Overlawyered: Chronicling The High Cost Of Our Legal System

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GOP lawyers move to shut up radio’s “John & Ken”

Only days after Democratic groups sicced lawyers on Sinclair Broadcasting for considering the airing of anti-Kerry footage, it’s the Republicans’ turn to assault unwanted speech, with the McCain-Feingold campaign finance law serving once again as a bludgeon:

In a complaint to the Federal Elections Commission, the National Republican Campaign Committee accused radio station KFI-AM (640) co-hosts John Kobylt and Ken Chiampou of “criminal behavior” for attacking Rep. David Dreier, R-Glendora, and endorsing his Democratic opponent, Cynthia Matthews.

By criticizing Dreier’s positions on immigration, promoting a “Fire Dreier” campaign and making on-air appeals for voters to elect Matthews, the NRCC said, the hosts gave Matthews an unlawful corporate, in-kind contribution of more than $25,000.

“This behavior is illegal and must be appropriately punished,” the NRCC charged, noting violation of the law carries a penalty of fines and jail time.

(Lisa Friedman, “Action filed vs. radio hosts over talk attacks”, L.A. Daily News, Oct. 29; see Calblog, Oct. 28, and Southern California Law Blog, Oct. 30)

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s. 17200 (and Proposition 64) roundup

More about the Magna Carta for California bounty-hunters known as the Unfair Competition Law or s. 17200, which Golden State voters have a chance to rein in tomorrow by approving the much-needed Proposition 64:

* Attorney Harpreet Brar, whose law firm of Brar & Gamulin was among those to arouse public outrage in the shakedown-lawsuit scandal of 2002-03, has been ordered to pay nearly $1.8 million for filing shoddy lawsuits against small businesses and seeking to settle them quickly for cash (see Aug. 20, 2002) (various news sources, via Legal Reader, Oct. 20);

* Justice David Sills’s spirited dissent in the “Six Screws” case in June (mentioned in my Friday WSJ piece) can be found, along with the majority opinion, here. An excerpt from Sills’s opinion to illustrate the flavor:

What is the difference between the $3 million attorney fees award here and the petty shakedowns which made the Trevor Law Group infamous in Southern California? Nothing but the size of the law firm and its target. As this court noted in People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1316-1317: “The abuse is a kind of legal shakedown scheme: Attorneys form a front ‘watchdog’ or ‘consumer’ organization. They scour public records on the internet for what are often ridiculously minor violations of some regulation or law by a small business, and sue that business in the name of the front organization.”

Thus, if the Trevor Law Group sues an auto body shop over not having its license up to date, that is an abuse of the unfair competition law. But if a more established law firm sues a big corporation over an equally trivial putative violation — it is rewarded with $3 million in fees. The net result is to bless the same kind of abuse in which the Trevor Law Group engaged — looking for a hypertechnical violation of some law by a California business and then going after that business under section 17200 as a profit-making venture — with appellate holy water.

* Rutan & Tucker attorney Layne H. Melzer has published a succinct guide to the headaches s. 17200 can inflict on an unwary California businessperson (“A Step Toward Disarming California’s ‘Business Practice Bandits'”, undated, at Rutan site (PDF))

* On the other hand, as we mentioned Jul. 7, there’s a whole blog about s. 17200, written by a class action lawyer who has filed many cases using the law. She has published on the blog a description and defense of the law and a post in opposition to Prop 64. (Fixed 11/1 to correct description of blog’s author and to add last-mentioned link.)

* Tim Sandefur (Oct. 28) examines allegations that Prop 64 would impair the enforcement of environmental laws.

* According to the latest Field Poll (Oct. 30, PDF), proponents of Prop 64 have been gaining momentum as the word gets out about the measure. In late September the proposition was behind by twelve points, 26 to 38 percent. Now the deficit has been shaved to five points, 37 percent No and 32 percent Yes, with a gigantic 31 percent of likely voters still undecided. And Gov. Schwarzenegger has started storming the state at rallies to promote his “road trip to reform” which includes a Yes vote on 64, further improving the measure’s chances if its supporters can be made to turn out at the polls.

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Batch of reader letters

We’ve posted four more letters from readers on our letters page. Topics this time include Nevada’s trial-lawyer-sponsored Question 5, which should alarm not only doctors but anyone who gets sued; the widely disseminated myth that patients suffer bedsores only when medical care is substandard; the risks of being a soldier; and DirecTV’s campaign against owners of hardware capable of intercepting its satellite signal.

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Update: “Letting Children Witness Abuse Not Ground for Taking Them”

Welcome news from New York’s highest court: “A battered woman’s failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child, the New York Court of Appeals ruled Tuesday in a groundbreaking opinion.” (John Caher, New York Law Journal, Oct. 27). Four years ago (see “Battered? hand over your kids”, Jul. 12, 2000) the New York Times reported that city child protection authorities were removing children from homes in which one parent was found to have committed an act of domestic violence on the other, including such actions as slaps and shoving. “The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers.” Update Dec. 19: New York City agrees to change policy.

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Update: billions demanded over WTC cleanup health effects

“Hundreds of people who worked on the World Trade Center cleanup have filed a class action lawsuit against the leaseholder of the towers and those who supervised the job, alleging they did little to protect workers from dust, asbestos and other toxins in the air. … David Worby, a lawyer for the plaintiffs, said he will seek billions of dollars” from Silverstein Properties and four construction companies that oversaw the removal of 1.5 million tons of debris, no doubt teaching a lesson to future construction companies so rash as to volunteer their services for an emergency mission. A spokesman for Silverstein “said the cleanup was conducted by the city and the Federal Emergency Management Agency. ‘We had no control over that operation and no ability to supervise what safety precautions were taken’.” (Karen Matthews, “Class Action Filed Over Health Effects of World Trade Center Cleanup”, AP/Law.com, Sept. 14). See also Nov. 21-22, 2001.

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In today’s WSJ

I’ve got an op-ed in today’s Wall Street Journal (Walter Olson, “Stop the Shakedown”, Oct. 29) discussing ballot measures that voters will decide in six states next Tuesday on litigation reform. For more on California’s s. 17200 “unfair competition” law, discussed in the second half of the piece, follow this link; for more on malpractice law, see our medical liability pages (latest/ earlier).

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Also at Point of Law

All sorts of other stuff is going on at our sister website:

* An all-new featured discussion on medical liability has just begun, proceeding from the publication of an important new empirical study by Stanford prof Daniel Kessler;

* Legal ethicist and law prof Lester Brickman has a commentary on a Manhattan judge’s questioning of legal fees in 9/11 cases;

* The Manhattan Institute is seeking applications for a research fellowship on legal issues;

* Law prof Michael DeBow, familiar to many readers for his guest postings here, is joining the Point of Law blog as a regular contributor, with comments already on flu vaccine, the dismissal of a charity hospital suit, FDA jurisdiction over tobacco, and a new antitrust blog;

* Ted Frank contributes items on malpractice by expert witnesses and on a new study suggesting that experts suffer from some of the same biases as lay observers in high-damage cases, on whether much “pro bono” litigation really helps the public, and on “Robin Hood” school-finance suits;

* Jim Copland welcomes a new and improved website, LegalReformNow;

* I’ve got posts on sanctions for wrongful litigation (did you know federal judges liked the sanctions in their old, stronger form?), collective business guilt, ski slope disclaimers, Sarbanes-Oxley, Judge Posner’s view that both Sherlock Holmes and law reviews are much overrated, liability’s burden on small businesses, and insurance broker scandals (posts in progress). Much more, too; bookmark the site today.

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Update: “O’Reilly Harassment Case Settled Out of Court”

Per Reuters, “Fox News Channel commentator Bill O’Reilly and a co-worker who had accused him of sexual harassment [see Oct. 18] have agreed to settle and dropped all allegations against each other, lawyers for Fox said on Thursday.” “How could anyone demand $60 million for conversations on which they could have hung up?” wonders Wendy McElroy in her FoxNews.com column (“The Sad Evolution of Sexual Harassment”, Oct. 27). Celia Farber was hoping O’Reilly would fight rather than settle; her take, which arises from personal experience in one of the most celebrated harassment trials of the Nineties, is passionately felt and worth reading in full (“No Sexual Dealing”, New York Press, vol. 17, issue 43). And Beldar has some speculations about the terms of the settlement and what they suggest about the strength of the two sides’ cases.

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Bank error not in your favor, collect $250,000

Illinois: “A Madison County woman hopes that at least $250,000 will sufficiently relieve emotional distress she suffered when Bank One allegedly failed to remove unauthorized charges from her account.” Marsha Eubanks is “[r]epresented by Lakin Law Firm attorney Thomas Maag, son of Illinois Supreme Court Justice candidate Gordon E. Maag”. (Steve Gonzalez, “Woman hopes $250k will bring peace of mind”, Madison County Record, Oct. 19).

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The campaign: new at Point of Law

Over at our sister website Point of Law, Jim Copland memorializes one of the more entertaining moments of this election season: arch-litigation advocate Ralph Nader’s denunciation of Sen. John Edwards as a “sniveling coward” for not more forcefully countering Vice President Dick Cheney’s support for malpractice reform at their debate. Jim also comments on trial lawyers’ role in the recent Sinclair Broadcasting brouhaha. Finally, there’s a link to a provocative George Will column on the presidential race from earlier this month.

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