October 2001 archives, part 2

October 19-21 — Lawyer-vetted war? According to Sy Hersh, American gunners had Taliban chief Mullah Omar in their sights, but declined to finish him off per the advice of an army lawyer that there was too much risk of collateral damage to civilians: “‘My JAG’ — Judge Advocate General, a legal officer –‘doesn’t like this, so we’re not going to fire,'” said the commandant. Defense Secretary Rumsfeld is said to have been “kicking a lot of glass and breaking doors” in fury over the decision, and the editorialists at the New York Post aren’t happy about it either (Seymour Hersh, The New Yorker, Oct. 22; “Lawyers for Bin Laden” (editorial), New York Post, Oct. 17). But Inigo Thomas of Slate thinks the system of civilian control of the military probably worked as intended: “Spinning Seymour Hersh”, Oct. 17; also see Clarence Page, “The U.S. frowns on assassinations, except …”, Chicago Tribune, Oct. 17. [See letter to the editor, Oct. 22]

October 19-21 — U.K. may ban anti-religious speech. A bill proposed by the Home Secretary would outlaw “incitement to religious hatred”. Comedian Rowan Atkinson (Mr. Bean) warns that literary and satirical writing is likely to be chilled as a result — watch out, Monty Python’s Life of Brian, criticized as anti-Christian. Also in potential danger: a sketch on Not The Nine O’Clock News depicting Muslim worshippers simultaneously bowing to the ground with the voiceover: “And the search goes on for the Ayatollah Khomeini’s contact lens.” (The Times, Oct. 17) (& see Bjoern Staerk, Oct. 17). Update Dec. 21-23: provision dropped before passage of bill.

October 19-21 — It’s the clients’ money. A panel of the Fifth Circuit strikes down one of those schemes so popular among organized lawyerdom which grabs the interest earned on clients’ trust accounts to subsidize poverty law. (Janet Elliott, “Panel strikes down legal services fund “, Houston Chronicle, Oct. 17; “U.S. Court Voids Texas Approach to Legal Aid”, AP/New York Times, Oct. 18 (reg)).

October 19-21 — Our own terrorist-funding problem. P.J. O’Rourke, in an interview with Clive James excerpted in the Daily Telegraph:

“There is a person in America who is known as a three-drink Republican — I don’t mean my Republican party: the Irish Republican Army — and the Noraid can comes along and in goes a fiver and ‘that’s for the boys back in wherever’. Yes, America has a lot to answer for.

“We turned a blind eye to the funding coming out of the USA. We did it because the Boston Catholics were a very important part of the Democratic coalition and they were also a very important part of the Reagan Republicans and neither wished to offend them. They had a lot of clout in Congress and we let them go and it was shameful, absolutely shameful.” (“‘I believe the terrorists wanted a nuclear attack on Baghdad'”, Oct. 7).

MORE: Jonathan Duffy, “Rich friends in New York”, BBC, Sept. 26; “America pressed over UK terrorism”, BBC, Oct. 10; “‘Sinn Fein support wanes in US'”, BBC, Aug. 17; “How the Real IRA was born”, Guardian, March 5; “Omagh relatives consider picket”, BBC, Aug. 8, 2000; “‘Split’ on thwarting Real IRA”, BBC, Oct. 20, 2000 (Americans helped fund 1998 Omagh bombing which killed 29); Sean Boyne, “The Real IRA: after Omagh, what now?”, Jane’s, Aug. 24, 1998).

October 17-18 — NYC trial lawyers’ post-9/11 complaints. It seems Gotham’s personal injury practitioners have all sorts of gripes concerning their conditions of practice these days. To begin with, juries don’t sympathize as much with their clients’ woes with the image of much vaster hardships still fresh in their minds. Courts are handing out lots of delays and adjournments to defendants, especially to those whose legal offices were destroyed (like the Port Authority’s) or evacuated (like the city’s). Some weaker insurance companies may be going broke. “Another plaintiffs’ lawyer suggested that given the current ‘high public esteem’ for police officers and firefighters, ‘cases against them are going to be particularly difficult.” Attorney Martin Edelman of Edelman & Edelman exhorts his colleagues, however, to “be brave”. (Daniel Wise and Tom Perrotta, “Plaintiffs’ Lawyers Feel Post-Attack Pinch”, New York Law Journal, Oct. 16).

Edelman is especially dismissive of opponents’ excuses for delay: “Defense lawyers are milking this to a fare-thee-well — one attorney said that his staff could not work because the air smells bad.” As it happens, this week’s New York Observer quotes well-known downtown plaintiff’s attorney Harvey Weitz as describing conditions in his Woolworth Building office as “intolerable”, explaining that the place “just plain stinks”, even with the windows closed. (Petra Bartosiewicz and James Verini, with Blair Golson, “Reeling and Dealing”, New York Observer, Oct. 15). The New York Law Journal authors, who quote Weitz on a different point, perhaps should introduce him to Edelman so they can compare notes on whether the acrid smells that waft from the attack site do or do not render nearby offices intolerable. (DURABLE LINK)

MORE: Also quoted in the NYLJ piece is extremely successful NYC plaintiff’s lawyer Robert Conason of Gair, Gair, Conason, Steigman & Mackauf. Could anyone clear up for us once and for all whether he’s related to left-wing columnist Joe Conason?

October 17-18 — “Hate speech” law invoked against anti-American diatribe. Hey, it wasn’t supposed to work this way! Section 319(1) of Canada’s Criminal Code makes it unlawful to incite public hatred of an “identifiable group”, such as a nationality, in a way that “is likely to lead to a breach of the peace.” Now University of British Columbia prof Sunera Thobani is facing possible investigation under the law over a vicious tirade she delivered against the United States at a conference which (ironically or not) was subsidized by the Canadian government and presided over by Hedy Fry, a well-known Ottawa official. Columnist Wendy McElroy of FoxNews.com sorts it all out (“Free Speech Protects All Speech”, Oct. 16).

October 17-18 — Court’s chutzpah-award nominee. Not only did San Francisco attorney Sherman Kassof not succeed in defending the $215,000 in fees he thought he had coming from the settlement of a class action against Wells Fargo, but a California appeals court, in a 32-page opinion, said his fee request might deserve a “chutzpah award.” “‘To award an attorney a premium for duplicative work that was neither difficult nor particularly productive, involved little or no risk, may well have delayed settlement, and seems to have been primarily designed to line counsel’s pockets would reward behavior which it is in the public interest (and as well the special interest of the legal profession) to strongly discourage,’ Presiding Justice J. Anthony Kline wrote.” (Mike McKee, “Fee Appeal Backfires on Class Lawyer”, The Recorder, Oct. 5).

October 16 — Counterterrorism bill footnote. During consideration of the bill, reports Declan McCullagh at Wired News, civil libertarians raised concerns about possible leeway for forum selection by prosecutors seeking wiretap orders. “Since the Patriot Act gives courts the power to order wiretapping anywhere in the U.S., Rep. Maxine Waters (D-California) said she was worried that ‘it would encourage the government to engage in forum searching. If the court that issues the warrant is far from the defendant, it becomes difficult for the person to contest it.'” Plausible enough, right? And by the same logic, civil defendants deserve protection against the filing of, say, class actions in forums selected by lawyers for their inconvenience to the defense — right again? That thud you hear is Rep. Waters keeling over rather than admit any such thing. Just as Trix are for kids, everyone knows due process protections are for criminal, not civil defendants (“Patriot Bill Moves Along”, Oct. 4).

October 16 — Status of judicial nominations. The Office of Legal Policy of the U.S. Department of Justice has put up an informative page on the status of judicial nominations. As Glenn Reynolds points out at his fledgling but already indispensable InstaPundit weblog, “The ready availability of this information on the Web represents a net loss of power for the Senate.”

October 16 — Latest lose-on-substance, win-on-retaliation case. A federal court in San Antonio threw out Raymond Morantes’s original claim of discrimination against his employer, the Federal Aviation Administration, but a jury decided that agency managers had wrongly passed over Morantes for promotion because they were annoyed at his having sued them, so he’s getting half a mil. (“Man Gets $500,000 for Retaliation by FAA”, AP/FoxNews.com, Oct. 6).

October 15 — “Company Tried to Capitalize on Sept. 11”. A Cincinnati company named Providence Inc. has been sending out portfolios to Sept. 11 victim families with “$50 to $200 in cash, prepaid calling cards and the names of four law firms with ‘extensive experience in major airline and other similar mass disasters.'” The company advances money to plaintiffs in anticipation of lawsuit settlements; because it employs no lawyers, it can skirt a 1996 federal law “that forbids lawyers from approaching the families of air crash victims for 45 days after an accident.” The outfit, which routinely drops mail to victims after other disasters as well, “says none of the law firms named on its list knew that their names were being distributed … three law firms threatened to sue to block Providence from using their names”. (Jonathan D. Glater and Diana B. Henriques, New York Times, Oct. 13 (reg)). And despite the go-slow approach to litigation proposed by the leadership of the Association of Trial Lawyers of America, some plaintiff’s lawyers are raring to go with Sept. 11 suits, among them New York City’s Aaron Broder, who has bought the fine-print ad space at the bottom of the New York Times‘s front page to solicit clients. “‘They’re all going to be socked real hard,'” [Broder] said yesterday of the airlines and other American businesses and government agencies, adding that he disapproved of other lawyers discouraging suits. ‘Right now, everybody’s so patriotic they’ve forgotten about the fact that there are defendants and wrongdoers here,'” he said.” None of that excessive patriotism for him! (William Glaberson, “Legal Community Is Divided by the Prospect of Lawsuits for Attack Victims”, New York Times, Oct. 10 (reg)).

October 15 — “Mother of all copyright battles”. Now they’re really in trouble: Osama bin Laden’s Mideast followers have gotten American intellectual property lawyers steamed at them following their unwitting use of an image of “Bert” from PBS’s Sesame Street: “you don’t get much more ‘interconnected’ with Western culture than getting your a– sued off.” (Mark Steyn, “Culture Shock”, Daily Telegraph, Oct. 13; Don Kaplan, “Osama’s ‘Muppet’ State”, New York Post, Oct. 11). On the other hand, maybe Binny could beat a criminal rap before a court here given the sort of American legal talent his ample fortune could buy (James S. Robbins, “Bring on the Dream Team!”, National Review Online, Oct. 9).

October 15 — Disclaimer rage? “Lawyers are destroying the usability of American products. … Work comes to a standstill while we look for the button to vanish the tiny box with the even tinier type.” It was bad enough in PC software, but now automotive and aeronautic GPS (global positioning satellite) map programs require operators of moving vehicles to click past screens of fine print before they can read maps, adding crucial seconds of distraction: “in their fanatic pursuit of zero liability, they’ve set up the ideal conditions to actually kill people.” However, not all disclaimers have to be a drag, as one maker of household products has shown: “The Good Grips people obviously put a lot of work, not only into constructing a fun-to-read page, but in talking conservative corporate attorneys into allowing such a page.” (Nielsen Norman Group, “Good Lawyers, Bad Products”, Asktog, August).

October 12-14 — “Suits Still Pending from 1993 Trade Center Blast”. So sad: eight years after the incident, “[t]he legal fallout from the 1993 truck bomb that rocked the World Trade Center hasn’t even gone to trial. Plaintiffs’ lawyers claim that the Port Authority knew the towers were an attractive terrorist target and that a truck bomb was the most likely weapon.” Included in the claims against the Port Authority: a business-interruption claim from Cantor Fitzgerald over having to shut down its WTC offices back then. (Bob Van Voris, National Law Journal, Oct. 3).

October 12-14 — “Philadelphia judicial elections still linked to cash”. “Despite a scathing state grand jury report this spring on Philadelphia’s system of electing judges, little has changed, a review of campaign reports for the 2001 primary suggests.

“Candidates for the legal system’s most sensitive offices still shelled out millions of dollars in ‘street money’ to ward leaders, consultants, and freelance vote-producers for primary-day help in hopes of landing a seat on the bench.

“About $500,000 was spent in ways that required no accounting to the public.” (Clea Benson, Philadelphia Inquirer, Oct. 7).