A major rebuke for former California AG Bill Lockyer and his successor, Jerry Brown, as well: “A federal judge in San Francisco today threw out a lawsuit filed by the state Attorney General’s office against the six largest automakers in what had been billed as a novel attempt to hold the companies financially liable for global warming. … U.S. District Judge Martin Jenkins said it would be inappropriate for the court to wade into issues pertaining to interstate commerce and foreign policy – matters that should be left to the political branches of government.” The judge’s order can be found here (PDF). (Henry K. Lee, San Francisco Chronicle, Sept. 18)(cross-posted from Point of Law).
Author Archive
September 18 roundup
- L.A. city council debating settlement of Tennie Pierce (firehouse dog food prank) case, apparently for several million [AP/Mercury-News; earlier]
- Lerach said to accept jail term of 2 years or less in plea deal, won’t testify against former partners [Washington Post, Point of Law; earlier]
- No shock, Sherlock: divorce cases said to have the highest rate of perjury in open court [Oregonian via WSJ law blog]
- Things you might not have known about the Duke/Nifong case unless you’ve read the new Stuart Taylor/K.C. Johnson book [Leo, Minding the Campus; Thernstrom]
- Take a wild guess as to one reason doctors are reluctant to communicate with their patients via email, despite the many potential advantages [Medical Economics via KevinMD]
- Latest suit charging casino should have recognized customer’s gambling addiction [Indianapolis Star; earlier]
- One brother kills the other in anger in the North Carolina woods, both members of a logging crew; ruled compensable under workers’ comp [Coppelman]
- My client, the dog: another trend piece on steady expansion of animal law [Boston Globe]
- Prankster gets American U. alumni mag to print erroneous report of two classmates as being gay. Defamatory? [New York Post, Smoking Gun; Julie Hilden a while back]
- Trial begins in Kentucky of civil suit arising from the string of McDonald’s strip-search hoaxes Ted wrote about last year [OnPoint News, Louisville C-J/USA Today]
- Woman who nearly froze to death after a night of drinking sues city, emergency personnel and taxi driver who dropped her at home [five years ago on Overlawyered]
BP explosion trial: the uses of voir dire
It has long been noted that lawyers can (when judges let them) employ the process of jury selection to plant themes, factoids and manipulative images favorable to their cause before a trial even gets under way. Which brings us to the just-begun Galveston trial of lawsuits against BP over a deadly 2005 explosion at its Texas City, Tex. refinery:
As Brent Coon, an attorney representing four of the five workers whose lawsuits are set to be tried, talked to potential jurors, he displayed a picture of Enron’s logo on two large screens behind him.
Jim Galbraith, one of BP’s attorneys, objected to the oil company being compared to what happened at Enron, which went bankrupt in 2001. Galbraith accused Coon of arguing his case before the trial had begun.
“We are not trying to say BP is Enron. But Enron did have a major case with a lot of publicity and did a lot of things wrong,” Coon said before state District Judge Susan Criss ordered the Enron logo off the screens. …
Galbraith later objected when Coon showed the jury pool of more than 200 people a well-known photograph of major tobacco company CEOs raising their hands in 1994 just before they testified to Congress that nicotine wasn’t addictive when internal documents showed the companies knew the opposite was true.
“He’s still arguing his case,” Galbraith said.
Criss later told Coon he couldn’t show any more of these images. …
Just to confirm for those who may be wondering, BP, long known as British Petroleum, is not a tobacco company and has no particular connection to Enron other than being in the energy business. Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff’s attorneys who are not Brent Coon. (Juan A. Lozano, “BP Objects to Enron Comparisons”, AP/Forbes.com, Aug. 31).
Postcard from Interlaken
Ted is on vacation in Europe, and sends the following:
So Slim and I went paragliding in Interlaken, Switzerland, today. As the van takes a group of five customers up to the top of the hill, the leader explains that we’ll each get to pick our tandem pilot.
I consulted my inner economist. “I want the one with the gray hair,” I said.
The pilot, Robi, gave me a form. “Regulations. Just like any air flight, we need to have the name and destination recorded. The liability is just like Continental Airlines,” handing me a ticket to sign. I read the back, expressly disclaiming that Air Transport laws applied, and stating maximum liability would be 72,500 francs. And since it’s Switzerland, the law of contract is probably respected, so that’s a real waiver. Fair enough — if I do not fly, so much as plummet, my ability to recover in civil court is perhaps the last thing on my mind. My pilot has plenty of economic incentive to land safely such that civil liability does not add much at the margin. And Coase teaches us that the limited liability permits the price to be as low as it is. I accept the benefit of the bargain, and assume good faith that the professional paraglider is just unfamiliar with the nature of the forms rather than trying to snow me.
The fact that I’m writing suggested that I survived. But I’m pretty confident that one is not supposed to bounce on the side of the hill during takeoff. (Slim, whose launch was after mine, reports that one of the other pilots crossed himself at the time.) And, hey, fun.
Examiner series on trial lawyers
The Examiner, the newspaper chain with outlets in Washington, San Francisco and other cities, kicks off a five-part series on “Lawyers Gone Wild” with a package of articles including “Is There a Doctor in the House…Who Hasn’t Been Sued?“, “High-dollar settlements mark class action cases“, “Little relief: Litigation costs rising as firms face fewer suits“, and “Rogues gallery of class action attorneys“. I’m mentioned, as is this site, in the last of these articles, and my colleagues James Copland and the Manhattan Institute Center for Legal Policy are mentioned in the articles on class actions and litigation costs. The authors are Cheryl Chumley and Washington Examiner editorial page editor (and blogger) Mark Tapscott.
Four more installments are slated in the series. To quote the newspaper:
* Sept. 21 – Buying political power and friends in high places
* Sept. 28 – How they do it
* Oct. 5 – Hard times in super lawyer land
* Oct. 12 – Securities lawyers’ heads we win/tails you lose deal for corporate America
(cross-posted, with slight alterations, from Point of Law).
Update: Great moments in lawyer discipline
Reader Eric Bainter writes:
The shenanigans of the NC prosecutor Mike Nifong got me to thinking about misbehaving attorneys in general; me being from the San Antonio area, this led me to wonder “whatever happened to those attorneys in the fraudulent suit against Chrysler?” (covered on Overlawyered May 23 and Jun. 26, 2000; Mar. 17 and Jul. 10, 2003; Aug. 1, 2006). During a fit of insomnia I decided to find out.
I started by checking the coverage on your site which most recently had noted, in the post from August of last year, that the Texas bar had still not yet gotten around to dealing with Andrew Toscano, one of the lawyers implicated in the affair. I searched the Texas Bar website, and found this was not quite true – Toscano got his discipline, such as it is, the day before your entry. I have copied and pasted beneath (after the jump) the entries for all three lawyers. Robert Kugle, the central figure in the fraud, got disbarred in 2003. The other two, Toscano and Robert L. Wilson III, only relatively recently got their punishments – two year suspensions – and if I understand the term “fully probated” correctly, their “suspensions” are “suspended” and they can still practice law. Each was fined $2500 in attorney’s fees and court costs – I assume this goes to the Texas Bar. No mention of the $1 million in sanctions from Judge Peeples.
I also found this article from Law.com that sheds some light on the “suspensions”.
I searched on the Internet for the current whereabouts of Toscano and Wilson. Andrew E. Toscano apparently now practices with a firm called “Gene Toscano, Inc.” I don’t know whether that is a relative of his, or Andrew’s middle name happens to be “Eugene” and he has decided to practice under that. No website for that firm that I can find.
Robert L. “Trey” Wilson III apparently practiced environmental law for a while after leaving Kugle’s firm (or maybe Kugle’s firm left him?) — the San Antonio bar featured him in its newsletter last December. I also found a now-defunct profile/bio page within the website of the attorney Louis Rosenberg, who does environmental law in San Antonio, but I do not notice any current mention of Wilson’s name on Rosenberg’s home page — he is not in Attorney Profiles, for example. If “Trey” worked there, I suspect he no longer does.
My temporary bout of insomnia seems over now. Best wishes,
Eric Bainter
[details of Texas bar discipline follow after the jump]
Update: “SCO Group files for bankruptcy protection”
“Three and a half years after launching a high-profile legal attack on Linux, The SCO Group has filed for Chapter 11 bankruptcy protection. …the company’s legal case was dealt a crushing blow in August, when the federal judge overseeing its case, Dale Kimball, concluded “that Novell is the owner of the Unix and UnixWare copyrights.” Presumably the law firm of Boies, Schiller & Flexner, which was pursuing SCO’s ambitious anti-Linux claims on contingency, has had to scale back its expectations of a payday (Stephen Shankland, CNet, Sept. 14). Earlier: Nov. 6, 2003, Nov. 13, 2004. More: Roger Parloff, Fortune “Legal Pad”.
Blind item
Which nonprofit has put out a newsletter whose contents consist of more than a half-dozen news vignettes, all recently covered on Overlawyered, but provides no clue to readers that the stories might have been found via this site? And has done this more than once?
Coyote’s environmental audit
You’d think it was for a nuclear waste plant, not a small pair of marinas on a Colorado lake (Aug. 16). If you’re going to store batteries in a shed, apparently you need to hang a sign saying “Batteries” on the shed (TJIC, Aug. 16). But then, “Colorado is one of the states I have to have a special license to sell eggs.”
P.S. And in the same vein, here’s Prof. Bainbridge being told by L.A. permits authorities that according to zoning records, his house does not exist (Sept. 12).
“Need some cash? Sue Google!”
It seems everyone else is (Michael Myser, Wired News, Aug. 21).