December 8-10 — Vicarious criminal liability? Suburban Detroit prosecutors are pressing charges of involuntary manslaughter against 49-year-old cook Terry Walker, who hails from the palindromically named town of Capac in Michigan’s rural Thumb. It seems Walker sold a chrome-plated 9mm semiautomatic gun to a friend without having the friend provide a purchase permit for it as required by law. The friend resold the weapon and it eventually wound up in the hands of Ljeka Juncaj of Sterling Heights, a stranger to Walker, who used it to kill a police officer in Warren while in custody following a drug arrest. “Macomb County Prosecutor Carl Marlinga said he hopes Walker will become the vessel for a lesson to gun owners by telling them that if they fail to properly sell a gun and it is used in a crime, that is as bad as committing the crime.” Outraged Capac townspeople think that idea is crazy, and are taking up a collection for Walker’s defense. (Kim North Shine, “Punishment of ex-owner debated”, Detroit Free Press, Dec. 7).
December 8-10 — Florida’s legal talent, before the Chad War. Wall Street Journal‘s Collin Levey pulls together highlights from the pre-November legal careers of prominent Florida attorneys assisting Democrats in their postelectoral legal efforts. Dexter Douglass, “David Boies’s right hand”, had been among those who represented the state in the tobacco lawsuit; Henry Handler, who “brought suit against the butterfly ballot”, also had filed a class-action lawsuit against the Florida Marlins “on behalf of season-ticket holders who claimed the team injured them by ‘losing too much'”; Gregory Barnhart, who represented the Democratic National Committee in recount litigation, is past president of the Florida Trial Lawyers Association; and Harry Jacobs, who “launched the lawsuit to throw out 10,000 absentee ballots in Seminole County”, had fought a “high-profile war against Florida rules preventing lawyers from advertising on television (a k a electronic ambulance chasing).” (“Gore’s Bombastic Barristers”, Opinion Journal, Dec. 7).
December 8-10 — Sylph esteem. Krissy Keefer has filed the first case under San Francisco’s new law banning discrimination on the basis of height and weight, saying the prestigious San Francisco Ballet School rejected her 8-year-old daughter Fredrika as an applicant because it considered the girl’s size and shape inappropriate for a ballerina. The school says its purpose is to train professional dancers, not to provide recreation, and says it accepted only 29 percent of the 1,400 student applications it received last year (Edward Epstein, “Girl Fights For a Chance To Dance”, San Francisco Chronicle, Dec. 7).
December 8-10 — “Armstrong World Files for Chapter 11 Amid Battle With Asbestos Lawsuits”. The building and construction materials concern “tried a number of approaches to manage its asbestos liability, including negotiating broad-based solutions and supporting efforts to find a legislative resolution. But the number of cases filed and the cost to settle cases have continued to increase.” Lenders pulled the plug after the bankruptcy of Owens Corning earlier this fall made clear that even large companies that operate with success in unrelated businesses can face financial ruin if they sold asbestos-containing products decades ago (see Nov. 27, Oct. 6; DowJones/ CFO, Dec. 6; AP/MSNBC, Dec. 6; company site and bankruptcy news site).
December 8-10 — Welcome WorldNetDaily readers. We linked to and briefly excerpted Jon Splatz’s “LawyerClysm” article on Nov. 22, and the full version appears here. (Ralph R. Reiland, “Lawyered to death”, WorldNetDaily, Dec. 9). We also got a mention from Doug Camilli in his Montreal Gazette column on Thursday (Dec. 7) and were featured on Yahoo “Cool Links” as one of Leya’s “Surfer’s Picks” (now rotated off).
December 7 — Promising areas for suits. Among the National Law Journal‘s annual roundup of hot new causes of action that lawyers are suing on: cases charging employers with breaking promises (which may be only “implied” promises) made in job interviews; injuries over foul balls and other hazards in sports stadiums, long barred by the (fast-shrinking) old doctrine of assumption of risk; suits against relatives for failing to prevent gun-related injuries; suits over workplace injury against consultants (HR, security) and other third parties who, unlike the direct employer, may not be able to invoke the litigation shield of workers’ comp laws; laser eye surgery complications; negligent failure to provide defibrillation equipment in public places; “[l]awsuits against owners, leasers and drivers of trucks over accidents caused by trucker fatigue”; suits against sports doctors; and claims against trade associations, such as the one that recently obtained an $11 million verdict against the National Spa and Pool Institute on an allegation that its voluntary standards for diving boards should have been more stringent (Margaret Cronin Fisk, “New Century, New Causes”, National Law Journal, Nov. 21).
December 7 — “Woman drops suit alleging she caught herpes from mannequin”. It now develops that Brenda Nelson (see Oct. 11) of Hammond, Ind. has consulted a second doctor and been told she does not have herpes after all, and she has accordingly dropped her suit against the American Red Cross alleging that she contracted the malady by pressing her lips to those of a first-aid mannequin, says her attorney, Jerry Jarrett. The executive director of the local Red Cross said he doubted the disease could have been transmitted in the claimed manner anyway: “‘Everyone here gets a separate mannequin. Nobody gets behind someone else in line. Staff and volunteers wash the mannequins down with warm, soapy water with a little bit of bleach in it after each class,” said the director, whose name is Wayne Wigglesworth. (AP/FindLaw, Dec. 5).
December 7 — No more “naughty”. Organizations that train and represent British nursery staff have put out the word that misbehaving tots are not to be called “naughty”, “bad boy”, “silly” or “stupid”, such terms amounting to stigma-laden “labeling”. Some nursery staff have also asked parents to avoid using the terms in correcting their own children. Others call it “political correctness gone mad”. (Martin Bentham, “‘Naughty’ is banned from the nursery”, Sunday Telegraph (London), Dec. 3).
December 7 — Trial lawyers vs. hog farms. Various lawyers active in tobacco and other mass litigation are filing nationally coordinated lawsuits against hog farms in seven states over their purported porcine pollution atrocities. An environmentalist group led by Robert Kennedy Jr., Water Keeper Alliance, will provide the media-friendly face for the effort. Fifteen law firms are kicking in $50,000 apiece to get the assault underway. (Philip Brasher, “Environmentalists Target Hog Farms”, AP/Los Angeles Times, Dec. 6). For more on hog farm litigation, see Sept. 12, 2000 and Oct. 4, 1999. And the New York Times reports today that the hog farm effort is expected to serve as the pilot case in a new alliance between environmental groups and leading trial lawyers, which will involve the filing of mass tort suits in an effort to wrest policymaking away from the Environmental Protection Agency and Congress, i.e., the units of government that have some occasion to consult the views of actual voters (Douglas Jehl, “Fearing a Bush Presidency, Groups Plan Pollution Suits”, New York Times (reg), Dec. 7). “In one court filing, the plaintiffs said that the cleanup [of North Carolina hog farms] would require restoration of 3.7 million acres of wetlands at a cost of no less than $40,000 an acre — or roughly $148 billion for these damages alone.” The major defendant in the case, Smithfield Foods, has a total market capitalization of almost exactly one-one-hundredth that sum, at $1.48 billion (Motley Fool profile, SFD). Update May 7, 2001: judge throws out first two suits; Apr. 15, 2002: RFK Jr. embarrasses himself in Iowa; Jul. 3-9, 2002: federal judge throws out suit and imposes sanctions on plaintiffs.
December 6 — You deserve a beak today. Okay, so Katherine Ortega of Newport News, Va. says she found a crispy chicken head in her order of McDonald’s fried chicken wings, and by now pictures of the handsomely breaded ornithological exhibit have been beamed round the world. But what are the damages? (Especially since Ortega didn’t eat the offending morsel, and people in other countries do eat chicken’s heads.) A local plaintiff’s injury lawyer, Stephen H. Pitler, told the Newport News paper: “It looks to me that there’s a legal wrong … people might be psychologically scarred for a very long time”. On the other hand, a liability defense lawyer said that it really wasn’t much of a case: “no more than a couple thousand dollars”, which by the standards of the U.S. legal system, you will understand, really counts as nothing at all. (Peter Dujardin, “Chicken-head incident has ruffled feathers”, Newport News (Va.) Daily Press, Nov. 30; David Koeppel, “You deserve a beak today”, FoxNews.com, Dec. 1). The Newport News paper added: “Some wondered how urbanized Americans have become so far removed from the process of killing what they eat that the mere sight of a natural piece of an animal – one that is consumed every day elsewhere in the world — could cause such emotional scarring.” Right on schedule, local TV station WVEC reports that the Ortegas have now hired an attorney; they’re refusing McDonald’s request to examine the object in question; and they “said their children now refuse to eat chicken and that their youngest child has had a nightmare about the fried chicken’s head.” (“Fried chicken’s head flies the coop”, WVEC-TV (Hampton Roads), Dec. 5; “Inspectors investigate fried chicken’s head”, Dec. 5).
December 6 — Bear market. New York Observer tells how Bear Stearns lost a nine-figure jury verdict to a wealthy investor who’d suffered major losses in his account, in a case that has other brokerages more than a little nervous (see June 9-11) (Landon Thomas Jr., “Meet the Great de Kwiatkowski, the Man Who Was Awarded $164 Million From Bear Stearns”, New York Observer, Nov. 13).
December 6 — Safer but less free. Three years ago Gail Atwater of Lago Vista, Tex. was arrested, handcuffed in front of her children and hauled off to jail for … non-seat-belt use. Now her case has reached the U.S. Supreme Court. (Amanda Onion, “Soccer Mom at Highest Court”, ABCNews.com, Dec. 1).
December 5 — California’s lucrative smog refunds. “Five law firms, including one that donated nearly a quarter-million dollars to the governor, will split $88.5 million in state taxpayer money for a lawsuit returning smog fees to residents who registered out-of-state vehicles in the 1990s.
“An arbitration panel in Sacramento made the award, among the largest attorneys’ fees ever paid by the state.
“‘I’m going to be exploring every option I have to freeze this payment,’ state Controller Kathleen Connell said Thursday. ‘No one can recall any settlement that even comes close. I’m deeply distressed.’…
“The money will come from $665 million allocated by Gov. Gray Davis and the Legislature for refunds to people who paid the $300 fee. …One of the law firms that will claim a share of the $88.5 million is Milberg, Weiss, Bershad, Specthrie & Lerach. Bill Lerach and his firm, with offices in New York and San Diego, have been among Davis’ major donors, giving him $221,000 during his 1998 election campaign, and $20,000 this year.” (“Five Firms to Split $88.5 Million for Smog Lawsuit”, AP/DowJones.com, Dec. 4; Google search on Lerach + smog fee). (Update June 22-24, 2001: judge strikes down fee; Aug. 21, 2004: second arbitration panel awards $23.7 million).
December 5 — Do as we say, cont’d: arbitration clauses. “Lawyers appear to be quick to sue almost anyone except other lawyers, a lawyers’ publication said.
“Lawyers Weekly USA reported Thursday that a growing number of lawyers are putting fine print in fee agreements shielding them from being sued by a client if they botch a case.
“The Boston-based national newspaper for small law firms said lawyers instead prefer that such disputes go to private arbitration because arbitration is faster and cheaper, decisions are often made by other lawyers rather than juries, and there’s no public record.” (UPI/Virtual New York, Nov. 30).
December 5 — Might fit in at Business Week. “[Cartoonist Ted] Rall does freelance work as well, which includes a monthly cartoon for Fortune magazine, called ‘Business as Usual.’ ‘Actually, it’s one of my favorite gigs because it’s really anti-corporate, anti-business… I basically trash capitalism in Fortune…. I have no business being in Fortune, you know, it’s ridiculous. I’m a Marxist, basically.”” (Morika Tsujimura, “Cartoonist Rall Comes Out of Left Field”, Columbia Daily Spectator (Columbia University), Dec. 4) (via Romenesko/Poynter Media News).
December 4 — Burying old hatchets. The decay of the principle of statutes of limitation underlies a host of troublesome legal actions in areas ranging from slavery and WWII reparations to recovered-memory child abuse charges to Indian land claims, argues our editor in his latest Reason column (Walter Olson, “Stale Claims”, November; Paul Shepard, “Lawyers Plan Slave Reparations Suit”, AP/Excite, Nov. 4). Not everyone who has suffered historical dispossession is in a position to profit from the law’s willingness to reopen old grievances: “Germany’s highest court ruled on Wednesday that east Germans stripped of property during 60 years of dictatorship under first Nazism and then communism were not entitled to further compensation.” (Reuters/FindLaw, “Court Rejects East German Land Compensation”, Nov. 22).
December 4 — Endangered list. “The Fish and Wildlife Service says it can’t add more wildlife to the endangered species list this year because it has to spend so much time and money defending lawsuits from environmentalists. … The service is swamped by lawsuits from environmental groups demanding ‘critical habitat’ designation for some of the 1,225 species in the U.S. already listed as threatened or endangered. A critical habitat ruling describes the area where a species either lives or could live.” (“Agency: Lawsuits Stymie Conservation”, AP/FindLaw, Nov. 21).
December 4 — Exotic dancers in court. In Scranton, Pa., a jury has “ordered a nightclub to pay $363,153 to a stripper who was badly burned while performing her fire-breathing routine. … [In 1994 Patricia] Ryan accidentally dribbled a mixture of 151-proof rum and salt onto her chest and suffered second-degree burns. She alleged that the [Cabaret Nightclub’s] employees did not provide adequate safety equipment or come to her aid quickly enough.” Ryan is now 36 and is enrolled at Harvard University, according to the story. (“Burned Stripper Wins $363,153 Award “, AP/Newsday, Nov. 16). And in Cleveland, a lawyer for Jodi Ketterman has objected to a judge’s plan to order an electronic monitoring bracelet attached to her ankle in lieu of bond in a pending criminal case, saying the bulky device would interfere with her work as an exotic dancer (Karl Turner, “Exotic dancer’s lawyer says bracelet too much to wear”, Cleveland Plain Dealer, Sept. 28). More exotic dancer litigation: Aug. 14, July 26, May 23, January 28.
December 1-3 — Hauling commentators to court. Both left and right these days seem increasingly inclined to drag pundits of the opposite camp into litigation. White House aide Sidney Blumenthal, pursuing his defamation suit against Matt Drudge, is demanding that numerous conservative commentators submit to interrogation under oath about the case; the list is said to include John Fund, Arianna Huffington, Ann Coulter, David Horowitz and Tucker Carlson (David Carr, “Blumenthal-Drudge Legal Grudge Match Drags in a Who’s Who of Right-Wing Commentators”, Inside.com, Nov. 29; Michael Ledeen, “An Open Letter to the Blumenthal 25”, National Review Online, Nov. 21). Meanwhile, the litigious conservative group Judicial Watch has announced that it is going to “monitor” hostile columnists Joe Conason and Gene Lyons “among others, to make sure they do not violate the rights of American citizens,” which might easily be mistaken for a not-very-veiled intent to seek grounds to sue them (Greg Lindsay, “Judicial Watch, Clinton Administration Scourge, Targets Salon Writers Conason and Lyons”, Inside.com, Nov. 21). And the World Wrestling Federation, under fire from the social-conservative Parents Television Council, has sued PTC alleging “a multi-faceted pattern of tortious and fraudulent activities” based on its efforts to get corporate advertisers to drop their support of WWF broadcasts (“Grudge Match”, Opinion Journal (Wall Street Journal), Nov. 26).
December 1-3 — Batch of letters. The latest additions to our letters page have to do with why the EEOC’s chairman asked to stop the tape during a John Stossel interview; the Florida election debacle; and the Derrick Thomas crash.
December 1-3 — Burned by a hired witness. Lawyers around the country hired Gary S. Stocco of the National Burn Victim Foundation to testify as a courtroom expert on burn injuries, for both prosecution and criminal defense as well as in civil cases. But his resume was “filled with embellishments and false qualifications”, and listed two degrees from an outfit that “requires no course work and mails out degrees for cash”. Now he faces up to 20 years in prison after being convicted in Prince William County, Va., south of Washington, of perjury and obtaining money under false pretenses. One DA called Stocco a hired gun, while another said he “sets out to tip the scales of justice toward whoever is paying him.” Sentencing is scheduled for January.
“According to transcripts of testimony in several jurisdictions, Stocco said he had investigated hundreds of child-abuse cases as a state police officer in New Jersey and had attended surgical procedures for burn victims. But Gary Gardiner, a Prince William detective, said yesterday that Stocco had instead patrolled parking lots and hadn’t been involved in any criminal investigations or surgeries.
“Each time Stocco was allowed by a judge to testify as an expert witness, it boosted his qualifications. It’s a cycle that worries prosecutors.” (Josh White, “Roving Burn ‘Expert’ Was False Witness”, Washington Post, Nov. 3. See also New Jersey legislative commission (scroll halfway down), June 17, 1998; Georgia Firefighters Burn Foundation bulletin board; USA Today).
December 20 — Property taxes triple after wrongful-termination suit. “The Delaware County [Oklahoma] Excise Board voted Monday to impose a tax levy that will triple property taxes for Kenwood’s 128 residents to pay off a court judgment against the school system.
“Board members voted to set the levy after Kenwood school board members agreed Thursday to use $75,000 in federal Impact Aid funds to pay Garland Lane, the former school superintendent, who won a $305,600 judgment against the district in 1998 for wrongful termination.
“The school district still owes Lane $179,000. The federal trial judge ordered that Lane and his Tulsa attorney would be allowed to collect an additional 10 percent interest on the outstanding debt until it was paid.
“A Kenwood taxpayer who normally pays $224 in taxes for the year will now have to pay $763, under the levy approved Monday.” (Jann Clark, “Property tax triples in Kenwood”, Tulsa World, Dec. 12).
December 20 — Obese fliers. A judge has ruled that Southwest Airlines did not unlawfully discriminate against Cynthia Luther, whose weight exceeds 300 pounds, when it required her to buy a second seat on a flight from Reno to Burbank (“Large Passenger Has Suit Dismissed”, Yahoo/AP, Dec. 14) (via Drudge). Days earlier, a confidential report from an official agency in Canada recommended that airlines be forbidden to charge highly obese passengers for a second seat, on the grounds that their condition should count as a disability entitled to accommodation. The opinion from the Canadian Transportation Agency promptly came under fire from both directions, with the Air Transport Association of Canada charging that such a rule would be unacceptably expensive, and Helena Spring, founder of the Canadian Association for Fat Acceptance, saying that obesity should be viewed as a healthy condition rather than a disability (Glen McGregor, “Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10). Update Oct. 25-27, 2002: complaint by obese Canadian passenger fails.
December 20 — New batch of letters. Our letters page catches up on more of its backlog with letters from readers on the Florida recount, Microsoft’s decision to settle its “permatemps” case, and a view from British gangland on how lawyers ought to be paid.
December 20 — Jury orders Exxon to pay Alabama $3.5 billion. No, Alabama hasn’t lived down the reputation for jackpot justice it earned in cases like BMW and Whirlpool: a jury yesterday deliberated just two hours before tagging the oil company with the mega-verdict in a dispute over natural gas royalties owed the state. Consultants for the state had argued that it was due $87 million, Exxon said the figure was much lower or zero, but private attorney Bobo Cunningham of Mobile — whom the state had hired on contingency, promising him 14 percent of any winnings — convinced the jurors that $3 billion would be a much more appropriate sum (Phillip Rawls, “Jury orders Exxon to pay $3.5 billion to state in offshore gas case”, AP/Birmingham News, Dec. 19). Updates Dec. 1, 2003: first verdict thrown out, retrial yields $11.8 billion punitive damage award; Apr. 18, 2004 judge cuts that verdict to $3.6 billion.
December 18-19 — “‘Belligerent’ Worker Is Covered by ADA, Says Federal Court”. “A worker who suffers from major depression that makes her belligerent and hypersensitive to criticism has a right under the Americans with Disabilities Act to a reasonable accommodation from her supervisors, a federal judge has ruled.” After she was fired from her job as a manager with the Unisys Corp., Tina Bennett sued arguing that she had been suffering from major depression which manifested itself in interpersonal difficulties. “U.S. District Judge Franklin S. Van Antwerpen found that when a worker’s depression affects her ability to think and concentrate, she has the right under the ADA to get more feedback and guidance if it would help her perform her job. … Bennett met the test [for impairment of ‘major life activities’], Van Antwerpen said, since the evidence showed she was ‘belligerent and displayed an unprofessional attitude,’ that she had ‘difficulty controlling her emotions’ and that she was ‘incredibly sensitive to criticism.’ Bennett’s supervisor testified that Bennett’s peers felt that they could not approach her and have a meaningful conversation with her, Van Antwerpen noted, and her poor interpersonal skills were listed as a reason she was fired.” Given her “evidence linking her behavior to symptoms of her mental disability,” the judge ruled, a jury must be allowed to consider her claim for damages under the ADA. (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Dec. 13).
December 18-19 — Behind the subway ads. “[T]here isn’t a subway-riding adult in New York who hasn’t seen an ad for 1-800-DIVORCE, with the O formed by a diamond ring and a woman’s hand to the side making a tossing motion.” The law firm that picks up the phone when you call, Wilens & Baker, believes in the economies of scale obtainable from a volume business. It’s also unusual among advertisers in its emphasis on such lines as immigration and bankruptcy law: “There are a thousand lawyers advertising now, and 980 are personal injury lawyers,” says Michael Wilens. (Laura Mansnerus, “From a Captive Audience, Clients”, New York Times, Nov. 15) (reg).
December 18-19 — How to litigate an American quilt. For all their cozy and nonadversarial image, quilts these days “are hot items in copyright litigation” as designers head to court to accuse each other of swiping patterns. In one pending action, Paul Levenson, a New York attorney who makes a specialty in quilt law, is representing Long Island designer Judy Boisson in a suit against the Pottery Barn chain “over an allegedly infringing quilt that, like one of Ms. Boisson’s, contains eight-pointed pastel ‘Missouri Star’ blocks on a white background. One of the burdens that Mr. Levenson has to overcome is the fact that many quilt blocks and borders have been in the public domain for more than 100 years, and that the communal spirit that led pioneer women to make quilts is the polar opposite of the mindset of intellectual property law. … Home quilters are abuzz about Ms. Boisson’s copyright claims, but Mr. Levenson says her targets are commercial entities, not grandmothers making quilts for their own families.” (Victoria Slind-Flor, “Quilts: Traditional and ‘mine'”, National Law Journal, Nov. 13).
December 18-19 — Smoker’s suit nixed in Norway. “A Norwegian court ruled [last month] the tobacco industry could not be held responsible for a smoker’s terminal cancer in the country’s first tobacco compensation lawsuit. The Orkdal District Court said the smoker, Robert Lund, continued to smoke even after the dangers of smoking ‘became broadly known and accepted’ and said tobacco’s addictiveness did not free him from responsibility for continuing to smoke.” (Doug Mellgren, “Norway puts tobacco industry on trial”, AP/Nando Times, Nov. 10).
December 18-19 — Welcome Wall Street Journal readers. The Weekend Journal‘s “Taste” editorial commentary briefly mentioned our item on female Santa litigation (see Dec. 13-14). And today’s (Monday’s) Christian Science Monitor quotes our editor on the subject of workplace litigation over accent discrimination (Kelly Hearn, “What legal experts say”, Dec. 18, sidebar to main story, “Pegged by an accent“).
December 15-17 — Farm bias settlements: line forms on the left. The U.S. Department of Agriculture recently agreed to pay more than $2 billion to settle suits claiming it had discriminated against black farmers; a suit by Indian farmers is proceeding as well. And now lawyers have filed suit seeking $3 billion in damages on behalf of female and elderly farmers allegedly treated unfairly in USDA programs. “The farmers are represented by Washington, D.C., attorney Phillip Fraas, who helped win the lawsuit brought by black farmers.” (“Women, Elderly Farmers Sue USDA”, Omaha World Herald, Dec. 11).
December 15-17 — U.K.: skipping, “conkers” taboo in schoolyards. Skipping and other pastimes are being banned in British schoolyards as potentially hazardous or antisocial, as is the age-old game of “conkers”, played by throwing chestnuts at classmates. Teachers “are nervous about legal action from parents if the children are injured, according to a survey by Keele University. … [A] poll found last month that 57 per cent of parents would ask for compensation if their child was injured at school. … Sarah Thomson, the survey’s author, said that one headmaster said he would prefer to ‘ban all playtimes, as they are a nightmare'” The survey of Midlands schools “concluded that playgrounds were now often ‘barren, sterile and unimaginative’ because of over-cautious staff.” (Glen Owen, “Playtime conkers banned as dangerous”, The Times (London), Dec. 8).
In other zero tolerance news, the Washington, D.C. subway system made news last month after its police arrested 12-year-old Ansche Hedgepeth for eating french fries in one of its stations (“Girl Arrested for Eating Fries in Subway”, AP/APBNews, Nov. 16; Petula Dvorak, “Metro Snack Patrol Puts Girl in Cuffs”, Washington Post, Nov. 16). See also Adrienne Mand, “Schools’ Zero-Tolerance Programs Both Praised and Attacked”, FoxNews.com, Oct. 11; “Zero tolerance turns silly” (editorial), Detroit News, Oct. 7.
December 15-17 — O’Quinn a top Gore recount angel. Tied for second among biggest donors to the Gore recount campaign was Houston trial lawyer John O’Quinn, a frequent subject of commentaries in this space (Aug. 4, 1999, etc.). (“Jane Fonda, others pony up for Gore”, AP/MSNBC, Dec. 8). Aside from his role representing the state of Texas in the tobacco litigation (May 22, 2000), O’Quinn is probably best known for having reaped a huge fortune suing on the theory that silicone breast implants cause autoimmune and related illnesses, a theory that O’Quinn and his p.r. firm, Fenton Communications, still strive tenaciously to keep alive — a far more dogged refusal-to-concede than in the Gore case, which lasted mere weeks. See also Doug Bandow, “Ending silicone breast implant saga”, TownHall.com, Dec. 13.
December 13-14 — Supreme Court: forget that recount. Looks like it’s really, really over this time, but every time we allow ourselves to think so, a hand resembling David Boies’s pops out of the ground and starts pulling us down as in the last scene of Carrie. (Charles Babington, “High Court Overrules Gore Recount Plea”, washingtonpost.com, Dec. 12; Supreme Court opinions (PDF)). The courts are going to come out of this one looking more partisan, partial and willful, writes Stuart Taylor, Jr., who predicted the Supreme Court’s 5-4 split; but the real blame should be laid on the Florida Supreme Court for having “betrayed its trust and done grave damage to the rule of law”. (“The Dangers of Judicial Hubris”, Slate, Dec. 11). “It should now be obvious to most people that the Rule of Trial Lawyers isn’t a good substitute for the Rule of Law. … it’s worth noting that three of the four justices who voted for Al Gore’s ‘adventures in recounting’ on Friday had been personal-injury trial lawyers.” (John H. Fund, “Saved from rule of trial lawyers”, MS/NBC, Dec. 9). And Christopher Caldwell, in a column making too many interesting points to recount, asks the question: why did the candidates file most of the Florida lawsuits against their own side, with Gore suing Democratic-run counties and Bush suing those run by the GOP, the opposite of what you might expect if the point of election challenges is to expose and correct partisan irregularities? (“Bench Press”, New York Press, Dec. 12).
December 13-14 — Latest female Santa case. Donna Underwood of Mount Hope, W.V. has sued a company that had hired her to play Santa Claus for children at a mall in Beckley. “She said the company fired her after one of the mall’s managers complained about having a female Santa.” (“Woman Fights for Right to Be Mr. Claus”, FoxNews.com, Dec. 11). In October (see Oct. 12) the Kentucky Commission on Human Rights said it was okay for Wal-Mart not to employ a female Santa.
December 13-14 — “Economy-class syndrome” class action. A Melbourne, Australia law firm is filing a proposed class action on behalf of victims of “economy-class syndrome” against airlines and travel agents. The suit will claim that the complainants were not warned that sitting for prolonged periods in cramped conditions might lead to blood clots in the legs and elsewhere, and were not advised to get up from time to time to walk about the cabin. (Alison Crosweller, “‘Economy-class syndrome’ victims to sue”, The Australian, Dec. 11).
December 13-14 — Internet service disclaimers. Anxious to limit their liability, Internet service providers insert into their service agreements a lot of “defensive legalistic blather designed to keep the company out of court”, which taken literally would place many of their ordinary users in violation for doing things like maintaining multiple chats at once. They also reserve the right to change the rules: “‘They could suddenly demand you wear a bra and panties and dance in the street, and you are contractually bound to it, the way this is written,’ says Andrew Weill, a partner at Benjamin, Weill & Mazer, an intellectual property firm in San Francisco.” In practice users treat the language as a joke (but also are slower to sue). (John Dvorak, “Nihilists at Home”, Forbes, Oct. 2).
December 13-14 — Hamilton’s example. “Few men contributed as much to the ratification of the Constitution as Alexander Hamilton, who wrote the majority of The Federalist Papers. Hamilton worked as a lawyer. Unlike the landed gentry, he had to earn a living. The individual whose economic policies ensured the young Republic’s survival did not amass a huge personal fortune. In Alexander Hamilton, American, Richard Brookhiser explains: ‘His skill and success put him in great demand . . . and if he did not become rich from his practice, it was because of the interruptions of public life and because he charged low fees.’
“Low fees? Those words seldom appear in stories about, for instance, the tobacco lawsuits. Hamilton didn’t eat in a soup kitchen or live in a shelter, but he didn’t make enough to buy the era’s equivalent of a sports team, either. And if all lawyers followed his example, then audiences would not hoot and howl during a certain intense Shakespearean scene.” (“Law school” (editorial), Richmond Times-Dispatch, Nov. 28).
December 11-12 — What was the Florida court thinking? In Slate, University of Utah law professor Mike McConnell clears up why the actions of the Florida Supreme Court in the recount case are properly reviewable by the federal courts: “Article II, Section 1 [of the Constitution] provides that electors [of a state] shall be appointed ‘in such Manner as the Legislature thereof may direct.’ Any significant deviation from state statutory law is therefore a federal issue.” McConnell explains how the Florida high court has now (again) attempted to impose a method for the counting of votes (and thus for the resultant appointment of electors) markedly at odds with the manner laid down before the election by its legislature, making it proper for the U.S. Supreme Court to intervene a second time to vacate its action. And McConnell raises the interesting question: if the Florida high court really thought a statewide hand count advisable, why didn’t it order one earlier, when it had access to the same basic information and there was much more time to conduct one? (“What was the Florida court thinking?”, Dec. 9).
More: Michael Barone on how the Florida fiasco is likely to bring judicial activism into further disrepute (“Red Queen rules”, U.S. News & World Report, Dec. 18). George Will finds lawyer David Boies getting away with some pretty fast moves before the Sunshine State jurists (“Truth Optional”, Washington Post, Dec. 10). The Chicago Tribune says the Florida court’s “reckless leaps of illogic not only have threatened the integrity of the election, but also have risked tossing the nation into real turmoil.” (“A Supreme Blow for the Rule of Law” (editorial), Dec. 10)
December 11-12 — “Stock Options: A Gold Mine For Racial-Discrimination Suits?”. Lucrative tactic for lawyers representing disgruntled minority employees of firms like Microsoft, Gateway, Sun, Cisco and AOL: claim that had it not been for racism your client would have gotten stock options. Given the way these stocks have been behaving lately, they’d better hurry up with this theory while the options are still worth something (Jordan Pine and Linda Bean, DiversityInc.com, Dec. 5 (reg after first page teaser)).
December 11-12 — New Jersey OKs retroactive tort legislation. “Filling in for Gov. Christie Whitman, the New Jersey Senate president, Donald T. DiFrancesco, [last month] signed into law a measure that eliminates a two-year statute of limitations on wrongful death lawsuits involving victims of murder or manslaughter. The law is meant to give distraught families time to deal with the trauma of losing a loved one before turning to the task of seeking compensation from the people, businesses or institutions [emphasis added] they believe are responsible for the death. Yesterday’s measure applies retroactively, and therefore allows … past victims’ families to sue, [according to a spokeswoman for Sen. DiFrancesco]. “Frank Askin, founder of the constitutional litigation clinic at Rutgers University, said that he did not see a problem with the clause being retroactive, so long as the defendants in lawsuits had been convicted, thus establishing beyond reasonable doubt that a murder or manslaughter did occur, and that the evidence was clear and convincing.” Askin’s answer seems curiously beside the point given that the most frequent financial targets of such suits are sure to be not the actual individual killers, but the “businesses or institutions” that will be accused of such sins as “negligent security” (based on, say, allegedly inadequate lighting or patrolling of parking lots). These defendants normally will not have been charged with any criminal offense at all in connection with the incidents, let alone had such guilt established beyond reasonable doubt, yet now are apparently being opened to suit retroactively, despite the expiration of the statute. Sen. DiFrancesco is expected to run for governor of New Jersey in 2001. (“New Law Ends Time Limits On Wrongful Death Lawsuits”, New York Times, Nov. 18) (more on decay of statutes of limitation).
December 11-12 — Florida lawyers’ day jobs, cont’d. The election isn’t the only reason a lot of lawyers hang out in the Sunshine State these days: “If South Florida is the Wild Wild West of the class-action world, then the region’s posse of plaintiff lawyers are the cowboys. Some of the wealthiest, most prominent power brokers in the community, these litigators have turned South Florida into a hotbed for class-action lawsuits.” (Julie Kay, “Along for the Ride”, Miami Daily Business Review, Oct. 24) (quotes our editor). St. Petersburg Times columnist Bob Trigaux found in October that the state of Florida won the not-coveted award for the year’s worst suit (“The most frivolous lawsuit award goes to …”, Oct. 4) (also quotes our editor) (and see Dec. 8-10).
December 11-12 — Trustworthy professionals. Nurses, pharmacists and veterinarians score highest in a survey of which occupations are viewed as most honest and ethical; teachers, clergy, judges and police also do well. Attorneys are “consistently rated among the top five professions for prestige, but near the bottom for ethics and honesty.” (Daniel B. Wood, “Who people trust — by profession”, Christian Science Monitor, Nov. 28).
December 29, 2000-January 2, 2001 — Gambler rebuffed. Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due “for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time.” (Grand Casino Tunica v. Robert Shindler, Dec. 14).
December 29, 2000-January 2, 2001 — Makes others pay, doesn’t pay himself. Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as “acts of civil disobedience that will be organized at targeted Burger Kings across the country.” The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case. “U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a ‘clear and unambiguous’ agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. ” (“Sharpton Plans Lawsuit Against Burger King”, FoxNews.com, Dec. 18).
However, the wherewithal for Sharpton’s hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago. During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, “says he owns no suits, but has ‘access’ to a dozen or so. He says he owns no television set because the one he watches in his home was purchased by a company he runs. He says he has no checking accounts, no savings accounts, no credit cards, no debit cards … The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring.” (“Sharpton says he has no assets to pay slander victim”, AP/CNN, Dec. 7; Alan Feuer, “Asking How Sharpton Pays for Those Suits”, New York Times, Dec. 21; “It Depends on What You Mean by ‘Own'” (sidebar), Dec. 21). (Update June 22-24, 2001: he finally pays Pagones).
December 29, 2000-January 2, 2001 — Seats in all parts. “Tiered” stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them. But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints. “The ADA has proved a powerful tool on a similar issue — handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena.” (Matthew Mosk, Ian Shapira, “Buying a Ticket to Court”, Washington Post, Dec. 8; Mark Pratt, “Theaters Sued Over Disabled Seating”, AP/FindLaw, Dec. 18). And: “Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so ‘pretty women’ could sit in the first two rows. Brooks’ attorney denied the allegation, saying people in the front rows are generally Brooks’ friends. A judge ruled Friday that the complaint can proceed to trial, but said Brooks’ liability is limited because he had no control over concert operations at Seattle’s Key Arena.” (“Brooks accused of discrimination”, AP/Washington Post, Dec. 17).
December 29, 2000-January 2, 2001 — Enviro litigator: debate belongs in Congress, not courts. We promise we didn’t make up the following quote, though we understand why it might astound readers familiar with the environmental movement’s record over the past three decades of heading for court in quest of victories it couldn’t win in Congress: “Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the “nondelegation” doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies. ‘We think EPA’s policy on this issue is a good policy,’ said Fox, who is representing the American Lung Association in the case. ‘But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.'” (Margaret Kriz, “Trying to Roll Back the Regulators”, National Journal, Nov. 4, not online). See also Gregg Easterbrook, “Green values”, The New Republic, Nov. 13).
December 26-28 — That’ll teach ’em. In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack. The ambulance arrived eight and a half minutes after the mother’s 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which “constituted ‘willful and wanton misconduct,’ the standard for erasing municipal immunity.” Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools’ invisible-fist theory. (Margaret Cronin Fisk, “911 Incident Brings $50 Million Award”, National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004).
December 26-28 — Appearance-blind hiring? Green-haired Santas, take hope! A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth. “But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.” They may be violating employment law if they want to hire only “lithe” or “athletic-looking” personnel, for example. However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more “natural-looking”. (Virginia Postrel, “When the ‘Cool’ Look Is Illegal”, Forbes, Nov. 27).
December 26-28 — Updates. Further developments in stories already covered in this space:
* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under “sue and labor” clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue. Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along. (Barnaby J. Feder, “Court Rules on Year 2000 Claim”, New York Times, Dec. 22 (reg)).
* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center’s rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, “Court Overrides Hospital’s Ban on Photographs in Intensive Care Unit”, New Jersey Law Journal/Law.com, Dec. 4).
* In the latest sign that “baby Castano” (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies (“NY court rejects smokers’ class-action certification”, Reuters/FindLaw, Nov. 30).
December 22-25 — Victory in Philadelphia. “A federal judge yesterday dismissed Philadelphia’s lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue.” Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their “novel legal theories” would have failed as a matter of law. “The city’s drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit.” His successor as mayor, John Street, did proceed to sue. Many other cities’ gun suits have also been dismissed, most recently Chicago’s. (Frederick Cusick, “Court rejects city gun lawsuit”, Philadelphia Inquirer, Dec. 21).
December 22-25 — Suits even ATLA admits are frivolous dept. An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic. Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: “Life has its disappointments. Some come out of the blue/ But that doesn’t mean a prisoner should sue.” (“Dissatisfied Customer”, Reuters/ABCNews.com, Dec. 20)
December 22-25 — Britain’s delicate soldiery. The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on “what he called a culture of ‘risk aversion’, warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. … In a swipe at the ‘litigious nation’ Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. … He added: ‘But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. … There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.'” In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: “we need to guard against such ill-conceived ideas in future”. (Richard Norton Taylor, “Defence chief lays into culture of ‘risk aversion'”, The Guardian (UK), Dec. 20). (“Armed Forces ‘under threat from human rights legislation'” (text of speech), Daily Telegraph, Dec. 21; Michael Smith, “Guthrie attacked over ban on disabled”, Daily Telegraph, Dec. 21; “General alert” (leader/editorial), Dec. 21). And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise. “‘One solution would be to provide ear protectors during training, but then soldiers couldn’t hear their sergeant major giving orders,'” said a spokesman. (“British Army Bands May Have to Pipe Down”, Reuters/Excite, Dec. 21).
December 22-25 — Not pro bono, not nohow. The roundtable discussion in the November Harper’s on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, “came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:”
Alexander Pires, Jr.: So would you all work for free?
Dennis Sweet: What?
Richard Scruggs: Um.
Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, “Why would you want me working unhappy for you? [If I’m unhappy,] I’ll get you 100,000 bucks. If you got me happy, I’ll get you 2 million.”
Pires: Maybe I’m wrong.
Jack Hitt (moderator): I guess that issue’s resolved. (Harper’s, November; quoted in American Lawyer, Dec. 2000)
December 22-25 — Welcome visitors. Among the many personal websites linking to Overlawyered.com: Ellen’s Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio — Aug. 3).
December 21 — Errin’ Brockovich? “An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film ‘Erin Brockovich‘, found that Brockovich’s testimony in the arbitration proceeding ‘was hardly credible’,” notes the Wall Street Journal‘s Opinion Journal. Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him. Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been “preoccupied with other significant matters” during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie. “[Faulty representation] is evidenced not only by the poor result, but also by the firm’s overall lack of professionalism; by the firm’s putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct,” wrote Krivis. Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator’s excessive credence in Baroody’s witnesses; it is not known whether his professional liability insurer will appeal. Moreover, “a claim isn’t necessarily because you did something wrong,” Cathy Hastings, insurance manager for the State Bar of California, told a reporter. “It’s only because someone decided to sue you.” That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves. (Brad Smith, “Law firm made famous by film ruled negligent in case”, Ventura County Star, Dec. 13).
December 21 — ADA requires renting to addiction facility. A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts. Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility. The jury did turn down the drug program’s request for millions of dollars in damages, however. Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection. (Kate Shatzkin, “Judge orders long-term lease for ship treating drug addicts”, Baltimore Sun, Dec. 12).