Overlawyered: Chronicling The High Cost Of Our Legal System

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The #1 Threat to Respectability for Lawyers: Bears

Stephen Colbert’s ThreatDown recently included a law firm’s ad that included, yes, bears. In the ad, a bear is holding a small child, as if to suggest that the firm has struck the right balance between, I suppose, bloodthirst and coddling. The fair and balanced ad critique from a WSJ law blog reader:

“As long as Bingham is allowed to advertise with a bear holding a baby, personal-injury lawyers should be able to do whatever they want.”

Clever as the ad is, it really is no different than the woman who morphs into a tiger for an ad I’ve seen in Louisville. It’s not much different from the ads featuring another local plaintiff’s attorney lifting a car. That ad, I believe, is syndicated among dozens of lawyers across the country.

I wonder, though, if Bingham thought to include the standard disclaimer at the bottom of its ad, “Not an actual client. Also, bear is not a member of the bar.”

(crossposted at catallaxy.net)

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Jamie Leigh Jones & “Halliburton” III

Stephanie Mencimer jumps on the Jamie Leigh Jones bandwagon against arbitration (Dec. 12, Dec. 20) and carefully makes a misleading case:

Employment lawyer Cathy Ventrell-Monsees testified before Congress in October that AAA data show that between January 2003 and March 31, 2007, of the 39 Halliburton cases that went all the way to a decision, Halliburton won 32, a win rate of 82 percent. Plaintiffs in employment litigation face a high bar in court trials as well, but even so, that figure is very high. Employers win about 64 percent of all employment cases at trial in federal court and about half in state court, according to data from the Justice Department’s Bureau of Justice Statistics (BJS).

The problem here is that this is apples and oranges: the 32 arbitration cases include cases that are dismissed on summary judgment, whereas the employment discrimination trials (which constitute well under 10% of all employment discrimination claims brought in court) necessarily omit the decisions where the plaintiffs lost on summary judgment. Moreover, it excludes the 96% of cases submitted to ADR that do not result in a full-fledged arbitration because the employee received a favorable result in mediation. (And that’s before we get to the fact that an arbitration decision is final, while the BJS statistics have no follow-up to see what happens on appeal to those larger plaintiff victories.) As multiple studies show, the typical employment plaintiff does far better in arbitration than in court, for far less expense.

Mencimer also repeats the canard that arbitration is problematic because it is “secretive,” though her ability to retell the case of Jamie Jones refutes that. I also note that earlier this week, I sent a request to Jones’s attorney, Todd Kelly, for a copy of her arbitration filings. (Recall that Jones moved for summary judgment in the arbitration, and only filed in court after helping to choose an arbitrator and spending fifteen months of discovery litigating the arbitration.) He hasn’t responded. If Jones’s arbitration is secret, it’s because she has chosen to make it so.

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Jamie Leigh Jones hearing on the Hill

As I suspected, the Jamie Leigh Jones testimony on the Hill quickly devolved away from the Department of Justice’s alleged failures in investigating a rape (the ostensible reason for the hearing) to the completely unrelated issue of her arbitration agreement with KBR and her attempt to conflate KBR with Halliburton, something welcomed by the litigation-lobby blogs that did the same thing. (KBR wasn’t invited to send a representative to the hearing.) Jones misrepresented the arbitration as “secret,” though the arbitration proceeding is just as public as a court proceeding to the extent either party wishes it to be. To that end, I invite Ms. Jones to send me the summary judgment briefs from her pending arbitration proceeding against KBR that led her attorneys to file a second action in court making new allegations against Halliburton, and I will happily post them and provide free publicity analyzing them. From the KBR briefs:

Jones has admitted that she is a party to an arbitration agreement and has invoked and
benefited from the terms of the DRP by participating in a pending arbitration proceeding
involving the same claims. She made a demand for arbitration more than a year before filing this lawsuit, participated in the selection of an arbitrator, exchanged discovery and even moved for summary judgment.

For more on arbitration, see Mark de Bernardo’s testimony and Overlawyered’s arbitration section.

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“I Am Lawsuit Abuse”

The Institute for Legal Reform has a new website, I Am Lawsuit Abuse, with some really high-quality production values. At the moment, the site highlights four stories of lawsuit abuse (including the infamously unfortunate defendant Chung Dry Cleaners), with videos for each story, and a smattering of links to news articles about wacky lawsuits. No link to Overlawyered, though.

Judicial Hellholes 2007

ATRA’s remarkably successful annual Judicial Hellholes report highlighting the high and low points of several jurisdictions’ legal systems is out. (PDF) Regular readers will recognize many of the stories and jurisdictions (and an op-ed I wrote even gets a shout-out), but the report is a handy summary of the year in tort reform and lawsuit abuse. Lots of news coverage (AP/Fool.com; National Law Journal; the Examiner; others) and blog coverage (Lattman; Bader; Torts Prof; NAM; NAF; Murnane; Pharmalot).

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Contracts no good in Utah: Rothstein v. Snowbird Corp.

In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we’re in trouble.

Edited to add: For some reason, multiple commenters who haven’t read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn’t going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.

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Eyesore preservation

The brutalist-modern Third Church of Christ Scientist is one of the most widely disliked buildings in Washington, D.C., not least by its own congregation, which groans at the impracticalities of maintaining the concrete monstrosity: “According to one church official, you’ve got to build scaffolding just to reach some of the [light] bulbs [to change them].” But Washington’s local architectural-preservation authorities forbid the congregants from replacing the building, which dates all the way back to 1971. (Charles Paul Freund, “A Brutalist Bargain”, American Spectator, Dec. 18).

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Update: N.M. pipeline rescuers can sue for emotional distress

Three years ago we prematurely reported that sanity had (as of that point) prevailed in the New Mexico case where firefighters and emergency medical personnel, otherwise uninjured, were seeking to sue El Paso Natural Gas over the emotional trauma of witnessing the disaster scene after a 2000 pipeline explosion. Earlier this month, however, the New Mexico Supreme Court ruled the other way, poking a big hole in the “firefighters’ rule” which traditionally barred recovery by rescuers against those who cause accidents. Chief Justice Edward Chavez wrote that to throw out the emotional-distress suits would be to “reward reckless or intentional acts”. The suits now head to trial. (Stella Davis, “Responders can sue in pipeline explosion”, Carlsbad Current Argus, Dec. 5).

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