Overlawyered: Chronicling The High Cost Of Our Legal System

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Little white lies — to protect the bar’s image

The Texas Young Lawyers Association has published one of those “Fact/Fiction” guides to the jury selection process. Among its assertions: “Fiction: Lawyers ask questions designed to figure out who will help reach a verdict in their client’s favor.” And, by contrast, “Fact: The main thing we’re looking for from potential jurors is the ability to be open to both sides of a debate.”

Clay Conrad at JuryGeek (Dec. 18) finds this a good example of “Why People Think Lawyers Are Liars” and explains:

Let me make it clear: any associate with my law firm who looks mainly for jurors to be open to both sides of a debate will be unemployed before Voir Dire is over. We want jurors who will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE consider the other side of the debate. We want jurors who are 100% biased towards our side, 100% hostile to the other side, and if we can get 12 of them, we want them.

We will settle for a fair and impartial jury, as a bare minimum. We assume, and have never seen this assumption proven wrong, that the other side is also seeking jurors who will be committed to their case, and biased against ours. That’s the way the game is played – and shame on TYLA for lying to the public and prospective jurors about it….

Any lawyer who says he wants a fair and impartial jury is either incompetent (being deluded by bar association PR) or is simply lying, lying, lying. The public knows that. I’ve spoken to many high school classes. I ask them what they think a lawyer wants out of a jury, and they tell me a jury that will vote for their client. We know they know. Yet we strangely persist in lying to them when we know we’ll be caught. That’s either insane or stupid.

What is weird is that bar associations lie, to people who they know will KNOW they are lying, in a vain attempt to improve the public image of the bar. What they are in fact doing is proving to the general public that lawyers are liars and manipulators who cannot be trusted – because they lie when, if they gave any thought to it, they’d know they’d be caught by anyone with two brain cells to rub together.

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Islamic Society of Boston

It’s filed lawsuits against “Fox Channel 25, the Boston Herald, and 14 other private citizens and organizations for having conspired to defame the organization.” Its critics aren’t easy to silence, though. (Dean Barnett, “A Mosque Grows in Boston”, Weekly Standard, Dec. 14; Mark Jurkowitz, “Trial and terror”, Boston Phoenix, Nov. 18-24; Jeff Jacoby, “Questions the Islamic Society should answer”, Boston Globe, Jan. 1 (via Dan Kennedy)).

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Hiring illegals = racketeering, cont’d

Plaintiff’s class action lawyers have been making progress lately on theories of this sort, which doesn’t thrill Tom Veal at Stromata (Jan. 3). More: PoL Jul. 17, 2005, Jul. 12, 2004; this site Dec. 13-14, 2001.

More: the Supreme Court has agreed to review carpetmaker Mohawk Industries’ claim that it shouldn’t have to face a hiring-aliens-as-racketeering lawsuit (see PoL Jul. 12, 2004)(Meredith Hobbs, “High Court Will Hear Mohawk’s Bid to Toss RICO Suit by Employee”, Fulton County Daily Report, Dec. 20).

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Bounced check can secure car insurance

Thus ruled the West Virginia Supreme Court in a 4-1 decision, over a heated dissent from Justice Spike Maynard. Reports the Charleston Daily Mail: “Stephanie Michelle Conley sent West Virginia National a worthless check just days before she was involved in an accident on Aug. 31, 2001. According to the suit, Conley’s negligence behind the wheel caused injury to three people.” A lower court ordered the insurance company to make good on the policy. Justice Joseph P. Albright, in the majority, said the high court was simply applying existing precedent. (Bryan Chambers, “Car insurance ruling raises concerns”, Huntington Herald-Dispatch, Dec. 10; “Court Upholds W. Va. Woman’s Coverage, Despite Bounced Check”, Insurance Journal, Dec. 12; “Maynard is wrong, Albright contends”, Charleston Daily Mail, Dec. 22).

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“Court decision may frighten fund-raisers”

More on deep-pocket liability for crime, this time from Pennsylvania:

Reversing a lower court, the state Supreme Court ruled 4-2 Wednesday that the parents of a 10-year-old girl assaulted while selling candy for the Punxsutawney Area School District can sue the companies involved in the fund-raiser.

Lawyers on both sides of the case said the decision was likely to have a chilling effect on the wide range of for-profit businesses that help schools and other organizations raise money by sending children door to door.

A lawsuit against the school district was previously dismissed in federal court.

Attorney David Long, who represents the plaintiffs, said school districts “are begging for a lawsuit” if they continue to use such methods to raise funds….

In a dissenting opinion, Chief Justice Ralph Cappy wrote that he believes the girl’s side ultimately won’t prevail. He said that the fund-raising entities did not need to warn that there “exist in the world evil people who could possibly cause intentional harm to minor students.”

(Eleanor Chute, Pittsburgh Post-Gazette, Dec. 30).

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Sovereign immunity, cont’d

Following up on my WSJ piece about the problems that arose for the state of Washington when it came to be exposed to lawsuits alleging that it had failed to prevent some types of crime (see Dec. 24), Mike Tardif of the Washington attorney general’s office (whose co-authored law review article I discuss in the piece) writes in as follows:

I read and enjoyed your article. You have accurately depicted the overall nature of the liability problem caused by creating liability for “governmental” functions and you have accurately summarized the gist of our law review article.

I have one comment on your point concerning why governments do not adjust their behaviors in response to liabilities for broad governmental functions. The primary reason is that what governments do in these areas is determined by the political process, i.e., the basic program, staffing levels, and funding are set by statute and budget. There is little or no ability at the administrative level to change these things in response to jury decisions in liability suits. Ironically, in a suit such as our Joyce case (the $23 million verdict), the Dept. of Corrections has no ability to raise taxes to create the funding for the parole officer positions needed to reach the level of supervision dictated by the broad liability imposed by the Court, but DOC does have the legal responsibility to put money into the risk fund to pay its settlements and judgments, thereby reducing the funds available to hire the parole officers needed to mitigate the risk.

I should also have mentioned that when my piece quoted the interesting comments of Prof. Greg Sisk of St. Thomas University School of Law on sovereign immunity as a species of separation of powers, I was actually quoting from a blog, namely the Catholic group lawblog Mirror of Justice (Oct. 19).

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Update: Dallas paper agrees to second restaurant review

Restaurateur (see comments) Phil Romano has agreed to drop his lawsuit against the Dallas Morning News over its review of his local eatery, Il Mulino, in exchange for the paper’s promise to run a second review of the restaurant in coming months. “While [reviewer Dotty] Griffith handed out 4-star ratings for service and ambience, Mr. Romano took offense at her criticism of some of the restaurant’s main dishes, including entrees featuring its Bolognese and vodka sauces.” We covered the case Aug. 24, 2004. (“Restaurateur, News settle review lawsuit”, Dallas Morning News, Dec. 17)(via Romenesko).

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George Will on tobacco and the states

Reacting to the recent Philip Morris decision (PoL Dec. 15, etc.), the columnist is in righteous form:

The Illinois Supreme Court’s ruling stimulated the market for “tobacco-revenue munis.” Those are municipal bonds backed by tobacco revenue streams resulting from a real fraud — the Master Settlement Agreement. In 1998, 46 states conspired to seize $246 billion from companies that sell products made from a commodity — tobacco — the cultivation of which was then subsidized by the federal government….

The MSA is a deal struck between the state attorneys general and trial lawyers. For the latter, it was a financial windfall, netting about $13 billion in fees that sometimes amounted to tens of thousands of dollars per hour of work. For the former, it was a political windfall, enabling their states to finance this and that with billions paid by smokers, who are disproportionately low-income people….

The states’ ability to continue treating the tobacco industry as a “budgetary Alaska” — the last frontier for exploitation — depends on brisk sales of cigarettes far into the future. So all 50 states, which in 2004 reaped $12.3 billion in cigarette taxes, have an incentive to carefully calibrate these taxes so as to maximize revenue. They want high taxes, but not high enough to cause large numbers of smokers to quit the habit that is so lucrative to states.

(“The States’ Tobacco Addiction”, syndicated/Washington Post, Jan. 1)(more on tobacco litigation).

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Update: Richard Branson not the only Virgin

News from Australia: “A Federal Court judge dismissed the conglomerate’s application to ban a small businesswoman from using the word ‘virgin’ in the name of her internet service provider and website-developing business, and lambasted Virgin for dumping ‘an ocean of unnecessary and unhelpful material’ on the court.” (Vanda Carson, “Branson loses his Virginity”, Dec. 27). For other far-reaching claims by Branson’s company to uses of the word “Virgin”, see Jul. 29.

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Update: “Texas judge dismisses lawsuit against Pope”

Head-of-state immunity comes through for the Pontiff in a case alleging abuse cover-up. See Dec. 14, etc. (Catholic World News, Dec. 22). “The U.S. Department of State issued a suggestion of immunity in May, requesting that the pope be dismissed from the suit. ‘Judicial review of this determination is not appropriate,’ [U.S. District Judge Lee] Rosenthal wrote in the opinion.” (Mary Alice Robbins, “Pope Dismissed From Suit Alleging Sexual-Abuse Coverup”, Texas Lawyer, Dec. 23).