February 20 — Australia: student wins millions over corporal punishment. “A man has been awarded more than [A]$2.5 million in damages for the pain and suffering he has endured since receiving the strap at school in 1984.” The Catholic Education Office has decried as “manifestly excessive” a court’s award to 30-year-old Paul Hogan of Sydney, who says being twice subjected to stropping as a student 17 years ago has left him with chronic pain and ruined his career hopes of becoming an engineering project manager. The second punishment had been administered to Hogan after he had called the school’s headmaster a “black bastard”. (Ellen Connolly, “$2.5m payout over school punishment”, The Age (Melbourne), Feb. 15) (& update Dec. 15-16: appeals court rules award excessive)
February 20 — “Overlawyered & Overgoverned”. In what is becoming something of an annual tradition, our editor devotes his Reason column to a roundup of last year’s highlights from this website, proceeding month by month from January (“New York City announced that it did not intend to give back the brand-new $46,000 Ford Explorer it had seized from 34-year-old construction worker Joe Bonilla after his arrest on drunk-driving charges, even though Bonilla had been found not guilty of the charges”) through December (Great Britain announces that soldiers’ exposure to the noise from military brass bands violates occupational-safety regulations). (March).
February 16-19 — “Angelos made rare donation to GOP”. During the last election cycle the torts magnate and Orioles owner made himself “one of the five biggest Democratic donors in the country. He gave nearly $1 million, most in the form of unregulated soft money. But just before the election, Angelos delivered a rare contribution to a Republican: $25,000 to Sen. Orrin G. Hatch, making the Baltimore trial lawyer the largest single donor to the Utah senator’s re-election campaign.” The safety of Hatch’s seat was never in doubt, and the senator won by an overwhelming margin; “I don’t follow his activities,” claims Angelos regarding the senator’s official work as chair of the Judiciary Committee, which oversees proposed curbs on litigation as well as the continuation of the baseball antitrust exemption. (Paul West, Baltimore Sun, Feb. 9).
February 16-19 — Tobacco arbitrator: they all know whose side I’m on. “Texas Tech University School of Law in Lubbock recently found itself in the ethical crosshairs over a $12.5 million donation it solicited from Wayne Reaud, a prominent trial attorney and alumnus of the school. Texas Lawyer reported earlier [in 2000] that the situation was ‘raising eyebrows’ in the state, because the school’s dean, Frank Newton, solicited the donation and then later agreed to serve on an arbitration panel setting fees for lawyers in the state’s $17.3 billion settlement with cigarette manufacturers. The problem: Reaud was one of the lawyers due to receive part of the eventual $3.3 billion fee. Newton saw no conflict since everyone, including the tobacco firms, knew where his loyalties lay. ‘There’s no question about who I am or what my role was,’ he said. ‘The tobacco companies knew that I was going to try and get the most money for Texas [and the attorneys].'” Are we the only ones who are having to rethink associating the term “arbitrator” with such presumed virtues as neutrality, objectivity and impartiality? (“Tough Questions: Taking the High Road”, National Jurist, Oct. 2000; “Donor remains generous after donation ‘not enough'”, AP/ AmarilloNet.com, Sept. 12 (school says Reaud would have to give twice as much for it to rename itself after him); Linda P. Campbell and John Moritz, “Lawyers who led Texas’ assault on the tobacco industry awarded $3.3 billion”, Fort Worth Star-Telegram, Dec. 11, 1998).
February 16-19 — Expanding definitions of child abuse. Only an extremely conservative parent these days would punish a child for using profanity by washing his mouth out with soap, or punish lying by putting hot pepper on the child’s tongue. And only an extremely progressive parent would dispense condoms to her sexually active 13-year-old son. What both manners of parenting have in common in America today is that they can get you into deep trouble with child welfare authorities and even put you at risk of jail time. (Paul Craig Roberts, “Targeting Parents”, TownHall.com, Dec. 13; “Criminalizing sex ed”, Feb. 1).
February 16-19 — Trial lawyers (some of them) yank Nader funding. Peeved at the longtime litigation advocate for helping defeat Al Gore, some leading trial lawyers are pulling back the generous contributions they’d been making to the Nader network of pressure groups. For example, prominent plaintiff’s aviation attorney Lee Kreindler has un-pledged his firm’s $10,000 pledge to Nader’s Aviation Consumer Action Project, and others are said to have cut their support of his Center for Auto Safety, Center for the Study of Responsive Law, Public Citizen and so forth. (This is soooo confusing since the official line of many Nader organizations had been that the trial bar was not an important source of funding for them.) Even San Antonio personal injury attorney Pat Maloney (“We support him overtly, covertly, in every way possible”, he once said of Nader — see June 13, 2000) says he’s not giving his usual $5-10 K. All together now: boo-hoo! (Tatiana Boncompagni, “Nader Facing Trial Lawyer Backlash”, Legal Times, Feb. 15).
February 14-15 — E-privacy invasion made simple. As Bill Gates and all the rest of the world now knows, getting sued under American rules means that hostile lawyers can demand back copies of more or less every byte of e-mail you’ve sent or received from your workplace, which they can then trawl through in search of the bits that make you look worst. Now specialized “electronic discovery” companies have sprung up to assist in this process; an exec with one such company says reading your opponent’s past e-mails as part of the “discovery” process should be “as easy as surfing the Internet”. Toward that salutary end, new technology allows electronic discovery “to be reviewed in its native format — electronically” — which means the litigator won’t risk missing the chance to inspect aspects of your correspondence like lists of bcc (blind-carbon-copy) recipients, forwarding trails, or revision time-stamps. (Virginia Llewellyn, “Discovery the E-Way”, Texas Lawyer, Feb. 1). And messages you thought you deleted long ago (Ross Hanig, “Computer Forensics Lab Plumbs the Depths of E-Mail Evidence”, The Recorder (San Francisco), Feb. 14). More on electronic discovery: Thomas W. Hazlett, “Tattletale emails”, Forbes ASAP, Aug. 21 (lesson: “Burn the emails”); Chris Oakes, “This email will self-destruct”, Wired News, Sept. 21 (some ways to do that).
February 14-15 — Microdonation update. We’ve been pleased by the response during the inaugural week of Amazon.com’s new “Honor System”, which gives readers a chance to make small donations ($1 to $50) to support websites they enjoy. (This site was among Amazon’s picks as a participant in the launch, which resulted in a little attention for us all by itself.) Thanks to all of you who’ve contributed. We notice that several of the writer-driven sites we visit regularly, including Kausfiles, Virginia Postrel’s VPostrel.com, AndrewSullivan.com, and The Occasional, either have signed up with the system already or are talking about doing so. Think of us all (to borrow Mickey Kaus’s image) as buskers on the street, competing for you to throw your entertainment dollar into our hat (see left column of front page).
February 14-15 — $1,000/hour for shareholder class lawyers. Last month a federal judge “awarded $24.3 million in attorney’s fees — 30 percent of an $82.5 million settlement — to the team of plaintiffs’ lawyers in the class-action shareholder’s suit against Aetna Inc.” Attorneys from Savett Frutkin Podell & Ryan and the law offices of Bernard M. Gross, both of Philadelphia, and New York’s Milberg Weiss Bershad Hynes & Lerach claimed to have spent a necessary 22,000 hours on a settled case accusing Aetna of painting an overly rosy picture of its merger with managed-care giant U.S. Healthcare in 1996, a merger that worked out less well in practice. Even accepting the 22,000-hour claim at face value, the fee request works out to more than $1,000 an hour, but Judge John Padova declared that it would be “arbitrary” to give the lawyers any less. At one point the underlying suit was thrown out on summary judgment, but the lawyers got it revived. (Shannon P. Duffy, “Federal Judge Awards $24.3 Million in Fees to Attorneys of Aetna Shareholders”, Legal Intelligencer (Philadelphia), Jan. 9).
February 14-15 — U.K.’s school bullying suits. Vaulting ahead of the United States in this respect, Britain has been rapidly establishing a new right for schoolchildren bullied by their classmates to sue education authorities for cash awards. The first such claim, in 1994, won £30,000 damages for derogatory remarks, teasing and name-calling, and another claim of verbal bullying won £1,500 in October. “According to the National Association of Head Teachers‘ bullying guidelines, bullying can be ‘physical, verbal, emotional, racist or sexual’, and includes ‘sarcasm, gestures, and exclusion from social groups’. And just in case that leaves anything out, the guidelines go on to say that ‘while others may not feel that certain actions or words are of a bullying nature, if the recipient feels they are being bullied that is sufficient evidence to treat the case as prima facie bullying’ … When almost anything can be interpreted as bullying, the scope for compensation claims against schools and [local authorities] is enormous. It is not necessary for the potential litigant to have suffered any physical harm. … Claims for compensation usually include the allegation that as a result of being bullied the victim underachieved or failed to reach their potential in life.” While the problem of school bullying is hardly an imaginary one, handing over authority to the courts further enfeebles schools’ authority and the democratic process. (Charlotte Reynolds, “Law School Bullies”, SpikedOnline (UK), Jan. 29).
February 12-13 — Welcome KSFO listeners. The San Francisco station’s “Web Wanderer” feature gives us a recommendation (Feb. 10), as does “O’Donnell on Computers” in an echo effect (also Feb. 10). In an interview with Online Journalism Review, Stephen Mayne, who puts out Australia’s stylish humor/politics site crikey.com.au, says the land down under has no equivalent of Matt Drudge or of American websites that provide critical coverage of a single industry or profession, such as (blush) us (Tim Blair, “Where Are Australia’s Web Voices?”, Feb. 6). And we’re linked (as one of the “Good Guys”) by numberwatch.co.uk, a new British site “working to combat Math Hysteria” by looking at “the scares, scams, junk, panics, and flummery cooked up by the media, politicians, bureaucrats, so-called scientists and others who try to confuse you with wrong numbers.”
February 12-13 — GAF sues asbestos lawyers. GAF, the biggest name in the roofing materials business, recently reorganized itself as G-1 Holdings and filed for bankruptcy under the pressure of thousands of lawsuits claiming injury from asbestos products it sold decades ago. Now it has sued several prominent asbestos plaintiffs’ law firms on a variety of grounds. It claims that Charleston, S.C.’s Ness Motley and New York’s Weitz & Luxenberg pushed forward claims by thousands of workers who lack significant health impairment despite a promise not to do so on which GAF relied in contributing to earlier settlement rounds; and it charges Dallas-based Baron & Budd, through its use of the now-famed secret “Preparing for Your Deposition” memo (more), with “intentionally generating false testimony” to support claims against former makers of asbestos-containing products and “induce inflated settlements of such claims.” (Baron & Budd chieftain Frederick Baron is the current president of the Association of Trial Lawyers of America.)
GAF/G-1 also alleges that the lawyers successfully arm-twisted other defendant companies to stop pressing for a bill in Congress that would replace asbestos litigation with an administered compensation scheme, by threatening to turn down otherwise acceptable settlement offers from those companies (thus menacing them with the risks and costs of trial) unless they agreed to stop supporting the legislation. GAF/G-1 argues (which sounds like a dubious line of argument to us) that this variety of hardball violated its constitutional right to petition the government for redress of grievances; a more apt criticism of the law firms (if the allegations turn out to be true) would be that they stood ready to sacrifice the interest of some current clients, who might have been well served by accepting immediate settlements, so as to maximize the legal clout enjoyed by future claimants (we would never imagine that the lawyers’ opposition to administered compensation had anything to do with their own self-interest). One of the opposing lawyers calls GAF’s suit “desperate”. (Mark Hamblett, “Asbestos Lawyers Named in Civil RICO Suit”, New York Law Journal, Jan. 12). (See update Dec. 10.)
February 12-13 — Sleepin’-lawyer case to get more review. The full Fifth Circuit U.S. court of appeals has agreed to consider whether Death Row inmate Calvin Burdine should automatically be assumed to have been deprived of his constitutional right to a fair trial if his lawyer fell asleep during parts of that trial, or whether, as the majority of a three-judge panel had it, the appropriate inquiry is whether the dozed-through portions of the proceedings were important enough to have made a difference in the outcome. Episodes of barrister somnolence recur often enough in Texas capital jurisprudence that the locals term the resulting appeals “sleepin’-lawyer cases”. (Mary Alice Robbins, “Sleeping Lawyer Case Reheard by 5th Circuit”, Texas Lawyer, Jan. 30; “Court revisiting murder case in which lawyer dozed”, AP/CNN, Jan. 22). Update Aug. 20-21: court rules trial improper, new trial likely.
February 12-13 — Batch of reader letters. We hear from our correspondents regarding the “chicken-finger” and “dramatic-reading” zero-tolerance cases; more instances of food companies’ asserting intellectual property claims over seemingly familiar munchies; how personal responsibility should cut both ways in the Cincinnati all-you-can-drink contest case; and what you may not have known about trifecta and perfecta payouts.