Overlawyered: Chronicling The High Cost Of Our Legal System

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Legal Snafu Halts N.O. Bus Auction

In the “Can’t Do Anything Right” category, the New Orleans public school system was instructed to halt an internet auction of one of the infamous flooded school busses when it was discovered that the state School Board’s authorization for the auction did not include the internet variety.The State board’s lawyer discovered that although the board authorized an “auctioneer” to handle the sale, the system is bound by the state’s definition of that term, which does not include Internet auction sites.

Bids had reached $6,700 for the soggy scrap metal, but were thrown out as re-authorization is sought.

Via Lucianne.com.( Times Picayune, Apr. 7)

Further Developments in the Milberg Weiss Case

The U. S. Justice Department is looking at possible new indictments in the kickback investigation of powerhouse plaintiff firm Milberg Weiss Bershad & Schulman. (Apr. 7)

Here’s a telling sentence:

David Bershad, partner Steven Schulman (are) being looked at in connection with payments to Howard Vogel, a real estate broker and former lead plaintiff in several Milberg class actions.

Mr. Vogel must be prone to bad luck, eh?

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Pigs at the Slaughterhouse?

The team of lawyers who recently won the largest-ever bad faith insurance verdict in Pennsylvania — more than $7.9 million — are asking U.S. District Judge Cynthia M. Rufe to make new law by awarding them $2.3 million in fees, the largest award of attorney fees that would ever have been granted in such a case.

The lawyers argue that the lodestar approach,under which their fee would be about $323,000, is flawed for two reasons: because the lawyers who bring such cases almost never bill for their work at an hourly rate, and their clients have most often agreed to a contingent fee in which the lawyers will be paid a set percentage of any verdict or settlement they win, usually one-third.

As a result, Tanner and Newman argue, the lodestar approach “unduly focuses the court’s scrutiny on a fictional contrivance as opposed to an approach which accurately reflects the manner in which such cases are handled.”

Of the $7.9m jury verdict, $6.25m is punitive damages, which, the defense argue, is a sufficient pot of money out of which the lawyers can extract their fees. (Law.com, Apr. 7)

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More Delicious Language

Continuing to mix my business with pleasure, I pass along this fine prose from Ballarin, Inc. v. Licensing Board of Boston, 49 Mass. App. Ct. 506 (2000):

For some diners, consuming an appetizer of duck liver pâté, rolled in pistachio, lingonberry coulis, served with garlic pita points, followed by an entrée of venison au poivre, finished with a dessert of chestnut mousse gateau, apricot glacé, is still more rapturous if preceded by a dry martini or ended with a cognac. To satisfy that want, Ballarin, Inc., which operates The Hungry I restaurant at 71 1/2 Charles Street at the foot of Beacon Hill in Boston, applied in 1995 to the licensing board for the city of Boston for a seven-day all-alcoholic beverages license….

…At what was to be a first hearing on Hungry I’s application before the licensing board, proponents and opponents of the award of an all-alcoholic beverages license made known their views, by speech and writing. Among Hungry I’s adherents were some abutters and many patrons, one of whom touted the salubrious tendency of a Bloody Mary to increase levels of good cholesterol. Those opposed mustered all the political artillery–the Beacon Hill Civic Association and elected public officials. The principal argument advanced against granting the application was “opening of the floodgates”; i.e., were Hungry I to receive an all-alcoholic beverages license, how could the licensing board say no to others? The neighborhood would go down the drain….

Foreigners to Massachusetts might get the impression that rhetorical flourish is a sine qua non of our judicial appointees. Would that it were the case.

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A Recipe for Greatness

The previous post regarding California Judge Sill’s memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.

Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).

It seems that Ms. Webster, a native of New England (“a fact of some consequence,” noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes (“in chunks (also a fact of some consequence),” noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).

Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.

The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon’s explanation that elevates the opinion to art form.

Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:

“No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code.”

After noting the defendant’s exhortation that “this court knows well that we are not talking of some insipid broth as is customarily served to convalescents” and quoting Daniel Webster’s recipe for fish chowder in a footnote, the Court observed:

“It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”

Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.

The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.

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Prop 65 and Bounty Hunters

George Wallace at Declarations and Exclusions points us to a judge who is not afraid to call them as he sees them — “them” in this case being the lawyers who mine California’s over-reaching environmental law purely for profit. In rejecting plaintiffs’ lawyer’s application for $540,000 in legal fees for their effort, here is the judge’s conclusion:

“Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight.”

Much much more for your reading pleasure there.

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Intellectual Property Run Amok

Mother Jones provides an amusing roster of facts pertaining to the crazy world of intellectual property protection. Among my favorites:

AMONG THE 16,000 people thus far sued for sharing music files was a 65-year-old woman who, though she didn’t own downloading software, was accused of sharing 2,000 songs, including Trick Daddy’s “I’m a Thug.” She was sued for up to $150,000 per song.

NINETY-ONE pending trademarks bear Donald Trump’s name, including “Donald J. Trump the Fragrance” and “Trump’s Golden Lager.” He failed to trademark the phrase “You’re fired.”

FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered.

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The Felonious Stomping of a Pet Fish

Courtesy of Dean’s World, a New York Appellate Court decision which all too easily brings to mind Monty Python’s immortal routine, “Eric the Pet Fish:”

The defendant argues that his “stomping of young Juan’s pet goldfish” is a misdemeanor pursuant to Agriculture and Markets Law §353 (unjustifiable killing of any animal, whether wild or tame), and not a felony because a fish is not a “companion animal” and his “stomping” did not constitute “aggravated cruelty” within the meaning of the statute.

The Appellate Court rejected the defendant’s fanciful interpretation of New York criminal statutes, ruling:

The defendant’s contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute.

But can you get a license for that fish?

Dad Loses Suit Alleging Abusive Coach

Chalk another one up to the judicial ref.

A judge has made it safe again for high school coaches to lose their tempers, tossing out a lawsuit that accused a coach of inflicting “emotional distress” on a softball player by calling her “a 2-year-old.” (Arcadia, CA, Apr.4)

Attorney Michael Oddenino filed the lawsuit in October, alleging that Riggio yelled at his daughter when she played on the JV team last spring. He named Riggio, varsity Coach Ed Andersen and the Arcadia Unified School District in the lawsuit. He sought $3 million for intentional and negligent infliction of emotional distress, negligence, a civil rights violation, and sex discrimination.The suit alleged that Riggio “took advantage of his position of authority to engage in an abusive pattern of excessive intimidation and humiliation of the female players, frequently calling them `idiots,’ and belittling them for minor errors.”

Oddenino is a family law lawyer who specializes in child custody issues. Go figure.

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Constitutional Right to be a Jackass

One of our profession’s enfants terribles, Geoffrey Fieger, is back in court, this time defending his right to call Michigan appellate judges who ruled against him “jackasses” and “nazis.”

Fieger faces a reprimand from the Michigan Attorney Grievance Commission for insulting three state appellate judges on a radio talk show in 1999 after the judges overturned a $15 million verdict he won in a medical malpractice case.

Fieger’s lawyer, Michael Alan Schwartz, maintaining that Fieger’s comments outside the courtroom are protected by the First Amendment.

Summing up Fieger’s modus operandi nicely, Schwartz offers this:

“There’s no law that says you’ve got to be dignified.”

He also offers Standing Committee on Discipline v. Yagman, 55 F.3d 1430 and Craig v. Harney, 331 U. S. 367 (1947) to support his client’s right to criticize the judges.

UPDATE: Sorry folks, I neglected to include a link to the story. It is the Michigan Attorney Grievance Commission seeking to reprimand him. The Commission is “the investigative and prosecutorial arm of the Michigan Supreme Court for allegations of attorney misconduct.”

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