Overlawyered: Chronicling The High Cost Of Our Legal System

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Nifong’s media and law-school enablers, cont’d

An article in the new American Journalism Review (Rachel Smolkin, “Justice Delayed”, Aug./Sept.) lays out at length the sins of the media in covering the allegations of prosecutor Mike Nifong in the Duke lacrosse case. Leading offenders such as the Durham Herald-Sun, New York Times and TV’s Nancy Grace all come in for their share of reproach, but of note also is this on Wendy Murphy, feminist lawprof and frequent broadcast commentator on the case:

One prominent guest on Grace’s show and others was Wendy Murphy, an adjunct professor at the New England School of Law and a former assistant district attorney in Middlesex County, Massachusetts. On April 10, 2006, after defense attorneys announced that DNA results found no links to the athletes, Murphy told Grace, “Look, I think the real key here is that these guys, like so many rapists–and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.”

Emerging questions about the investigation did not prompt Murphy to reassess. Appearing on “CNN Live Today” on May 3, 2006, she posited, “I’d even go so far as to say I bet one or more of the players was, you know, molested or something as a child.” On June 5, 2006, MSNBC’s Tucker Carlson asserted, relying on a Duke committee report, that the lacrosse team was generally well-behaved. Rejoined Murphy: “Hitler never beat his wife either. So what?” She later added: “I never, ever met a false rape claim, by the way. My own statistics speak to the truth.”

Asked to evaluate her commentary, Murphy said in an interview: “Lots of folks who voiced the prosecution position in the beginning gave up because they faced a lot of criticism, and that’s never my style.” She notes that she’s invited on cable shows to argue for a particular side. “You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I’m assigned,” she says. “So of course it’s going to sound like I’m arguing in favor of ‘guilty.’ That’s the opposite of what the defense pundit is doing, which is arguing that they’re innocent.”

The last passage prompts Mark Obbie at LawBeat (Jul. 18) to reflect: “Has there ever been a clearer argument for the utter show-biz meaninglessness of such ‘debate’ shows?”

On a different note, the much-anticipated book on the controversy by Stuart Taylor, Jr. and K.C. Johnson, “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case”, is due out a month from now and is already selling well on Amazon. More: John Steele Gordon, “Racial Role Reversal”, WSJ/OpinionJournal.com, Jun. 20.

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In the olive oil aisle


In this case, the accident-prone shopper’s bad luck was that the store had just installed a surveillance camera. The report is from South Florida’s CBS4.com.

From the comments: fine print

Reader Jim Finkel writes:

Re your post from the New Orleans paper on the fine print in contracts. As I have turned off my cookies (the usual paranoia), to read your article, you have to answer questions and assent for each of the following two pages of the three page article. So even reading the article about click-through, you have to click through and read the fine print. There has to be a point here.

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Prosecutorial abuse “rarer than human rabies”?

So claims Joshua Marquis, vice president of the National District Attorneys Association, commenting on the Nifong-Duke lacrosse case. (Adam Liptak, “Prosecutor Becomes Prosecuted”, New York Times, Jun. 24). The reaction of Washington-based writer Carey Roberts: “Not by a long shot,” as witness a list with familiar names on it like Wenatchee, Wash. and the Scheck/Neufeld Innocence Project, as well as investigations by the Pittsburgh Post-Gazette and Chicago Tribune, and more. (“The Nifong case – how rare?”, Washington Times, Jul. 29).

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Helicopter chases and felony murder, cont’d

Arizona’s East Valley Tribune looks at the question (considered here Jul. 28 first and second post) of whether the fugitive being chased by Phoenix police could be held legally responsible for the crash of two news copters observing the scene. An unrelated local case puts a twist on an otherwise familiar “felony murder” fact pattern:

In an ongoing case, a Phoenix woman faces murder charges in a 2004 robbery attempt at a Mesa check-cashing store following the death of her accomplice. The accomplice was shot and killed by the store’s clerk, who also shot Rhonda Wright multiple times.

Prosecutors reasoned that the clerk would not have pulled his weapon if the assailants had not entered his store.

(Dennis Welch, “Homicide charges in helicopter crash a tough call”, East Valley Tribune, Jul. 29). More on felony murder and the Phoenix crash: Michelle Tsai, “News chopper down”, Slate, Jul. 30.

More: Mike Cernovich identifies another culprit in the chopper crash (Jul. 30).

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Publicity roundup

  • Kind thanks to Oklahoma’s largest newspaper, The Oklahoman, for an editorial recommending that readers “visit… on a regular basis” a certain website that “offers frequent updates on a legal climate gone wild. …an amusing if sad reality check”. (“Batting zero: Litigation reform strikes out” (editorial), Jul. 12; see also 100 Ideas Oklahoma, Jul. 23).

  • All that fine print on contracts — what sort of legal effect does it have, and should you feel obliged to read it? I’m quoted, as are legal bloggers David Rossmiller and Ron Coleman (Katherine Reynolds Lewis, New Orleans Times-Picayune, Jul. 29, and other Newhouse papers)

  • Again with the guru business, and I can’t even fold my legs properly (Joe Palazzolo, “Giuliani Burnishes Conservative Credentials With Choice of Legal Policy Advisers”, Legal Times, Jul. 25)

  • I’m quoted criticizing a federal lawsuit filed against the City of New York for its use of written tests to screen aspiring firefighters’ reading and writing skills (Ari Paul, ” Accuse UFA Head Of Racial Politics; Rip Support of Fire Test”, The Chief/Civil Service Leader, Jul. 27 — not yet available to nonsubscribers). Relevant links here, here, here, and here.

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Running of the bulls

The strength of local animal rights sentiment is not the only reason the event takes place in Pamplona as opposed to Pompano Beach:

…Can you imagine if it were held in America, instead of Spain?

…The running of the bulls would be followed by the running of the plaintiffs lawyers, as they clamor to represent injured parties who, honest your honor, had no idea that such an event could be hazardous to their health. Surely those hold harmless agreements signed by the participants do not absolve public officials of their responsibility to protect people from putting themselves in harm’s way, the class action lawsuit would allege.

(Paul D. Winston, “America not yet ready for running of the bulls”, Business Insurance, Jul. 23).

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Sears wheel alignment class action, cont’d

More coverage of the Sears wheel-alignment case (see May 18) in which lawyers were slated to get $1 million and the client class $2,402 (not $2,402 apiece — $2,402 in the aggregate):

A North Carolina judge has harshly criticized the settlement of a class-action lawsuit in which a Wilmington lawyer and colleagues received $950,000 in fees while consumers who Sears overcharged across the country were reimbursed a total of $2,402.

Superior Court Judge Ben Tennille decried the excessive fees and the lack of effort made to reach customers who had paid too much for wheel alignments at Sears automotive centers. Tennille, who specializes in complex business cases, criticized Sears and the lawyers for trying to hide the settlement results from him.

“Their efforts to keep the results secret are understandable,” Tennille wrote in his May decision. “The shocking incongruity between class benefit and the fees … leave the appearance of collusion and cannot help but to tarnish the public perception of the legal profession.”…

“Doing the math in this case is easy,” the judge wrote. “For each class member who received a $10 check or $4 coupon, plaintiffs’ counsel received just shy of $3,000.”

(Joseph Neff, “Fleeced Sears patrons shorted again in settlement”, Raleigh News & Observer, Jul. 23; Ed Cone, Jul. 24). The settlement was initially brought to a wider audience’s attention by Nick Pace of the Rand Corporation at Consumer Law & Policy blog (May 17).

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Update: restaurant dropped from Josh Hancock suit

St. Louis: “The family of late Cardinals pitcher Josh Hancock dropped a wrongful-death lawsuit against Mike Shannon’s restaurant stemming from the player’s death in April.” The family and its lawyers had been widely criticized (May 24, May 29, etc.) for the breadth of the net they cast in their lawsuit, including the driver and owner of the tow truck into which Hancock smashed, and “the driver of a disabled car on the highway whom the tow truck driver had stopped to help”. (“Shannon’s restaurant dropped from wrongful-death lawsuit”, ESPN, Jun. 30).

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