Overlawyered: Chronicling The High Cost Of Our Legal System

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Update: Dallas Observer doesn’t owe $1 billion

We reported on the story in September 2004:

“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”—which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars.

Positive Voices is a group that advertises itself as consisting of HIV+ members. A Texas state court of appeals reversed the decision of the trial court not to grant summary judgment, and entered judgment for the defendants. (John Council, “Texas Appeals Court Sides With Newspaper in $1 Billion Suit Over HIV Disclosure”, Texas Lawyer, Feb. 13; New Times Inc., et al. v. John Doe., No. 05-05-00705-CV (Tex. App. Jan. 24, 2006)).

The decision was limited to the facts of the case, however, and the state statute remains overbroad, and could easily be construed by future courts to apply to the media. Or even personal-dating websites: a strict interpretation of the statute, HSC ยง 81.103, would create a cause of action for a plaintiff who posts “I have tested negative for HIV” on a website that screens essays against that website. And the statute is conceivably even broader, given its definition of “test result”:

“Test result” means any statement that indicates
that an identifiable individual has or has not been tested for AIDS
or HIV infection, antibodies to HIV, or infection with any other
probable causative agent of AIDS, including a statement or
assertion that the individual is positive, negative, at risk, or
has or does not have a certain level of antigen or antibody.

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Tribunes of privacy, cont’d: cell phone records

Another entry in our ongoing series about how unlikely it is for the U.S. legal profession to assume a convincing pose as guardians of everyone’s privacy:

Attorneys are among the top customers of the controversial Web sites [which sell access to cellphone records without customers’ consent], according to private investigators, privacy advocates and Web site operators who sell the phone records.

“Let’s put it this way, the legal profession is keeping it alive,” said Rob Douglas, a former private eye turned security consultant who has helped the Federal Trade Commission investigate and prosecute online operators that sell phone records.

“I’ve investigated them with the federal government and in private lawsuits … and in every single case, the overwhelming majority of users of these companies are attorneys,” Douglas said.

These attorneys include divorce lawyers, who want to know who feuding spouses are talking to; business lawyers, who want to know who their clients’ competitors are talking to; and employment lawyers, who want to know if employees are selling any trade secrets.

(Tresa Baldas, “Will Lawyers Get Hung Up in Quest for Cell Phone Records?”, National Law Journal, Feb. 10). A few earlier entries: Jul. 22, 2003; Apr. 14 and Jun. 15, 2004; Feb. 7 and Feb. 9, 2006.

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Update: garden-center bird attack

Alton, Ill.: U.S. District Judge William Stiehl has thrown out Rhonda Nichols’ lawsuit (Apr. 14, 2005) claiming that she was attacked by a bird at a Lowe’s home improvement center, and that Lowe’s should have warned her about the hazard. Judge Stiehl ruled “that a ‘reasonable plaintiff’ either would have noticed the birds or understood that contact with them was possible in any outdoor area with plants.” (Jim Suhr, “Woman’s suit against Lowe’s for bird attack won’t fly”, AP/Chicago Sun-Times, Jan. 5). Courthouse News has the opinion (PDF).

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Anne Brunsdale, RIP

Anne Brunsdale, who died recently at age 82 following a long illness, was beloved by a large circle of friends in Washington, D.C., in her native Upper Midwest, and around the country. At the American Enterprise Institute in Washington she founded and edited the magazine Regulation (where she hired me in 1980 to work with her as an associate editor; I left to join the Manhattan Institute four years later). Her career culminated in a presidential appointment to a seat on the International Trade Commission, where she rendered distinguished service for a decade, including some years as chairwoman.

I won’t use words like “mentor” and “role model” to describe Anne’s influence on me, if only because I can imagine her penciling them through with a notation in the margin, “jargon“. I will say that no one in my professional life ever taught me more about how to write, or work with others, or behave as an adult, or see past the political enmities of the day. When I dedicated my book about legal conflict in the workplace, The Excuse Factory, to Anne, it was the inevitable tribute of memory to the perfect boss. If you’d like to learn more about her life and work, Claudia Anderson, long a close friend of hers, has written a very fine appreciation in the new Weekly Standard.

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Why they aren’t running the cartoons

The Boston Phoenix (“World of Pain”, Feb. 9) tells readers that “frankly, the primary reason” it isn’t going to run the Danish Muhammed cartoons:

Out of fear of retaliation from the international brotherhood of radical and bloodthirsty Islamists who seek to impose their will on those who do not believe as they do. …Simply stated, we are being terrorized, and as deeply as we believe in the principles of free speech and a free press, we could not in good conscience place the men and women who work at the Phoenix and its related companies in physical jeopardy. As we feel forced, literally, to bend to maniacal pressure, this may be the darkest moment in our 40-year publishing history.

Somewhere there’s probably an issue of vicarious/employer liability lurking in here — if printing the cartoons did lead to violence, the Phoenix’s owners might well end up having to pay. But of course the venerable alt-weekly’s stance is practically a profile in courage compared with that of editors, publishers, governments and university officials in many other places, including South Africa (bans publication of images), Sweden (reported to have shut down website carrying them), Canada’s Prince Edward Island (university confiscates student newspaper, edict forbids weblog comments) and so on (Michelle Malkin roundup, Feb. 9). Commentaries worth reading: Krauthammer, Kinsley, and, from a different perspective, a commenter at Andrew Sullivan’s. (More on the cartoons here and here.)

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Flying shrimp not so fatal after all

Peter Lattman reports that a jury took two hours to reject the claim that dodging a flying shrimp at a Benihana restaurant caused Jerry Colaitis’s death ten months later. Some opponents of liability reform might use this as evidence that the system works, but Benihana is still out the exorbitant cost of the attorney time required to prepare for and defend a four-week trial, which was certainly in the six digits, and perhaps the seven digits, effectively punishing them for not paying protection money. (Corey Kilgannon, “Jury to Decide if Flying Sizzling Shrimp Led to Man’s Death”, New York Times, Feb. 9). We were way in front of this story in the blogosphere, reporting on it Nov. 23, 2004 and Jan. 13.

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