Overlawyered: Chronicling The High Cost Of Our Legal System

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Web disputes of the future two weeks

A popular blog meme is the Mingle blog rating (e.g. Bainbridge, Opinio Juris). You won’t see it here: movie ratings are trademarked by the Motion Picture Association of America, and they come down like a hammer on those who use the trademarks, and this blog-meme not only uses the letter rating, but the actual MPAA symbol. Unfortunately, US trademark law forces the MPAA to take a heavy-handed approach, because of the alternative: forty years ago, they did not seek trademark protection for their new “X” rating and as a result, the rating became a generic symbol for hard-core pornography (and infantilized the commercial moviegoing public: because now most theaters and brick-and-mortar video stores refuse to offer anything rated harder than “R”, we no longer get such movies, unlike the early 1970s when major studios would make X-rated movies with stars like Marlon Brando or Dustin Hoffman).

(And how well does the blog meme work? Well, the gizmo shares the MPAA’s left-leaning sensibilities: we got bumped to a “PG” because of multiple uses of the word “gun.”)

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Bloomberg gun lawsuits will go on

Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we’ve covered these suits extensively. (See, e.g. May 2006, Jun. 2006, Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted “stings” in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.

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Pet store not at fault for letting customers bring in pets

“A 5-year-old girl bitten by a Rottweiler puppy in a Petco store cannot sue the pet supplies chain because it has a policy of allowing its customers to bring their pets into its stores, an acting New York Supreme Court justice has ruled, noting the policy reflects ‘an industry-wide standard’ designed for the benefit of pet store customers. The summary judgment ruling also exonerated the owner of the Rottweiler, finding he had no reason to suspect that the 8-month-old puppy had a ‘vicious propensity.'” Plaintiffs say they’re going to appeal, though. (Daniel Wise, “Bid Challenging Pet Supplies Retailer’s Pet-Friendly Policy Fails”, New York Law Journal, Aug. 8). Earlier: Dec. 14, 2003.

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“The Party of the First Part: The Curious World of Legalese”

In the mail, not read yet but looks amusing: The Party of the First Part: The Curious World of Legalese by Adam Freedman, “Legal Lingo” columnist for the New York Law Journal Magazine. Freedman observes that “For better or worse, the instruction manual for today’s world is written by lawyers” and aims to reach an audience of “everyone befuddled, enraged or intrigued by legalese — even lawyers.” Freedman’s website features a “Golden Gobbledygook” contest and “Legalese Hall of Shame”; you can order the book through Amazon here.

August 22 roundup

  • Criminal charges dropped against Oregon 13-year-olds over fanny-swatting in school corridors [CBSNews.com, Malkin, KGW.com and AP; earlier]

  • Elasticity of “medical error” concept: Medicare will stop paying hospitals for treatment of “reasonably preventable” injuries that happen in hospitals, such as patient falls — we all know those are preventable given enough duct tape [NCPA, Right Side of the Rainbow; and before assuming that bed sores invariably result from negligent care, read this](more: Turkewitz)

  • Yale University Press beats back libel suit in California court by Muslim charity over allegations in book scrutinizing terrorist group Hamas [Zincavage]

  • Law firms, including Philadelphia’s senatorially connected Kline & Specter, already advertising for clients following Mattel toy recall [Childs]

  • First class action against RIAA over its scattershot anticopying suit campaign [P2PNet]

  • Four Oklahoma inmates claim copyright to their own names, demand millions from warden for using those names without permission, then things really start getting wild [UK Telegraph and TechDirt via Coleman]

  • UCLA’s Lynn LoPucki, scourge of corporate bankruptcy bar, has another study out documenting soaring fees [WSJ Law Blog]

  • Man who knifed school headmaster to death is expected to win right to remain in Britain on grounds deporting him would violate his human rights [Telegraph]

  • Among targets of zero tolerance bans: jingle of ice cream trucks in NYC, screaming on Sacramento rollercoasters [ABCNews.com]

  • Does California antidiscrimination law require doctors to provide artificial insemination to lesbian client against religious scruples? [The Recorder]

  • Alabama tobacco farmers got $500,000 from national tobacco settlement, though fewer than 300 acres of tobacco are grown in Alabama [five years ago on Overlawyered]

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Blogger sued for book review

PZ Myers wrote two posts tearing to shreds Stuart Pivar’s book, LifeCode: The Theory of Biological Self Organization as factually inaccurate. Now he reports on Boing-Boing that Pivar is suing him. (Boing Boing says that Pivar is suing for assault, but this isn’t true: for whatever reason, the district court groups “assault, libel, and slander” in the same category when classifying complaints, and the complaint is just for libel.)

The complaint focuses on Myers’s language calling Pivar “a classic crackpot.” And we all know that the way to prove that one is not a classic crackpot is to sue a blogger for $15 million over a bad book review in a complaint that misspells “its” and the defendant’s name and brags about the plaintiff’s affiliation with Andy Warhol and Prince Charles. Pivar’s attorney is Michael J. Little of New York.

Here is the complaint for your perusal.

Update: Jim Lippard comments, and also has a copy of the complaint. Also: Scientific American notes that Pivar has been a plaintiff 25 times in New York state court; Wired Science also comments.

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A $50 Star-On Machine for Sneetches who wish to be Star-Bellied

Two groups claiming to be American Indian tribes are offering membership for $50. The AP report (via Hit & Run) suggests that the memberships are being sold for purposes of evading immigration laws, but no one explores the affirmative action possibilities, though Dr. Seuss anticipated such a scheme in 1961. Alas, the two groups are not federally recognized Indian tribes, so the deal is just a scam.

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Judge Murphy libel suit update

Via Rossmiller, more on Judge Murphy’s libel suit:

Though [Judge] Murphy won his case against the Herald, he has not emerged unscathed. The Commission on Judicial Conduct filed charges last month with the Supreme Judicial Court alleging that Murphy sent letters to the Herald that constitute “willful misconduct which brings the judicial office into disrepute.”

Murphy sent the letters to Purcell after the verdict, requesting a private meeting to discuss getting more money from the tabloid, according to the commission.

“You will bring to that meeting a cashiers check, payable to me, in the sum of $3,260,000,” wrote Murphy in a handwritten letter on Superior Court stationery. “No check no meeting. You will give me that check and I shall put it in my pocket.”

In another letter, Murphy wrote, “It would be a mistake, Pat, to show this letter to anyone other than the gentleman whose authorized signature will be affixed to the check in question. In fact, a BIG mistake.” A date has not yet been set for Murphy’s hearing on the misconduct charges.

Earlier this month, Governor Deval Patrick rejected an appeal by Murphy to retire early with a lucrative disability pension based on his contention that he has post-traumatic stress disorder as a result of the defamation case.

Murphy, not satisfied with his $3.41 million collection from the Boston Herald, has sued the Herald’s insurance carrier for $6.8 million for alleged bad faith. (Shelley Murphy, “Judge seeks $6.8m from Herald’s insurer”, Boston Globe, Aug. 18). Earlier: Jul. 15, May 11, Dec. 23, 2005, etc.

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Survey of Texas judges

Bill Childs notes a Baylor Law Review study polling Texas judges on whether they think there are problems requiring tort reform based on what they see in their own courtroom.

I can’t imagine why anyone thinks such a study will produce useful results. The study has typical issues, such as the typical anti-reform eliding of what “frivolous” means, ignoring that the state-law definition of “frivolous” differs from the common-sense meaning of the word used by many politicians. Another question asks whether judges have recently presided over cases where compensatory damages awarded were too high, but excludes cases where compensatory damages were required to be reduced by statutory limits, and the authors draw opinions from this intentionally biased question.

But there’s a larger problem with the very nature of the study. Judges who correctly run their courtroom and follow the law are generally not going to have runaway juries, so they are likely to say (and even say correctly) that their juries generally don’t produce outlandish results. The problem requiring reform are judges who are in the pocket of the plaintiffs’ bar, and create judicial hellholes, and let Mikal Watts and Mark Lanier run wild. If such judges thought there was a problem requiring tort reform, they wouldn’t let plaintiffs’ attorneys get away with what they get away with. Most reasonable judges would find it problematic if a plaintiff loaned money to a juror and had phone conversations with them during trial when a jury came back with an implausible multi-million dollar verdict for an overweight 71-year-old man’s second heart attack when he wasn’t even taking Vioxx, but the Starr County judge in Garza v. Merck signed off on the judgment: of course he doesn’t think anything’s wrong with that if he’s polled by professors, but that doesn’t make him correct.

Polling judges in judicial hellholes to find out whether there is a need for legal reform is like polling O.J. Simpson to find out if there’s a problem with domestic violence.

Nevertheless, expect to see the poll widely used by the litigation lobby and their academic water-carriers in upcoming months and years.

Post updated 10:30 PM to clarify nature of questioning.

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