Despite objections that it is institutionalizing “double dipping”, New York’s highest court has given its assent to a manifestly unfair practice in family court of counting the same income stream twice in calculating support payments. The issue arises because New York, alone among the 50 states, treats enhanced income attributable to a professional license as community property and awards a share of it to the other spouse. The court may then proceed to assess child support payments on top of that against a non-custodial spouse. In doing so, however, courts have been basing child support formulas on the full professional income stream, even though part of that stream is no longer available, having been awarded to the other spouse. “The immediate effect of the [new Court of Appeals] ruling is that an Albany, N.Y., physician must pay his ex-wife two-thirds of his net income, about $91,000 a year, since his child support calculation ignores the fact that she is already drawing from the value of his medical license.” According to the majority of justices, this result simply follows from the phrasing of the state’s child support statute, and the legislature in Albany is free to change it if it is unfair. Dissenting Justices Robert Smith and Susan Phillips Read, on the other hand, point out that the statute in question “expressly permits departure from its formula to avoid an ‘unjust or inappropriate’ result.” (John Caher, “N.Y. Panel Upholds Disputed Child Support Formula”, New York Law Journal, Jun. 14; Holterman v. Holterman opinion, Jun. 10).
Author Archive
The cop and the criminal defense attorney
Ferrell Hunter, a sheriff’s deputy in Tunica County, Mississippi, was a Stakhanovite arrester of motorists on DUI charges, hailed by the state chapter of Mothers Against Drunk Driving as the state’s top such enforcement officer. But something MADD did not realize was that Tunica County has had a peculiarly low rate of actual conviction for DUI defendants. It turned out that Hunter had an arrangement with former Oxford attorney Joe Gregory Stewart: Hunter would provide Stewart with the names of motorists he arrested, Stewart would approach them and sign them up as clients, Hunter would then fail to make court dates so that the charges would be dropped, and Stewart would kick him back $200 or $300 per case. Now Hunter will serve three years probation after pleading guilty to conspiracy to commit extortion, while Stewart was sentenced to three years probation, hit with a $20,000 fine and disbarred. (Andy Wise, “Former Tunica County Deputy Sentenced For Fixing DUI’s”, WREG, Mar. 10)(via Lori Patel).
Mistook dance floor for conference workshop
New Hampshire: “Attorney General Peter Heed resigned abruptly Tuesday because of an allegation of inappropriate conduct with a woman. Gov. Craig Benson said the alleged incident occurred at a conference last month in Bretton Woods on preventing sexual and domestic abuse. …WMUR-TV reported that the alleged incident occurred after hours on a dance floor.” (Kate McGann, “New Hampshire A.G. Heed resigns over misconduct allegation”, Boston Globe, Jun. 15).
Santa Monica sues MTBE lawyers
The city of Santa Monica, Calif. made headlines last year when it won a large settlement from oil companies over MTBE (methyl tertiary-butyl ether)contamination of its water supply, but now it’s locked in a bitter legal dispute with the private law firms it hired over their fee bill, which could reach $66 million. The firms include Miller & Sawyer, Baron & Budd, and Sher & Leff. The case is being watched elsewhere in part because Baron & Budd and other law firms have signed up numerous other state and local governments as clients to press MTBE claims on a contingency basis. (Eric Peters, “Nation watches suit of Santa Monica v. lawyers”, Contra Costa Times, Jun. 6; Blair Clarkson, “City Overcomes Final Hurdle in Oil Suit Battle”, The Lookout, Mar. 4)(see Jun. 11-12, 2002, Nov. 25, 2003). See also Doug Bandow, “Energy Bill Debate Confirms a Lawyer-Democrat Alliance”, Cato Daily, Feb. 14. More (via SoCalLawBlog): Gregory Crofton, “Santa Monica fighting legal bills for MTBE lawsuit”, Tahoe Daily Tribune, Jun. 4.
Australia roundup
Striking a blow for personal responsibility, the High Court of Australia has ruled that a woman who drank too much at a bar and later injured herself cannot recover from the drinking establishment on the grounds it should have cut her off sooner. Chief Justice Murray Gleeson “said the onus should not be on clubs to prevent injury to those who drank to excess” and wrote: “There are many forms of excessive eating and drinking that involve health risks, but, as a rule, we leave it to individuals to decide for themselves how much they eat and drink. There are sound reasons for that, associated with values of autonomy and privacy.” (Michael Pelly, “Blaming the barman is out: court”, Sydney Morning Herald (soon to adopt registration), Jun. 16)(see May 12, 2003). Judges from the highest courts of New South Wales and Queensland are among the latest to be taken in by a widely circulated list of amusing but entirely fictitious court cases which supposedly won “Stella Awards”; our debunking appeared August 2001. (“Our Stella judges”, MediaWatch, Jun. 14). And the High Court in April heard a case which seeks to overturn the longstanding prohibition on negligence suits against barristers by clients harmed by the errors and omissions they make in advancing legal arguments. “Immunity for advocates has been abandoned in many other countries, including Canada and the United States. However, many Australian barristers argue that the risk of being sued would lead to spiralling insurance premiums and costly litigation.” (Sonia Harford, “Lawyers wait on High Court case”, Melbourne Age, Apr. 25).
Karma ran over his dogma: Sheldon Silver sued
The New York assembly speaker, who’s done more than anyone in Albany to keep the right to sue on a continually expanding course, now faces a lawsuit charging him with tolerating an atmosphere of sexual harassment, following extremely ugly allegations of sexual assault against his chief counsel, Michael Boxley. (New York Post coverage: “Silver’s slippery slope” (editorial), Jun. 13; Frederic U. Dicker, “Victim to sue Silver”, Jun. 9; Frederic U. Dicker and Kenneth Lovett, “Silver ‘rape’ blame”, Jun. 10; Frederic U. Dicker, “Pretzel popper Silver dissed my rape claim”, Jun. 14. More on Silver: May 1, 2000; May 11-13, 2001; Dec. 13-15, 2002; Jun. 9, 2003. In other news, powerful Republican State Senator Guy Velella of the Bronx, whose law firm’s successful injury suits against New York City were mentioned in this space May 1, 2000, has fallen in a corruption scandal (“Guy Velella Pleads Guilty”, AP/WCBS, May 17).
Update Feb. 5, 2006: suit against Silver’s office settles for $500K, most of it taxpayer funds.
Ups and downs of a $2.5 million verdict
Roller coaster, indeed: Maryland’s highest court has thrown out a jury’s $2.5 million verdict against the operator of the Six Flags amusement park at Largo over a 1999 incident in which park employees told a family that their 4-year-old daughter did not meet the height requirement for the Typhoon Sea Coaster ride. The family refused to get off the ride and there ensued an altercation with park employees which resulted in several family members being handcuffed and led away to security — none were apparently seriously hurt — before being let go an hour later. How did a dispute of this magnitude snowball into a $2.5 million jury verdict? Well, it seems that although the original charges against the park operators did not make an issue of race, lawyers for the plaintiffs (who are African-American) had repeatedly played up racial angles before the Prince Georges County jury. Finding “a significant probability that the verdict was influenced by improper and irrelevant insinuations by their attorneys and certain of their witnesses of racial discrimination by alleged employees of the corporate defendant,” the court ordered retrial (“Court of Appeals overturns $2.5 million award in Six Flags suit”, AP/InsideBaltimore, May 17; CoasterBuzz, May 18; Tierco v. Williams, opinion in PDF format)(via Insurance Defense Blog, Jun. 1). Just to guarantee the burning up of even more resources, the case spawned insurance coverage litigation (PDF) in Delaware.
Total information awareness — for litigators
Worried about the hypothetical privacy dangers resulting from “data mining” by federal security agencies chasing terrorists? Then you might want to spare a thought for the privacy implications of a commercial service called SmartJury, affiliated with the same database company that has been selling information on private citizens to the government for antiterrorist use. As Alex Tabarrok notes, SmartJury promises to provide trial lawyers with
real-time access to public record information on potential jurors. Within seconds of entering potential jurors, you will receive reports including information such as: Criminal Records; Political Party Affiliations; Bankruptcies; Corporate Affiliations; Real Property Ownership (including value); Motor Vehicle Registrations; Web Site Domain Names; and 2000 Census Information (including median household income, average age, average years of education, and median home value).
Adds Tabarrok: “Helpfully, SmartJury also provides demographic information from survey results to predict how each juror will vote! …the board of SmartJury is littered with well-placed government types like Jack Kemp, William Bennett and Robert Kennedy Jr.”
The Rule of Lawyers on radio
I’m scheduled to be a guest tomorrow morning (Tues.) at 8 a.m. EDT on Jim Blasingame’s “Small Business Advocate” nationwide radio show (more), and then at 10 a.m. EDT on Cincinnati’s WLW. And then on Wednesday from 11 to 12 a.m. EDT I’ll be the guest of Laurie Morrow on Vermont’s “True North Radio“. In each case I’ll be discussing my book “The Rule of Lawyers”, just out in paperback from St. Martin’s/Griffin (more).
If you’re a booker for a broadcast show or other news outlet, you’re aware that it’s at times like this, with books just reaching the stores, that authors and publishers are most eager to cooperate. To ask about appearances, contact Jamie Stockton at the St. Martin’s publicity department: 212-674-5151, ext. 502, or email me directly.
While we’re at it, you just know that The Rule of Lawyers would make an ideal Father’s Day gift, and Amazon (although its stocks are low) offers special shipping guaranteed to arrive by the weekend. It’s also available from Barnes & Noble, Powell’s, and (hardcover) Laissez Faire Books.
Mammography under threat
Confirming the trend we reported on Oct. 3: “A worsening shortage of providers is threatening women’s access to mammograms, says a major new report that found long waits for the breast X-ray in parts of the country. …Fewer radiologists are specializing in breast imaging because of long hours, low reimbursement, heavy regulation and fear of lawsuits,” according to the Institute of Medicine study. In addition, as readers try to lean over backwards lest they be accused of overlooking an ambiguous result, the false-positive rate in mammogram results has nearly doubled since the 1980s, according to the report, which in turn “leads to costly, unnecessary repeat testing as well as the anxiety that women often cite for skipping mammograms.” (Lauran Neergaard, “Scientific advisers urge increased access to mammograms”, AP/San Francisco Chronicle, Jun. 10; “Advisers urge greater mammogram access”, AP/CNN, Jun. 10; report, “Saving Women’s Lives: Strategies for Improving Breast Cancer Detection and Diagnosis“).
The medical blogs have been all over the story: MedRants, Cut to Cure, MedPundit. Last month radiologist Thomas Boyle (“CodeBlueBlog”) deplored some of the economic and regulatory pressures working to kill mammography practice (“Mammactivists Killing the Mammogram”, May 12, see also Jun. 11), and was no less scathing about the legal pressures:
A mammogram is an inherently limited study with relatively low sensitivity and specificity. Unfortunately, the public does not understand these limitations because the exam has been oversold as a diagnostic modality (We are told this is for the public’s “own good?). As a result, people have a difficult time understanding why breast abnormalities are “missed” or “misinterpreted” during routine mammography. Personal injury lawyers ruthlessly take advantage of this dilemma by scavenging mammograms involved in breast cancer cases. They prey on this ignorance by holding radiologists to impossible standards bolstered with retrospective analyses of mammograms done by venal physicians in their stable of “experts”. As a result, mammography is the single highest liability risk for radiologists (and the second highest risk in all of medicine). For a $15 reading fee, radiologists can face multi-million dollar lawsuits.
More: PointOfLaw, Dec. 14.