One of the more noteworthy contributions to the recent Business Insurance symposium on tort reform (Feb. 16, not online — see Mar. 15) came from Yale law prof George Priest, who wrote as follows: “The single worst development in modern tort law is that many businesses are now adopting the tactics of the trial lawyers — litigation, including class action litigation — to pursue competitive interests. The recent antitrust class action by Wal-Mart and hundreds of the nation’s retailers against Visa and MasterCard [see Aug. 22 — ed.] was only successful because Wal-Mart convinced the courts to expand class action availability. There are many other examples of businesses seeking an expansion of liability to promote their own interests. Some years ago, MetLife sought an unjustifiable expansion of insurance coverage law in its pursuit of recovery against Aetna. When business pursues a short-term advantage by joining the trial lawyers, the tort reform cause is truly lost.” (& letter to the editor, Apr. 2)
Author Archive
Likely offer for teen who jumped off school bus: $200,000
School district officials have recommended that the Palm Beach County School Board approve an offer of $200,000 to teenager Reyna Francisco, who jumped off the back of a school bus and was injured in a February 2001 incident. Francisco and a friend “had been fighting with another student earlier that day. They pushed through the bus emergency exit and jumped because they were afraid they were being taken back to school to be punished.” District officials have recommended paying a settlement rather than taking chances before a jury on Francisco’s suit charging negligent hiring and supervision of the bus driver, although neither the district nor Florida Highway Patrol investigators blame the driver for the jump. (Marc Freeman, “School Board may give $200,000 to Lake Worth teen who jumped off school bus”, Fort Lauderdale Sun-Sentinel, Mar. 10).
“BBB pulls ad after flak from attorney groups”
The Denver and Colorado bar associations have succeeded in getting the local Better Business Bureau to yank from the airwaves a 15-second ad premised on the notion that there might actually be some attorneys out there who exploit their clients. “You inherited a fortune … You hired a lawyer … Now it’s his fortune,” the announcer says in the ad. Declaring the ad offensive, the bar associations demanded a hearing before the BBB’s own unfair-advertising panel. Jean Herman, president and chief executive of the Denver/Boulder BBB, agreed to pull the ad, saying, “I don’t agree with them … but I don’t want to go around ticking people off”. Ad spots warning about bad plumbers, mortgage lenders and limousine drivers will continue as usual in the BBB’s “Check With Us First” campaign. Interestingly, Greg Martin, deputy executive director of both bar groups, said the groups would not agree to a suggestion that the offending line be amended from “You hired a lawyer” to “You hired the wrong lawyer.” “Obviously, our goal was not to have that ad on TV anymore,” Martin said. (John Accola, Rocky Mountain News, Mar. 13). David Giacalone (Mar. 16) has an excellent analysis. Of course, it remains perfectly normal and acceptable for lawyers’ own ads to promote the idea that other people’s professions and businesses are injurious and not always aboveboard.
Be sure to check out the last few sentences of the Rocky Mountain News article, in which Martin, the bar official, blasts the whole idea of applying to lawyers the BBB approach of documenting a record of complaints so that consumers can see for themselves which operators have numerous unresolved grievances outstanding. Martin says the BBB lacks any “special knowledge about attorneys” and says the profession is already highly regulated by its own (with emphasis, as we might add, on its own) disciplinary committees. Now suppose that some other profession or industry — medicine, say — were to assert that its mysteries are so esoteric, and its success in self-regulation so complete, that lay observers should not presume even to compare notes with each other on their bad experiences with it. Hard to imagine, these days, isn’t it?
The un-Brockovich
Little-known Beverly Hills reporter Norma Zager may be making herself the number one nemesis of glamourpuss toxic-tort-chaser Erin Brockovich-Ellis. Zager, who is with the Beverly Hills Courier, has tenaciously dug into the facts surrounding Brockovich’s and employer Edward Masry’s wild charges about supposed contamination at Beverly Hills High School (see Jan. 3 and links from there, and our Oct. 2000 treatment). (Eric Umansky, “Muckraker 90210: A Most Unlikely Reporter Nails Erin Brockovich”, Columbia Journalism Review — now there’s a magazine we haven’t often had a chance to quote favorably–, Mar./Apr.).
On Pa. court sleaze, a kind of hush
Profile of a maverick attorney who after decades of fighting machine corruption and courthouse politics in Pennsylvania is now working for malpractice reform in the state: “[Bob] Surrick is upset about the silencing of the print media because of the fear of libel suits. He said that during the 18 years that Gene Roberts was the Philadelphia Inquirer’s executive editor, the newspaper won 17 Pulitzers, which was unheard of for a newspaper. But during the 1980s (while Roberts was still editor) Surrick said that the judges and justices started the business of suing their critics, particularly the print media critics, for libel, effectively silencing the Inquirer; after Roberts left, the newspaper no longer did investigative reporting on the judiciary. ‘If the media — the guardian of the truth about what is going on in government — does not tell you, who is going to tell you?’ Surrick asks.” (Eileen Laskas, “Whatever Happened to Bob Surrick?”, CountyPressOnline (Phila. suburbs), Jan. 28) (via Donna Rovito’s Liability Update Information Network). For more on the kinds of legal trouble you can get into by criticizing Pennsylvania judges, see Oct. 24-25, 2001.
Menace of dihydrogen monoxide
We warned them again and again, and now the California town of Aliso Viejo has moved to take action against this environmental horror. (“SoCal city falls victim to Internet hoax, considers banning items made with water”, AP/San Jose Mercury News, Mar. 14).
Welcome New Statesman (UK) readers
The well-known British magazine mentions us in the course of an article taking a more favorable view than our own of the spread of “compensation culture” across the pond (Stephen Grey, “Turn to the lawyers for justice”, Mar. 8). Also in the U.K., the Risk of Freedom Briefing, edited by Roger Scruton, runs a condensation of one of our writings from last year (Walter Olson, “Litigation Un-Limited”, Issue 18). The Chicago Daily Law Bulletin quotes us on the record number of applicants to law schools, in an article alas not online (Jerry Crimmins, “Record crowd knocks at law school doors”, Chicago Daily Law Bulletin, Jan. 13).
Also not online is a Feb. 16 symposium on litigation reform at Business Insurance magazine, which asked the question: “At which level of government are tort reforms best aimed?” Our response: “Trial lawyers lose because they can’t be everywhere at once. If they have to worry only about fighting running skirmishes at the state level, they’ll usually do pretty well at blocking reform. But when a big campaign goes on for federal-level tort reform, even if it fails — which it usually seems to — a bunch of states will often manage to pass serious reforms, as happened last year in Texas and elsewhere. Washington also has an indispensable role to play in setting ground rules for state-court lawsuits against out-of-state defendants, not to mention the large class of cases that arise under federal law.”
N.Y. midwives, cont’d
The way the cookie crumbles
“‘But it’s getting harder to sell,’ said Ms. Super [Laurie Super of Downingtown, Pa.,] , who was a Girl Scout. ‘Girls can’t go door to door without an adult these days. Our local Wawa stores [a Northeastern convenience chain] said that they couldn’t let the girls set up their booth anymore, because of liability issues. And the schools are already sending the kids out selling all the time.'” (Julia Moskin, “Crave Thin Mints? Girl Scout Cookies Available on eBay”, New York Times, Mar. 14).
Corporate law’s Jarndyce
“Corporate law’s version of Jarndyce v. Jarndyce — Cede & Co. v. Technicolor, Inc. (a.k.a., Cinerama, Inc. v. Technicolor, Inc.) — has dragged on for over two decades” and has now reached (perhaps) final completion in the Delaware chancery court. Professor Bainbridge has details (Mar. 11).