July 15 — Honey, you’ve got mail. Some Floridians are learning about their impending divorces by opening their mail to find “Dear prospective client” brochures from local divorce lawyers. The phenomenon can arise when attorneys solicit would-be clients before a departing spouse has served them with papers.
The U.S. Supreme Court granted constitutional protection to some forms of attorney solicitation back in the 1970s, and it has since become an ever-more-systematic business. Private services compile names from daily divorce filings and sell them to lawyers, who then try to beat competitors to the punch by getting brochures to prospects as soon as possible, many hiring private delivery services. “These things are hitting the mailboxes of the respondents before they even know their spouse has officially filed,” said Warren Wilson, a Clearwater lawyer who’s trying to get the state bar’s ethical rules changed to curb the practice.
Wilson says one man returned from his mother’s funeral in South America to learn from three lawyers’ letters in his mailbox that his wife had left him. Aside from inability to reach the other party, service of process can be delayed for various other reasons, including holidays and vacations, tactical or prudential reasons, or perhaps even second thoughts about whether to go through with the action. In a case that happened this summer, Wilson says, a Clearwater woman filed for divorce but did not serve the papers at once, waiting for family members to fly in to protect her. Before that could happen, a lawyer’s flyer reached her husband, who came to the woman’s house and beat her.
Florida lawyers must observe a 30-day waiting period before soliciting accident victims, but no such rule applies in matrimonial cases, a situation Wilson would like to change. (Associated Press and Canada’s National Post, links now dead.)
July 14 — Do as we say, please. “We have been so focused here in New Orleans on getting guns off the street and protecting our citizens,” declared Mayor Marc Morial in making his city the first to sign up in the trial lawyer campaign to sue gun makers. Which makes it rather ironic, as Jake Tapper reported in Salon yesterday, that one of the leading sources of guns on the resale market is none other than the city of New Orleans. In what may be the largest deal of its kind ever to happen in the U.S., Big Easy’s city hall recently helped itself to a nice budgetary windfall by recycling for street use, through an Indiana broker, some 7,300 guns, most confiscated from lawbreakers. They include TEC-9s, AK-47s, an Uzi and various other semi-automatics whose importation and manufacture the U.S. Congress banned in 1994.
New Orleans’s suit demands that gunmakers equip their wares with child-proofing and safety locks. But it attached no such condition to the resale of the guns in its own inventory, only two of which had locks among the thousands it shipped. Nor did it require that the guns be resold only to other police departments, a financially unwelcome stipulation since weapons may fetch only half as much on the market when that particular string is attached.
Other localities now suing gun makers while profiting from gun swaps, often of used police weapons as distinct from confiscated guns, include Boston, Detroit and Alameda County, Calif. “In essence, these cities served as gun distributors themselves,” writes Tapper. Sometimes cities have arranged deals through the very manufacturers they’re now suing, such as Glock. Boston is charging gun sellers on a newly minted legal theory that they displayed “willful blindness” to what happened after guns left their hands, but itself attached no strings to resale when it got rid of more than 3,000 .38s.
Another of the novel legal theories holds it unconscionable for manufacturers to cater to the full sales demand of shops located in gun-friendly states and suburbs when they know a certain percentage of the merchandise will wind up in the hands of city residents. Morial has defended New Orleans’s gun-dumping on the grounds that the city required that the weapons not be immediately resold in Louisiana (“not in my bayou”, as Tapper puts it, pointing out that it’s apparently fine with Morial if guns flood into any city outside his own state). But predictably, not long after an initial shipment to Texas, some of the guns in the deal began showing up at New Orleans shops.
Meanwhile, trial lawyers have recruited Indian tribes to sue tobacco companies even though the exemption of reservations from state taxes has long made cigarette sales a huge money-maker for many tribes. Albuquerque trial lawyer Turner Branch, who had signed up 15 tribes and was negotiating to represent 50 more, conceded to the Rocky Mountain News in March (link now dead) that some of his prospective clients themselves numbered among tobacco sellers but said it was “terrible they got put in that position”, which makes running a tax-free smoke shop sound like something that could descend like hail on any of us on the wrong day. (Coming soon: they forced us to run casinos.) It will keep happening so long as the trial lawyers can keep getting laws changed retroactively.
July 13 — Puff, the magic fees. The private lawyers representing the state of Wisconsin in the tobacco wars initially demanded $847 million in fees, then agreed to accept $75 million. (Well, close enough.) Then they fought to prevent public disclosure of the billing records on which their fees were based, poignantly citing “ethical issues”. Three newspapers went to court to pry open the informational clamshell, and the state attorney general’s office finally released a 900-page stack of records yesterday, with results reported in this morning’s Milwaukee Journal-Sentinel.
The lawyers now claim to have spent 26,284 hours on the case. Taking this claim for a moment at face value, it would indicate that their initial fee demand worked out to an average rate exceeding $32,000 per hour, and that even after backing off on that demand they will still be making fees of $2,853 an hour. (The law firms involved are Habush, Habush, Davis and Rottier of Milwaukee; Brennan, Steil, Basting and MacDougall of Janesville; and Whyte Hirschboeck Dudek of Milwaukee, none of which returned the Journal-Sentinel‘s calls for comment.)
How many of these billable hours were reasonable and necessary? They include time spent purportedly by lawyers on matters more often handled by office administrators, such as setting up bank accounts and securing office space, furniture and parking. What about time spent on legal issues? The artful structure of the Medicaid suits makes it hard to know how much legal research was really needed for any individual state’s suit; lawyers representing a few states like Minnesota could do much of the heavy lifting on which other states’ lawyers could then piggyback. At any rate, the Wisconsin lawyers’ own accounting includes ample amounts of time spent on fee negotiations themselves; on working the press and scoping out the Governor and other political players; and in preparing a constitutional challenge to proposed legislation that would curb their fees.
In addition, the lawyers billed $2,037,668.45 in reimbursable expenses. This included $7,818.80 for a chartered plane to fly attorney Robert L. Habush, former president of the Association of Trial Lawyers of America, roundtrip from Florida to Washington (coach fare would have been $906), $851.50 for roundtrip limo service to whisk Habush from Milwaukee to Madison and back on May 5, 1997 (among other limo bills for trips between those cities), and $800.75 for New York City limos during a day of fee negotiations.
The Ashland Press in northern Wisconsin editorially pointed out in April that the median household income in its neck of the woods ran at $20,000 in 1990, which meant the lawyers had demanded as much for an hour of work as the typical family made in a year. (The state, meanwhile, had requested $209 an hour for its own lawyers.) A state bar report claims the average Wisconsin lawyer makes $44,000 a year, corresponding to about an hour and a half of the tobacco lawyers’ time as per their initial demand and 15 and a half hours (potentially, one very long day’s work) under the award they settled for.
Tobacco fees have already become a hot political topic in other states including Massachusetts (link now dead), where Gov. Paul Cellucci has called the local fee request “obscene”, and Texas, where cozy fee dealings have been referred to prosecutors for possible action.
July 12 — Loser-pays endorsed by Martina. “The loser of a lawsuit should pay the legal fees,” writes Martina Navratilova. “These days, as soon as a person feels slighted or injured (physically or emotionally), they look for someone to sue….The hope is not to win, but for the quick $50,000 — because it’s cheaper to settle than to fight.” The tennis pro’s comments are among the highlights of a new paperback entitled 250 Ways To Make America Better, compiled by Carolyn Mackler and the editors of George magazine (Villard, 1999).
Not only do costs and insurance rates go up when targets have to settle, Navratilova points out, but “prohibitive rules increase, and freedom is diminished. Freedom used to mean that one is free to achieve, to dream, to aspire, to think — free to do what is right. By assigning blame elsewhere, people are taking our freedom away.” There’s more, all of it eloquent, in the great athlete’s contribution (which is numbered #9 of the 250 “ways to make America better”). Moreover, loser-pays is also the first reform proposed by musician Ice T in his entry (#41). “Let them pay the money, and they’ll leave you alone.” Your editor’s entry in the volume is “#98: Abolish the Peremptory Challenge”.
Speaking of jury selection, your editor’s thoughts on the trial that led to last Wednesday’s Miami cigarette verdict appear as today’s “Rule of Law” column in the Wall Street Journal (online subscription required). Readers of Overlawyered.com had a chance to see much of this material first (see entries for July 4 and July 8, below).
July 11 — Thought for the day. From American Lawyer‘s symposium last November on the international practice of law: “It is very sobering to me, as an American, and someone who actually believes in our system, to see foreign companies say over and over that the one thing they won’t put in their contracts is a clause that this is going to be governed by American law or be subject to an American jurisdiction. It makes one wonder whether we are really the most sophisticated commercial country in the world or a banana republic when you get major worldwide corporations doing that. I think it is a sobering issue for the American judicial system.”
— Robert Joffe, deputy presiding partner, Cravath, Swaine & Moore
July 10 — In L.A., redesigning the Chevy. More details have begun to emerge about yesterday’s $4.9 billion Los Angeles jury verdict against General Motors to six people severely burned in a crash of their 1979 Chevrolet Malibu. A drunk driver plowed into Patricia Anderson’s car from behind at a red light at a speed estimated by GM at 70 mph and by plaintiffs at 50 mph; the gas tank caught fire. The plaintiffs argued that it was unconscionable for GM to place the fuel tank 11 inches forward from the rear bumper when an earlier design had placed it more than twenty inches forward. Of course other gas tank placements, while reducing the risk from rear-end impacts, tend to increase the risk from other types of impacts, such as those from the side — and in so doing put the fire source closer to the passenger compartment. Yet according to GM lawyer Richard Shapiro, quoted in the New York Times (link now gone), Judge Ernest Williams of L.A. County Superior Court barred the company from introducing into evidence crash test data showing that the plaintiffs’ proffered alternative design was in fact less safe.
GM’s Shapiro said Judge Williams also barred the company from introducing data on the actual safety history of the vehicle, which has now been on the road for twenty years, long enough for a very full picture to emerge of its overall performance in crashes. In those twenty years, the National Highway Traffic Safety Administration has apparently never deemed the location of the Malibu’s fuel system to be a problem. In the controversy a few years back over the placement of gas tanks on the side of full-size GM trucks, plaintiffs’ lawyers managed to divert attention from the fact that nationwide accident data showed the trucks to be substantially safer in collisions than the average vehicle on the road, a topic your editor wrote up at the time for the Wall Street Journal.
One reaction to the news that a 1979 Malibu can be hit from behind at a differential speed of (possibly) 70 mph and have all six of its passengers survive is to wonder whether they still build ’em that sturdy anymore — especially considering the mandated fuel economy rules which have forced automakers to lighten up cars structurally since then. (Your editor is quoted in this morning’s AP business story as saying, with respect to vehicles that can withstand being rear-ended at 70 mph, “There is a word for that kind of car: a tank.”)(Sacramento Bee).
For those who are still goggling at the record $4.9 billion sum that the jury plucked from the air (with trial lawyer assistance) as a suitable damage figure — $107 million was compensatory, the rest punitive — here are some comparisons. A quick flip through the World Almanac reveals that $4.9 billion exceeds the gross domestic product of a long list of United Nations member countries (I stopped counting after two dozen). In fact, you could roll together the GDPs of the following eleven UN member states and still not get up to $4.9 billion: Bosnia-Herzegovina, Grenada, Comoros, Vanuatu, St. Kitts and Nevis, St. Vincent and the Grenadines, Micronesia, Dominica, Palau, Marshall Islands, and San Marino.
A crowning outrage: GM’s lawyer said the judge had also refused to allow the jury to hear evidence that the other car’s driver had been drunk and went to jail. News stories have still not named the drunk driver. (see update, August 27, and Overlawyered.com‘s page on auto-safety litigation).
July 9-11 — Overlawyered.com‘s first award. We’re happy to be named today’s Conservative Site of the Day, an honor given out by Steve Martinovich’s Enter Stage Right zine. We’ve discovered a lot of interesting web resources by browsing ESR’s archive of past Sites of the Day, including the Unofficial P.G. O’Rourke Page, the Critiques of Animal Rights page, the National Anxiety Center and Forfeiture Endangers American Rights.
July 9 — Be sensitive to Fluffy, or else. The Seattle Times reported in April that the owner of a small consignment clothing shop in the city’s Wallingford neighborhood has been forced to pay more than $650 and undergo sensitivity training because she refused to let a woman bring her dog into the store. Last November, Chaya Amiad entered Sharon Kempler-Jones’s Gypsy Trader shop with a small, shaggy dog on a leash and was told she had to leave it outside. “She became very upset,” recalled the store owner, who said the rule made sense because dog dander and clean clothing don’t mix. “She said, ‘Well, this dog can go anywhere, and you are going to hear from my attorney.'” Sure enough, within days a letter arrived from the Seattle Office for Human Rights charging Kempler-Jones with denying a disabled person access to her business.
Disabled? Amiad wasn’t deaf or blind, nor did she display any other visible handicap. Instead, it turned out that she was “emotionally dependent” on the dog. She even produced a note in which her psychologist assured the human rights office that the dog “has been privately trained to assist Ms. Amiad with cognitive disorientation and confusion” and that without this canine companionship “Ms. Amiad would probably become housebound and highly dependent.” And that was enough for them to rule that Kempler-Jones had committed disability discrimination — never mind that she had no way to know Amiad’s psychiatric status at the time. She was ordered to pay a fine and submit to sensitivity training, one element of which presumably consisted of writing fifty times on a blackboard: if someone asking for special treatment claims to be disabled, better take their word for it.
A few years back the Wall Street Journal’s editorialists reported on a case where the San Diego Zoo was targeted with disability-bias charges because it declined to let service dogs accompany visitors into exhibits where the resident animals might by instinct become agitated upon seeing even a well-behaved dog. The zoo had offered to provide individual human guides instead, which didn’t satisfy disabled-rights advocates. (The WSJ piece is not online to nonsubscribers, but you can read disabled-rights advocates’ side of the story). An online brochure from the Association of the Bar of the City of New York explains that business owners “almost never” have the right to decide for themselves whether to admit a service animal. It also mentions New York’s potential $50,000 fines (aside from lawsuit damages) for first violators, and notes that when federal, state and local laws are in conflict, whichever is most favorable to the disabled complainant prevails.
July 8 — Personal responsibility takes a vacation in Miami. Most observers are betting yesterday’s jury verdict against tobacco companies will be overturned on the issue of class certification. In the mean time, here are some preliminary tidbits that indicate how such cases get tried these days before friendly judges. At jury selection last summer, prospective jurors were quizzed on their reading habits and views on seemingly unrelated issues like gun control. Nine of the first twelve prospective jurors got purged, mostly for holding views considered prejudiced against the plaintiffs — apparently typified by a former smoker of three decades who said “I just think people are and have been well aware of the detriments of smoking…To come back after the fact, I find that somewhat ridiculous.” People with that sort of “bias”, apparently, mustn’t be allowed to serve on juries. (Daytona Beach News-Journal trial coverage). Six jurors remained.
Through the proceedings, plaintiff’s attorney Stanley Rosenblatt packed the courtroom with attendees wheezing loudly, with portable oxygen tanks and mechanical voice boxes (CNN) — though, since individuals’ state of health was not at issue in this round, defense attorneys had no way to question any of these spectators to establish whether they were even members of the class. Nor had they any better luck in objecting to what they said was inflammatory race-baiting on the stand by a plaintiff’s expert, Dr. Alan Blum of Doctors Ought to Care, on the subject of ethnically targeted marketing (race wasn’t supposed to be an issue in the case).
Might the jurors have been improperly influenced by ads they saw over the course of the trial? Plaintiff’s attorney Rosenblatt said yes, raising two rounds of objections because the defendants did not suspend advertising in South Florida markets during the year-long proceedings. Were these, perhaps, “issue ads” promoting the companies’ position on liability matters? No; one was a product ad for the introduction of a new brand, Kool Natural Lights, while the other was a national anti-youth-smoking campaign (according to Rosenblatt, the buying of ads in 49 unnecessary states in order to reach his juror pool in one merely proved how “clever” a ploy it was).
Circuit Judge Robert Kaye expressed concern about the Kool ad (it “raises one’s eyebrows“) — mustn’t have jurors being manipulated, after all. Yet he dismissed defendant objections over an incendiary anti-tobacco-company ad that ran only in Florida — and during the Super Bowl. Conveniently purchased by the state government with its tobacco settlement booty, the ad depicted the testimony of cigarette executives being interrupted by a canned audience laugh track — nothing anyone might find manipulative while a trial was in progress. Several jurors admitted they were watching the game when the state ad came on.
In their earlier tobacco lawsuit, a secondhand smoke class action, Stanley Rosenblatt and wife Susan cut a deal with tobacco defendants which set aside $300 million for a newly formed charitable research group, $0.00 for the members of the class of flight attendants that the Rosenblatts were supposedly representing, and $46 million in legal fees for guess who. A brief by Public Citizen’s Alan Morrison charged that this “gargantuan” fee sum “appears to be grossly excessive” and said the alleged settlement “violates fundamental tenets of fairness and adequate representation”.
July 7 — A Civil Action II? Trial lawyers had high hopes the John Travolta movie A Civil Action would ignite public anger about the way minute quantities of chemicals in the environment supposedly cause everything from childhood leukemia to depression and poor reading scores — a near-limitless source of potential litigation, if true. That didn’t happen, partly because of thoughtful coverage in places like the New Yorker (Atul Gawande, “The Cancer-Cluster Myth”, February 8, 1999, not online, summarized at Dartmouth’s Chance News) and New York Times (Gina Kolata, “Probing Disease Clusters: Easier to Spot Than Prove, January 31, 1999, reprinted, U. Fla.). “Over and over again,” Kolata reported, scientists have come up empty handed in finding anything more than statistical artifacts in such clusters. “Huge amounts of money” have gone into trying to link clusters to low-dose chemical exposure, says Harvard statistician James Robins, yet “nothing has come of it.”
The Civil Action film turned in only a so-so box office performance, but Hollywood doesn’t give up easily. Now the L.A. Times is reporting (link now dead) that shooting has begun in Ventura on a Julia Roberts vehicle, provisionally titled “Erin Brockovich,” about a real-life legal secretary (Roberts) working for a personal-injury lawyer (Albert Finney) who stumbles onto a case where children in a small town are sick and organizes a successful lawsuit against Pacific Gas & Electric, whose pollution is said to be responsible. Almost guaranteeing attention to the project is that Roberts’s salary for doing the film is $20 million, said to be a record for a female star.
Your editor’s critiques of A Civil Action in both its book and movie form, along with a lot of other material about the underlying case, are to be found at his Woburn Skeptic’s Page.
July 6 — What a recommendation. Considering that not long ago practically everything about the O.J. Simpson case was big news, it’s surprising how little discussion there’s been of this spring’s announcement that the famed non-murderer has agreed to do television ads for — yes, it sounds like a bad joke, but it’s true — a lawyers’ referral group. (AP story in Fort Worth Star-Telegram/BlackVoices.com) A spokesman for Justice Media, a 1-800-number marketing service, says the ads will be aimed at the minority community.
Nicole Brown Simpson’s sister Denise said she was “appalled” (WCCO), the California state bar said it wanted to look into the newly formed referral service (San Diego Daily Transcript), and the New York Daily News’s Juan Gonzalez reported more details about David Lee, the attorney “friend” who persuaded Simpson to do the ads. (A big New York City personal injury operator and protégé of the famed Harry Lipsig, Lee has been dogged by client complaints and just finished a two-year bar suspension).
“The Simpson ad brings to mind the many reasons why so many lawyers objected for so many years to the idea of lawyers advertising on television,” observes the Chicago Tribune’s Clarence Page (link may be dead). “They were afraid of something just like this, that the most brazenly greedy and cynical face of the legal world would be broadcast daily through the media.”
July 5 — This time, bombing the taxpayer. “Lawyers Plan Compensation Claims in Tanzania Bombing”, reports MS/NBC (link now gone). Simultaneous attacks last August on the American embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania killed more than 200 people and injured more than 5,000. Guess who soon arrived on a mission of mercy? American lawyers, of course, including the California firms of John Burris; Sterns & Walker; and Herron & Herron, to claim negligence by the American government, which was of course the terrorists’ target. U.S. Embassy spokesperson Lisbeth Keefe in Dar es Salaam “expressed dismay” at plans for such a suit: ”We were victims of this bombing, too.”
What’s next? Probably a long wrangle in which the American trial lawyers, in their own inimitable display of patriotism, feed the African press a steady diet of news leads making the U.S. government look as bad as possible, leading to a settlement sticking it to American taxpayers. In short, a second victory for the terrorists. The best coverage ran in U.S. News in March, “Lawyers Mop Up After Embassy Bombing“, which reported that Burris, an Oakland-based civil rights lawyer who’s defended basketball bad guy Latrell Sprewell, stands to collect one-third of any settlement received by the more than 2,000 Kenyan clients he’s signed up, though contingency fees for lawyers are illegal in Kenya as in most countries. The secret is to file the suits in the U.S.
July 4 — “A de facto fourth branch of government.” Today we celebrate the American founding with its blueprint for a government of separated and sharply limited powers. Last month’s fascinating American Lawyer piece on the origins of the firearms litigation reported that prominent trial lawyer Wendell Gauthier talked his colleagues into suing gunmakers, even though they weren’t deep pockets, because he argued the suit “fit with Gauthier’s notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed”. Yes, some litigators now see themselves as a de facto fourth branch of government — one that pays a whole lot better than the other three, isn’t subject to the disclosure rules and blind trusts we expect of Presidents, Senators and Chief Justices, does its unaccountable work behind the closed doors of settlement rooms from which the public is excluded, and, best of all, doesn’t face those pesky distractions known as “elections”.
Enjoy the Fourth anyway.
July 3 — “Anti-democratic, wrong, a feel-good solution.” The Boston Phoenix favors gun control, but it says city firearms lawsuits are “an end run around the legislative process“. That puts it in line with the Boston Globe (January 19), the Seattle Times, the Spokane Spokesman-Review (“a cynical grab for undeserved money”), and other papers.
UCLA law professor Eugene Volokh has just compiled a valuable list of knowledgeable law professors skeptical of the city gun cases and firearms torts generally. This is another issue on which the people at Reason magazine have put together an excellent webguide (“Suing Gun Makers“). The National Center for Policy Analysis weighs in with a report, “Suing Gun Manufacturers: Hazardous to Our Health“. Gun enthusiasts have put up a number of sites of which one of the most informative is straightforwardly titled www.lawyersgunsandmoney.com. Guntruths.com‘s David Codrea expresses the sentiments of many gun owners about much-hyped “smart guns” and “child-proof locks“.
July 2 — Never say you’re sorry. The breast implant fiasco has brought home the lesson that our legal system really is capable of extracting billions of dollars on a completely spurious scientific theory, bankrupting a respected company, and then not even saying “I’m sorry”. Reason magazine’s new roundup is the best place to start for an overview of this disaster. The text of the National Institute of Medicine report refuting the lawyers’ claims is online.
Charles Krauthammer, writing in the Washington Post (“Class-Action Extortion”; link now dead), quoted George Mason law professor David Bernstein: “It would have been nice to have had this [study] seven billion dollars ago.” Your editor made similar points when he reviewed Marcia Angell’s powerful book, Science on Trial, in 1996. Prof. Bernstein runs a highly informative Implant Litigation Home Page. The classic journalistic treatment is Joseph Nocera’s 1995 Fortune article, “Fatal Litigation” (link now dead).
One reason reform is difficult is that the trial lawyers are among the best organized political forces in the country. The Civil Justice Association of California issues periodic reports on the millions that trial lawyers have funneled into campaigns in that state.
July 1, 1999 — Overlawyered.com launched. (About this site…)
July 30 — Please — there are terminals present. The story got played mostly as light human interest when it broke last month, but it counts as a fairly noteworthy advance for the Speech Police. Bloomberg LP, which leases some 120,000 screens which enable customers to keep tabs on the markets and also send each other email messages, has quietly installed software that prevents users from employing a long list of words deemed profane, obscene or racially insensitive. If they try to send a message using one of the forbidden words, a pop-up reprimand lectures them about how such language is “inappropriate in the context of business correspondence.” Bloomberg didn’t notify its customers it was planning to install the “protection”, and says it won’t remove it even if they ask; nor does it matter whether any prospective recipient of a particular email in fact objects to its improprieties.
There is, of course, no mystery about the legal system’s role in all this. According to the Wall Street Journal, company founder Michael Bloomberg said the new policy was adopted “for fear that offensive e-mails would lead to harassment lawsuits”. (Pamela Druckerman, “Bloomberg Demands Expletive Deleted”, June 28) Bloomberg also suggested the policy would apply to messages that were “anti-religion, that kind of stuff”, raising the question of whether clients are henceforth expected to refrain from expressing freethinking opinions. The company’s terminals account for a not trivial sector of the email universe, handling an estimated 3 million messages on a busy day.
Bloomberg himself compared the new step to the popular (and also, to a large extent, harassment-law-driven) corporate practice of installing “Net Nanny” screening software to prevent employees from browsing indecent websites. In at least two crucial respects, however, it would seem to go further: first because it so clearly shackles one-on-one personal speech as distinct from access to media content, and second because most of those whose speech it suppresses are not Bloomberg’s own employees. And yet both of these extensions are sadly consistent with the state of contemporary harassment law, which has made clear from early on its aim to impose a regime of censorship on ordinary conversation as well as the circulation of published matter in the workplace, and which has more recently moved to expand further the perimeters of the zone designated for censorship by exposing businesses to potential liability if they fail to curb “customer-on-customer” harassment.
Undoubtedly by coincidence, the hit television program South Park shortly thereafter (July 11) aired what reviewer Jon Osborne called “an amazingly frank attack on sexual harassment laws and on frivolous lawsuits generally.” It begins with the South Park kids “getting a lecture in sexual harassment at school. They soon figure out that sexual harassment is a legal bonanza and start suing each other over minor insults. As the lawsuits mount, however, it becomes clear that everyone is getting poorer except the town lawyer.” Kyle, one of the characters, has the following conversation with his lawyer father:
Lawyer: “You see, son, we live in a liberal democratic society. The Democrats created sexual-harassment law, which tells us what we can and cannot say in the workplace, and what we can and cannot do in the workplace.”
Kyle: “But isn’t that fascism?”
Lawyer: “No, because we don’t call it that.”
July 29 — Collusion: it’s an AG thing. Of the many outrages to proceed from the tobacco litigation, one that’s received surprisingly little press attention, perhaps because none of the major players have an interest in calling attention to it, is the role of the negotiated settlement in imposing a cartel structure on the cigarette industry. It’s the subject of a revealing article by Rinat Fried that ran last month in The Recorder, the California legal newspaper.
Start with a basic question: did the settlement impose a tax on the tobacco companies’ future sales, or assess damages for their past misconduct? The state attorneys general unanimously insist that what they obtained was a damage settlement rather than a tax, not surprisingly given that 1) they plainly lack authority to go about arranging the extralegislative imposition of taxes on their states’ populations; and 2) if the money being raised were to be viewed as tax revenue by another name, rude questions might be asked about whether they should have let private lawyers — in many instances personal chums, former law-firm cronies or major contributors to their own campaigns — rake off tens of billions of dollars as a commission for having helped arrange the transaction.
One major difference between a damages settlement and a prospective tax is that the former, by its nature, can be applied only to companies that were doing business at the time of the claimed misconduct. If a new company is organized to enter the cigarette trade, or a foreign maker decides to tackle the U.S. market for the first time, it can’t possibly be subjected to a damage assessment based on the conduct of U.S. companies in 1965 or 1980. Likewise, if what is at issue is a damages settlement, an obscure local cigarette company that grows to big-time status would owe only a level of payment based on its modest sales in the old days before the AGs cracked down, not a higher sum based on its new market success.
But in fact the settlement contains a series of provisions whose effect is specifically to curb any such entry by new competitors. Small cigarette companies are permitted to participate in the settlement only if they agree to keep their market share below 125 percent of its 1998 figure — either that, or pay a prohibitive 35-cent-a-pack penalty for every pack they sell above that level. And what if they, or new entrants, don’t like that deal? “The tobacco companies,” writes Fried, “got the states to agree to force small companies not participating in the settlement to fund a 30-year, multimillion dollar escrow account to be used as insurance against future health-related judgments against the small companies. Funding the account at a rate of 35 cents per pack would make it impractical for any small company not to sign the deal, the economists say.” “The economists” in this case are Paul Klemperer of Oxford and Jeremy Bulow, formerly of Stanford and now chief economist at the Federal Trade Commission, who have written an analysis critical of the settlement’s cartelizing effect.
Cigarette prices jumped by 45 cents almost as soon as the pact was announced, a hike that might have been undercut had the entry of discount smoke-makers into the market not been deterred by the anticompetitive clauses to which the state AGs agreed. The irony is that had cigarette executives met privately among themselves to raise prices by divvying up market shares and penalizing defectors and new entrants, they could have been sent to prison as antitrust violators. With the AGs doing it for them, the same process becomes (most likely) perfectly legal — what’s known as the Noerr-Pennington doctrine immunizes otherwise anticompetitive practices when they take place under color of government action or for purposes of obtaining such action.
Were the AGs, mesmerized by the chance to stuff unearned billions into their state treasuries and the pockets of their lawyer friends, simply crashingly naive about the actual economic effects of what they were agreeing to? Or would it be fairer to characterize them as having colluded in a sweetheart deal with the same tobacco executives they were publicly demonizing, in which everyone got something while smokers picked up the bill? We don’t have to decide right now, but the case for holding up this group of officials as some sort of model of public service grows weaker by the day.
July 28 — Time to rent a clue. Dana Blankenhorn at Clickz.com recently wrote such a good column about intellectual property law on the Net that Overlawyered.com was momentarily tempted just to swipe and use it whole in this space with due credit to him, until someone warned us that we were being a little unclear on the concept. So — to content ourselves with paraphrase and fair use — here’s the gist. Blankenhorn starts by telling about the legal catastrophe that descended on a little Colorado company named Clue Computing, which was the first to register the domain clue.com. Along came the giant Hasbro toy company to assert that because it owned the famous board game Clue it therefore had the right to Net dibs on this extremely old English word (earliest citation given in the O.E.D.: the year 1393). With hot and cold running lawyers at its command, Hasbro made things expensive and difficult for the little company for a long time before finally going away.
Blankenhorn had wanted to name his own e-newsletter www.clue.com, settled in disappointment for www.a-clue.com, and only later realized what a hassle he’d escaped. Other examples he lists, ranging from disputes over copycat graphics to the patentability of business models, point toward the same lesson: getting into a good litigation posture can count as very bad business, and sensible entrepreneurs will do almost anything to avoid going to law even when (especially when?) they’re right. Sure, there may sometimes be no other choice, “if the principle is worth dropping all your other business for” and you’ve resigned yourself to the danger of looking foolish or losing on a fluke that goes along with even the best case. “But lawsuits are war by other means. Remember that lawyers can also negotiate.”
One wonders whether anyone at McDonald’s Corp., a company that should know a thing or two about ill-considered litigation, has thought these questions through. On July 9 the Wall Street Journal reported (coverage by Richard Gibson; online subscription required) that McDonald’s has sued rival Burger King in U.S. District Court in Detroit over Burger King’s introduction of a “Big Kids’ Meal” at its stores nationwide. The U.S. Patent and Trademark Office has in fact ruled that “Big Kids’ Meal” is a generic term, a ruling McDonald’s says it plans to appeal; nor can it claim to have used the term for any major national product line of its own, pointing only to a three-week promotion in parts of Michigan last year where it employed the phrase. It nonetheless asks that Burger King’s national advertising be enjoined and demands treble damages. Such treble-damage entitlements, kerosene on the fire of needless business litigation, have been vocally defended by today’s litigation lobby, which also opposes the loser-pays principles by which other countries keep a lid on this sort of thing.
July 27 — Razor wire on the pool fence. It seemed like such a nice idea to keep a backyard swimming pool, the only one in her New Orleans neighborhood. All the local kids came by wanting to use it; some would prettily ask permission, while others would sneak in. Then novelist Patty Friedmann began learning more about terms like “attractive nuisance” and the many ways lawyers can go after property owners if kids sprain their ankles, develop bacterial infections, break a bone or worse, whether they had permission to be on the property or not. She tried being a saint; she tried being a meanie; and finally there was nothing left to do but put in the order for razor wire….(“My Turn”, Newsweek, July 26; link now dead).
July 27 — Improvements to the Overlawyered.com site. Our newest topical subpages, introduced during the past week, cover class actions and litigation vs. good medicine. That brings the number of topical pages to five, with more coming soon. (Others: firearms litigation, product liability, lawyers’ advertising and solicitation). Check these pages often if they interest you, since new resources keep being added without notice to each page.
Also new today is our acknowledgments page in which we thank some of the kind folks out there who’ve sent leads or otherwise helped draw our attention to cases, articles and resources suitable for Overlawyered.com coverage. The list will grow as we continue to work through the not unimpressive backlog of leads already on hand. Your name belongs on the list as well; to help make that happen, take a moment to send us a lead, or two or three.
July 26 — Mow’ better ADA claims. The July 22 Milwaukee Journal-Sentinel reports that Susan Bauer has gone to federal court to challenge her village’s insistence that she mow her lawn. The Dane County town of DeForest had ticketed Bauer and sent her a notice that if she did not cut her weedy lot the town would order it done for her and send her the bill. Bauer proceeded to sue village trustee Laura Crowell and seven other officials under the Americans with Disabilities Act, saying she suffered chronic back problems for which the town is obliged to allow a disability exception in its weed ordinance.
The issue of Bauer’s unkempt lawn has been building for two years, town officials say. Earlier, Bauer sued in state court, claiming that mowing her property would endanger exotic prairie plants, but lost when an unsympathetic court deemed the front-yard flora to consist of common and noxious varieties. “Those are thistles and other weeds growing there. She tried and failed in one attempt against the village, and now she’s trying something else,” Crowell said, adding that while she did not know the condition of Bauer’s back, nothing prevented her from hiring someone else to do the mowing. Bauer is representing herself without an attorney, and the federal court waived filing fees for her action.
July 26 — “Destroy privacy expectations: lawyer.” That’s the headline over the coverage in Business Insurance of one lawyer’s advice to participants at the annual Society for Human Resource Management conference last month in Atlanta (July 12 issue; free archives include latest two issues; search on “employee privacy” or another relevant term). Jonathan Segal of Philadelphia’s Wolf, Block, Schorr & Solis-Cohen explained that current law makes it dangerous for employers “to create an expectation of privacy, however well-intended” among workers. So instead “you want to destroy privacy expectations” by explicitly telling staff that their work space, on-site belongings, computer hard drives, voice- and email are subject to search. At the same time, managers should studiously avoid learning about things that may be going on in their employees’ personal lives: “It’s in your self-interest as an employer not to know private facts about employees,” Segal observed.
The folks who brought us modern employment law kept assuring us that the higher we raised the litigation hazards to which employers were exposed, the warmer and more empathetic the workplace would become. It doesn’t seem to have worked yet. (fee-based archives)
July 24-25 — Arbitrary confiscation, from Pskov to Pascagoula. “American commentators on Russia almost unanimously agree that it needs to strengthen the rule of law,” writes Michael Barone in the June 28 U.S. News and World Report. “By that they mean that the law should be predictable, contracts enforceable, property safe from confiscation or arbitrary transfer.”
Yet in this country, “trial lawyers who have been targeting major industries have been transferring vast wealth from major corporations to themselves” after inventing a series of strained, ex post facto theories. Now “it is clear that the tobacco cases will produce several dozen trial lawyers with the net worth — and potential political leverage — of Ross Perot or Steve Forbes. The difference is that unlike most entrepreneurs and heirs who hold other great fortunes, trial lawyers typically have the skills and political connections to become powers in their own right instantly”.
“Trial lawyers seeking transfers of corporate wealth need political protection just like Russia’s oligarchs. Texas’s ‘big five’ tobacco lawyers contributed $1.1 million to the Democratic Party. The leader of a tobacco class-action group brought in — with a $30 million potential fee — Hugh Rodham, a lawyer with no relevant experience but with the run of the White House as Hillary Rodham Clinton’s brother.”
“Americans urge Russians to move toward the rule of law. Why are we moving the other way?” (Full article)
July 23 — Suspicions of jury fallibility. The trial of Walter Huston in New Orleans this spring on charges of murder boiled down to a conflict in eyewitness testimony between a 14-year-old girl and a 13-year-old boy. Joan Canny, a management-side labor lawyer with McGlinchey Stafford PLLC, was surprised to find herself picked as a juror, and even more surprised to find that, despite what she saw as her own pro-police leanings, the testimony left her convinced the prosecution’s case was flimsy. The jury retired to discuss the case, and, reports Michael Goldhaber in the July 19 National Law Journal, “Ms. Canny found the deliberations disturbing. As she tells it, the foreman argued against believing the boy because he knew and distrusted the boy’s father. Another woman voted for conviction because ‘God told her to,’ even though she conceded it was contrary to the evidence. A third summarily changed his mind without explaining why. A fourth argued for a compromise verdict of manslaughter, even though no theory of the case supported it.” The proceedings ended in a hung jury, with a dramatic sequel: Canny volunteered pro bono to help the defense lawyer secure an acquittal at retrial, which she did by successfully demonstrating the teenage girl’s recollection of the killing to be inconsistent and unreliable.
Stephen Adler’s 1994 book The Jury (available on Bibliofind), reviewed by Overlawyered.com‘s editor in Reason at the time, is a classic account of the disillusionment of a reporter who initially bought into the conventional wisdom about how juries seldom get important matters wrong, and then took a close look at a series of real-life cases to find that many jurors were hopelessly confused about the issues, or regularly nodded off during the arguments, or “daydreamed about home or rated the witnesses and lawyers on their looks and demeanor.” All such heretical observations are instantly condemned as “anti-jury” by today’s bar establishment, but the actual lesson they hold is that it’s unwise to rely on jury rationality as the only line of defense against miscarriages of justice; strong defenses of other sorts against unwarranted court action are needed too.
July 22 — Censorship via (novel) lawsuit. The newly launched courtroom assault on entertainment companies over their customers’ violent acts parallels the legal mugging of tobacco and gun makers in many respects, notably advocates’ concern to have it be known that they’re not really trying to make up new liability law as they go along. Thus the New York Times, cheerleading the anti-gunmaker suits in an editorial this past Saturday, July 17, saw fit to deny that they were “based on exotic legal theories” and said that “in fact, these suits have applied traditional negligence standards”, a view not shared by many others (react). Likewise attorney Jack Thompson, who in April announced a suit against Nintendo, Time Warner and a long list of other videogame, movie and Internet-site purveyors on behalf of families victimized by Paducah, Ky. school shooter Michael Carneal, told Christianity Today (June 14) that “We have simply taken time-honored, adjudicated, reasonable-standard tort theory and applied it to these three categories of products.” (react).
This Monday (July 19), however, federal judge Edward Johnstone ruled that the Hollywood-made-him-do-it theory of the Paducah suit faced squarely opposed on-point precedent and asked Thompson to explain why that precedent was inapplicable or should now be overturned. Similarly, the July 19 National Law Journal, hardly suspected of sympathy for gun makers, describes federal judge Jack Weinstein, who presided over the much-publicized Hamilton v. Accu-Tek, as a “maverick” known for “unconventional rulings that often push the limits of tort law” and who’s been sought out by forum-shopping plaintiffs who think they can sell him on “novel theories of industry-wide liability that might not succeed in any other courtroom in America”. When lawyers on the attack take pains to label their theories as “time-honored, adjudicated” or “traditional”, it would seem, their use of these terms must often be understood in a Pickwickian sense.
In an earlier action filed in state court, the Paducah families’ lawyers sued more than 30 local students, teachers and other defendants they blamed for not preventing Carneal’s rampage. A judge later ruled that two dozen of these had clearly been named inappropriately (Nando Times; link now dead); one, a teacher named Frank DuPerrieu, turned out not even to have been employed at Carneal’s school, according to the May 11 Louisville Courier-Journal. (Attorney Mike Breen sought to blame school administrators for the mix-up, saying they hadn’t cooperated with his demands to know who the boy’s teachers had been.)
Plaintiff’s attorneys Thompson and Breen have been making the rounds of the conservative media to talk up their case against the entertainment companies, and have gotten lengthy, uncritical coverage in Insight (June 28); the American Spectator (Dave Shiflett, “The Children Strike Back”, July; react); and from the pro-censorship Family Research Council. “We intend to hurt Hollywood,” Thompson proclaimed at his April news conference. “We intend to hurt the video game industry. We intend to hurt the sex porn sites”. (ABC News; Lexington Herald-Leader; Wired.com.) But other conservatives, like those at the Boston Herald, prefer to stick with a principled opposition to the use of novel lawsuits for purposes of social engineering. On Salon July 19, conservative commentator David Horowitz spoke out: “the book burners are on the march….In the past, Republicans defended the principle that legal industries should not be destroyed by government lawsuits…unfortunately, the puritan impulse to censor and control others seems to be a bipartisan disease.”
[Update April 13, 2000: judge dismisses Thompson’s suit; appeal vowed. See also Nov. 2]
July 21 — Yes, this drug is missed. In discussions of Bendectin, the pregnancy-sickness drug driven from the market by scientifically speculative lawsuits though the FDA and other health authorities found it safe and effective, defenders of the litigation system sometimes advance the view that the drug was of at most marginal medical benefit anyway. But Atul Gawande’s feature article in the July 5 New Yorker (“A Queasy Feeling: Why Can’t We Cure Nausea?”) suggests they’re off base.
“Prior to the Second World War and the development of modern techniques for replacing fluids, hyperemesis [extreme nausea and vomiting in expectant mothers] was routinely fatal unless the pregnancy was aborted,” Gawande writes. “Even today, although death is rare, serious complications from the severe vomiting can occur — including rupture of the esophagus, lung collapse, and tearing of the spleen….
“Back when doctors didn’t hesitate to prescribe antiemetics for ordinary pregnancy sickness — at least a third of pregnant women were on such drugs in the nineteen-sixties and seventies — hyperemesis was much less common.” When ordinary cases are noticed and medicated early, they are less likely to progress to the severe stage. Then lawsuits “forced the popular remedy Bendectin off the market (despite numerous studies showing no evidence of harm). It became standard to avoid prescribing drugs until, as in [Amy] Fitzpatrick’s case [the 29-year-old mother profiled in the article], vomiting had already caused significant dehydration or starvation. Hospital admissions for hyperemesis of pregnancy subsequently tripled.”
For those wishing to defy the will of the U.S. litigation system, a nurse explains how to make your own bootleg version of Bendectin. The same compound is still sold in Canada under the name Diclectin, and some American women drive up to Toronto to get it (check out Lisa L.’s 5/23 entry on this BabyCenter.com bulletin board). Otherwise, as you throw up, think thoughts of lawyers.
July 21 — Hey, nice Jag the chief’s driving. Under current forfeiture laws, police and prosecutors can seize property they deem linked to criminal activity even if its owners are themselves accused of no crime. That includes family cars, seized when errant husbands are collared for DWI or as streetwalker johns; cash, seized because its holders have more of it on hand than their jobs seem to make plausible; homes, guns, jewelry, motels and even farm animals. Hapless owners can’t assert a presumption of innocence or other usual protections, and since authorities get to keep seized goods they’re tempted to resolve hard calls against leniency. Reason magazine takes a critical look at the subject in the latest installment of its online “Breaking Issues” series, unveiled Monday. Earlier entries in the link-rich series have tackled such issues as gun suits, the breast implant fiasco and disabled-rights law.
July 20 — Guns, tobacco, and others to come. What kind of trial is this, asks Peter Huber in the June Commentary, where political officials step forward to announce selective, discretionary legal action against some small group that’s been made deeply unpopular by a recent campaign of abuse in the press; where the rules of law are invented and applied retroactively to punish formerly lawful behavior; where the point is not to determine who did what but to proclaim society’s resolve to prevail over its internal enemies; where “right-thinking people know what the verdict ought to be before the proceeding even begins”; where “a mountain of fact and detail is presented merely as scenery and decoration”; and where “the little facts do not matter because we are meant to appreciate the gravity of the big facts, to understand society’s larger priorities, to be loyal to a higher principle, to be dedicated to a greater cause?
“It is a show trial.”
Huber is not optimistic about what lies ahead. “Each one of a dozen or more tobacco lawyers will soon collect more money than Bill Clinton has spent on all his political campaigns combined. Inevitably, some healthy share of the take will get channeled back to candidates…who are committed to expanding the mega-tort still further.”
The new mega-tort cases “cannot escape being essentially political,” Huber writes. “Yes, legislatures in the past have struck messy, imperfect compromises on guns and tobacco. But to tar those outcomes as a failure of representative government is to reject the political system itself.” (full article)
July 20 — Improvements to the Overlawyered.com site. Debuting today is the Overlawyered.com/Amazon bookstore, the first attempt we know of to assemble a wide selection of books of interest to legal reformers along with annotations and links to reviews and related articles. Topics range from junk science to family law, legal philosophy to harassment law; featured authors include Peter Huber, Richard Epstein, Mary Ann Glendon, James Q. Wilson, Daphne Patai and many more. Proceeds help support Overlawyered.com and other legal reform and research causes.
We’re pleased to announce that Overlawyered.com is a featured recommendation today (link now dead) on FrontPage, the lively Internet magazine published by David Horowitz’s Center for the Study of Popular Culture.
July 19 — Overlawyered skies not always safer. Safety experts say one reason airlines hold back from adopting data-collection programs that could save lives is that they fear the results will be used against them in later litigation, reports Matthew L.Wald in yesterday’s New York Times. Flight Operational Quality Assurance (“FOQA”) programs record and assemble large quantities of information from routine flights to help identify patterns that might signal future trouble. For example, Scandinavian Airline System analyzed FOQA data and discovered that many of its pilots were flying a new model of turboprop plane too fast, which allowed it to institute corrective steps before any mishaps occurred. More than 25 airlines outside the United States have successfully implemented FOQA programs (FAA draft advisory circular, link now dead) but the practice has been slow to catch on in this country.
According to the Alexandria, Va.-based Flight Safety Foundation, which has vigorously supported the FOQA concept, reasons for hesitation have included both flight crews’ fear that the data will be used in employee discipline or licensing action and airlines’ fear that the data will be used against them in civil litigation or prosecution (some worry that last week’s filing of criminal charges against a maintenance company in the Valujet case will portend more such prosecutions). The FSF’s Flight Safety Digest for July-September 1998, available as a PDF document (Adobe Acrobat needed to view; get it here) explores the issue in depth, and points out that flight data is likely to find its way into adversarial hands through Freedom of Information Act (FOIA) requests as well as the discovery process in civil litigation.
The issue keeps cropping up in many safety areas: unless some means is afforded by which regulated parties can conduct “self-critical analysis” without seeing the results seized on to prove their fault in later proceedings, they will flinch from pursuing such analyses wherever they may lead. But although some states have moved to enact protections for environmental audits or product safety remedial analysis, the American legal system generally remains quite hostile toward them. In February a Massachusetts trial court declared, in a liability case arising from basketball player Reggie Lewis’s fatal heart attack, that such immunities are “not…favored” in the Commonwealth. The federal Environmental Protection Agency has expressed the opinion that state environmental laws providing a self-audit privilege, such as Colorado’s (link now dead), may conflict with federal law.
July 17-18 — “Dune” as we say. Many historic structures on Nantucket have their front doors up a few steps, which brought their owners to predictable grief last November when federal law enforcers announced a crackdown on inns, restaurants, pharmacies and other businesses on the quaint island whose owners had not brought them into full compliance with the Americans with Disabilities Act. Assistant U.S. Attorney John A. Capin denied an intent “to run ‘Mom and Pop’ enterprises out of business” but said “[w]e want to work with the owners in order to educate them about their obligations”. If the owners fail to absorb this education at the indicated pace, of course, they risk being hauled to court.
If that happens, however, they’ll be summoned to a newly built federal courthouse in downtown Boston that has been been hit with a long series of complaints “for allegedly violating federal standards on handicapped accessibility”, as the Boston Globe reported April 19; for example, the jury boxes and witness stands in its 27 courtrooms can be reached only by way of steps. “We looked at the possibility of building in permanent ramps that were retractable but it was such a burden on the budget we just couldn’t do it,” said General Services Administration project manager Paul Curley, though the courthouse does sport double-story English oak paneling, a 45,000-square-foot glass wall overlooking the harbor, “spacious waterfront chambers for judges, and a five-story Great Hall”. One wonders whether Nantucket’s bait-and-tackle shops will be allowed to cop a similar plea of expense.
July 16 — From the Fourth Branch, an ultimatum. “The next great issue will be managed health care, said Mr. [Russ] Herman [former president of the Association of Trial Lawyers of America], whose New Orleans law firm has contributed $6 million in time and resources to the tobacco litigation with Mr. Gauthier.
“‘This Congress has an opportunity to do something about it,’ Mr. Herman said, ‘but if they don’t act, my guess is that in five years you will see a massive lawsuit brought to destroy and dismember managed care as it currently operates.'” — quoted in “Tobacco-Busting Lawyers On New Gold-Dusted Trails” by Patrick E. Tyler, New York Times, March 10, 1999.
A more recent report, by Michael D. Goldhaber in the June 28 National Law Journal (“Class Action Blues, New Orleans Style”), suggests that the duly elected legislative branch of the U.S. government may not have moved with sufficient alacrity to accept the terms Mr. Herman has dictated. “We’re going to dismantle the managed care system,” it quotes him as saying.