Nicole Black is throwing a contest; thanks to the readers who nominated us (and the one who dissented was awfully nice about it too). P.S. We’ve made the finals and readers can vote through Jun. 25 (& discussion at QuizLaw).
Archive for the ‘Uncategorized’ Category
The Litigation Lobby’s “frivolous” bait-and-switch: the Judge Roy Pearson pants-suit
Second Milberg Weiss Justice Fellow, same as the first? Bizarro-Overlawyered twists itself into contortions over the infamous $54 million Judge Pearson pants-suit. Cyrus Dugger’s replacement as Milberg Weiss Justice Fellow, Kia Franklin, recognizes that the anti-reform cause can’t be seen endorsing the patently-ridiculous lawsuit that is the laughingstock of the world. So, she dances over the issue: yes, this case is frivolous, but frivolous cases are rare, so there are no lessons to learn from the fact that a small business was forced to pay tens of thousands of dollars litigating an overbroad consumer-fraud claim, to the point that it was willing to pay $12,000 over a pair of pants to make the lawsuit go away and stop the financial bleeding.
Her evidence is a Public Citizen study—but she ignores our 2006 post noting that Public Citizen got its math wrong, and even distorts the distorted statistic beyond what Public Citizen claimed. (Public Citizen gerrymandered its claim to falsely say businesses were 69% more likely to be sanctioned for frivolousness than individual tort plaintiffs, but Franklin misreads that to say individuals, which is false even by Public Citizen’s numbers, which found by its own measure that individuals were sanctioned for frivolousness 86% more often than corporations. Note also the difference between the inaccurate “more likely” and “more often.”)
The really funny thing is that, under the Public Citizen narrow definition of “frivolous lawsuit” used in its study, Judge Pearson’s suit is not frivolous! When politicians speak of “frivolous” cases, they use it in the everyday English sense of “silly”: they mean the meritless cases, where, because of far-fetched legal theories, junk science, or overbroad liability rules, plaintiffs seek or realize recovery far beyond what makes good social policy—cases like Roy Pearson’s. Public Citizen’s study, however, in a typical litigation-lobby bait-and-switch (see, e.g., the Kerry/Edwards malpractice reform plan), defines “frivolous” with the narrow technical legal definition so that it can conclude (like Franklin) that frivolous litigation is “rare” and thus not a problem. (Amazing how many problems disappear when you assume them away.) The definition is so narrow that Pearson’s suit is outside of it: Pearson defeated motions to dismiss and for summary judgment, and received a $12,000 offer of judgment. (Pearson is apparently sufficiently emotionally troubled that he thinks he has a better shot seeking tens of millions from a couple of immigrant Korean dry cleaners than the thousands of dollars offered in settlement for a pair of pants, even though the judge who will be ruling on his case has given him plenty of hints that he has no hope of success.) The Pearson suit would have been excluded from Public Citizen’s count of frivolous suits for a second reason: Public Citizen ignored pro se lawsuits brought by attorneys like Pearson in its count of frivolous suits, as it had to to deflate the number of sanctions issued against individual tort plaintiffs and falsely claim that corporations are sanctioned more often.
We’re excited to see Franklin join the world of reformers and recognize that many more lawsuits are frivolous than what Public Citizen recognizes. We encourage her to read the data and arguments of those she mistakenly claims to oppose, and to scrutinize those she mistakenly thinks are her allies a bit more closely. Why is it alright for wealthy white trial lawyers to extort billions from big business using the same ad terrorem tactics (and even the same consumer-protection laws!) as a poor African-American pro se did to extort $12,000 from a small business? We encourage Franklin to examine the Association of Trial Lawyers of America’s racial double-standard.
And since Franklin agrees that the Pearson lawsuit is frivolous, we are eager to hear how she would define a frivolous lawsuit, and hope that she uses that definition consistently for both the Milberg Weisses of the world as well as African-American city employees.
Privacy laws and Seung Hui Cho, cont’d
Better late than never:
Virginia Tech has provided some of Seung Hui Cho’s medical records to a panel investigating the April 16 massacre, after negotiating with family members to waive their privacy rights….
The records were released after weeks of frustration among the eight panel members over not being able to analyze Cho’s mental health in the years leading to the massacre, the worst mass shooting by an individual in U.S. history….
…panel officials said Thursday that they will continue to press for additional records, which also are protected under state and federal privacy laws.
(Tim Craig, “Panel Given Some Medical Files on Cho”, Washington Post, Jun. 15). And from a Thursday news report, also in the Post:
Authorities’ abilities to identify potentially dangerous mentally ill people are crippled across the nation by the same kinds of conflicts in privacy laws that prevented state officials from being able to intervene before Seung Hui Cho went on his rampage at Virginia Tech, according to a federal report commissioned after the Blacksburg shootings that was presented to President Bush yesterday.
Because school administrators, doctors and police officials rarely share information about students and others who have mental illnesses, troubled people don’t get the counseling they need, and authorities are often unable to prevent them from buying handguns, the report says.
(Chris L. Jenkins, “Confusion Over Laws Impedes Aid For Mentally Ill”, Washington Post, Jun. 14). My writings on the topic from April are here, here and here.
Vienna, Va. attorney Thomas J. Fadoul, Jr., who represents twenty victim families, has threatened to sue unless a family representative is appointed to the panel investigating the massacre so as to help “steer” its proceedings; Virginia governor Tim Kaine has replied that the panel was chosen so as not to include parties involved, and noted that the panel does not include any representative of Virginia Tech itself.
Keeping of caged birds
…could soon be banned in Norway under pending animal welfare regulations. (“May ban caged birds”, Aftenposten, Jun. 13).
AutoAdmit message board lawsuit
The controversy over bathroom-graffiti postings at the law student site Autoadmit/xoxohth.com (May 3, May 20) has now developed into litigation:
two [unnamed] female Yale Law School students have sued Anthony Ciolli, the Web site’s former “chief educational director,” and more than two dozen others who allegedly used pseudonyms and posted the students’ photos as well as defamatory and threatening remarks about them on the online law-school discussion forum.
(Amir Efrati, WSJ Law Blog, Jun. 12). Lawprofs David N. Rosen (Yale) and Mark A. Lemley (Stanford) are assisting the plaintiffs, and Rosen told the WSJ Law Blog in an interview that the case was about “bringing the right to protect yourself against offensive words and images into the 21st century,” calling the postings “the scummiest kind of sexually offensive tripe.” Discussion: Eugene Volokh, Ann Althouse , Glenn Reynolds, David Lat, Patterico.
Girls Gone Litigious
Famous excuses: “I didn’t know it was loaded.” “It’s not mine; I was just holding it for a friend.” “It was like that when I got here.” “Nobody told me that fast food could make me fat.” Oh, and this classic, beloved for millennia by authors, screenwriters, and trial lawyers alike: When I climbed upon the Girls Gone Wild tour bus and they filmed me taking my clothes off and having sex, I didn’t think they were going to use the footage.
That last one is the excuse that two Florida women are using in the lawsuit they filed against Girls Gone Wild this week for using their sexual antics in one of its Spring Break videos. (Well, yes, they did take off their clothes for the camera, but they didn’t think that GGW was going to sell the video. And they didn’t consent. Well, maybe they did, but if they did, they revoked their consent. Besides, they were drunk. And that’s the producers’ fault, because they gave these women alcohol.)
It’s not as if one should necessarily feel great sympathy for Girls Gone Wild — its founder, Joe Francis, seems to be a less-than-upstanding individual. But who’s more exploitive? The guy who films drunk people at spring break doing what drunk people at spring break always do? (And unlike in some cases of this type that we’ve covered, the plaintiffs were adults at the time of the filming.) Or the people who wait to see how much money he makes — according to the story, the video in question was published back in 2003 — and then charge to the courts to extract it from him with incredible claims?
(Previous Girls Gone Wild coverage: Aug. 2006 and links therein)
Dog bites taxpayers
In 2002, a couple of Rottweilers attacked and seriously injured Marguene St. Juste, a woman in Delray Beach, Florida. Last week, the jury awarded this woman $3.76 million for her injuries. Routine — if expensive — dog bite case, right? The patented Overlawyered twist? The jury decided that the owner of the Rottweilers, who had allegedly repeatedly allowed the dogs to run free, was only 40% responsible for this tragedy. The other 60% of the blame — no, not the dogs, or the victim, or the doctors who treated her, or anybody obvious like that. Rather, the majority of the responsibility was assigned to the city of Delray Beach, Florida.
(The allocation of fault might call into question the value of defense attorneys; the dogs’ owner didn’t even bother to defend herself, and defaulted in the case, while the city defended itself vigorously. And yet the city bore the brunt of the verdict. Of course, a plausible alternate explanation is that the plaintiff simply picked on the deepest pocket, and the jury went along out of sympathy.)
The city was blamed based on the theory that the city knew that the dogs were running loose — the city disputed this, arguing that they never actually witnessed the dogs unsecured — and failed to impound them, as its city ordinance required. But even if the allegations against the city are true, how can it make the city more liable than the owner?
More importantly, why should it make the city liable at all? It doesn’t in other contexts; you can’t sue the police for failing to arrest a dangerous criminal, for instance. (It’s well-established that the police do not have a legal duty to protect you, absent special circumstances.) Once again, we see trial lawyers perversely arguing that an inconsistently-followed safety rule should make a defendant more liable than not having a safety rule at all. If Delray Beach had no animal control ordinance, it could not have been sued under these circumstances. But because it had one, taxpayers rare on the hook for up to $2.2 million. Now, we don’t expect trial lawyers to care about the incentives that their lawsuits create; after all, they’re just in this game for the money. But shouldn’t our legal system factor in these public policy considerations?
(I should note that there is one circumstance in which it is logical to punish a defendant for not following its safety rules: when an injured party took an extra risk in reliance upon the safety policy, and then the defendant failed to follow that policy. But that’s not the situation presented here. The victim wasn’t attacked by the dogs because of the policy.)
Welcome TimesOnline readers
And thanks to the TimesOnline for naming us one of the top three business legal blogs worldwide as part of its list of the top fifty business blogs. Here’s a link to our coverage of UK issues, or read Walter’s posts about Walter Olson’s Times (UK) columns.
“Running Doctors Out Of The Emergency Room”
Reader J.B. points us to Tampa physician David Lubin writing in the Tampa Tribune June 11 on the Lucia med-mal verdict we discussed in May. The column is must-read:
Spoof of “The Hammer” TV ads
It seems those Jim (“The Hammer”) Shapiro TV ads (Feb. 6, Mar. 7, Apr. 9), in which the ethically-challenged former Rochester attorney rants in manic style as explosions and other violent footage roll in the background, have inspired parodies on YouTube. The one above, featuring “Jack (The Hammer) Shapiro”, is from Canada-based DevoImprov; a second parody of a more homemade texture can be found here.