Overlawyered: Chronicling The High Cost Of Our Legal System

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What’s new at Point of Law?

If you like this site, you’ll love our sister site, Point of Law, which explores similar issues, often in greater detail than we have room for here. Recently, at Point of Law:

And I’ve also been writing elsewhere: AEI has released my working paper on the Vioxx litigation in two parts: Part I and Part II.

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In today’s WSJ: sovereign immunity in Washington

I’ve got a “Rule of Law” column in today’s Wall Street Journal on the unique problems presented to the state of Washington by the decay of longstanding doctrines of “sovereign immunity” which have left it financially liable for many crimes committed against its citizens, specifically when perpetrated by parolees or persons under the supervision of social welfare agencies. (Walter Olson, “Lawsuit Reform in Washington”, Wall Street Journal, Dec. 24). For one such cause celebre, see Ted’s Sept. 19 post on the case of Joyce v. Washington Department of Corrections, in which the state was sued after a parolee ran a red light and killed a Tacoma woman. For more on freshman Washington AG Rob McKenna’s plans to curtail the state’s liability, see Andrew Garber, “McKenna eyes liability limits”, Seattle Times, Nov. 27. (More discussion: Jan. 4).

Also of interest to readers in Washington state: I’ll be in Seattle Friday, Jan. 6 as the luncheon speaker at the Washington Liability Reform Coalition’s annual meeting. Contact WALRC for more information about that event.

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A good cause: SCOTUSblog Rehnquist Bobblehead auction

SCOTUSblog is sponsoring an auction of a Justice Rehnquist bobblehead for charity, the winner to donate proceeds to charity. I’m currently the lead bidder, and my donation will be split between two good causes I invite you to support also: the Benjamin Franklin High School Katrina Reconstruction Fund and the Institute for Justice. IJ’s merry band of litigators needs no introduction because of their work on Kelo, so let me talk about Franklin.

I graduated Benjamin Franklin High School in New Orleans in 1987. Franklin is not only one of the leading academic public schools in the country, averaging 23 National Merit Semi-Finalists a year and sending 99.5% of its graduates to college, but it is one of the few racially integrated schools in the city of New Orleans, maintaining its academic standards in the face of pressure ranging from a legislature that outlawed the teaching of evolution in the 1980s to modern-day school-board racial politics seeking to abolish magnet schools. The school was one of the few pieces of New Orleans that worked.

Unfortunately, Franklin was located on the New Orleans Lakefront, one of the lowest-lying areas of the city, and suffered $3 million in physical damage from the storm and flooding. Dedicated parents, faculty, and alumni are undertaking heroic efforts to re-open the school as a federal charter school with many of its pre-hurricane teaching staff on January 17, 2006—the tricentennial of Benjamin Franklin’s birth. Federal and state funds are expected eventually, but there is an immediate need for money to pay for faculty salaries, startup costs, and instructional materials.

The Benjamin Franklin Alumni Association, a 501(c)(3) nonprofit, has set up three funds: the Katrina Recovery Fund provides money to twenty needy families of Franklin students; the Franklin Reconstruction Fund goes to reopen the school; or one can sponsor a specific distressed family.

100% of your tax-deductible donations go directly to help families or the school, with no administrative fees. (Paypal may be charging a transfer fee, but one can mail a check directly.)

I know that I make many of my charitable donations at this time of year, and hope you consider the Franklin Alumni Association’s efforts among your other choices. Click here to donate and let them know I sent you.

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Liability fears cancel Christmas display

Many Maryland towns string Christmas lights from powerlines, but the town of Lonaconing made the mistake of asking for permission, rather than forgiveness, and Alleghany Power, afraid of the legal risks of an accident if it approved the display, was forced to forbid it. Protesting citizens have erected an inflatable Grinch protesting against Verizon and the power company, but their efforts would be better directed at the litigation culture that forced these company’s decision. (JoAnna Daemmrich, “Grinch pulls plug on a cherished ritual”, Chicago Tribune, Dec. 22).

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Judge Murphy’s “fascinatingly repellent” letters

That’s what media critic Dan Kennedy (Dec. 21) calls an excerpt from one of the handwritten letters that Boston judge Ernest Murphy sent to Boston Herald publisher Pat Purcell following Murphy’s securing of a libel judgment of more than $2 million against the newspaper (Dec. 8). One of the letters proposes to Purcell an “AB-SO-LUTE-LY confidential and ‘off the record'” meeting which he is not to tell Brown Rudnick, the newspaper’s chief legal counsel, about.

So here’s the deal. I’d like to meet with you at the Union Club on Monday, March 7….You will bring to that meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting.

And Dan Kennedy comments:

This much is certain: If Murphy’s letters are typical of what takes place between parties in a lawsuit, then the legal sausage-making process is a lot uglier than many of us realize.

(via Romenesko, who has links to the Boston press coverage). Boston Phoenix media critic Mark Jurkowitz also covers the story here and (Murphy’s lawyer’s response) here. A Jurkowitz commenter observes: “Settlement discussions are frequently unsightly — they often have a ‘Surrender, Dorothy’ flavor.”

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Seatbelts = light cigarettes?

Via Martin Grace, Craig Newmark tag teams with David Kopel on the Price v. Philip Morris case:

The plaintiff’s theory–agreed to, mind you, by the trial court–was that

. . . the marketing of “light” cigarettes was a form of consumer fraud. Because the cigarettes have less tar, some smokers compensated for the lower quantity of tar in an individual cigarette by inhaling deeper, or smoking larger quantities. Thus, according to the trial court, Philip Morris deceived smokers into thinking the cigarettes were safer.

How strange, except that if the theory were widely accepted the plaintiff’s bar would have more work than they could handle until the end of the world. Economists have good evidence that seatbelts change drivers’ behavior a little for the worse. So should any devices–padded dashes, anti-lock brakes, airbags–that make drivers safer. “Child-proof” caps on medicines also seem to have made people less careful in storing drugs. And Kopel notes that the theory seems tailor-made to sue makers of low-calorie foods. If this theory of harm were accepted, all those companies and more–many more–would, I assume, be liable.

Kopel concludes:

That the tobacco companies were sued for manufacturing and advertising a safer product is a good example of the perversity of modern tort law, and of the determination of anti-tobacco extremists to punish cigarette companies even when cigarette companies took affirmitive steps to reduce the dangers of smoking.

“Perversity,” indeed.

Previous commentary at Point of Law and links therein.

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Advice for civil defense lawyers

When riding in an elevator with jurors who’ve just rendered a verdict against your client, avoid calling them “crackers” to their face (John Shiffman, “Workers’ bias suit ends in win, slur”, Philadelphia Inquirer, Dec. 20).

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The wages of unconstitutionality

A local columnist reminisces:

Salt Lake City attorney Brian Barnard used to sift through state and local statutes passed decades earlier and since declared unconstitutional, then find a plaintiff to fight them in court.

The laws were normally declared unconstitutional through agreement with government lawyers and the court. Barnard then would be paid attorney fees by the state.

But former Attorney General David Wilkinson disliked the idea of paying Barnard attorney fees, so for a time during his 1980s tenure, he would fight the claim of unconstitutionality. That would require Barnard to file more briefs, adding hours to his work and eventually giving him a fatter paycheck when the attorney’s fees came due.

One time, however, Wilkinson was so late in approving Barnard’s attorney fees that the civil rights attorney persuaded a judge to garnishee Wilkinson’s state salary to satisfy the payment. Wilkinson approved the payment right away.

(Paul Rolly, “Attorney steps on some toes”, Salt Lake Tribune, Dec. 9) (via State of the Beehive).

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Co-worker: hey, I shoulda been in lottery pool

From Santa Ana, Calif., an old reliable class of story, the secret sharer who pops up to claim a share after a big lottery win:

Seven workers at a California medical lab who shared a $315 million Mega Millions lottery jackpot are being sued by a co-worker.

Jonathan De La Cruz said he wants a share of the pot.

In his lawsuit, he claims he had always been a part of the group when they bought lottery tickets before, but that he was off work the day they bought the winning ticket.

He said the group had an oral agreement that everyone would be included when they pooled their money to buy tickets.

The winners said his claims are nonsense.

They said it was the first time they had bought tickets together and that it had been almost a year since any of them had pooled money with De La Cruz for tickets.

They also said that when they won, he didn’t claim that he deserved a cut.

The winners will each receive about $25 million before taxes.

(“Co-Worker Sues For Share Of Big Lottery Jackpot”, Channel3000.com, Dec. 15).

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Ollie v. the world

The Oxford English Dictionary recognizes “ollie” as a skateboarding move, but now Alan “Ollie” Gelfand, who invented the move as a teenager in 1976, and got around to registering a trademark in 2002, claims exclusive use of the term, and is suing Disney, Sega, and numerous other defendants $20 million for their use of the word. (Patrick Danner, “If you use the ‘ollie,’ pay Ollie”, Miami Herald, Dec. 7).

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