June 20 — The judge chips in. From suburban Washington, a story that ends with not your usual kind of wealth redistribution: moved by the plight of a couple facing eviction for falling $250 behind on their rent, Fairfax, Va. judge Donald P. McDonough simply handed his own money to the landlord’s stunned attorney and said, “Consider it paid.” “Not something you see much,” said bailiff Erin Cox, who was present. “Not something you see ever.” Odder and odder: four attorneys on hand for other cases, seeing the judge’s example, pulled out their own checkbooks and offered donations to the couple. (Michael Leahy and Leef Smith, “A Beneficent Bench”, Washington Post, June 10).
June 20 — “New York City moves to slash Cendant fees.” “New York City [recently] submitted legal papers challenging as “astronomical” the $262 million fee request — set under a court auction procedure — that was submitted by the law firms that negotiated the record breaking $3.1 billion settlement in the Cendant case.” The class action firms of Bernstein Litowitz Berger & Grossman in New York and Barrack, Rodos & Bacine in Philadelphia had been named by the court to represent investors seeking to recoup losses suffered in 1998 when the parent company of the Avis and Ramada Inn franchises conceded that its books showed massive accounting irregularities. (Daniel Wise, New York Law Journal, June 1) (update Sept. 4: judge approves fee).
June 20 — “A Civil Action” and Hollywood views of lawyers. In Boston this spring, the Federalist Society convened a panel discussion on Hollywood’s portrayal of lawyers and litigation, specifically the movie “A Civil Action”(our take on it) as well as clips from several other films. Featured on the panel were several of the attorneys involved in Anderson v. W.R. Grace, the case highlighted in “A Civil Action”, including Jerome Facher of Hale and Dorr (Beatrice Foods), Kevin Conway (plaintiffs), and Michael Keating and Marc Temin of Foley, Hoag & Eliot (W.R. Grace). The moderator was Evan Slavitt of Gadsby Hannah LLP (1 hour, 50 minutes — NetRoadShow).
June 20 — “Litigation grows in ailing nursing home industry”. Lawyers say rising rates of court action are understandable since there’s so much neglect and abuse in long-term care (a spokeswoman from “the Coalition to Protect America’s Elders, a group funded by trial lawyers,” agrees) while administrator Marty Goetz at the River Garden Hebrew Home in Jacksonville says good and bad home operators alike are being “sued to death”. After making nursing home suits a big business in Florida, lawyers have fanned out to nearby states such as Alabama and Tennessee. (Julie Appleby, USA Today, June 19). Three long-term-care operators have filed for bankruptcy recently: Louisville-based Vencor, the largest such chain; Albuquerque-based Sun Healthcare Group, and Atlanta-based Mariner Post-Acute Network, the second-biggest operator with more than 400 homes nationwide. Medicare reimbursement cutbacks are generally cited as the main reason, but Mariner chairman Francis Cash said “explosive litigation costs” were also a factor.
SOURCES: Healthcare Management Advisors HMA Strategy Advisor, Jan. 28; “Nursing Home Files For Chapter 11”, Jan. 18; Debra Sparks, “Nursing Homes: On the Sick List”, Business Week, July 5, 1999; Lindsay Peterson, “Industry Tries Another Battle Tactic,”, Tampa Tribune, March 22, link now dead; Coalition to Protect America’s Elders (pro-liability); ProtectOurParents.com (pro-legal reform, Florida Health Care Association).
June 19 — Welcome CNNfn, Intellectual Capital, CEI readers. Reed Karaim’s advice article for workers thinking of suing their bosses mentions this site and quotes our editor; we like the piece, but who gave it that headline? (Reed Karaim, “Work issues? Go to court”, CNNfn/WomenConnect, June 16). Intellectual Capital bestows on us a mention/ quote/ link in an article on disabled access and web design, and IC‘s readers have joined in a discussion of the subject (K. Daniel Glover, “The Disability Divide”, June 15). And Max Schulz mentions this site in the Competitive Enterprise Institute’s latest Update (June).
June 19 — “‘Legislative Subpoenas’ Give Cities An Unfair Head-Start in Lawsuits”. “Should a city council be able to demand private books and records from a company it is considering suing simply to evaluate the city’s likelihood of succeeding in a lawsuit and how much it may be able to recover? The California Supreme Court is currently being urged to give carte blanche to any city, no matter how small, to demand financial and other information from its potential litigation opponents.” The asserted power “threatens every potentially unpopular business in the country.” (Daniel E. Troy (Wiley, Rein & Fielding and American Enterprise Institute), San Francisco Chronicle, June 13).
June 19 — Oh, to be in England. On ABC’s Politically Incorrect last Monday, host Bill Maher brought up the case (see June 12) of the deaf man who’s suing “Who Wants To Be a Millionaire?” because he can’t participate in its telephone screening process (“it seems like in this country you are not alive unless you are suing someone.”) Comedian Dennis Miller, star of HBO’s “Dennis Miller Live” said the case showed the need to make it easier to collect legal fees from those who file weak cases. Simon LeBon of Duran Duran: “That’s how it is in the U.K. If you’re wasting people’s time, you pay the cost, simple as that.” Miller: “Well, that makes sense. We have come over here … to get away from England because we found the laws repressive. I get over here and I find out their laws are better than ours.” (June 12 transcript; other show transcripts).
June 19 — Shoot-’em-ups: hand over your files. Per the Hollywood Reporter, federal investigators have asked the major studios “to turn over media and marketing plans for certain movies to determine whether the entertainment industry is peddling violent fare to young audiences,” citing sources “familiar with” the Federal Trade Commission probe of popular entertainment ordered by President Clinton after Columbine. “Sources said stacks of boxes of evidence” had been handed over to the federal agency, though with contents heavily redacted to remove proprietary data. The Commission is currently pursuing the probe under its Section 6 informal authority, under which it does not exercise formal subpoena power, but it could turn the proceedings into a probe under Section 5 authority, in which it would have such power. “While tobacco is federally regulated and movies, music and videogames are not, a veteran of the long court fights with the tobacco industry sees parallels between how the FTC probed cigarette marketing and how the FTC now seeks an education in entertainment marketing, especially to children.” (David Finnegan and Brooks Boliek, “Studios asked to show media (sic) their plans for violent films”, Hollywood Reporter/Norwalk (Ct.) Hour, May 8, not online).
Plus: the attorney general of Illinois has seen fit to conduct a “sting” operation on store owners’ sale of violent videogames to minors, though in general it’s not unlawful for them to sell minors those games. “Members of my staff also are researching alternative enforcement strategies if voluntary compliance is not forthcoming,” quoth the AG, Jim Ryan, whose website is emblazoned with the slogan, “For Children, For Families, For Illinois”. (David Hudson, “Illinois attorney general urges end to sales of violent video games to minors”, Freedom Forum, April 20). See also “No basis for liability” (editorial), Boston Herald, April 9 (expressing relief at court’s dismissal of Paducah lawsuit, see April 13); Damon Root, “The blame game”, Liberzine, April 11; Paul McMasters, “Target practice on the First Amendment”, Freedom Forum, Feb. 28).
June 16-18 — New subpage on Overlawyered.com: Overlawyered skies. Our newest subpage collects tidbits of every sort on what happens when law becomes airborne, including material on sport aviation, aerospace product liability, airline labor wrangles, and even UFO suits, along with of course crashes and their aftermath.
June 16-18 — No right to kick him out. Delaware real estate developer Louis J. Capano Jr. is suing the Wilmington Country Club after it expelled him for having made false statements to a grand jury. Last year, in a sensational case reported nationwide, a jury convicted Capano’s brother, former Wilmington attorney Thomas Capano, of murder in the 1996 disappearance and death of 30-year-old Anne Marie Fahey, who had been a secretary to the state’s governor. A judge later sentenced Thomas Capano to death. “During his brother’s trial, Louis Capano acknowledged that he lied to a federal grand jury in an effort to help his brother establish an alibi in connection with Fahey’s disappearance. He also admitted to helping dispose of some evidence connected to the slaying.” The country club subsequently voted out Louis Capano after learning of his admissions; its bylaws allow dismissal of members for conduct that is “disorderly or injurious to the club’s interest or reputation.” Last month he sued in the Court of Chancery seeking reinstatement and damages. (“Louis Capano Sues Wilmington Country Club for Reinstatement”, Delaware Law Weekly, May 11).
June 16-18 — Penalty for co.’s schedule inflexibility: 30 years’ front pay. “A federal jury in Pennsylvania awarded $1.5 million in a suit brought under the Americans with Disabilities Act by a woman who said her bosses at first accommodated her Crohn’s disease by letting her work from home on a flexible schedule but later reneged on that promise by insisting that she work specific days in the office.” Denise Davis, an insurance underwriter, said it was impossible for her to commit to being in the office any particular days because she never knew when her condition might flare up. “The eight-member jury awarded Davis the highest estimate of economic damages presented by the plaintiffs — $1.3 million — and $200,000 in compensatory damages. An economist testified at trial that Davis, who is currently 37, has already suffered losses of more than $40,000 in wages. And since no employer is likely to hire her while needing an accommodation, he said that a present-value estimate of her future lost wages up to age 67 is more than $1.2 million.” (Shannon P. Duffy, “Jury Awards Woman With Crohn’s Disease $1.5 Million in ADA Case”, The Legal Intelligencer (Philadelphia), June 1).
June 16-18 — Animated advocacy. Cross Circuit, a site decidedly in favor of the Second Amendment, carries a number of cartoon animations that may raise a smile, including an interactive game you can play (“Smith & Wesson Clinton Pacifier“) to get a feel for why so many firearms owners grow nervous when they hear about lawsuits intended to prevent the legal sale of any but “smart guns”. We also admit to having laughed at the London-nanny tale “Janet Poppins“, though we warn in advance that it is disrespectful to the presently serving Attorney General (requires Shockwave plug-in).
June 14-15 — The doctor strikes back. The courts make it next to impossible for a vindicated physician to turn the tables and sue the lawyer who filed a losing malpractice case, but Dr. John Guarnaschelli, a Louisville neurosurgeon, has managed to beat the odds. “Guarnaschelli charged that lawyer Fred Radolovich had sued him without any evidence that he was negligent, without consulting an expert, and without doing much of anything to determine whether he had a case. Radolovich later conceded in a deposition that the only doctor he consulted before filing the lawsuit [which was summarily dismissed] was one of his own clients — a family practitioner accused of fondling patients during gynecological exams. That doctor told Radolovich to go to a medical library instead….After a six-day trial, a Jefferson Circuit Court jury concluded on April 25 that Radolovich had maliciously prosecuted Guarnaschelli and ordered him to pay $72,000 in damages, including $60,000 in punitive damages.” Too many other good details to summarize here — don’t miss it (Andrew Wolfson, “Doctor strikes back at lawyer who sued him”, Louisville Courier-Journal, June 7; “Doctor sues lawyer for alleging malpractice”, AP/Lexington Herald-Leader, June 8).
June 14-15 — One gunmaker’s story. Freedom Arms is a small company in the town of Freedom, Wyoming, run by Bob Baker after being started by his father. It “makes collector guns, precise, modernized versions of the old western six-shooter that are sold to a small but multinational market.” “Freedom Arms customers must wait up to eight months for a handgun — far beyond the 24 to 72 hour waiting period debated by politicians — because the company only produces about 2,000 a year.” It has not, however, been spared the same litigation that has engulfed mass-market gun producers. In the much-discussed 1999 case of Hamilton v. Accu-Tek, it was one of 15 gunmakers a Brooklyn jury deemed negligent in their marketing practices, but not among those ordered to pay $500,000. “So far, Baker says he has spent more than $200,000 on legal bills and laid off 12 of his 35 employees to fight the lawsuits.” (“Gun Debate Hits Home for Opponents in Lawsuit”, AP/Salt Lake Tribune, April 20; Firearms Litigation Clearinghouse account of Hamilton v. Accu-Tek).
June 14-15 — “Trial lawyers give $500,000 as legislation heads to Senate floor”. With two major liability-curbing bills pending in the Senate, “trial lawyers in April contributed $508,000 to Democratic Senate campaigns,” reports AP. “The Houston law firm of Williams Bailey [a beneficiary of Texas tobacco fees] donated $250,000 of the total raised from trial lawyers in unregulated soft money during April by the Democratic Senatorial Campaign Committee.” A fund-raiser in Savannah during an Association of Trial Lawyers of America conference brought in $300,000: “Trial lawyers could chat with Democratic Sens. Tom Daschle of South Dakota, the Senate minority leader; John Edwards of North Carolina, a former trial lawyer himself; Charles Robb of Virginia and John D. Rockefeller IV of West Virginia.” Democratic Senatorial Campaign Committee spokesman David DiMartino “said there was no connection between the legislation and fund-raiser.” Trial lawyers have lobbied against both bills currently before the Senate: H.R. 2366 would limit punitive damages and the application of joint and several liability (paying an entire award when others were also responsible) for businesses with fewer than 25 employees, while H.R. 1875 would give defendants a right to have some class action lawsuits heard in federal rather than state court. Both bills are priorities of the U.S. Chamber of Commerce: “The trial lawyers have a lot of money, but the small-business community has a lot of votes,” said James Wootton, who directs the Chamber’s Institute for Legal Reform. (AP/FindLaw, June 2).
June 14-15 — The judge wasn’t asleep. A unanimous Second Circuit appeals panel has upheld a judge’s ruling that two lawyers and their clients should pay sanctions for the submission of dubious affidavits in an authorship dispute over the song “The Lion Sleeps Tonight“. In the lawsuit, four members of the 1950s musical group The Tokens said they had been fraudulently deprived of ownership rights for the 1961 hit (adapted from an earlier song on the Folkways label under the title “Wimoweh”, itself an adaptation of an earlier African song). The members testified in pretrial depositions that they first learned about the fraud in late 1992, but it developed that their 1996 lawsuit would therefore be barred by a three-year statute of limitations on this type of action. Attorneys Mitchell A. Stein and Stephen J. King then sought to present evidence that their clients had been mistaken in the depositions and had actually learned about the denial of authorship rights considerably later, which would salvage a chance to proceed. Judge Michael Mukasey of the federal court in Manhattan said that to credit the new version “would be to affect a level of naivete about human affairs that is not required even of judges,” and ordered Stein and King to pay $15,000, and their clients $7,680, to help “defray fees generated by their unreasonable conduct”. (Mark Hamblett, “Time-Barred Claim Leads to Sanction”, New York Law Journal, May 25) (versions of song, from Huga’s Pad) (Tokens fan site, Tom Simon).
June 13 — Can’t sue over affair with doctor. “A Grand Island woman who had sex with her gynecologist can’t sue him for negligence and emotional distress, the Nebraska Supreme Court said Friday.” Affirming a lower court opinion, the state high court “said the woman’s lawsuit failed partly because the relationship apparently was consensual.” The affair lasted for nearly six years, but the woman grew despondent after the doctor ended it. (Butch Mabin, “Court: Woman can’t sue doctor for negligence”, Lincoln Journal-Star, June 12).
June 13 — From the U.K.: watch your language. Stockport College in Manchester, England, has banned the use of more than forty “offensive” words and phrases, including “postman”, “chairman” and even “history” (sexist), “mad”, “manic”, “crazy” (demeaning to mentally impaired), “the deaf”, “the blind”, “slaving over a hot stove” (“minimizes the horror and oppression of the slave trade”), “normal family”, “ladies and gentlemen” (said to have “class implications”), The 15,000-student college says it “will make it a condition of service and admission that employees and students adhere to this policy”. (Martin Bentham, “College guide bans ‘lady’ and ‘history’ as offensive words”, Sunday Telegraph (London), June 11). And a public employment bureau in Staffordshire, England, recently told an employer that it could not place a recruitment advertisement that included the words “hardworking” and “enthusiastic”, which it deemed discriminatory. The bureau’s parent agency explained that in its opinion such terms, as well as terms like “reliable” and “smart”, are overly subjective and could foster discrimination against the disabled. However, the education and employment minister in the Blair government, David Blunkett, who is himself blind, ordered the policy reversed and the words permitted; his office issued a statement declaring that he “regards it as an insult to him personally to suggest that a disabled person cannot be reliable, hardworking and enthusiastic.” (Maurice Weaver, “Hardworking job seeker? Do not apply within”, Daily Telegraph (London), June 7; Andrew Mullins, “Over-enthusiastic jobcentre boss champions the cause of the lazy”, The Independent (London), June 7).
June 13 — Nader, controversial at last. As a presidential candidate scoring high enough poll numbers to affect the potential outcome in some close states, Ralph Nader seems on the verge of securing the thoroughgoing unpopularity in moderate liberal circles that has so long eluded him. Although the Associated Press still accepts his self-characterization as a “longtime advocate for the ‘little guy'”, the New Republic has been blasting away at the close ties Nader has formed with some not-so-little guys who share his antipathy to free trade, such as conservative textile magnate Roger Milliken: “Says Chip Berlet, an analyst at Political Research Associates who charts right-wing influence on lefty groups: ‘It’s a little strange — you come down to visit Nader and Milliken’s lobbyist picks you up.” (Ryan Lizza, “Silent Partner”, The New Republic, January 10; letters exchange between Joan Claybrook and Lizza, May 1, is not yet online). Still largely unaired in campaign coverage — but explored in pathbreaking articles by Forbes’s Peter Brimelow and Leslie Spencer a decade ago — are Nader’s much more longstanding ties to a far bigger set of big guys, the plaintiff’s trial bar, for which see links and quotes below.
SOURCES: On trade controversy, and general background: “Daily Notebook: Breaking the Silence” (third item), New Republic, May 22; John Judis, “Seeing Green”, May 29 (Nader “elevates the struggle with corporations into an apocalyptic conflict between good and evil” and turns business into a “bogeyman”); “Nader: Big Guys Invigorate Me”, AP/CBS News, undated, April (noting that Nader faces a handful of challengers for the Green Party nomination, including “Jello Biafra, former lead singer of the punk rock band the Dead Kennedys”); James Dao, “Nader Runs Again, This Time With Feeling”, New York Times, April 15 (reg) (critics charge “that despite his seemingly penurious way of living, he is actually quite wealthy, that he purposely spent almost nothing on his 1996 campaign to skirt federal election laws, which require candidates who spend more than $5,000 to file reports disclosing their assets”); Karen Croft, “Citizen Nader”, Salon, Jan. 26, 1999 (uncritical appreciation by former Nader employee); VoteNader.com (website for his candidacy).
On RN & trial lawyers, not online unless link given: Peter Brimelow and Leslie Spencer, “The plaintiff attorneys’ great honey rush”, Forbes, Oct. 16, 1989 (includes interview quotes from prominent trial lawyers: “‘We are what supports Nader. We all belong to his group. We contribute to him, and he fundraises through us,” says Fred Levin [Pensacola, Fla.] ([then-annual income from practice] $ 7.5 million). ‘I can get on the phone and raise $100,000 for Nader in one day,’ says Herb Hafif [Claremont, Calif.]. ‘We support him overtly, covertly, in every way possible,’ says Pat Maloney [San Antonio, Texas]. ‘He is our hero. We have supported him for decades. I don’t know what the dollar amounts would be, but I would think it would be very large, because we have the money and he has our unabridged affection. I would think we give him a huge percentage of what he raises. What monied groups could he turn to other than trial lawyers?'”); Peter Brimelow and Leslie Spencer, “Ralph Nader, Inc.”, Forbes, Sept. 17, 1990; Associated Press, Sept. 10, 1990 (quoting RN: “If they don’t retract I will take them to court”, an empty threat as it would seem); “Ralph Nader, pro and con”, Forbes, Oct. 29, 1990 (includes RN’s response); Leslie Spencer, “America’s third political party?”, Forbes, Oct. 24, 1994; Andrew Tobias, “Ralph Nader Is a Big Fat Idiot”, Worth, Oct. 1996; “Ralph Nader’s Dirty Little Secret”, New York Post (editorial), Mar. 19, 2000; Andrew Tobias, “Ralph Nader Really IS a Big Fat Idiot”, AndrewTobias.com, June 12, 2000.
June 12 — Rewarded with the bench. Probably no state official in the country has done more to organize mass litigation than Connecticut attorney general Richard Blumenthal, a key backer of gun, tobacco and Microsoft cases, among many others (see Dec. 2, March 31, Feb. 3, Feb. 16, April 11). Confirming (in case we didn’t already know) that marshaling such courtroom assaults is a good way to get ahead in American law, Blumenthal is now reported to be in line for a nomination by President Clinton to the powerful Second Circuit Court of Appeals, which handles cases from New York and Vermont as well as Connecticut. According to the Hartford Courant, compliant Senate Republicans are expected to confirm him quickly and without a fight. (Jon Lender and Michael Remez, “White House Eyes Blumenthal”, May 9; Michael Remez, “Blumenthal On Verge Of Court Nomination”, May 17; Michele Jacklin, “For The Last Time: Blumenthal Doesn’t Want To Be Governor”, May 17). Update Oct. 10: judgeship didn’t go through, now angling for Senate seat.
June 12 — Who wants to sue for a million?, part II. In March, four disabled Miami residents announced they were suing the hit game show “Who Wants To Be A Millionaire?”, saying the show hadn’t accommodated their efforts to become contestants, and “seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (see March 24-26) Now Peter F. Liberti Jr., who is deaf and a resident of Tonawanda, N.Y., has filed a similar complaint. (Dan Herbeck, “Wanted: a fair hearing”, Buffalo News, June 8).
June 12 — Bestiary of the bar. In Cincinnati, Common Pleas Judge Fred Cartolano recently complained from the bench “that there are too many lawyers, too many law schools and too many opportunities for dishonest behavior. ‘There are only so many fleas that can feed on a dog,’ the judge said. ‘We have lawyers coming out of the woodwork. There’s not enough business for all the lawyers out there.’ Judge Cartolano spoke before sentencing Kenneth Schachleiter to six months in jail for stealing about $91,000 from the estate of an elderly client.” (Dan Horn, “Judge decries lawyers as ‘fleas'”, Cincinnati Enquirer, April 13). Fullerton, Calif. attorney Linda K. Ross, who practices family and probate law, has filed a lawsuit against GTE Directories Sales Corp. for mistakenly listing her name and phone number in a yellow pages directory under the heading “Reptiles”. “She is subject to a great many joke and hostile phone calls, hissing sounds as she walks by and other forms of ridicule,” according to the lawsuit, although Ross does concede that her own mother “laughed for 10 minutes.” (Citizens Against Lawsuit Abuse Houston website, “Briefs”, citing May 1 issue, Liability & Insurance Week; Cathy Martindale, “Bulletin Board”, Amarillo, Tex. Globe-News, Jan. 17). A new legal referral website bills itself as “SharkTank.com — Attorneys Ready To Attack Your Case”. And New York Observer columnist Chris Byron has penned this lyrical description of what happened to a company whose business went from bad to worse trying to lend to borrowers with bad credit records: “class action lawyers have now descended on the company as if drawn by fish guts and other chum to a feeding frenzy of great whales”. (“Shoddy Contifinancial collapses by lending to risky deadbeats”, March 27).