Overlawyered: Chronicling The High Cost Of Our Legal System

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How do your holiday parties compare?

Attorney Willie Gary, frequently mentioned in this space (see Apr. 1-2, 2002 and links from there) sent out 275,000 invitations this year to his annual holiday party in Stuart, Fla., a fabulous bash that has been called South Florida’s premiere party; tens of thousands attended (Tyler Treadway, “Liberally distributed, invitations to Gary festival more elaborate each” (sic), TCPalm.com (Scripps newspapers), Dec. 11; “Thousands take part in Gary’s holiday fete”, Dec. 13). Gary had an extra reason to celebrate this year, because a jury on Dec. 12 awarded $18 million to one of his clients, a road builder who said he was defamed by an investigative-journalism piece in the Gannett chain’s Pensacola News-Journal (see Mar. 30, 2001). (“Florida jury awards $18 million to road builder”, AP/First Amendment Center, Dec. 16). (More on case: Jan. 7; appeals court reverses, Oct. 25, 2006)

In Houston, meanwhile, trial lawyer W. Mark Lanier expects 5,000 holiday attendees at his 25-acre estate for what he bills as the “best party in the world”, now in its twelfth year. Lanier, who is noted for buying asbestos items on eBay and in 1998 won a $115 million verdict for 21 plaintiffs in an asbestos case, hired Bill Cosby to entertain the crowd this year; previous years’ talent have included Barry Manilow, Crosby, Stills, and Nash, Diana Ross, and the Dixie Chicks. (Jonathan D. Glater, “Houston Holiday: Barbecue, Al Green and 5,000 Guests”, New York Times, Dec. 15)(fee archive) Incidentally, the Times also reports the following: “‘I support tort reform that gets rid of the garbage cases,’ said Mr. Lanier, who is a Republican. ‘I do not support the medical malpractice reform because I think it hurts the good cases and doesn’t do anything to restrict the garbage cases.'”

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Around the blogs

Beth Plocharczyk of Crescat Sententia responds (Dec. 15) to Dr. Kurt Kooyer’s Calvin College memoir on medical liability, recently referenced in this space, and takes issue with Kooyer’s assertion that the obligations of the medical profession toward patients are necessarily of a “covenantal” rather than contractual nature. David Giacalone (Dec. 15) notes that a star witness has emerged to support the state of Massachusetts in its dispute with law firm Brown Rudnick over $2 billion in tobacco fees (see Nov. 4): none other than Thomas Sobol, who served at Brown Rudnick as lead attorney on the state’s case, later departed, and now has testified that it would be “absolutely, clearly excessive” for his former firm to pocket the higher sum. Brian Sack (“Banterist”), provoked by a CBS “60 Minutes” segment (Dec. 8), wonders whether the courts will really award money to complainants who say they couldn’t get jobs at Abercrombie & Fitch because they weren’t “pretty enough” or “All-American enough” (see Dec. 26-28, 2000). (Update Nov. 17, 2004: Abercrombie settles three cases for nearly $50 million.) Professor Bainbridge (Dec. 5, Dec. 11, Dec. 15, Dec. 16) has been hammering away at New York Attorney General Eliot Spitzer for using prosecutorial negotiations to induce mutual fund companies to lower their fees: “Spitzer has no authority — none, nada, zilch — to regulate mutual fund fees. Spitzer’s use of his leverage to extort a reduction in fees is a gross abuse of discretion.” And Curmudgeonly Clerk (Dec. 14) documents the latest adventures of anti-videogame attorney Jack Thompson, already much chronicled in this space (see Sept. 26).

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Forum shopping

Two Germans had a contract dispute with their former employer, German media giant Bertelsmann AG, regarding a European joint venture. The contract, written in German, required the application of German law, and (according to the defense) the major dispute was over the meaning of a German term in the contract. So where to sue? California, of course! The jury came through with a verdict of over a quarter-billion dollars, and their verdict form was apparently sufficiently muddled that the plaintiffs are going to argue that they were meant to receive over a billion dollars. The defense argues that part of the problem is a mistranslation of “participation” into “equity.” (Greg Risling, “Calif. Jury Rules Against Bertelsmann”, AP, Dec. 12; Gina Keating, “Jury Faults Bertelsmann in AOL Europe Suit”, Reuters, Dec. 11).

Update, Jan. 6, 2004: The plaintiffs’ attorney confirms that the main dispute was over interpretation of a clause in the German-language contract, but argues that it would have been “prohibitively costly” for the plaintiffs to bring the case in Germany–which, based on my experience in a number of cases where critical documents are not in English, and require expensive translation, strikes me as extraordinarily unlikely that the case would have been more expensive in Germany, much less prohibitively so if plaintiffs had a sincere belief that their case was worth in the billions. But the reporter does not challenge the assertion. (Nora Lockwood Tooher, “Two German Entrepreneurs Win $255 Million”, Lawyers Weekly USA, 2004).

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Newsweek: ATLA’s Turn

Newsweek policy states that the “My Turn” reader-submitted essays should not be “framed as a response to a Newsweek story”, but the December 22 issue features precisely such a piece from Linda McDougal. The article includes almost verbatim the half-facts from ATLA’s press packet that we refuted earlier (see Dec. 12).

A final irony: McDougal concludes her essay with “I also know that if all those who want to restrict the legal rights of ordinary citizens have their way, I wouldn’t have waited seven months for an apology from the doctors, which I got only after my story became public. I would have waited forever.” I’ll leave aside the fact that many ordinary citizens are victims of societally harmful tort lawsuits (see, e.g., Feb. 7, 2000). Has McDougal considered that perhaps the reason that the doctors waited to apologize for a mistaken mastectomy until after she went public was because they were afraid that the apology would be used against them in a lawsuit? (Linda McDougal, “My Turn: I Trust Juries?and Americans Like You”, Newsweek, Dec. 22).

The “Civil Wars” author, Stuart Taylor, was confronted with a series of questions pulled from the same ATLA press release McDougal used, and responded to them in an on-line chat. (Stuart S. Taylor, MSNBC on-line chat, Dec. 11).

Sidenote: we covered a lawsuit of a Pennsylvania parents who sued their school board because their 13-year-old daughter was suspended for a consensual sex act on a school bus (see Sep. 19). Newsweek, in its story, mentioned a superficially similar Kentucky case that involved an alleged sexual assault of a 14-year-old on a school bus, resulting in criticism from McDougal and ATLA, but also going to show that Newsweek only scratched the surface of the problem by dint of its space-limited selections for the story.

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Pet store sued

As anyone who goes to a pet store knows, customers frequently bring their pets with them. Unfortunately for Uncle Bill’s Pet Center in Indianapolis, ten-year-old Travis Post had been petting rabbits, and thus “smelled like food” when pet store regular Christopher Simms allowed Travis to hold Simms’s ten-foot python while Simms talked to Travis’s mother. The family has sued Uncle Bill’s (as well as Simms), claiming they should have done more to protect Travis from the resulting attack. “‘Uncle Bill’s had a duty to keep their premises in a way that is safe for invitees,’ [family attorney E. Ralph] Hoover said. ‘Obviously, it’s not safe when you allow people to bring wild animals in and allow them to be around children.'” (Vic Ryckaert, “Uncle Bill’s faces suit after python bit a boy”, Indianapolis Star, Dec. 10) (via Obscure Store).

Hoover is essentially asking a jury to find that pet stores have a legal duty to either (a) bar children or (b) use employee time to screen customers, anticipating in advance which combination of customer and pet will be dangerous to other customers when their mothers leave them unattended. The likely real-world result, if damages are assessed, will be that insurers will require pet stores to bar outside animals. (Dog bites are, after all, much more common than snake bites.)

Now, perhaps we as a society want to create rules that bar animals from pet stores so that people like Christopher Simms and Travis Post’s mother only let small children handle gigantic snakes outside the confines of Uncle Bill’s Pet Center. But isn’t that a decision better made by a legislature considering the totality of the situation rather than a jury considering an individual case?

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AEI: Lawsuits without Injuries?

Wednesday, December 17, the American Enterprise Institute Liability Project is holding a panel moderated by Chicago Law Professor Richard Epstein on a new trend in the expansion of tort liability.

While plaintiffs have traditionally been required to demonstrate some form of harm or damage to file a lawsuit, recently proposed definitions of harm appear to be broadening substantially the scope of tort litigation. At the forefront of this legal innovation is the “benefit-of-the-bargain” theory of damages: if a product is shown to have harmed some consumers, unharmed consumers have a claim against the manufacturer on the basis that they would have not paid as much for the product had these risks been known beforehand. Panelists at this event will address the merits and disadvantages of “benefit-of-the-bargain” lawsuits.

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Abuses “laughing gas”, sues over crash

Florida: “A teenage girl who got into a serious car crash [after she and a] friend inhaled nitrous oxide has sued the video store that allegedly sold cartridges. … Palm Beach County Sheriff’s investigations have not linked the crash to nitrous use.” A manager at the video store said the teen’s “parents are looking for a scapegoat, they don’t want to take responsibility for their own children’s actions.” (“Brain-damaged Boca Raton girl sues alleged nitrous seller”, AP/Sarasota Herald Tribune, Dec. 11).

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