were at fault in some way.)  The laws also apply to rent-a-car companies, putting them in an especially tough position since laws in some of the same states make it virtually impossible for them to turn away most prospective renters (James T. Riley, Citizens for a Sound Economy, Oct. 2). 

October 12 -- Wal-Mart wins female Santa case.   "The Kentucky Commission on Human Rights has ruled that a Wal-Mart in Morganfield did not discriminate against Marta Brown when it forbid her from portraying Old St. Nick in December 1995."  (Chris Poynter, "Wal-Mart had right to stop female Santa", Louisville Courier-Journal, Oct. 10). 

October 12 -- "All about Erin".   "It took a few months for the investigative journalists to overtake the Hollywood dream spinners, but by now it’s been pretty well established: What got left out of the blockbuster movie Erin Brockovich (now available at a video store near you) was in many ways juicier than what got put in."  Our editor's latest column in Reason explains (October).  Also: Michael Fumento of the Hudson Institute returns to the warpath ("Errin' Brockovich", American Outlook, Summer). 

October 12 -- Forfeiture-reform initiatives.   Voters in three states, Massachusetts, Utah and Oregon, will consider initiatives that would curb the controversial law enforcement technique.  "The ballot measures would, in effect, require law enforcement to prove that a crime had occurred before property could be forfeited.  And drug money, instead of going back to police, would be sent to a public education fund in Utah and drug treatment funds in Oregon and Massachusetts."  (Karen Dillon, "Ballot initiatives seek to change forfeiture laws in three states", Kansas City Star, Oct. 8; see May 25).  National Post columnist David Frum asks some basic questions about the drug war in Canada and the U.S. ("Target 'victims' to solve the drug problem", Sept. 9).  And the name of Lebanon, Tennessee resident John Adams, 64, was added to the list of "collateral damage" drug war casualties when police officers mistook his house for one cited in a drug warrant, burst in and shot him dead.  "It was a severe, costly mistake," said the Lebanon police chief. "They were not the target of our investigation. We hate that it happened."  (Warren Duzak, "Innocent man dies in police blunder", Nashville Tennesseean, Oct. 6). 

October 12 -- Political notes: friend to the famous.  "Our Managing Partner John Eddie Williams [one of the Big Five trial lawyers who are splitting a $3.3 billion fee for representing Texas in the tobacco-Medicaid litigation -- see May 22, Sept. 1] and his wife Sheridan welcomed the first lady to their Houston home in August [1999].  Fifty guests enjoyed dinner with Hillary Rodham Clinton, who spent two days in Texas raising money for the Democratic Senate Campaign Committee and her own exploratory committee. The Williams’ home has been visited in the past by other well known workers on Capitol Hill including Vice President Al Gore, Sen. Edward Kennedy and Sen. Barbara Boxer. Ms. Clinton said she would be pleased to be an adopted senator for Texas Democrats."  ("Hillary Rodham Clinton Visits Williams’ Home", from the Williams, Bailey law firm's "Letter of the Law" newsletter, Oct. 1999 (displays correctly in IE, has trouble in Netscape -- Netscape users might try "View Source"))  (top Texas soft money donors). 

October 11 -- Brownout, Shivers & Dim, attorneys at law.   "[T]he nation's energy producers, even those proposing to meet the surging demand for electricity with the cleanest types of power plants, find themselves stymied by environmental groups concerned about pollution and damage to natural resources."  Hydroelectric plants, bird-menacing windmill farms ("Condor Cuisinarts") and natural-gas-fueled turbines (ugly-looking) have all run into opposition from enviros, and don't even think of asking them to consider coal or nuclear.  "'Bottom line,' says Sen. Slade Gorton, a Washington Republican who often sides with the power industry, 'whatever suggestion you make, they find something wrong with it and bring more lawsuits.'"  (Jim Carlton, "Electricity Crunch May Force The U.S. Into Tough Tradeoffs", Wall Street Journal, Oct. 10) (subscriber-only site). 

October 11 -- Curse of the dummy's kiss.   In Hammond, Indiana, Brenda Nelson has filed a federal lawsuit against the American Red Cross, saying she "contracted herpes after giving mouth-to-mouth resuscitation to an improperly sanitized mannequin."  ("Woman sues Red Cross, alleging she contracted herpes from CPR dummy", AP/FindLaw, Oct. 10). (Update Dec. 7: she drops case) 

October 11 -- New Hampshire chief justice acquitted.   By a wide margin, the Granite State's senate declined to convict the state's highest judicial officer, David Brock, on any of several counts against him (see April 5).  ("Brock acquitted overwhelmingly", AP/Concord Monitor, Oct. 10). 

October 11 -- NLRB lurches left.   The National Labor Relations Board, according to Republican and business critics, acts as if it wants to yank labor law as far left as it can before the Clinton term ends.  Among its more dramatic recent decisions were one in July making it a labor law violation to question a nonunion worker in a disciplinary context without allowing him to have present a co-worker of his choosing, and one in August facilitating the unionization of temporary workers (Michael D. Goldhaber, "Is NLRB in a Pro-Labor Mood?", National Law Journal, Oct. 4; Julie Kay, "The Buddy System", Miami Daily Business Review, Sept. 8).  Meanwhile, a General Accounting Office study has found that businesses undergoing labor strife are six and a half times as likely as other businesses to be made the targets of inspection by the Occupational Safety and Health Administration, bolstering employer suspicions that unions often use OSHA inspections as a weapon to make employers' lives difficult ("Worker Protection: OSHA Inspections at Establishments Experiencing Labor Unrest", GAO, August (PDF)). 

October 11 -- Welcome visitors.   Among sites that link to Overlawyered.com are the Clatsop County (Ore.) Coastal Voice, the Zoh Hieronymus show, the CBEL.com alternative media guide, Flangy, iRights, SkeptiNews and What's On It For Me? weblogs, Cindy Furnare's Conservative Education Forum, Wisconsin Democratic Congressional candidate Mike Clawson (MikeforCongress.com), the Alexander County (N.C.) Republican Party, the Idaho, Illinois and Wisconsin Libertarian parties, and firearms sites The Gunnery, PaulRevere.org, RKBA Legal Docket, and SaferGunsNow.org

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