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January 2003 archives


January 10-12 — Tobacco fees, cont’d: “Not a pretty picture”. What with our hiatus, we’ve been remiss in updating readers about it, but the neglected story of how lawyers carted off billions from the 1998 tobacco heist has been breaking into the news in increasingly noisy fashion. In November, former Texas Attorney General Dan Morales, who’d previously stonewalled efforts to investigate the private lawyers who worked under contract with his office, surprised observers by approaching his successor’s office with word that he has information about how at least one of those lawyers (unnamed thus far) may have breached his fiduciary duty to the state and may be subject to a potential forfeiture of fees. (Brenda Sapino Jeffreys, “Former Texas AG Offers Info on Tobacco Lawyers’ Conduct”, Texas Lawyer, Nov. 18). The Dallas Morning News calls for the private lawyers to stop dodging the state’s efforts to put them under oath about the fee affair, as they have been doing for years now (“Clearing the air: Abbott should examine new tobacco claims” (editorial), Dallas Morning News, Nov. 15)(reg).

Last month, American Lawyer published what seems to be the first major journalistic account of one of the most secretive aspects of the whole scandal: the unaccountable arbitration panel that has repeatedly awarded unheard-of sums to the trial lawyers. We’ve covered the doings of this panel many times on this site, and our editor discusses its rulings at some length in his new book The Rule of Lawyers, but we’re delighted to see a professional news organization finally devote its resources to scrutinizing the arbitration panel’s role in the fee scandal. Reporter Susan Beck digs up a large trove of material previously unknown to us in what the magazine terms “a behind-the-scenes account of the controversial awards. Warning: It’s not a pretty picture.”

“The proceedings were private, and only the awards were made public. According to transcripts and interviews with more than 20 participants, the hearings were loosely run events. A labor mediator, Wells had never conducted an arbitration. Testimony was not taken under oath. Celebrity witnesses — some paid, others with personal ties to the parties — offered testimonials in person and on professionally produced videotapes. The hearings were punctuated with folksy aphorisms and down-home appeals to [arbitrator John Calhoun] Wells, whose swing vote determined the outcome every time.” The whole article (and its sidebars) deserve close study. (Susan Beck, “Trophy Fees”, The American Lawyer, Dec. 2; “As Murky as a Clay Hole”, Dec. 2; “And the Winners Are…”, Dec. 2). And this month, the same reporter details the internecine strife that has gone far to tear apart the firm that made off with the greatest share of the ill-gotten gains from tobacco, Charleston, S.C.’s Ness Motley Loadholt Richardson & Poole, as the formerly cordial partners spar about … well, it basically seems to come down to money. “So maybe a couple billion dollars can’t buy happiness after all.” (Susan Beck, “Jet Blues”, The American Lawyer, Jan. 9). (DURABLE LINK)

January 10-12 — China: lawyer sues over 4-minute cinema delay. Emulating the American way of doing things, with a vengeance? “A disgruntled cinema-goer who went to watch the hit Chinese film Hero is suing the picture house and a movie production company because the movie started four minutes late. Zhang Yang, a lawyer, took action after being forced to watch four minutes of advertisements, which delayed the start of the film until 9.34pm when his ticket said it was due to commence at 9.30pm, according to the weekly Beijing Today.” However, Zhang does not appear to have adopted American lawyers’ ideas of suitable compensation: he appears to be asking for a mere $17, “a refund of his 40 yuan ($8.50) ticket and 40 yuan ($8.50) in compensation.” (“Chinese man sues after adverts delay movie by four minutes”, Sydney Morning Herald, Jan. 6)(& see Feb. 20). (DURABLE LINK)

January 9 — “Drunk Driving Victim Sues Designated Driver”. New frontiers of liability dept.: in Boulder, Colo., a lawyer for car-crash victim Doris Gray is suing not just the drunken driver whose vehicle hit her car but also “the driver’s friend, who reportedly failed to keep her promise to be a designated driver”. Although none of the participants could think of any earlier cases in which persons have been held liable for shirking a designated-driver role, a former head of the Colorado Trial Lawyers Association claims the new theory is “pretty solid”. (TheDenverChannel.com, Jan. 7). (DURABLE LINK)

January 9 — Playing chicken on malpractice reform. New Jersey’s Democratic pols propose dealing with their state’s medical liability crisis by enacting a cap on insurance rates while doing nothing to reduce the spiraling cost of judgments, settlements and defense costs. Columnist Paul Mulshine of the Newark Star-Ledger isn’t impressed. (“MDs will fly the coop rather than play chicken”, Jan. 7). (DURABLE LINK)

January 9 — “The Lawyers Are Lurking Over S.U.V.’s”. “The beginning of a new year is a good time for predictions, so here’s mine: S.U.V.’s are next on the agenda for the plaintiff’s bar. … [Suits of this kind] have less to do with the law or the facts than with the social climate… Don’t be surprised if some ambitious state attorneys general get into the act, too.” (Daniel Akst, New York Times, Jan. 5)(reg). (DURABLE LINK)

January 7-8 — Disabled-access suit could stop Super Bowl. “Super Bowl XXXVII may have to move from Qualcomm Stadium unless the city expands access for the disabled at the stadium. Attorney Amy Vandeveld filed an application for an injunction Friday in U.S. District Court in an attempt to get the city to comply with the terms of a 2001 a settlement aimed at expanding access for disabled people at the stadium.” (“Super Bowl XXXVII may be blocked in San Diego”, The Sports Network, Jan. 3). In the March 2001 settlement, San Diego officials agreed to spend more than $6.5 million in taxpayer funds to improve access to the stadium; attorney Vandeveld “received $1.3 million in attorney fees and other payments”. Linda Woodbury, the city’s disability services coordinator, estimated that the city’s overall “to-do” list of accessibility projects would cost at least $175 million. (Caitlin Rother, “Disabled activists threaten suit on Padres’ new ballpark”, SignOnSanDiego, Feb. 11, 2002). And ABC correspondent John Stossel recently devoted a segment to lawyers’ use of the ADA to extract settlements from retailers and other defendants (“Equal Access to the ‘Wild Side'”, 20/20, Nov. 9). (DURABLE LINK)

January 7-8 — Trial lawyer’s purchase of Alabama governor’s house said to be “arm’s-length”. “Wray Pearce, the Birmingham accountant who bought Gov. Don Siegelman’s Montgomery home for twice its appraised value, was acting as an intermediary for trial lawyer Lanny Vines, who subsequently bought the house from Pearce, according to court records filed last month in a lawsuit involving the two men. … The governor and his representatives have described the house sale as an arm’s-length transaction, with the governor and his wife placing the property on the market, and a buyer coming along and paying the asking price. … None of the records in the court file specifically state why Vines used his longtime accountant as an apparent straw buyer for the home. Nor do they explain why Vines was willing to pay a sum that a county appraisal and a Register review showed was about twice the home’s value.” Vines is considered one of the most politically influential plaintiff’s lawyers in Alabama. (Eddie Curran, “Papers show trial lawyer paid accountant for Siegelman house”, Mobile Register, Nov. 11). Also catch the editor’s note at the end of the article: “The governor’s office has a stated policy of refusing to comment to Register Reporter Eddie Curran.” (DURABLE LINK)

January 7-8 — “The Politics of Family Destruction”. Scorching indictment of the divorce industry by Howard University professor and fathers’ rights advocate Stephen Baskerville (Crisis, Nov.). And civil liberties advocates are uneasy about a developing trend in which courts in Ohio and Wisconsin have ordered men behind in their child support payments not to father any more children. (Dee McAree, “Deadbeat Dads Told to Stop Having Kids”, National Law Journal, Sept. 26; see Nov. 28, 2001). (DURABLE LINK)

January 3-6 — “Courting stupidity: why smart lawyers pick dumb jurors”. If you’d like an advance peek at our editor’s forthcoming bookThe Rule of Lawyers, this is your chance: the chapter on jury excesses is excerpted in January’s Reason. (DURABLE LINK)

January 3-6 — “Doctors strike over malpractice costs”. “More than two dozen orthopedic, general and heart surgeons in West Virginia’s Northern Panhandle began 30-day leaves of absence Wednesday or planned to begin leaves in the next few days.” Doctors in Pennsylvania are also on the brink of a job action to protest the legal system, despite a letter from a state official menacing them with having their licenses revoked for patient “abandonment”. (MSNBC, Jan. 2; Josh Goldstein, “Pa. warns doctors not to quit”, Philadelphia Inquirer, Dec. 28; Google news; see Jan. 21, 2002) (DURABLE LINK)

January 3-6 — U.K.: “Killer claims over loss of interest”. “A murderer is demanding thousands of dollars in lost interest because his prison savings were not invested wisely.” John Duggan, 53, jailed for life in 1984 after he admitted battering his girlfriend to death, says officials of the British Prison Service wrongfully left his money “in a zero-interest prison account designed for spending in jail on phonecards and toiletries” and says they had a duty to invest his earnings in an interest-bearing account. (Melbourne Herald Sun, Dec. 29). (DURABLE LINK)

January 3-6 — “Jack Ass blasts ‘Jackass'”. “A Montana man who legally changed his name to Jack Ass in 1997 (to raise awareness of the perils of drunk driving) says Jackass, the controversial MTV stunt-fest and subsequent film, has besmirched his sterling reputation, and … has filed a $10 million lawsuit against Viacom.” (Julie Keller, E! Online, Jan. 2; Michael Rosenwald, “The Appellative Court: The Real Jack Ass”, The New Yorker, Jan. 6). (& letter to the editor). (DURABLE LINK)

January 3-6 — Milberg copyrights its complaints. The leading class-action law firm has sent cease-and-desist letters to about ten other law firms, informing them that they are in violation of its rights when they swipe large amounts of language from Milberg Weiss suits — sometimes pretty much the entire complaint — for purposes of filing their own copycat lawsuits against the same defendants. Annoyed by the free riders, star litigator Bill Lerach “started putting copyright notices on some of his complaints, and registering those notices with the U.S. Copyright Office last September.” (Janet L. Conley, “Milberg Weiss Tries to Nail Class Action Imitators”, Fulton County Daily Report, Nov. 20). (DURABLE LINK)


January 20 — U.K.: coercive campaign to constrain Cadbury… In Britain, a “leading public health expert” is proposing a legal ban on extra-large chocolate bars and a code of conduct for snack food companies which “would include promises to cut the size of their portions by 20 per cent and to stop selling ‘over-sized’ sweets”. Particularly offensive to coercive nutritionists is some food companies’ practice of offering an extra-large package at a price only slightly higher than that of the smaller size. (Severin Carrell, “Why that big, fat KitKat could be the death of you”, The Independent, Jan. 19) (& welcome TongueTied readers). (DURABLE LINK)

January 20 — … and climbing cost of “compensation culture”. “The compensation culture, in which ‘every mishap leads to a complaint’ and often to legal action, is changing the face of Britain and costing about £10 billion a year, a report says today. … Compensation paid by insurance companies and public authorities amounts to one per cent of GDP, actuaries estimate. The figure is growing by 15 per cent a year. … However, the 35 per cent spent on administration in Britain compares well with the 58 per cent in America.” Schools, police forces and the ministry of defense are all being sued more frequently. (Joshua Rozenberg, “Price of ‘suing for every mishap’ is £10bn”, Daily Telegraph, Dec. 17; “Compensation claims ‘costing UK £10bn a year'”, Ananova/Guardian, Dec. 17; Robert Verkaik, “Lawyers earn £3bn yearly from injuries culture”, Independent, Dec. 17; London Institute of Actuaries/Edinburgh Faculty of Actuaries, press release; “The Cost of Compensation Culture”, Dec. 2002 (PDF)). (DURABLE LINK)

January 17-19 — Vt. high court: ALL-CAPS DISCLAIMER on front page of employee handbook not unambiguous enough. “Sidestepping an all-capitals disclaimer on page one of an employee handbook, Vermont’s Supreme Court has revived a woman’s right to sue her ex-employer for breaching an implied contract when it fired her.” Although the disclaimer said: “THE POLICIES AND PROCEDURES CONTAINED IN THIS MANUAL CONSTITUTE GUIDELINES ONLY. THEY DO NOT CONSTITUTE PART OF AN EMPLOYMENT CONTRACT, NOR ARE THEY INTENDED TO MAKE ANY COMMITMENT TO ANY EMPLOYEE,” the court ruled that the woman could nonetheless ask a jury to construe the manual’s contents as generating a legally enforceable promise. (Andrew Harris, “Big Disclaimer No Bar to Employee Suit”, National Law Journal, Jan. 15). (DURABLE LINK)

January 17-19 — “Ich Bin Ein Tort Lawyer”. Train disasters in the Austrian Alps and in Germany in recent years, which killed 155 and 101 people respectively, have resulted in the filing of massive personal-injury lawsuits in New York City, although very few Americans numbered among the victims and most of the defendants being sued are European companies. American lawyers (including Edward Fagan, who also drew critical attention in the Holocaust-assets litigation — see Jun. 24, 2002) argue that so long as they designate at least one American as lead plaintiff, they should be able to bring any number of other nonresident plaintiffs in on the same action. Such forum-shopping enables the lawyers to sidestep rules in German and Austrian courts that ban contingency fees, cap damages, require the losing side to compensate the winners, and restrict discovery and the use of class actions. (Michael Freedman, Forbes, Jan. 6). (DURABLE LINK)

January 17-19 — Blog-appreciated. Yesterday (Jan. 16) we got Slashdotted, with a reader’s suggestion that we cover a lawyer’s cease-and-desist letter sent to the maintainer of a “free PCI device table” (we readily admit we don’t know what those devices are). AngryRobot describes an indecorous canine-generated outdoor hazard which seems only too likely to eventuate in the sort of personal injury case “destined to be on Overlawyered” (Jan. 16). Our return from hiatus last month was generously hailed by Susanna Cornett in Cut on the Bias (Dec. 13), and by the web’s premier chronicler of appellate law, Howard Bashman’s How Appealing (Dec. 15 and Dec. 30). Dean Esmay (Dean’s World, Jan. 10) calls us “one of the best sites on the web”. We’ve also been mentioned lately on Employers’ Lawyer (Jan. 12), MedRants (Jan. 11), Larry Sullivan’s Delaware Law Office (Nov. 12)(on loser-pays, which Sullivan dubs “winner wins”), Nikita Demosthenes (Oct. 19), and on many link lists including those of Rick Henderson, Nikki, Esq., Carey Gage, Professor Bunyip, John Ray, and Skunk by the Ocean. All this incoming link activity leaves us at #155 in the BlogStreet Top 200 blogs (ranked by number of those who link to us). A special tip of the hat to Scott Norvell’s recently launched TongueTied site, cataloguing excesses of political correctness, which generates an impressive amount of traffic for us. And we turn up in a sidebar in Germany’s Der Spiegel Online (Frank Patalong, “Wahre Lügen”, on the “Stella Awards” list of spurious cases, Nov. 29). (DURABLE LINK)

January 15-16 — Furor over California complaint mills. Beverly Hills, Calif. law firm Trevor Law Group has used the state’s bounty-hunting consumer-protection laws to file complaints en masse against auto repair shops, nail salons, and hotels, from which it then demands settlements. Even Calif. attorney general Bill Lockyer, no foe of the plaintiff’s bar, says he is “disgusted and appalled” by Trevor’s most recent mass litigation campaign, against more than 1,000 restaurants and food stores, many small and immigrant-owned. Business owners are organizing in response and many news outlets have run indignant editorials (Cindy Chang, “Backlash against lawsuit gains steam”, Pasadena Star-News, Jan. 2; Traci Jai Isaacs, “Business owners claiming old law used in ‘shakedowns'”, South Bay Daily Breeze, Jan. 14; California Restaurant Association “Call to Action”, Jan.; KABC-TV 7, “Auto Lawsuits”, Dec. 3; Civil Justice Association of California, “Legal Shakedowns Hitting Thousands of California Businesses”, Dec. 6; “Mass Produced Claims Against Nail Salons”, Dec. 6 (PDF)). Radio’s “John and Ken Show” has also been covering the controversy and its online audio segments (three December dates) are described by one reader as quite lively in tone, although we haven’t had the chance to listen to them. (& see Mar. 3) (DURABLE LINK)

January 15-16 — Sis-Boom-Sue. Jenny Lawson is suing the Des Moines school district, alleging she broke her leg when she collided with another cheerleader while cheering for the wrestling team at Roosevelt High School. “The suit claims the district was negligent for — among other things — failing to have cheerleaders perform on an absorbent mat and encouraging more than one cheerleader to jump at once. Drew Bracken, an attorney for the Des Moines district, said he knew of no schools with such rules. ‘I’m not aware of a requirement that cheerleaders perform on an absorbent mat. I’ve never heard of it before,’ Bracken said.” (Mark Siebert, Des Moines Register, Jan. 2). (DURABLE LINK)

January 13-14 — “Wacky Warning Label” winners. This year’s winner in Michigan Lawsuit Abuse Watch’s Wacky Warning Label contest is a label on a robotic massage chair that warns, “Do not use massage chair without clothing” along with “Never force any body part into the backrest area while the rollers are moving”. “Second place goes to a snowblower label that says ‘Do not use snowthrower on roof.’ Third is a kitchen label that says, ‘Do not allow children to play in the dishwasher.'” (multiple outlets; Business Wire, Jan. 8) (earlier winners: Jan. 25-27, 2002; Jan. 19-21, 2001; Jan. 18, 2000) (DURABLE LINK)

January 13-14 — Cochran: City Hall to blame for arson/murder by drug dealer. “In a legal memo expected to land at City Hall in a matter of days, attorney Johnnie L. Cochran Jr. will claim the city bears responsibility for the October arson murder of an East Baltimore family — in part because the anti-drug ‘Baltimore Believe’ campaign encouraged residents to speak out against dealers, a lawyer working with Cochran said yesterday. Cochran is representing relatives of the Dawson family, who prosecutors say were killed in retaliation for reporting neighborhood dealers to police.” (Laura Vozzella and Del Quentin Wilber, “Anti-drug campaign blamed in Dawson arson deaths”, Baltimore Sun, Jan. 8)(via WSJ Best of the Web) (DURABLE LINK)

January 13-14 — Anti-diet activist hopes to sue Weight Watchers. “U.K.-based psychotherapist Susie Orbach, author of Fat Is A Feminist Issue, is planning a lawsuit against Weight Watchers on behalf of what she says are thousands of women and men who have paid out many hundreds of British pounds to the company, only to end up fatter than before they started the program. … Orbach’s suit would be the first to hold a weight-loss company responsible for clients’ gaining the weight back.” (“Diet Dispute”, ABC News, Jan. 9). “‘Now that the general public is taking absolutely no responsibility, we retailers are starting to get anxious,’ says Simon Doonan, creative director of the Manhattan clothier Barney’s. ‘If people are suing McDonald’s for making them fat, one does wonder how far we are from an era where individuals will attempt to sue us when they buy clothes that make them look fat.'” (Joanne Kaufman, “Seasonal Pain and Suffering”, Wall Street Journal, Nov. 29) (DURABLE LINK)


January 31-February 2 — “Cities Pay Big in Faulty Lawsuits”. Fox News picks up on the theme explored by columnist Deroy Murdock a few days ago of how persons hurt while committing crimes or trying to commit suicide now often show up in court demanding compensation for others’ negligence in letting them be injured. This site’s editor went on camera to take a less-than-enthusiastic view of such suits. (Jan. 30) (DURABLE LINK)

January 31-February 2 — FBI probes Philadelphia’s hiring of class-action firm. “An FBI investigation is focusing on why current and former city officials gave potentially lucrative legal work to a top Democratic donor and resisted a judge’s efforts to seek competitive bids for the work.” The administration of Ed Rendell, since elected Pennsylvania governor, hired prominent class-action firm Barrack, Rodos & Bacine to represent the city as lead plaintiff in a large class action in California representing investors in Network Associates, a software firm. Through its senior partner, the law firm says it plans to cooperate with the investigation. (Cynthia Burton, Mark Fazlollah and Joseph Tanfani, “FBI investigates Philadelphia’s Pension Board”, Philadelphia Inquirer, Jan. 30). Update and more coverage: Mar. 21-23. (DURABLE LINK)

January 31-February 2 — “Valentine’s Card Burglar Sues Police”. From the U.K.: “A convicted burglar has been given legal aid to sue the police for sending him a Valentine’s card last year. Gary Williams, who has a 12-year criminal record, was one of 10 known burglars and car criminals who received cards from Brighton police. But when he opened the card, his girlfriend thought it must be from another woman. She was so cross that, before he could explain, she hurled an ashtray at him, and it went whistling past his head.” (David Sapsted, Daily Telegraph, Jan. 29) (DURABLE LINK)

January 31-February 2 — Fair housing law vs. free speech. On more than one occasion, when local residents have spoken out against the siting of low-income housing projects or group homes in their neighborhoods, they’ve faced (unsuccessful) lawsuits and attempted fines on the grounds that their speech constituted a civil rights violation. Now the Sixth Circuit has approved a more subtle way of discouraging residents from speaking their minds: impute their prejudiced views to the government that has allowed them to speak at a public hearing. It’s a good way of getting government bodies to stop holding public hearings for fear of liability, according to columnist Robyn Blumner (“Fair Housing Act cannot be used to gag residents’ displeasure”, St. Petersburg Times, Jan. 19). (DURABLE LINK)

January 31-February 2 — Manhattan Institute turns 25. The New York-based policy institute, with which our editor is associated, celebrates its quarter-century anniversary. Read more about it (Tom Wolfe, “Revolutionaries”, New York Post, Jan. 30; “Ideas Matter” (editorial), Jan. 30). Then visit the Institute’s website and sign up for its invaluable mailing list. (DURABLE LINK)

January 30 — “ADA Goes to the Movies”. The AMC chain pioneered stadium-style seating in movie theaters, which much improves sight lines for audiences and quickly became the industry standard. Then civil-rights activists swooped down, saying the new layouts (the earlier versions, at least) were unlawful because they provided too narrow a set of seating choices for patrons in wheelchairs. Jonathan Last of the Weekly Standard takes up the story (Jan. 24). (DURABLE LINK)

January 30 — Targeting Wall Street. More than 200 mass tort lawyers recently met at Las Vegas’s Bellagio Hotel to discuss suing investment firms, at an event put on by the Mass Torts Made Perfect organization. Veterans of the breast-implant and fen-phen campaigns “are hoping to profit from the fallout of the $1.4 billion global regulatory settlement over stock-research conflicts, seeking to file claims on behalf of investors.” Law partners James Hooper and Robert Weiss “concede they don’t really know their way around Wall Street” but have already spent more than $1 million in television advertising in search of retired Florida clients who lost money in the market. “The pair is teaming up with Levin Papantonio Thomas Mitchell Echsner & Proctor PA, a large mass-tort firm based in Pensacola, Fla., known for its filings against the tobacco industry, among others.” Messrs. Hooper and Weiss “recently filed 71 cases against Citigroup Inc.’s Salomon Smith Barney on behalf of investors who lost less than $25,000 apiece.” The newcomers have not met with a friendly reception from the existing plaintiff’s securities bar, however, who tend to sniff at their lack of a track record in the area. (Susanne Craig, “Lawyers Target Wall Street Following Regulatory Payoff”, Wall Street Journal, Jan. 29) (online subscribers only). (DURABLE LINK)

January 29 — State of the Union. “To improve our health care system, we must address one of the prime causes of higher costs — the constant threat that physicians and hospitals will be unfairly sued. Because of excessive litigation, everybody pays more for health care and many parts of America are losing fine doctors. No one has ever been healed by a frivolous lawsuit. I urge the Congress to pass medical liability reform.” (President Bush, State of the Union speech Jan. 28, reprinted, Quad City Times). Charles Krauthammer’s take: “Sick, Tired and Not Taking It Anymore”, Time, Jan. 13 (MedRants comments). And see James M. Taylor, “States Take Lead on Medical Malpractice Reform”, Heartland Institute Health Care News, Jan.(DURABLE LINK)

January 27-28 — Latest Rule of Lawyers publicity. Following appearances in New York and Washington, our editor is speaking on the book to a lunchtime audience Tuesday in Chicago; details here. Trips to Texas, California and elsewhere are in the works, as well as many radio programs. Famed InstaPundit Glenn Reynolds gave us a nice lift Friday in his MSNBC column (Jan. 24). Fox News Channel has now put online a partial transcript of our editor’s appearance last Thursday on “The Big Story” (posted Jan. 24). A CNN appearance is still pending. Eric Schippers of the Center for Individual Freedom gave the book a favorable review in the Federalist Society publication Engage, reprinted here. And Reason’s recent cover story/excerpt included a mini-author profile which we neglected to link earlier. (Jan.)

There’s more: Barnes & Noble Online gave the book one of its rotating “We Recommend” designations (Law category); both the Conservative Book Club/National Review Book Service and Laissez-Faire Books have picked the book as a selection and given it good write-ups; and e-versions are available for download from Franklin.com (requires proprietary software) and Palm Digital Media. (DURABLE LINK)

January 27-28 — “No suits by lawbreakers, please”. Syndicated columnist Deroy Murdock says a good place to start with tort reform would be to cut off lawsuits where the complainant’s own crime or suicide attempt was the preponderant cause of his injury. Among eyebrow-raising cases: “Disturbed, Angelo Delgrande shot and wounded his parents and himself in a June 1995 dispute. He then received surgery at a Westchester County, N.Y. hospital. That night, he yanked the tubes and monitoring devices from his body, then leapt off the second story of an adjacent parking garage in a suicide bid. He is now paraplegic. Delgrande sued the hospital for failing to treat his depression and keep him indoors. Last October, he won $9 million.” Also quotes our editor (Scripps Howard News Service/Sacramento Bee, Jan. 23) (& see Jan. 31) (DURABLE LINK)

January 27-28 — “Woman Attacked By Goose Sues County”. “A woman who says she was attacked by a 3-foot-tall goose is suing Palm Beach County, claiming the county should not have allowed the bird to roam in a public park.” Darlene Griffin, 30, says she was attacked on Feb. 5 in Okeeheelee Park. The county contends that it has no duty to protect parkgoers from “obvious” dangers. (Local6/WKMG, Jan. 24; CNN, Jan. 24). (DURABLE LINK)

January 27-28 — Don’t break out the shakes yet. Judge Sweet’s ruling last week in favor of McDonald’s has been widely hailed as a blow for common sense and individual responsibility, but the judge “generously gave the plaintiffs a chance to try their luck again” and “take a second bite from the burger”. Lawyers are likely to refile both the case at issue and new ones, after due study of Sweet’s opinion which may even provide a “jurisprudential roadmap” to liability. “Make no mistake: This case is not about fat kids. It’s about fat paydays. For lawyers.” (“Mickey D’s Hollow Victory” (editorial), New York Post, Jan. 23; see also “Lawyers Run Marathons, Not Sprints”, Center for Consumer Freedom, Jan. 23). More: some well-known plaintiff’s lawyers pooh-pooh the fat suits (James V. Grimaldi, “Legal Kibitzers See Little Merit in Lawsuit Over Fatty Food at McDonald’s”, Washington Post, Jan. 27). On the other hand, a Fortune cover story argues for taking them seriously (Roger Parloff, “Is Fat the Next Tobacco?”, Jan. 21). (DURABLE LINK)

January 24-26 — Malpractice-cost trends. Many mainstream journalists, accepting arguments pressed on them by defenders of the litigation business, have uncritically repeated the notion that the crisis in medical malpractice insurance owes more to insurers’ unwise Wall Street investments than to galloping litigation costs. But in fact, according to an expert on insurer portfolio management, “asset allocation and investment returns have had little, if any, correlation to the development of the current malpractice problem. The crisis is rather the result of a generally unconstrained increase in losses and, over several years, inadequate premium income to cover those losses.” (Raghu Ramachandran, “Did Investments Affect Medical Malpractice Premiums?”, Brown Brothers Harriman Insurance Asset Management Group, Jan. 21; see also post and comments at Megan McArdle’s site and earlier Jan. 1 post and comments). Doctors’ increasing willingness to walk off the job to protest the law’s expropriation — and politicians’ heavy-handed hints that they will face punishment if they do so — recall the producers’ strike in Ayn Rand’s Atlas Shrugged, according to Edward Hudgins of the Objectivist Center (“Doctors Shrug”, Washington Times, Jan. 12). Ramesh Ponnuru argues that the Bush administration has not come up with an adequate grounding in federalism for a Congressional override of state malpractice law, given that it is a state’s own citizens who are the main losers from irrational verdicts (“Federal Malpractice”, National Review Online, Jan. 24). See also President Bush’s speech in Scranton, Jan. 16; White House “Policy in Focus: Medical Liability“; Michael Arnold Glueck and Robert J. Cihak, “It’s Not Just ‘Sue the Docs’ Anymore”, MedJournal.com blog, Jan. 14; RangelMD, Jan. 18; MedRants, Jan. 20; MedPundit, Jan. 19; Sydney Smith (MedPundit), “Dangerous Lies”, TechCentralStation, Jan. 21. (DURABLE LINK)

January 24-26 — Race-bias cases gone wrong. “The Florida Supreme Court has disbarred a Fort Lauderdale attorney accused of filing a string of racial discrimination lawsuits against employers such as Ocean Spray and BellSouth, which a federal judge labeled as extortion. Norman Ganz was disbarred for allowing his paralegal, a convicted felon, to engage in the unlicensed practice of law, charge an excessive fee and represent clients with adverse interests. … They were accused of filing a string of lawsuits against employers such as Ocean Spray, BellSouth, Broward County, Fla., and the Broward County School Board, then threatening to bring in the NAACP as a plaintiff. In return, the lawyers gave NAACP chapters some of the settlement money. … The cases also led to the ouster of Roosevelt Walters, former head of the Fort Lauderdale NAACP.” (Julie Kay, “Florida Lawyer Who Filed Controversial Racial Bias Suits Disbarred”, Miami Daily Business Review, Dec. 6). (DURABLE LINK)

January 23 — Judge tosses McDonald’s obesity case. “A federal judge in Manhattan today threw out a lawsuit brought against the McDonald’s Corporation by two obese teenagers, declaring as he did so that people are responsible for what they eat and that the teenagers’ complaints could spawn thousands of ‘McLawsuits’ if they were upheld. … Samuel Hirsch, the Manhattan lawyer who represents the plaintiffs … noted that Judge Sweet said the two teenagers were not barred from filing an amended complaint, and Mr. Hirsch promised to do just that, asserting that he still had a ‘credible and viable lawsuit.'” New York Times (reg); opinion in PDF format; GoogNews compilation; Reuters/FoxNews; AP/Court TV; Yahoo Full Coverage). And — rather undercutting the much-bruited notion that the increase in portion sizes at restaurants constitutes some sort of sneaky maneuver by restauranteurs having nothing to do with consumer preferences — “In a new study, researchers looked at such foods as hamburgers, burritos, tacos, french fries, sodas, ice cream, pie, cookies and salty snacks and found that the portions got bigger between the 1970s and the 1990s, regardless of whether people ate in or out.” (Deanna Bellandi, “Study Finds Meal Portion Sizes Growing”, AP/Washington Post, Jan. 21). (DURABLE LINK)

January 23 — Justices nix vicarious personal housing-bias liability. More good news: vacating a Ninth Circuit ruling, the Supreme Court has unanimously decided that under the Fair Housing Act of 1968 the owner of a real estate agency cannot in most cases be made to pay personally for the discriminatory acts of an underling without some further direct showing of fault. The agency’s liability was not in question; the question was instead whether the owner’s personal assets should be at risk if the agency lacked money to pay a judgment. A sobering aspect of the case: the Bush Administration entered it against the agency owner, arguing that he should be held personally liable but on a different legal theory (that the agency was legally an alter ego of his). The high court did not resolve that possible theory of liability. (Linda Greenhouse, “Justices Limit Housing Bias Lawsuits”, New York Times, Jan. 22)(reg) (DURABLE LINK)

January 23 — Our editor on TV. On Tuesday, kicking off a media swing to promote The Rule of Lawyers, our editor was a guest of Court TV’s Catherine Crier, who said some extremely kind things about the book (which rose to #265 on Amazon, helped by the WSJ‘s great review the same day). Today (Thursday) afternoon, watch for him to be interviewed by Judge Andrew Napolitano on Fox News Channel’s The Big Story with John Gibson. And although bookings are always subject to last-minute change, don’t be surprised if he turns up Friday evening on CNN. (DURABLE LINK)

January 21-22 — Not my partner’s keeper. No joint and several liability for us, please: “In a sign of increased caution in the post-Enron world, two of New York’s most prominent law firms have elected to become limited liability partnerships. Sullivan & Cromwell and Paul, Weiss, Rifkind, Wharton & Garrison both acquired Limited Liability Partnership status effective Jan. 1, thus ending a combined 250 years of operation as general partnerships.” The effect is to insulate partners from having to pay for each others’ negligence or other wrong, even if greater vigilance by the firm as a whole might have reduced the likelihood of wrongdoing. (Anthony Lin, “Prominent Law Firms Move to Limit Liability”, New York Law Journal, Jan. 10). (DURABLE LINK)

January 21-22 — ATLA’s hidden influence. From the Capital Research Center, which keeps tabs on activist groups: “The movement for tort reform has been stalled by an unholy alliance of trial lawyers and consumer advocates eager to preserve the power to sue. But few Americans understand the ties linking Ralph Nader-inspired groups to the Association of Trial Lawyers of America.” Includes considerable information about ATLA’s generosity to various private groups which lobby against limits on medical malpractice litigation. Also quotes this site (Neil Hrab, “Association of Trial Lawyers of America: How It Works with Ralph Nader Against Tort Reform”, January (summary; “Foundation Watch” report in PDF format)). (DURABLE LINK)

January 21-22 — “Tort turns toxic”. Overview of how litigation is wreaking havoc in diverse sectors of the society, from medicine to terrorism insurance, includes particular attention to the problems it’s creating for affordable housing. Construction of condominiums and apartments in California and other Western states has become much more expensive to insure because of burgeoning litigation over allegedly defective construction, some of the allegations well grounded but others drummed up by eager solicitation of condo associations by lawyers. By the year 2000, insurers in California were paying out nearly $3 for every premium dollar collected from builders, and imposing big premium hikes. Multi-unit housing construction has now plunged, and major builders have shifted efforts from affordable condos to pricier freestanding homes, perceived as a lower litigation risk. (Steven Malanga, “Tort Turns Toxic,” City Journal, Autumn 2002). (DURABLE LINK)

January 21-22 — Welcome Wall Street Journal readers. Highly favorable review of our editor’s new book The Rule of Lawyers: “an entertaining, but disturbing, chronicle of class-action abuses … Mr. Olson’s engaging prose, for all its charm, is propelled by a sense of outrage at the abuses he describes: He slams his opponents onto the mat, lets them rise slightly in a daze and then slams them down again, round after round.” Also mentions this website (David A. Price, “In a Class By Themselves”, Wall Street Journal, Jan. 21 (online subscribers only)). (DURABLE LINK)

February 2002 archives, part 2


February 20-21 — Updates. Further developments in stories familiar to our readers:

* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (“Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)

* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).

* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (“Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).

February 20-21 — Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).

February 20-21 — Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (“Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)

February 20-21 — “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)

February 18-19 — “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).

February 18-19 — Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.

“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).

February 18-19 — “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).

February 18-19 — Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (“Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).

February 15-17 — Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (“Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).

February 15-17 — “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (“Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).

February 15-17 — “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).

February 15-17 — Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).

February 15-17 — Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.

February 13-14 — Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).

February 13-14 — British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.

February 13-14 — Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).

February 13-14 — Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.'” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).

February 11-12 — New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that'”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).

February 11-12 — “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).

February 11-12 — Columnist-fest. All first-timers:

* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?'” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).

* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (“BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).

* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).

* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.

February 11-12 — Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).

February 2002 archives


February 8-10 — Crumbs from the table. “A Las Vegas jury has found that two attorneys committed malpractice in their representation of a brain-damaged man in a personal injury suit. It awarded the man, Jason Nault, $3.3 million. The lawyers had reached a $17 million settlement that gave Nault only $2.5 million — compared with $6.6 million to his wife, from whom he’s now divorced, and $6.8 million to the lawyers.” Attorney W. Randall Mainor of Las Vegas’ Mainor Harris, who with partner Richard Harris was found liable, “insists that the ruling throws a wrench in attorneys’ personal injury work.” However, attorney Gary Logan, who represented Nault on the malpractice claim, “said of Mainor and Harris, ‘This kind of conduct is the reason people hate lawyers.’ … Among the breaches in professional conduct that Logan alleged — some of which were raised at trial and some that were barred — were that another attorney, Joe Rolston, received a $2.2 million referral fee without ever receiving consent of his brain-damaged client, Nault.” Mainor “said that the fee paid to Rolston was an association fee, not a contingency fee.” Nault’s parents began caring for him in 1997. (Elizabeth Amon, “Malpractice Suit Tags Las Vegas Attorneys”, National Law Journal, Feb. 6). Update Jan. 1, 2005: Nevada Supreme Court reverses jury verdict.

February 8-10 — Overlawyered film sets. According to intellectual property expert Larry Lessig, moviemakers “must now ‘clear’ every image that appears in their films, obtaining permission even for minor items like posters in a dorm room, the advertisement on a passing truck, or a can of Coke in someone’s hands. It used to be, Lessig reports, you only had to do this if the item was immediately recognizable; now you have to do it if it shows up in a single stop-motion frame. Even the designers of buildings and furniture included in movie scenes are trying to claim the right to stop films that contain images of their products without permission.” (Glenn Reynolds, “Rights and wrongs”, TechCentralStation.com, Feb. 6).

February 8-10 — “Judge orders God to break up into smaller Deities”. The Onion on antitrust law, and very funny, too (Jan. 30). While we’re at it: James V. DeLong of the Competitive Enterprise Institute comments on the proposed Microsoft settlement (Jan. 25).

February 8-10 — 2,000,000 + pages served on Overlawyered.com. Exact figures are not available because the more comprehensive of our counter programs has gone on the fritz, but we think our tally passed two million pages late last year and now stands above two and a quarter million. Thanks for your support!

February 6-7 — Vandal’s dad sues store over blaze. “The father of a teen who helped spark the fatal Father’s Day blaze has filed a $2 million lawsuit against the store where the fire started.” Silverio Moreno’s “son and another boy tipped over a loose-lidded gallon of gasoline while spraying graffiti behind the store.” According to columnist Andrea Peyser, the younger child “told investigators that when Moreno came looking for his son, and saw what the boys did, he said: ‘Don’t say anything about it.’ Now dad “is suing the elderly owner of Long Island General Supply Co. for $2 million – claiming the store ‘carelessly and negligently permitted the building to explode,’ causing Moreno permanent injuries.” The suit has raised the ire of some widows of NYC firefighters killed in the blaze, although they themselves, it should be noted, “plan to file negligence suits against the hardware store in the future and they have not ruled out taking action against the city, said their lawyer, Michael Block.” (Jessie Graham, “Outrage at Suit By Firestarter’s Dad”, New York Post, Feb. 1; Andrea Peyser, “Of All the Gall! His Kid Is a Vandal — And He’s Suing?”, New York Post, Feb. 1). (DURABLE LINK)

February 6-7 — Chickens are next. In the latest stage of its campaign to use litigation to do an end run around what it considers overly permissive federal environmental agencies, the Sierra Club is targeting Kentucky farmers who raise chicken under contract with Tyson Foods (see Dec. 7, 2000, on hog farming). The suit contends that broiler operations should be counted as industrial emitters of ammonia gas because the individual chickens … well, it’s too indelicate to explain. (James Bruggers, “Sierra Club vows suit over chicken farms and dust they produce”, Louisville Courier-Journal, Feb. 5).

February 6-7 — Your home, their right to enter. Suburban Naperville, Ill. has emerged as the latest target in disabled rights activists’ campaign to require newly built private houses to be wheelchair-accessible — and if you’re a new homebuyer who doesn’t care for the cost and design trade-offs implicit in that, tough, you shouldn’t consider the house yours just because you’re the one paying for it (see Dec. 4, 2001, on Santa Monica) (Karen Mellen, “Making all new houses ‘visitable'”, Chicago Tribune, Feb. 5)(& see update Mar. 6)(& letter to the editor, Apr. 11).

February 6-7 — “Every Man a Cyber Crook”. “Shortly after it enacted the federal computer crime law, Congress amended it to allow victims to sue their attackers in federal court for damages. It is now proving to be a costly mistake. … in practice, private litigants have rarely used the civil provisions to pursue computer hackers, who, after all, usually don’t have very deep pockets. Instead, unfettered by the Department of Justice’s interpretation of federal law, litigants have used the computer crime laws to go after computer hardware manufacturers for product liability, Internet companies for software design, spammers and protesters for commercial and other protected First Amendment speech, and website operators for the installation and tracking of computer cookies.

“These unintended uses of the computer crime statute, and the court’s permitting the suits to proceed in many cases, creates a genuine risk that ordinary business activity and protected speech will be deemed to rise to the level of a computer crime, subject to federal prosecution.” (Mark Rasch, SecurityFocus.com, Jan. 7).

February 4-5 — “‘Let’s Roll’ Trademark Battle Is On”. Why’d she have to hire that lawyer? No sooner does the widow of Flight 93 hero Todd Beamer set up a foundation to honor his memory than its lawyer announces that he’s having it apply for a trademark on the now-famous phrase “Let’s Roll”, so that anyone who wants to use the words on hats or t-shirts will have to fork over a royalty. Since September 11 numerous other individuals have also sought to copyright the phrase, although it was in common use before that date. (AP/Las Vegas Sun, Feb. 1).

February 4-5 — Element in $290,000 award: failure to meet Messiah in person. Dateline Salt Lake City: “A jury awarded $290,000 to two women who said they were deceived by a fundamentalist church whose leaders promised to produce Jesus Christ in the flesh. The True and Living Church of Jesus Christ of the Saints of the Last Days was ordered Monday to pay $270,000 to Kaziah Hancock and more than $20,000 to Cindy Stewart for fraud, breach of contract and intentional infliction of emotional distress.” In exchange for substantial financial contributions from Hancock and Stewart, church founder Jim Harmston had allegedly promised the women various benefits including “membership in heaven’s elite and the chance to meet Christ on earth”. (AP/Boston Globe, Jan. 30)(see June 6, 2001).

February 4-5 — Stop, they said. An assistant professor of political science at the University of Manitoba is reportedly “fighting a $40 traffic ticket in provincial court by launching a constitutional challenge of stop signs — claiming the message they convey is too vague. In what may be one of the strangest legal arguments ever heard in the halls of the downtown Law Courts, Rod Yellon is seeking to prove the word ‘STOP’ isn’t a sufficient warning to motorists.” (excerpt said to be from the Winnipeg Free Press; quoted in Fresh Hell blog, Jan. 5).

February 4-5 — Reparations madness: gypsy survivors sue IBM. Representatives of European gypsies orphaned in the Holocaust want money and an apology from IBM because one of its German subsidiaries, taken over by the Nazi government before World War II, sold punch-card machines used to administer the concentration camp system. (“Gypsies Sue IBM, Claiming Machines Helped Nazis”, AP/Law.com, Feb. 1).

February 1-3 — “Aborigines claim kangaroo copyright”. “In Australia, a group of Aborigines has lodged a high court writ, seeking to stop the government from using the kangaroo and the emu on the national coat of arms. The Aboriginal activists say the representation of the animals — which they regard as sacred totems — is a breach of copyright.” They accuse the Commonwealth of Australia of cultural theft. (BBC, Jan. 29).

February 1-3 — Suicide plane crash blamed on acne drug. When a Florida 15-year-old crashed a plane into a Tampa skyscraper, press accounts were quick to link the incident to the boy’s prescription for the drug Accutane. “As only a handful of media outlets bothered to report a week later, an autopsy showed no trace of the drug in the boy’s system. … If you go to a Web site with an innocuous-sounding name like http://www.accutane_suicide_help.com/ you’ll find you’ve actually come across a lawyer-referral service.” (Michael Fumento, “Bumps in the Night”, Reason Online, Jan. 23; “Tampa Crash Pilot Had Acne Drug Prescription”, AP/Washington Post, Jan. 9). “Rep. [Bart] Stupak’s [D-Mich.] hearings and the recent press stories have all left out one set of voices: the millions of Accutane users who have benefited from the drug.” (Jaime Sneider, “Skin Deep”, Jan. 23) Update Apr. 18: family sues.

February 1-3 — King Cake figurine menace averted. Columnist James Lileks recalls how things used to be with the famous King Cake baked in New Orleans for Mardi Gras: “Since they were the Real Thing, brought directly from N’Awlins, they had small plastic baby Jesuses (Jesii?) embedded in their doughy redoubts. Whoever cracked a molar on the extruded holy infant was obliged to buy the next King Cake. In these litigious days, the store-bought cakes cannot hide the child lest someone choke and sue, so the package explains the tradition, says that a coin can be substituted for the plastic baby — and the coin is sitting ON TOP of the cake, meaning no one will be stupid enough to take that piece.” (“The Bleat”, Lileks.com, Jan. 29).

February 1-3 — International tobacco suits: not quite such easy pickings. U.S. judges have so far not been particularly inclined to loot and expropriate the nation’s tobacco industry for the benefit of such foreign governments as Guatemala, Nicaragua, Ukraine, and Ecuador, which with help from some entrepreneurial-sounding U.S.-based lawyers have sought to duplicate the 1998 feat of the state attorneys general. (Matthew Haggman, “Brazilian City Joins List of Foreign Entities Suing U.S. Cigarette Makers”, Miami Daily Business Review, Jan. 11). For details on the suit filed by that very needy and deserving claimant, the government of Saudi Arabia, see Nov. 16, 2000 and Dec. 10, 2001.


February 20-21 — Updates. Further developments in stories familiar to our readers:

* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (“Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)

* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).

* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (“Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).

February 20-21 — Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).

February 20-21 — Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (“Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)

February 20-21 — “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)

February 18-19 — “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).

February 18-19 — Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.

“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).

February 18-19 — “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).

February 18-19 — Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (“Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).

February 15-17 — Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (“Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).

February 15-17 — “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (“Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).

February 15-17 — “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).

February 15-17 — Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).

February 15-17 — Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.

February 13-14 — Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).

February 13-14 — British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.

February 13-14 — Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).

February 13-14 — Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.'” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).

February 11-12 — New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that'”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).

February 11-12 — “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).

February 11-12 — Columnist-fest. All first-timers:

* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?'” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).

* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (“BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).

* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).

* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.

February 11-12 — Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).


February 27-28 — Aerobics studio mustn’t favor the svelte. “In one of the first cases under San Francisco’s ‘fat and short’ law, a 240-pound fitness enthusiast has filed a discrimination complaint with the city against a leading exercise firm that won’t let her be a company aerobics teacher.” Jazzercise Inc. thinks Jennifer Portnick, at size 16-18, “looks too heavy to be a good role model for exercise buffs,” but Portnick’s supporters say the important thing is that she is fit enough to teach the class. (Elizabeth Hernandez, “240-pound San Francisco woman rejected as aerobics teacher alleges bias”, San Francisco Chronicle/ Minneapolis Star Tribune, Feb. 26)(see Dec. 8, 2000). Update May 10-12: Portnick wins settlement.

February 27-28 — The thrill of it all: plaintiffs win 28 cent coupon. “Food Lion customers who held an MVP [store discount] card between 1995 and 1998 have a 28-cent rebate coming their way as a result of a class-action lawsuit.” Not answered in the article is the burning question: how much more than 28 cents are the lawyers going to get? (“Food Lion MVP customers to get tiny rebate”, AP/Raleigh News & Observer, Feb. 24).

February 27-28 — Ford didn’t push pedal extenders, suit says. A lawsuit at trial in Louisville, Ky., accuses Ford Motor of not promoting and publicizing pedal extenders as a safety boon for drivers of short stature. “If the company were to tout the adjusters’ benefit in helping prevent air bag injuries, it could be open to more lawsuits if a driver is hurt or killed by an air bag while using it.” Ford offers the popular extenders as a convenience feature without stressing their safety aspect. (“Lawsuit faults Ford on safety issue”, AP/Louisville Courier-Journal, Feb. 19; AP/Auto.com, Feb. 18)(& letter to the editor, Apr. 11)

February 27-28 — Milberg faces second probe. “Already the subject of a grand jury investigation in Los Angeles, New York-based Milberg Weiss Bershad Hynes & Lerach is also facing scrutiny over its relationship with a high-ranking political figure in Philadelphia. Both state and federal authorities are looking into whether Philadelphia City Controller Jonathan Saidel received consulting fees from two law firms — one of which is Milberg Weiss — in exchange for helping the firms win city contracts.” (Jason Hoppin, “Milberg Weiss Faces Questions on Second Front”, The Recorder, Feb. 26).

February 27-28 — Jail for schoolyard taunts? In Hastings, Minn., prosecutor James Backstrom has announced “one of the toughest juvenile-justice policies in the nation: School bullies will go to jail.” Subject to the policy are not only kids who violently lay hands on classmates but also those who “intimidate, harass, pick a fight on the playground or the bus … Mr. Backstrom wants those who are at least 13 years old to hear a cell door click behind them. … The jail-for-bullies policy has been in effect since last spring here in Dakota County.” Local prosecutors complain, however, that some judges are undercutting the policy’s intent by taking into account such mitigating factors as whether a youngster’s misbehavior was provoked. (“New plan to put bullies behind bars”, Los Angeles Times/Christian Science Monitor, Feb. 26).

February 27-28 — Welcome Sunday Times (London) readers. We’re mentioned in Andrew Sullivan’s article on the journalistic impact of weblogs (“A Blogger Manifesto”, Sunday Times (London), Feb. 24, reprinted at AndrewSullivan.com).

February 25-26 — European workplace notes. “A French court has ruled that a ‘workplace accident’ claimed the life of an electrician who overdosed on vodka while drinking with colleagues in Russia. The unnamed 44-year-old Frenchman died of alcohol poisoning after a night of heavy drinking with Russian colleagues in Nalchik, southern Russia, three years ago.” (“Vodka death ruled ‘industrial accident'”, BBC, Feb. 18). In County Cavan, Ireland, a “piggery manager who claimed he had suffered deafness as a result of the noise of squealing pigs settled his action against the piggery owner.” (“And this little piggy …. missed his day in court”, Irish Independent, Feb. 19). And in Kent, England, “a dyslexic banker branded ‘Trebor’ by his boss — his Christian name spelled backwards — has been awarded damages of £95,000 by an employment tribunal.” (David Sapsted, “Sacked dyslexic awarded £95,000”, Daily Telegraph, Feb. 22).

February 25-26 — Fen-phen: gold standard indeed. The lead plaintiffs’ lawyers in the fen-phen diet drug litigation want a court to award them $567 million in fees for work negotiating a multibillion-dollar settlement, claiming their efforts set the “gold standard” for devising a mass tort “mega-settlement”. Besides, it’s peanuts when you consider that plaintiffs who opted out “have racked up more than $8 billion in settlements, leading to more than $2.8 billion in fees for their lawyers.” The brief also alleges that drug manufacturer American Home Products “paid its attorneys about $1.2 billion to $1.6 billion in fees and costs for defense of the diet drug cases.” (Shannon P. Duffy, “Fen-Phenomenal”, The Legal Intelligencer, Feb. 21).

February 25-26 — “Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker”. New York’s highest court has ruled that the widow of a Westchester County man killed in a crash of his VW Jetta with more than twice the legal amount of alcohol in his system can nonetheless sue the German automaker. In a 10-page dissent, Justice Albert Rosenblatt wrote that the “majority’s rationale … invites people injured as a result of their own seriously unlawful acts to blame others and recover damages previously prohibited”. (Kenneth Lovett, New York Post, Feb. 20).

February 25-26 — “PETA Says It Will Sue New Jersey Over Deer/Car Accident”. Two activists with the extremist animal rights outfit were driving along the New Jersey Turnpike when a deer (lamentably heedless of their rights) darted out in front of their vehicle, and the ensuing crash caused considerable property damage. Now they have sent “a notice to the New Jersey Division of Fish and Wildlife declaring their intent to sue the state of New Jersey for contributing to the accident through their deer management practices,” the theory being that the state is too willing to cater to the hunters who reduce the deer herd — no, it doesn’t make any sense to us either. (AnimalRights.net (Brian Carnell), Feb. 18)(& see Nov. 29, 2001).

February 22-24 —USA Today on slavery reparations. The story comes close to acknowledging that the legal basis for the impending lawsuits is so shoddy that their only real settlement value comes from the hope of inflicting bad publicity on companies and other defendants willing to pay to make it stop. So what does Gannett/USA Today, itself a likely defendant, do? It awards the lawyers another ton of publicity against named companies. Makes sense, right? Note that Willie Gary now claims the lawyers’ “work is likely to be done pro bono“, which is a very different story from what he said not too long ago (see Dec. 22, 2000) (James Cox, “Activists challenge corporations that they say are tied to slavery; Team of legal and academic stars pushes for apologies and reparations”, USA Today, Feb. 21). (DURABLE LINK)

February 22-24 — Role of the oath. We must take issue with Andrew Sullivan (“The Dish”, Feb. 21), who thinks it’s okay for President Bush to sign a substantially unconstitutional campaign finance bill on the expectation that the Supreme Court will throw out the unconstitutional parts. (Members of Congress sometimes cite a similar theory to explain why they vote for bills they are not sure are constitutional.) But as such commentators as Justice Scalia have pointed out, members of each of the three branches of government, not just the high court, take oaths pledging to uphold the Constitution. Among the functional purposes of the oath is to impress on them that the task of upholding the document is not just someone else’s, but theirs as well. To adopt what you might call the sole-goalie theory of constitutionality — which lets you kick the ball toward the goal of a Constitutional violation, relying on the Court to block — is to leave the document at best in the vulnerable state of being defended once when it deserves three-deep defense. (DURABLE LINK)

February 22-24 — “Student Grading by Peers Passes High Court Test”. The Supreme Court, interpreting federal law, unanimously decides it’s not illegal for teachers to let students rate each other’s work (see Nov. 28, 2001) (Charles Lane, Washington Post, Feb. 20).

February 22-24 — Culture war over BB guns. As suburban culture clashes with rural in Alpharetta, Ga., outside Atlanta, “a new ordinance here makes it a crime to let children under 16 use a BB gun — or its modern cousin, the paintball gun — without parental supervision.” Quotes our editor, although the sentiments attributed to us came out slightly more colorful than what we actually recall saying (Patrik Jonsson, “Town’s curb on BB guns becomes a clash of values”, Christian Science Monitor, Feb. 22).

December 2001 archives


December 10 — “Halliburton Shares Plunge on Verdict”. The market clipped $3.8 billion off the giant oil field service company’s share valuation after Peter Angelos got a $30 million jury award against it. “The ruling is the fourth significant asbestos ruling against Halliburton since late October, according to Merrill Lynch … Over the last 25 years, Halliburton has settled 194,000 asbestos claims, the company said. The average payment was about $200, according to Allen Brooks, executive director at CIBC World Markets. As of Sept. 30, the company faced 146,000 open asbestos claims and 182,000 more from a former subsidiary called Harbison-Walker.” (David Koenig, AP/Yahoo, Dec. 7; Neela Banerjee, “Halliburton Battered as Asbestos Verdict Stirs Deep Anxieties”, New York Times, Dec. 8). Federal-Mogul, the big auto parts maker, became the latest large bankruptcy to result from asbestos litigation with a filing two months ago (Joe Miller, “Asbestos suits hurt Fed-Mogul”, Detroit News, Oct. 2).

“In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. …What made jaws drop was that the plaintiffs weren’t even sick–their X-rays just showed they stood an increased chance of getting sick. ‘Most of these guys have not missed a day of work in their lives,’ their lawyer said. … To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!'” (“Looking for some million-dollar lungs”, U.S. News, Dec. 17).

Some say asbestos defendants should try to avoid angering juries by paying claims without a fight, but an attorney for power plant maker Babcock & Wilcox said an uncritical approach to claims had proved too expensive for his now-bankrupt client: “In the past, you literally filled out a form in five minutes that stated the claimant had a note from the doctor saying he was coughing and had other symptoms and showed that he worked at the site. It took five to 10 minutes to fill out the form that would routinely lead to checks for thousands of dollars.” (Terry Brennan, “Firms Wary of Challenging Asbestos Claims”, The Deal, Nov. 13). And battling continues in a case (see Feb. 12-13) in which B&W and other asbestos defendants have attempted to turn the tables on leading plaintiff’s firms, arguing that they have violated racketeering laws by coaching clients’ testimony and by threatening retaliation against companies that seek a legislative solution to the litigation morass. (Mark Hamblett, “Asbestos Companies Bring RICO Suit Against Plaintiffs’ Firms”, New York Law Journal, Sept. 6). This spring defendant law firms won a court order prohibiting the plaintiff companies from questioning their former, as well as their current, employees without counsel being present — i.e., even if the former employees are eager to spill the beans they will not be allowed to do so except in the presence of someone representing their former employer. That certainly should put a chill on whistleblowing (Mark Hamblett, “Employees of Law Firms Charged With Racketeering Shielded From Interviews Without Counsel”, New York Law Journal, April 11).

Plus: Dallas alt-weekly Observer, which had run some of the best journalism on the Baron & Budd client-coaching asbestos scandal, returned with a terrific follow-up in March which we’ve unconscionably delayed in linking (Thomas Korosec, “Homefryin’ with Fred Baron”, Dallas Observer, March 29). (DURABLE LINK)

December 10 — Steve Chapman on military tribunals. “President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement. ” (Chicago Tribune/ TownHall, Dec. 6).

December 10 — Love contracts. Some lawyers continue to advise employers to get co-workers who are in amorous relationships to sign legal documents affirming that the liaison is indeed voluntary, and that they will not harass each other if it ends. A 1998 survey by the Society for Human Resource Management “found that while 88 percent of the companies that discourage workplace romances do so out of fear of sexual harassment claims, just 4 percent of such relationships resulted in claims that led to litigation.” We don’t know where that “just” comes from — a 4 percent risk of getting the employer dragged into court sounds pretty serious to us. (Torri Minton, “Caught in the pact — Couples involved in office dalliances required to sign ‘love contract'”, San Francisco Chronicle, Dec. 2). (DURABLE LINK)

December 10 — “Saudi Arabia finally gets tough on terrorism!” “We are fighting a holy war to eradicate the source of the biggest corruption on earth,” says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he’s talking about … tobacco companies, who he’s suing in a legal action in Riyadh. (Frank Gardner, “Saudi hospital fights tobacco ‘terrorists'”, BBC, Dec. 4, via Untold Millions weblog, Dec. 5) (see Nov. 16, 2000 — we’re not sure what became of that earlier action, but suspect that it didn’t fare well, since the action’s now moving to Riyadh). (DURABLE LINK)

December 7-9 — Counterterrorism agents, on their own. Gabriel Schoenfeld, writing in Commentary: “Last year, at the behest of Congress, the National Commission on Terrorism, a body of leading experts, issued findings” on U.S. vulnerability to terrorist attack. Among other problems it warned of: the nation lacks adequate counterterrorist efforts, including intelligence monitoring of terrorist groups. “According to the commission, the guidelines governing the recruitment of ‘unsavory’ sources, introduced by the Clinton administration in 1995, had created a climate within the CIA that was ‘overly risk-averse’ and that contributed ‘to a marked decline in agency morale unparalleled since the 1970s.’ That is bad enough; but the morale problem had sources beyond the restrictive guidelines. Again according to the commission, some CIA officers and FBI special agents were being ‘sued individually’ by terrorist suspects for actions taken in the course of their officially sanctioned duties. Instead of representing them in such suits, the government was letting the agents fend for themselves; those who chose to stay on the job were being forced to purchase personal-liability insurance to cover their legal bills.

“Did the commission call for an end to this preposterous state of affairs, whereby accused terrorists have been able to turn the tables on their pursuers and bring them to court? Not at all. It asked only that the government provide ‘full reimbursement of the costs of personal-liability insurance.'” (“Could September 11 Have Been Averted?”, Commentary, December (scroll to near end)).

December 7-9 — Overlawyered schools roundup. A judge has thrown out Desiree Radford’s suit claiming that it was unlawful for the city of Buffalo to lay off teachers in her son’s district without first conducting an environmental impact statement (“Judge Dismisses Mother’s Case To Stop Buffalo Teacher Layoffs”, WGRZ.com, undated). In Ohio, the case of Fairview High School junior Aaron Petitt, “who claimed he was denied freedom of speech and due process when he received a 10-day suspension for hanging posters of airplanes bombing Afghanistan on his student locker,” is ending with a denouement summed up in the Cleveland paper’s headline: “District settles case with student; he gets $2,000, lawyers $21,000”. Aaron’s lawyers are charging local taxpayers $300 an hour for their services. (Sarah Treffinger, Cleveland Plain Dealer, Dec. 1). Schools in Canada’s largest city will probably wind up in court because of an effort to raise standards: “A Toronto parent group concerned about Ontario’s tough new school curriculum will encourage parents to take legal action against the government if their children are suffering under the revamped standards.” (Lee-Anne Goodman, “Toronto parent group encourages legal action”, Canadian Press/Toronto Sun, Dec. 2). And attorney Susanna Dokupil comments on the don’t- read- grades- aloud- in- class case currently before the U.S. Supreme Court. (“Hey, Congress, Leave Us Kids Alone”, The American Enterprise, Nov. 29) (see Nov. 28). (DURABLE LINK)

December 7-9 — “Hell’s litigious angels”. John Leo’s annual who’s-a-victim roundup leads off with the touchy motorcyclists who want protected-group status in discrimination law: “America’s next official victim group may be roaring your way on their Harley-Davidsons.” (U.S. News, Dec. 10; Chris Weinkopf, “Born To Be Mild”, FrontPage, Nov. 28; see Nov. 19-20). The Boston Globe‘s Jeff Jacoby thinks this would be a good time to take a stand on behalf of the principle of freedom of association: “Bikers Demand Their ‘Civil Rights'”, Nov. 29, via Center-Right).

December 7-9 — Chrysler dodges a $250 million dart. Blessed with a favorable appellate circuit (the Fourth) and high-powered counsel (Ted Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn & Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina punitive award overturned. “The court also reversed and remanded for retrial the jury’s finding of liability and its award of [$12.5 million] compensatory damages, finding that Chrysler should have been able to introduce evidence that a child who was ejected from a Chrysler minivan was not wearing a seat belt.” (“Chrysler Escapes $250 Million in Punitives”, National Law Journal, Nov. 1). San Francisco Chronicle legal columnist Reynolds Holding says the disparate fate of punitive damages on appeal in different cases — $5 billion against ExxonMobil held excessive in the Valdez spill case, $25 million upheld against Philip Morris in a case brought by an individual smoker– suggests that critics of punitive awards may have a point about their arbitrariness: would anyone have been especially surprised had the outcome been reversed and the tobacco maker rather than Exxon had gotten its award reduced? (“Scales of justice out of whack”, Nov. 25). And if you still thought plaintiffs in our legal system bore the burden of proving their legal case, get with it: “The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection.” (Charles Toutant, “New Jersey Shifts Burden of Proof in Auto Design Cases”, New Jersey Law Journal, Sept. 11).

December 5-6 — Cosseted to distraction. New Jersey has made itself “the darling of child-safety advocates” by becoming the first state to adopt a National Highway Traffic Safety Administration recommendation that children in cars be required to ride in booster seats until they weigh 80 pounds or reach their eighth birthday. But even some conscientious parents say the new law goes too far: older kids rebel at being forced back into “baby” seating, carpools break up as adult co-workers shun the nannyized vehicles, besides which the devices cost good money. (Kaitlin Gurney, “Tough N.J. safety-seat law poses dilemmas”, Philadelphia Inquirer, Nov. 30). And the Washington Times reports a presumably unintended consequence of those red-light cameras that revenue-hungry municipalities have installed to generate citations: “Some D.C. police officers say they are slowing their response to emergencies because photo-radar cameras are ticketing them for speeding … They said they and other officers have been forced to pay the fines, and are now on edge about speeding to a crime scene and running red lights in emergencies.” (Brian DeBose, “Cops get speeding tickets from cameras”, Nov. 29).

December 5-6 — “Victims of Day-Trader Rampage Say Industry Itself to Blame”. Two years ago financially ruined day trader Mark Barton walked into two office buildings in the Buckhead section of Atlanta and massacred nine persons. Now lawyers, “arguing that Georgia tort law should evolve with the times,” are hoping to put the day-trading segment of the securities industry on trial, saying that the volatile and risky nature of its business made such a crime foreseeable. (Trisha Renaud, Fulton County Daily Report, Nov. 30). Update Jan. 9-10, 2002: judge dismisses suit against building owners and managers, but lets it go forward against two day-trading firms. (see further updateDec. 19, 2003)

December 5-6 — “EU considers plans to outlaw racism”. Free speech for me, but not for thee: “Racism and xenophobia would become serious crimes in Britain for the first time, carrying a prison sentence of two years or more, under new proposals put forward by Brussels … [the ban includes] a wide range of activities that sometimes fall into the sphere of protected political speech, such as ‘public insults’ of minority groups, ‘public condoning of war crimes’, and ‘public dissemination of tracts, pictures, or other material containing expressions of racism of xenophobia’ — including material posted on far-Right internet websites.” The “plans, drafted by the European Commission, define racism and xenophobia as aversion to individuals based on ‘race, colour, descent, religion or belief, national or ethnic origin'”. (Ambrose Evans-Pritchard, Daily Telegraph, Nov. 29). In The American Prospect, Wendy Kaminer discusses the suit filed in August against America Online for allegedly allowing participants in its chat rooms to engage in “hate speech” against Muslims: “Virtual Offensiveness”, Nov. 19 (see Sept. 3).

December 5-6 — Attorney can sue for being called “fixer”. A federal judge has ruled that Pennsylvania attorney Richard Sprague can proceed with his defamation lawsuit against the American Bar Association and its magazine, the ABA Journal, which had called him a “fixer”. Although writers often employ that term to describe the sort of political wheeler-dealer who uses connections in a perfectly lawful way to resolve people’s problems, the judge found the term might also evoke an impression that Sprague improperly “fixed” cases. (Shannon P. Duffy, “Lawyer’s Defamation Claim Against ABA Found Valid”, The Legal Intelligencer, Nov. 19). Update Nov. 30, 2003: case settles for undisclosed sum and half-page apology.

December 5-6 — Resources: terrorism and the law. Some useful jumping-off points for research and reading: Jurist; FindLaw; Federalist Society briefing papers; Brookings; New Yorker.

December 4 — There’ll always be a California. It’s a state of mind, really:

* In a notice letter sent to Nestlé, Tootsie Roll Industries Inc., Godiva and numerous other confectioners including local favorites Ghirardelli and See’s, attorney Roger Carrick of Los Angeles’s Carrick Law Group has charged the companies with violating the state’s Proposition 65 right-to-know law by failing to post warning labels on chocolate advising consumers that it contains toxic substances such as lead and cadmium. Michele Corash, a Morrison & Foerster lawyer defending Hershey and Mars in the controversy, says the Food and Drug Administration has called chocolate harmless: “What Mr. Carrick is complaining about is tiny amounts of trace minerals that are present in virtually all foods. They are in the soil, and foods that are grown in soil absorb them.” Carrick says it hasn’t been proven that all the lead and cadmium content are from natural sources, but even trial- lawyer- friendly California AG Bill Lockyer has weighed in on the side of the candy makers. (John Rosmer, “Chocolate: It’s Fattening, but Is It Toxic?”, San Francisco Daily Journal, Oct. 29, not online; Dan Evans, “Death by chocolate?”, San Francisco Examiner, Nov. 26). And Forbes explains how Prop 65 has made it possible for bounty-hunting lawyers to do very well: “Visit any doctor or dentist in California. If you don’t see signs warning you that the physician is using potentially harmful chemicals as defined by the state’s Proposition 65 (e.g., mercury fillings), haul him into court and demand $2,500 for each day he didn’t post the warnings. You get 25% of the loot, the state 75%”. (Dorothy Pomerantz, “Toxic Avengers”, Forbes, Oct. 15).

* You may have thought your home belonged to you, but some disabled-rights activists have other plans for it: “In what would be the first such rules in the nation, Santa Monica officials are considering a proposal to require that all privately built new homes and those undergoing major remodeling have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible bathroom.” (Bob Pool, “Wheelchair Access as a Must for Residences”, L.A. Times, Dec. 2).

* “Richard Espinosa, whose assistance dog allegedly was attacked by the [Escondido] Public Library’s pet cat last year, filed a lawsuit against the city yesterday seeking $1.5 million in damages.” (see May 7 and (letter from Espinosa) June 13) (& see Apr. 15, 2002) (John Behrman, “$1.5 Million Suit Filed in Library Cat Case”, San Diego Union Tribune, Nov. 28).

December 4 — An ill wind. Among those prospering in the wake of the Sept. 11 attacks: employment lawyers, whose phones may ring nonstop in a time of mass layoffs. (“Layoff Lessons”, Corporate Counsel, Nov. 21). Garry Mathiason of the management-side firm Littler Mendelson says that in addition to that, his firm “has three key advantages: sex, drugs and violence” — all sources of legal risk for employers. (Krysten Crawford, “Littler’s Labors”, The Recorder, Nov. 20).

December 4 — Headline of the day. “Sept. 11 Laws Raise Fears of Tort Reform” — Bob Van Voris, National Law Journal, Nov. 27. Love that “fears”. The NLJ does know its audience, doesn’t it?

December 3 — Can’t do anything but legislate. Some constituents are furious at Pennsylvania state representative Jane Baker, a Republican, after learning that her lawyers have filed papers in a car-accident case portraying her as “virtually unemployable” aside from her lawmaking job. “In a televised debate last fall, Baker assured viewers that, both physically and mentally, she was up to the task of representing them in Harrisburg. Asked directly if she could read and comprehend well, she replied, ‘I’m fine.’ She went on to say that a physical injury to her left arm ‘appears to be permanent, but otherwise … I’m ready to go to work’ in Harrisburg.

“Legal papers Baker filed last month paint a dramatically different portrait. If not re-elected, Baker claimed Oct. 19 in legal papers tied to her case, she will be ‘virtually unemployable’ because of her condition, which includes physical and ‘multiple cognitive defects’ that include problems remembering and recollecting what she has read.'” Baker’s suit is demanding $7.5 million in damages from Judith V. Fulmer, “a former friend who pleaded guilty to drunken driving and leaving the scene of an accident” after police say her vehicle struck Baker as she walked along a country road. (Mario Cattabiani, “Baker’s lawsuit puzzles some”, Allentown Morning Call, Nov. 4).

December 3 — “Terrorists push plots from jail”. It’s practically a tradition for American inmates to continue running criminal enterprises from their cells, but the stakes have gotten higher: investigators now realize that Mideast terrorists locked up in American prisons have repeatedly managed to communicate with outside followers to approve and even help plan further murderous attacks. The Bush administration on Oct. 31 announced a new practice of listening in on conversations between detainees and their attorneys when it determines there is “reasonable suspicion” that such communications are related to future terrorist acts; Attorney General John Ashcroft says that there are only 13 persons in custody — at the moment — for whom it would like to use such power. The detainees and their attorneys are to be advised of the monitoring, and a “privilege team” is supposed to screen the resulting information so that it does not reach the eyes of prosecutors or regular investigators. American Bar Association president Robert A. Hirshon says such monitoring is constitutional only if a judge approves it in advance under a probable-cause standard, and Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice as “unacceptable” in its current form. (Cam Simpson, Chicago Tribune, Nov. 19; Pete Yost, “Ashcroft Defends Monitoring of Inmate-Attorney Conversations”, AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, “Monitoring Attorney-Client Communications of Designated Federal Prisoners”, Federalist Society National Security White Papers, Dec. 3).

December 3 — Lending rules trip up litigation-finance firms. Class-action lawyers have repeatedly tripped up financial services firms by arguing in court that transactions characterized as cash advances (such as “rapid refunds” that tax-preparing companies issue before the actual IRS check arrives) are in reality loans, leaving companies liable if they have not made the full range of disclosures required by truth-in-lending law (see, for example, Apr. 5). So some might see a kind of poetic justice in the news from Ohio, where an appellate court has “ruled that two companies that advance money to personal injury plaintiffs on the understanding that they will be repaid only if the plaintiffs prevail, are making loans — not ‘contingent advances’ — and violated state usury and lender- registration laws.” Every so often, surprising as it may seem, the litigation community does wind up having to live by the same rules it prescribes for the rest of us. (Gary Young, “Ohio Court Rules Against Litigation-Loan Firm in Usury Case”, National Law Journal, Nov. 16) (see also letter to the editor, Oct. 22).


December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).

December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).

December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).

December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.

December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).

December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).

December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).

December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).

December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).

December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).

December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).

December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).

December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.

December 15-16 — Updates. Further developments in cases that were bound to develop further:

* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).

* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).

* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).

* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.

December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).

December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?

The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)

December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.

December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).

As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.

December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)

December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)

December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”

“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).

December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).

December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).

December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.

December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)


December 28, 2001-January 1, 2002 — Eggnog expense exacerbated. Many states artificially inflate the price of holiday cheer through measures designed to further the interests of wine and spirits wholesalers, such as laws making it virtually impossible for liquor manufacturers and importers to switch from one wholesaler to another. (Americans for Tax Reform, “Monopoly Protection Laws Target Wine and Spirits Industry”, Dec. 14).

December 28, 2001-January 1, 2002 — Law firm sued over fen-phen settlement practices. “A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised.” The suit was filed against Napoli, Kaiser, Bern & Associates on behalf of 5,600 fen-phen plaintiffs by Seattle’s Hagens & Berman. Among its allegations are that the Napoli firm resolved cases in a large batch settlement with AHP which left it with unsupervised discretion to distribute the proceeds among various clients, and that it employed a registered nurse and attorney “to tell clients why, in her ‘expert opinion,’ the settlement represented excellent compensation for their injuries. ‘Later, a charge for “expert witness fee” appeared on client closing documents,’ the complaint states. ‘Often the so-called expert fees were dated before she even came to the NKB.'” The defendants say they obtained reasonable settlements for the clients and expect to be vindicated. (Mark Hamblett, “New York Firm Accused of Intimidating Clients in Fen-Phen Litigation”, New York Law Journal, Dec. 13).

December 28, 2001-January 1, 2002 — “The Great Mouthpiece”. Don’t get too nostalgic about the good old days: long before the O.J. trial, back in the ‘teens and 1920s, there were the likes of notorious Manhattan attorney Bill Fallon. “Few Fallon clients spent a day in jail before trial and, if not acquitted, they usually enjoyed hung juries. …Fallon’ style was Runyonesque before Runyon invented it for himself. … so long as he endured in public memory, he was the archetype of the amoral criminal defense lawyer.” (William Bryk, “Old Smoke: Criminal Lawyer”, New York Press, Nov. (vol. 14, iss. 45))

December 28, 2001-January 1, 2002 — “UK women can demand to know men’s salaries”. The new law is supposed to promote “pay equity”, but officials acknowledge there may be a wee problem protecting male employees’ privacy and preventing fishing expeditions aimed at gratifying curiosity or spite rather than fingering equal pay violations. (Jo Revill, “UK women can demand to know men’s salaries”, ThisIsLondon.com, Dec. 4).

December 24-27 — Chestnuts-roasting menace averted. Citing clean-air concerns, the Berkeley, Calif. city council “has banned log-burning fireplaces in new homes and other buildings.” An environmental activist who led the drive for the ordinance is hoping in future to extend it so as to ban homeowners’ use of existing fireplaces as well. At least seven Bay Area jurisdictions, including San Jose and Palo Alto, as well as Contra Costa and San Mateo counties, have banned installation of new residential fireplaces, but Berkeley is the first to forbid new wood-fired restaurant ovens and grills in restaurants unless pollution-control equipment is added, a possible threat to the city’s thriving foodie culture of “foraged-mesquite fires cooking free-range chickens or vegan pizzas”. Famed Berkeley restaurateur Alice Waters, who “said her grill and oven did not work properly when she tried to filter the exhaust”, is among those “totally opposed” to the new law: “We’ve had a fundamental connection between fire and food since the beginning of time.” (Peter Y. Hong, “Cozy Domestic Symbol Takes Heat in Berkeley”, L.A. Times, Dec. 23) (see Feb. 28, 2001 and Dec. 27-29, 2002). (DURABLE LINK)

December 24-27 — Holidays in strict legal form. Three seasonal rituals — the office party, gift-giving, and New Year’s resolutions — might work better if reduced to legal contract form, suggests humorist Madeleine Begun Kane. From HumorMatters.com comes another lawyered-up “Night Before Christmas” parody: “At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter ‘the Vehicle’) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer.” Plus, from the same site: “Politically Correct Christmas Poem” and the much-circulated “Xmas office party memos“. From IndraNet, the also much-circulated “Twelve Days of Christmas for the Politically Correct“. Chadbourne & Parke attorney Lawrence Savell puts out “The Lawyer’s Holiday Humor Album“, with tunes like “Santa v. Acme Sleigh” and “It’s Gonna Be A Billable Christmas”; all we can tell you about is the titles since we haven’t heard the album. For more Christmas lawyer humor, see Dec. 23, 1999. (DURABLE LINK)

December 24-27 — Federal judge rules high school sports schedules unlawful. More Title IX from Outer Space: a federal judge in Kalamazoo, Mich. has ruled that the Michigan High School Athletic Association has been violating federal and state civil rights law and the Fourteenth Amendment’s equal protection clause by scheduling girls’ but not boys’ athletic seasons out of sync with their collegiate counterparts. (James Prichard, “Federal Judge Rules Against Michigan High School Athletic Group in Gender-Equity Lawsuit”, AP/Law.com, Dec. 18; extensive Grand Rapids Press/MichiganLive coverage). See Dave Reardon, “Spring hoops might not be federal case”, Honolulu Star-Bulletin, Dec. 13, 2000. (& letter to the editor, Feb. 28). More: Jul. 10, 2004. (DURABLE LINK)

December 24-27 — Liability for mistargeted bombing? Sovereign immunity, shmovereign immunity, says a Jones, Day attorney who is suing to make the U.S. government (and hence U.S. taxpayers) compensate the owner of a Sudanese pharmaceutical plant destroyed by an American bombing raid in August 1998 that many subsequent reports have suggested was mistargeted. While nothing would prevent the U.S. Congress from appropriating such compensation as a voluntary matter, Justice Department lawyers are unimpressed with attorney Stephen Brogan’s argument that the plant owner is entitled as a matter of law to compensation under the Constitution’s “takings” clause, saying that clause would not cover non-U.S. property owned by a non-U.S. citizen. Not to mention the wider policy issues: “There is something to be said for the government acting with fearlessness in these circumstances,” as George Washington University law professor Jonathan Siegel says. “The president should not have to worry about tort liability” when making tough military calls. (Otis Bilodeau, “When Bombs Miss the Mark”, Legal Times, Nov. 28). (DURABLE LINK)

December 21-23 — Under the Christmas tree. Toy soldiers? Think again if you’re in the child care business: “A daycare center in North Carolina seeking state certification for its preschool program found itself penalized because an inspector discovered green plastic army men on the premises, reports the Wilmington Morning Star. Laura Johnson said the presence of the nine little army guys at her Kids Gym Schoolhouse led to the loss of five points under the state-sanctioned Early Childhood Environmental Rating System. Evaluator Katie Haselden said schools may not have such displays of stereotyping or violence on the premises. The army men ‘reflect stereotyping and violence, therefore credit cannot be given,’ she wrote in her report.” (Scott Norvell, “Tongue Tied”, FoxNews.com, Nov. 26). At home, however, this may be the year that even good liberal parents break down and buy their son a G.I. Joe, if anecdotes from New York are any indication (John Tierney, “G.I. Stands Tall Again (12 Inches)”, New York Times, Dec. 11; and don’t miss Lisa Snell, “What the Schools Teach Children About Terrorism”, Dynamist.com (Virginia Postrel), Sept. 15 (scroll down if necessary to “Power Rangers vs. Eggshells”)). However, trial lawyers and their friends at the Consumer Product Safety Commission have been running a big campaign against that classic Christmas present of a rural boyhood, the Daisy BB gun(Andrew Ferguson, “When the Nanny State Becomes the Mommy State”, Bloomberg.com, Nov. 6; “You’ll Shoot Your Eye Out!” (editorial), Wall Street Journal, Nov. 30).

December 21-23 — Fleeing obstetrics, again. One of the many prices the state of Mississippi is paying for its reputation as a trial lawyer paradise: physicians are increasingly dropping obstetrics from their practices, faced with insurance rates of $40,000-$100,000 a year that would until recently have been more typical of big cities (“Costs Lead Rural Doctors to Drop Obstetrics”, AP/Washington Post, Nov. 23). Similar problems are arising in West Virginia: Rita Rubin, “You might feel a bit of a pinch, USA Today, Dec. 3. Frederick (Md.) Memorial Hospital is among institutions that have moved to a policy of not allowing families to bring cameras to the delivery room, and some upset moms “accuse hospital officials of trying to protect themselves against malpractice suits at the parents’ expense”. (Raymond McCaffrey, “Moms Say Hospital Photo Ban Makes Birth a Blurry Memory,” Washington Post, Dec. 11; see Oct. 18, 2000). And although trial lawyers keep insisting that medical liability coverage is a high-profit line for insurers, one of the largest providers of malpractice insurance, St. Paul Cos., just announced it was finally giving up and pulling out of the business, which would seem a reasonably sincere testimony to its frustration (“St Paul Cos To Exit Medical Malpractice Business”, Wall Street Journal, Dec. 12)(online subscribers only).

December 21-23 — Australia: anti-American tripped up by speech code. In a case currently on appeal, Australia’s Financial Times was found guilty of inciting racial hatred after one of its opinion columnists wrote that Palestinians as a factor in Mideast politics were “vicious thugs” and “cannot be trusted” (see July 11, 2000). Now, to the shock of some in Australian journalism, prominent broadcaster and journalist Phillip Adams has been made the subject of a private complaint for “racial vilification” of … Americans; he had published in The Australian one of those all-too-familiar screeds declaring that the United States is a country of “madness”, “the most violent nation on earth”, etc., etc. Writes commentator Tim Blair: “I can’t see a massive amount of difference here. Either Adams must be found guilty, or – my favored option – we throw this vilification garbage in the toilet and return to living like free men.” (Tim Blair weblog, scroll to near bottom of the page for Dec. 9; scroll to third Dec. 7 item (via Matt Welch); Pilita Clark, “Shock as columnist investigated for un-American activity”, Sydney Morning Herald, Dec. 7; Phillip Adams, “Look back in anger”, The Australian, Oct. 6) (see also Oct. 17-18, on the Sunera Thobani case in Canada). And the British government, in order to get its antiterrorism legislation past the House of Lords, “was forced to abandon the controversial attempt to make a new criminal offense of inciting religious hatred”. (“UK passes antiterror law”, CNN, Dec. 14)(see Oct. 19-21). They’re sometimes a more useful bunch than G&S gave them credit for being, those Lords.

December 2000 archives, part 3


December 29, 2000-January 2, 2001 — Gambler rebuffed. Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due “for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time.” (Grand Casino Tunica v. Robert Shindler, Dec. 14).

December 29, 2000-January 2, 2001 — Makes others pay, doesn’t pay himself. Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as “acts of civil disobedience that will be organized at targeted Burger Kings across the country.” The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case. “U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a ‘clear and unambiguous’ agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. ” (“Sharpton Plans Lawsuit Against Burger King”, FoxNews.com, Dec. 18).

However, the wherewithal for Sharpton’s hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago. During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, “says he owns no suits, but has ‘access’ to a dozen or so. He says he owns no television set because the one he watches in his home was purchased by a company he runs. He says he has no checking accounts, no savings accounts, no credit cards, no debit cards … The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring.” (“Sharpton says he has no assets to pay slander victim”, AP/CNN, Dec. 7; Alan Feuer, “Asking How Sharpton Pays for Those Suits”, New York Times, Dec. 21; “It Depends on What You Mean by ‘Own'” (sidebar), Dec. 21). (Update June 22-24, 2001: he finally pays Pagones).

December 29, 2000-January 2, 2001 — Seats in all parts. “Tiered” stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them. But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints. “The ADA has proved a powerful tool on a similar issue — handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena.” (Matthew Mosk, Ian Shapira, “Buying a Ticket to Court”, Washington Post, Dec. 8; Mark Pratt, “Theaters Sued Over Disabled Seating”, AP/FindLaw, Dec. 18). And: “Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so ‘pretty women’ could sit in the first two rows. Brooks’ attorney denied the allegation, saying people in the front rows are generally Brooks’ friends. A judge ruled Friday that the complaint can proceed to trial, but said Brooks’ liability is limited because he had no control over concert operations at Seattle’s Key Arena.” (“Brooks accused of discrimination”, AP/Washington Post, Dec. 17).

December 29, 2000-January 2, 2001 — Enviro litigator: debate belongs in Congress, not courts. We promise we didn’t make up the following quote, though we understand why it might astound readers familiar with the environmental movement’s record over the past three decades of heading for court in quest of victories it couldn’t win in Congress: “Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the “nondelegation” doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies. ‘We think EPA’s policy on this issue is a good policy,’ said Fox, who is representing the American Lung Association in the case. ‘But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.'” (Margaret Kriz, “Trying to Roll Back the Regulators”, National Journal, Nov. 4, not online). See also Gregg Easterbrook, “Green values”, The New Republic, Nov. 13).

December 26-28 — That’ll teach ’em. In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack. The ambulance arrived eight and a half minutes after the mother’s 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which “constituted ‘willful and wanton misconduct,’ the standard for erasing municipal immunity.” Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools’ invisible-fist theory. (Margaret Cronin Fisk, “911 Incident Brings $50 Million Award”, National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004).

December 26-28 — Appearance-blind hiring? Green-haired Santas, take hope! A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth. “But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.” They may be violating employment law if they want to hire only “lithe” or “athletic-looking” personnel, for example. However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more “natural-looking”. (Virginia Postrel, “When the ‘Cool’ Look Is Illegal”, Forbes, Nov. 27).

December 26-28 — Updates. Further developments in stories already covered in this space:

* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under “sue and labor” clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue. Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along. (Barnaby J. Feder, “Court Rules on Year 2000 Claim”, New York Times, Dec. 22 (reg)).

* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center’s rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, “Court Overrides Hospital’s Ban on Photographs in Intensive Care Unit”, New Jersey Law Journal/Law.com, Dec. 4).

* In the latest sign that “baby Castano” (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies (“NY court rejects smokers’ class-action certification”, Reuters/FindLaw, Nov. 30).

December 22-25 — Victory in Philadelphia. “A federal judge yesterday dismissed Philadelphia’s lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue.” Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their “novel legal theories” would have failed as a matter of law. “The city’s drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit.” His successor as mayor, John Street, did proceed to sue. Many other cities’ gun suits have also been dismissed, most recently Chicago’s. (Frederick Cusick, “Court rejects city gun lawsuit”, Philadelphia Inquirer, Dec. 21).

December 22-25 — Suits even ATLA admits are frivolous dept. An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic. Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: “Life has its disappointments. Some come out of the blue/ But that doesn’t mean a prisoner should sue.” (“Dissatisfied Customer”, Reuters/ABCNews.com, Dec. 20)

December 22-25 — Britain’s delicate soldiery. The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on “what he called a culture of ‘risk aversion’, warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. … In a swipe at the ‘litigious nation’ Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. … He added: ‘But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. … There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.'” In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: “we need to guard against such ill-conceived ideas in future”. (Richard Norton Taylor, “Defence chief lays into culture of ‘risk aversion'”, The Guardian (UK), Dec. 20). (“Armed Forces ‘under threat from human rights legislation'” (text of speech), Daily Telegraph, Dec. 21; Michael Smith, “Guthrie attacked over ban on disabled”, Daily Telegraph, Dec. 21; “General alert” (leader/editorial), Dec. 21). And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise. “‘One solution would be to provide ear protectors during training, but then soldiers couldn’t hear their sergeant major giving orders,'” said a spokesman. (“British Army Bands May Have to Pipe Down”, Reuters/Excite, Dec. 21).

December 22-25 — Not pro bono, not nohow. The roundtable discussion in the November Harper’s on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, “came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:”

Alexander Pires, Jr.: So would you all work for free?

Dennis Sweet: What?

Richard Scruggs: Um.

Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, “Why would you want me working unhappy for you? [If I’m unhappy,] I’ll get you 100,000 bucks. If you got me happy, I’ll get you 2 million.”

Pires: Maybe I’m wrong.

Jack Hitt (moderator): I guess that issue’s resolved. (Harper’s, November; quoted in American Lawyer, Dec. 2000)

December 22-25 — Welcome visitors. Among the many personal websites linking to Overlawyered.com: Ellen’s Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio — Aug. 3).

December 21 — Errin’ Brockovich? “An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film ‘Erin Brockovich‘, found that Brockovich’s testimony in the arbitration proceeding ‘was hardly credible’,” notes the Wall Street Journal‘s Opinion Journal. Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him. Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been “preoccupied with other significant matters” during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie. “[Faulty representation] is evidenced not only by the poor result, but also by the firm’s overall lack of professionalism; by the firm’s putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct,” wrote Krivis. Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator’s excessive credence in Baroody’s witnesses; it is not known whether his professional liability insurer will appeal. Moreover, “a claim isn’t necessarily because you did something wrong,” Cathy Hastings, insurance manager for the State Bar of California, told a reporter. “It’s only because someone decided to sue you.” That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves. (Brad Smith, “Law firm made famous by film ruled negligent in case”, Ventura County Star, Dec. 13).

December 21 — ADA requires renting to addiction facility. A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts. Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility. The jury did turn down the drug program’s request for millions of dollars in damages, however. Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection. (Kate Shatzkin, “Judge orders long-term lease for ship treating drug addicts”, Baltimore Sun, Dec. 12).

December 2000 archives


December 8-10 — Vicarious criminal liability? Suburban Detroit prosecutors are pressing charges of involuntary manslaughter against 49-year-old cook Terry Walker, who hails from the palindromically named town of Capac in Michigan’s rural Thumb. It seems Walker sold a chrome-plated 9mm semiautomatic gun to a friend without having the friend provide a purchase permit for it as required by law. The friend resold the weapon and it eventually wound up in the hands of Ljeka Juncaj of Sterling Heights, a stranger to Walker, who used it to kill a police officer in Warren while in custody following a drug arrest. “Macomb County Prosecutor Carl Marlinga said he hopes Walker will become the vessel for a lesson to gun owners by telling them that if they fail to properly sell a gun and it is used in a crime, that is as bad as committing the crime.” Outraged Capac townspeople think that idea is crazy, and are taking up a collection for Walker’s defense. (Kim North Shine, “Punishment of ex-owner debated”, Detroit Free Press, Dec. 7).

December 8-10 — Florida’s legal talent, before the Chad War. Wall Street Journal‘s Collin Levey pulls together highlights from the pre-November legal careers of prominent Florida attorneys assisting Democrats in their postelectoral legal efforts. Dexter Douglass, “David Boies’s right hand”, had been among those who represented the state in the tobacco lawsuit; Henry Handler, who “brought suit against the butterfly ballot”, also had filed a class-action lawsuit against the Florida Marlins “on behalf of season-ticket holders who claimed the team injured them by ‘losing too much'”; Gregory Barnhart, who represented the Democratic National Committee in recount litigation, is past president of the Florida Trial Lawyers Association; and Harry Jacobs, who “launched the lawsuit to throw out 10,000 absentee ballots in Seminole County”, had fought a “high-profile war against Florida rules preventing lawyers from advertising on television (a k a electronic ambulance chasing).” (“Gore’s Bombastic Barristers”, Opinion Journal, Dec. 7).

December 8-10 — Sylph esteem. Krissy Keefer has filed the first case under San Francisco’s new law banning discrimination on the basis of height and weight, saying the prestigious San Francisco Ballet School rejected her 8-year-old daughter Fredrika as an applicant because it considered the girl’s size and shape inappropriate for a ballerina. The school says its purpose is to train professional dancers, not to provide recreation, and says it accepted only 29 percent of the 1,400 student applications it received last year (Edward Epstein, “Girl Fights For a Chance To Dance”, San Francisco Chronicle, Dec. 7).

December 8-10 — “Armstrong World Files for Chapter 11 Amid Battle With Asbestos Lawsuits”. The building and construction materials concern “tried a number of approaches to manage its asbestos liability, including negotiating broad-based solutions and supporting efforts to find a legislative resolution. But the number of cases filed and the cost to settle cases have continued to increase.” Lenders pulled the plug after the bankruptcy of Owens Corning earlier this fall made clear that even large companies that operate with success in unrelated businesses can face financial ruin if they sold asbestos-containing products decades ago (see Nov. 27, Oct. 6; DowJones/ CFO, Dec. 6; AP/MSNBC, Dec. 6; company site and bankruptcy news site).

December 8-10 — Welcome WorldNetDaily readers. We linked to and briefly excerpted Jon Splatz’s “LawyerClysm” article on Nov. 22, and the full version appears here. (Ralph R. Reiland, “Lawyered to death”, WorldNetDaily, Dec. 9). We also got a mention from Doug Camilli in his Montreal Gazette column on Thursday (Dec. 7) and were featured on Yahoo “Cool Links” as one of Leya’s “Surfer’s Picks” (now rotated off).

December 7 — Promising areas for suits. Among the National Law Journal‘s annual roundup of hot new causes of action that lawyers are suing on: cases charging employers with breaking promises (which may be only “implied” promises) made in job interviews; injuries over foul balls and other hazards in sports stadiums, long barred by the (fast-shrinking) old doctrine of assumption of risk; suits against relatives for failing to prevent gun-related injuries; suits over workplace injury against consultants (HR, security) and other third parties who, unlike the direct employer, may not be able to invoke the litigation shield of workers’ comp laws; laser eye surgery complications; negligent failure to provide defibrillation equipment in public places; “[l]awsuits against owners, leasers and drivers of trucks over accidents caused by trucker fatigue”; suits against sports doctors; and claims against trade associations, such as the one that recently obtained an $11 million verdict against the National Spa and Pool Institute on an allegation that its voluntary standards for diving boards should have been more stringent (Margaret Cronin Fisk, “New Century, New Causes”, National Law Journal, Nov. 21).

December 7 — “Woman drops suit alleging she caught herpes from mannequin”. It now develops that Brenda Nelson (see Oct. 11) of Hammond, Ind. has consulted a second doctor and been told she does not have herpes after all, and she has accordingly dropped her suit against the American Red Cross alleging that she contracted the malady by pressing her lips to those of a first-aid mannequin, says her attorney, Jerry Jarrett. The executive director of the local Red Cross said he doubted the disease could have been transmitted in the claimed manner anyway: “‘Everyone here gets a separate mannequin. Nobody gets behind someone else in line. Staff and volunteers wash the mannequins down with warm, soapy water with a little bit of bleach in it after each class,” said the director, whose name is Wayne Wigglesworth. (AP/FindLaw, Dec. 5).

December 7 — No more “naughty”. Organizations that train and represent British nursery staff have put out the word that misbehaving tots are not to be called “naughty”, “bad boy”, “silly” or “stupid”, such terms amounting to stigma-laden “labeling”. Some nursery staff have also asked parents to avoid using the terms in correcting their own children. Others call it “political correctness gone mad”. (Martin Bentham, “‘Naughty’ is banned from the nursery”, Sunday Telegraph (London), Dec. 3).

December 7 — Trial lawyers vs. hog farms. Various lawyers active in tobacco and other mass litigation are filing nationally coordinated lawsuits against hog farms in seven states over their purported porcine pollution atrocities. An environmentalist group led by Robert Kennedy Jr., Water Keeper Alliance, will provide the media-friendly face for the effort. Fifteen law firms are kicking in $50,000 apiece to get the assault underway. (Philip Brasher, “Environmentalists Target Hog Farms”, AP/Los Angeles Times, Dec. 6). For more on hog farm litigation, see Sept. 12, 2000 and Oct. 4, 1999. And the New York Times reports today that the hog farm effort is expected to serve as the pilot case in a new alliance between environmental groups and leading trial lawyers, which will involve the filing of mass tort suits in an effort to wrest policymaking away from the Environmental Protection Agency and Congress, i.e., the units of government that have some occasion to consult the views of actual voters (Douglas Jehl, “Fearing a Bush Presidency, Groups Plan Pollution Suits”, New York Times (reg), Dec. 7). “In one court filing, the plaintiffs said that the cleanup [of North Carolina hog farms] would require restoration of 3.7 million acres of wetlands at a cost of no less than $40,000 an acre — or roughly $148 billion for these damages alone.” The major defendant in the case, Smithfield Foods, has a total market capitalization of almost exactly one-one-hundredth that sum, at $1.48 billion (Motley Fool profile, SFD). Update May 7, 2001: judge throws out first two suits; Apr. 15, 2002: RFK Jr. embarrasses himself in Iowa; Jul. 3-9, 2002: federal judge throws out suit and imposes sanctions on plaintiffs.

December 6 — You deserve a beak today. Okay, so Katherine Ortega of Newport News, Va. says she found a crispy chicken head in her order of McDonald’s fried chicken wings, and by now pictures of the handsomely breaded ornithological exhibit have been beamed round the world. But what are the damages? (Especially since Ortega didn’t eat the offending morsel, and people in other countries do eat chicken’s heads.) A local plaintiff’s injury lawyer, Stephen H. Pitler, told the Newport News paper: “It looks to me that there’s a legal wrong … people might be psychologically scarred for a very long time”. On the other hand, a liability defense lawyer said that it really wasn’t much of a case: “no more than a couple thousand dollars”, which by the standards of the U.S. legal system, you will understand, really counts as nothing at all. (Peter Dujardin, “Chicken-head incident has ruffled feathers”, Newport News (Va.) Daily Press, Nov. 30; David Koeppel, “You deserve a beak today”, FoxNews.com, Dec. 1). The Newport News paper added: “Some wondered how urbanized Americans have become so far removed from the process of killing what they eat that the mere sight of a natural piece of an animal – one that is consumed every day elsewhere in the world — could cause such emotional scarring.” Right on schedule, local TV station WVEC reports that the Ortegas have now hired an attorney; they’re refusing McDonald’s request to examine the object in question; and they “said their children now refuse to eat chicken and that their youngest child has had a nightmare about the fried chicken’s head.” (“Fried chicken’s head flies the coop”, WVEC-TV (Hampton Roads), Dec. 5; “Inspectors investigate fried chicken’s head”, Dec. 5).

December 6 — Bear market. New York Observer tells how Bear Stearns lost a nine-figure jury verdict to a wealthy investor who’d suffered major losses in his account, in a case that has other brokerages more than a little nervous (see June 9-11) (Landon Thomas Jr., “Meet the Great de Kwiatkowski, the Man Who Was Awarded $164 Million From Bear Stearns”, New York Observer, Nov. 13).

December 6 — Safer but less free. Three years ago Gail Atwater of Lago Vista, Tex. was arrested, handcuffed in front of her children and hauled off to jail for … non-seat-belt use. Now her case has reached the U.S. Supreme Court. (Amanda Onion, “Soccer Mom at Highest Court”, ABCNews.com, Dec. 1).

December 5 — California’s lucrative smog refunds. “Five law firms, including one that donated nearly a quarter-million dollars to the governor, will split $88.5 million in state taxpayer money for a lawsuit returning smog fees to residents who registered out-of-state vehicles in the 1990s.

“An arbitration panel in Sacramento made the award, among the largest attorneys’ fees ever paid by the state.

“‘I’m going to be exploring every option I have to freeze this payment,’ state Controller Kathleen Connell said Thursday. ‘No one can recall any settlement that even comes close. I’m deeply distressed.’…

“The money will come from $665 million allocated by Gov. Gray Davis and the Legislature for refunds to people who paid the $300 fee. …One of the law firms that will claim a share of the $88.5 million is Milberg, Weiss, Bershad, Specthrie & Lerach. Bill Lerach and his firm, with offices in New York and San Diego, have been among Davis’ major donors, giving him $221,000 during his 1998 election campaign, and $20,000 this year.” (“Five Firms to Split $88.5 Million for Smog Lawsuit”, AP/DowJones.com, Dec. 4; Google search on Lerach + smog fee). (Update June 22-24, 2001: judge strikes down fee; Aug. 21, 2004: second arbitration panel awards $23.7 million).

December 5 — Do as we say, cont’d: arbitration clauses. “Lawyers appear to be quick to sue almost anyone except other lawyers, a lawyers’ publication said.

Lawyers Weekly USA reported Thursday that a growing number of lawyers are putting fine print in fee agreements shielding them from being sued by a client if they botch a case.

“The Boston-based national newspaper for small law firms said lawyers instead prefer that such disputes go to private arbitration because arbitration is faster and cheaper, decisions are often made by other lawyers rather than juries, and there’s no public record.” (UPI/Virtual New York, Nov. 30).

December 5 — Might fit in at Business Week. “[Cartoonist Ted] Rall does freelance work as well, which includes a monthly cartoon for Fortune magazine, called ‘Business as Usual.’ ‘Actually, it’s one of my favorite gigs because it’s really anti-corporate, anti-business… I basically trash capitalism in Fortune…. I have no business being in Fortune, you know, it’s ridiculous. I’m a Marxist, basically.”” (Morika Tsujimura, “Cartoonist Rall Comes Out of Left Field”, Columbia Daily Spectator (Columbia University), Dec. 4) (via Romenesko/Poynter Media News).

December 4 — Burying old hatchets. The decay of the principle of statutes of limitation underlies a host of troublesome legal actions in areas ranging from slavery and WWII reparations to recovered-memory child abuse charges to Indian land claims, argues our editor in his latest Reason column (Walter Olson, “Stale Claims”, November; Paul Shepard, “Lawyers Plan Slave Reparations Suit”, AP/Excite, Nov. 4). Not everyone who has suffered historical dispossession is in a position to profit from the law’s willingness to reopen old grievances: “Germany’s highest court ruled on Wednesday that east Germans stripped of property during 60 years of dictatorship under first Nazism and then communism were not entitled to further compensation.” (Reuters/FindLaw, “Court Rejects East German Land Compensation”, Nov. 22).

December 4 — Endangered list. “The Fish and Wildlife Service says it can’t add more wildlife to the endangered species list this year because it has to spend so much time and money defending lawsuits from environmentalists. … The service is swamped by lawsuits from environmental groups demanding ‘critical habitat’ designation for some of the 1,225 species in the U.S. already listed as threatened or endangered. A critical habitat ruling describes the area where a species either lives or could live.” (“Agency: Lawsuits Stymie Conservation”, AP/FindLaw, Nov. 21).

December 4 — Exotic dancers in court. In Scranton, Pa., a jury has “ordered a nightclub to pay $363,153 to a stripper who was badly burned while performing her fire-breathing routine. … [In 1994 Patricia] Ryan accidentally dribbled a mixture of 151-proof rum and salt onto her chest and suffered second-degree burns. She alleged that the [Cabaret Nightclub’s] employees did not provide adequate safety equipment or come to her aid quickly enough.” Ryan is now 36 and is enrolled at Harvard University, according to the story. (“Burned Stripper Wins $363,153 Award “, AP/Newsday, Nov. 16). And in Cleveland, a lawyer for Jodi Ketterman has objected to a judge’s plan to order an electronic monitoring bracelet attached to her ankle in lieu of bond in a pending criminal case, saying the bulky device would interfere with her work as an exotic dancer (Karl Turner, “Exotic dancer’s lawyer says bracelet too much to wear”, Cleveland Plain Dealer, Sept. 28). More exotic dancer litigation: Aug. 14, July 26, May 23, January 28.

December 1-3 — Hauling commentators to court. Both left and right these days seem increasingly inclined to drag pundits of the opposite camp into litigation. White House aide Sidney Blumenthal, pursuing his defamation suit against Matt Drudge, is demanding that numerous conservative commentators submit to interrogation under oath about the case; the list is said to include John Fund, Arianna Huffington, Ann Coulter, David Horowitz and Tucker Carlson (David Carr, “Blumenthal-Drudge Legal Grudge Match Drags in a Who’s Who of Right-Wing Commentators”, Inside.com, Nov. 29; Michael Ledeen, “An Open Letter to the Blumenthal 25”, National Review Online, Nov. 21). Meanwhile, the litigious conservative group Judicial Watch has announced that it is going to “monitor” hostile columnists Joe Conason and Gene Lyons “among others, to make sure they do not violate the rights of American citizens,” which might easily be mistaken for a not-very-veiled intent to seek grounds to sue them (Greg Lindsay, “Judicial Watch, Clinton Administration Scourge, Targets Salon Writers Conason and Lyons”, Inside.com, Nov. 21). And the World Wrestling Federation, under fire from the social-conservative Parents Television Council, has sued PTC alleging “a multi-faceted pattern of tortious and fraudulent activities” based on its efforts to get corporate advertisers to drop their support of WWF broadcasts (“Grudge Match”, Opinion Journal (Wall Street Journal), Nov. 26).

December 1-3 — Batch of letters. The latest additions to our letters page have to do with why the EEOC’s chairman asked to stop the tape during a John Stossel interview; the Florida election debacle; and the Derrick Thomas crash.

December 1-3 — Burned by a hired witness. Lawyers around the country hired Gary S. Stocco of the National Burn Victim Foundation to testify as a courtroom expert on burn injuries, for both prosecution and criminal defense as well as in civil cases. But his resume was “filled with embellishments and false qualifications”, and listed two degrees from an outfit that “requires no course work and mails out degrees for cash”. Now he faces up to 20 years in prison after being convicted in Prince William County, Va., south of Washington, of perjury and obtaining money under false pretenses. One DA called Stocco a hired gun, while another said he “sets out to tip the scales of justice toward whoever is paying him.” Sentencing is scheduled for January.

“According to transcripts of testimony in several jurisdictions, Stocco said he had investigated hundreds of child-abuse cases as a state police officer in New Jersey and had attended surgical procedures for burn victims. But Gary Gardiner, a Prince William detective, said yesterday that Stocco had instead patrolled parking lots and hadn’t been involved in any criminal investigations or surgeries.

“Each time Stocco was allowed by a judge to testify as an expert witness, it boosted his qualifications. It’s a cycle that worries prosecutors.” (Josh White, “Roving Burn ‘Expert’ Was False Witness”, Washington Post, Nov. 3. See also New Jersey legislative commission (scroll halfway down), June 17, 1998; Georgia Firefighters Burn Foundation bulletin board; USA Today).


December 20 — Property taxes triple after wrongful-termination suit. “The Delaware County [Oklahoma] Excise Board voted Monday to impose a tax levy that will triple property taxes for Kenwood’s 128 residents to pay off a court judgment against the school system.

“Board members voted to set the levy after Kenwood school board members agreed Thursday to use $75,000 in federal Impact Aid funds to pay Garland Lane, the former school superintendent, who won a $305,600 judgment against the district in 1998 for wrongful termination.

“The school district still owes Lane $179,000. The federal trial judge ordered that Lane and his Tulsa attorney would be allowed to collect an additional 10 percent interest on the outstanding debt until it was paid.

“A Kenwood taxpayer who normally pays $224 in taxes for the year will now have to pay $763, under the levy approved Monday.” (Jann Clark, “Property tax triples in Kenwood”, Tulsa World, Dec. 12).

December 20 — Obese fliers. A judge has ruled that Southwest Airlines did not unlawfully discriminate against Cynthia Luther, whose weight exceeds 300 pounds, when it required her to buy a second seat on a flight from Reno to Burbank (“Large Passenger Has Suit Dismissed”, Yahoo/AP, Dec. 14) (via Drudge). Days earlier, a confidential report from an official agency in Canada recommended that airlines be forbidden to charge highly obese passengers for a second seat, on the grounds that their condition should count as a disability entitled to accommodation. The opinion from the Canadian Transportation Agency promptly came under fire from both directions, with the Air Transport Association of Canada charging that such a rule would be unacceptably expensive, and Helena Spring, founder of the Canadian Association for Fat Acceptance, saying that obesity should be viewed as a healthy condition rather than a disability (Glen McGregor, “Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10). Update Oct. 25-27, 2002: complaint by obese Canadian passenger fails.

December 20 — New batch of letters. Our letters page catches up on more of its backlog with letters from readers on the Florida recount, Microsoft’s decision to settle its “permatemps” case, and a view from British gangland on how lawyers ought to be paid.

December 20 — Jury orders Exxon to pay Alabama $3.5 billion. No, Alabama hasn’t lived down the reputation for jackpot justice it earned in cases like BMW and Whirlpool: a jury yesterday deliberated just two hours before tagging the oil company with the mega-verdict in a dispute over natural gas royalties owed the state. Consultants for the state had argued that it was due $87 million, Exxon said the figure was much lower or zero, but private attorney Bobo Cunningham of Mobile — whom the state had hired on contingency, promising him 14 percent of any winnings — convinced the jurors that $3 billion would be a much more appropriate sum (Phillip Rawls, “Jury orders Exxon to pay $3.5 billion to state in offshore gas case”, AP/Birmingham News, Dec. 19). Updates Dec. 1, 2003: first verdict thrown out, retrial yields $11.8 billion punitive damage award; Apr. 18, 2004 judge cuts that verdict to $3.6 billion.

December 18-19 — “‘Belligerent’ Worker Is Covered by ADA, Says Federal Court”. “A worker who suffers from major depression that makes her belligerent and hypersensitive to criticism has a right under the Americans with Disabilities Act to a reasonable accommodation from her supervisors, a federal judge has ruled.” After she was fired from her job as a manager with the Unisys Corp., Tina Bennett sued arguing that she had been suffering from major depression which manifested itself in interpersonal difficulties. “U.S. District Judge Franklin S. Van Antwerpen found that when a worker’s depression affects her ability to think and concentrate, she has the right under the ADA to get more feedback and guidance if it would help her perform her job. … Bennett met the test [for impairment of ‘major life activities’], Van Antwerpen said, since the evidence showed she was ‘belligerent and displayed an unprofessional attitude,’ that she had ‘difficulty controlling her emotions’ and that she was ‘incredibly sensitive to criticism.’ Bennett’s supervisor testified that Bennett’s peers felt that they could not approach her and have a meaningful conversation with her, Van Antwerpen noted, and her poor interpersonal skills were listed as a reason she was fired.” Given her “evidence linking her behavior to symptoms of her mental disability,” the judge ruled, a jury must be allowed to consider her claim for damages under the ADA. (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Dec. 13).

December 18-19 — Behind the subway ads. “[T]here isn’t a subway-riding adult in New York who hasn’t seen an ad for 1-800-DIVORCE, with the O formed by a diamond ring and a woman’s hand to the side making a tossing motion.” The law firm that picks up the phone when you call, Wilens & Baker, believes in the economies of scale obtainable from a volume business. It’s also unusual among advertisers in its emphasis on such lines as immigration and bankruptcy law: “There are a thousand lawyers advertising now, and 980 are personal injury lawyers,” says Michael Wilens. (Laura Mansnerus, “From a Captive Audience, Clients”, New York Times, Nov. 15) (reg).

December 18-19 — How to litigate an American quilt. For all their cozy and nonadversarial image, quilts these days “are hot items in copyright litigation” as designers head to court to accuse each other of swiping patterns. In one pending action, Paul Levenson, a New York attorney who makes a specialty in quilt law, is representing Long Island designer Judy Boisson in a suit against the Pottery Barn chain “over an allegedly infringing quilt that, like one of Ms. Boisson’s, contains eight-pointed pastel ‘Missouri Star’ blocks on a white background. One of the burdens that Mr. Levenson has to overcome is the fact that many quilt blocks and borders have been in the public domain for more than 100 years, and that the communal spirit that led pioneer women to make quilts is the polar opposite of the mindset of intellectual property law. … Home quilters are abuzz about Ms. Boisson’s copyright claims, but Mr. Levenson says her targets are commercial entities, not grandmothers making quilts for their own families.” (Victoria Slind-Flor, “Quilts: Traditional and ‘mine'”, National Law Journal, Nov. 13).

December 18-19 — Smoker’s suit nixed in Norway. “A Norwegian court ruled [last month] the tobacco industry could not be held responsible for a smoker’s terminal cancer in the country’s first tobacco compensation lawsuit. The Orkdal District Court said the smoker, Robert Lund, continued to smoke even after the dangers of smoking ‘became broadly known and accepted’ and said tobacco’s addictiveness did not free him from responsibility for continuing to smoke.” (Doug Mellgren, “Norway puts tobacco industry on trial”, AP/Nando Times, Nov. 10).

December 18-19 — Welcome Wall Street Journal readers. The Weekend Journal‘s “Taste” editorial commentary briefly mentioned our item on female Santa litigation (see Dec. 13-14). And today’s (Monday’s) Christian Science Monitor quotes our editor on the subject of workplace litigation over accent discrimination (Kelly Hearn, “What legal experts say”, Dec. 18, sidebar to main story, “Pegged by an accent“).

December 15-17 — Farm bias settlements: line forms on the left. The U.S. Department of Agriculture recently agreed to pay more than $2 billion to settle suits claiming it had discriminated against black farmers; a suit by Indian farmers is proceeding as well. And now lawyers have filed suit seeking $3 billion in damages on behalf of female and elderly farmers allegedly treated unfairly in USDA programs. “The farmers are represented by Washington, D.C., attorney Phillip Fraas, who helped win the lawsuit brought by black farmers.” (“Women, Elderly Farmers Sue USDA”, Omaha World Herald, Dec. 11).

December 15-17 — U.K.: skipping, “conkers” taboo in schoolyards. Skipping and other pastimes are being banned in British schoolyards as potentially hazardous or antisocial, as is the age-old game of “conkers”, played by throwing chestnuts at classmates. Teachers “are nervous about legal action from parents if the children are injured, according to a survey by Keele University. … [A] poll found last month that 57 per cent of parents would ask for compensation if their child was injured at school. … Sarah Thomson, the survey’s author, said that one headmaster said he would prefer to ‘ban all playtimes, as they are a nightmare'” The survey of Midlands schools “concluded that playgrounds were now often ‘barren, sterile and unimaginative’ because of over-cautious staff.” (Glen Owen, “Playtime conkers banned as dangerous”, The Times (London), Dec. 8).

In other zero tolerance news, the Washington, D.C. subway system made news last month after its police arrested 12-year-old Ansche Hedgepeth for eating french fries in one of its stations (“Girl Arrested for Eating Fries in Subway”, AP/APBNews, Nov. 16; Petula Dvorak, “Metro Snack Patrol Puts Girl in Cuffs”, Washington Post, Nov. 16). See also Adrienne Mand, “Schools’ Zero-Tolerance Programs Both Praised and Attacked”, FoxNews.com, Oct. 11; “Zero tolerance turns silly” (editorial), Detroit News, Oct. 7.

December 15-17 — O’Quinn a top Gore recount angel. Tied for second among biggest donors to the Gore recount campaign was Houston trial lawyer John O’Quinn, a frequent subject of commentaries in this space (Aug. 4, 1999, etc.). (“Jane Fonda, others pony up for Gore”, AP/MSNBC, Dec. 8). Aside from his role representing the state of Texas in the tobacco litigation (May 22, 2000), O’Quinn is probably best known for having reaped a huge fortune suing on the theory that silicone breast implants cause autoimmune and related illnesses, a theory that O’Quinn and his p.r. firm, Fenton Communications, still strive tenaciously to keep alive — a far more dogged refusal-to-concede than in the Gore case, which lasted mere weeks. See also Doug Bandow, “Ending silicone breast implant saga”, TownHall.com, Dec. 13.

December 13-14 — Supreme Court: forget that recount. Looks like it’s really, really over this time, but every time we allow ourselves to think so, a hand resembling David Boies’s pops out of the ground and starts pulling us down as in the last scene of Carrie. (Charles Babington, “High Court Overrules Gore Recount Plea”, washingtonpost.com, Dec. 12; Supreme Court opinions (PDF)). The courts are going to come out of this one looking more partisan, partial and willful, writes Stuart Taylor, Jr., who predicted the Supreme Court’s 5-4 split; but the real blame should be laid on the Florida Supreme Court for having “betrayed its trust and done grave damage to the rule of law”. (“The Dangers of Judicial Hubris”, Slate, Dec. 11). “It should now be obvious to most people that the Rule of Trial Lawyers isn’t a good substitute for the Rule of Law. … it’s worth noting that three of the four justices who voted for Al Gore’s ‘adventures in recounting’ on Friday had been personal-injury trial lawyers.” (John H. Fund, “Saved from rule of trial lawyers”, MS/NBC, Dec. 9). And Christopher Caldwell, in a column making too many interesting points to recount, asks the question: why did the candidates file most of the Florida lawsuits against their own side, with Gore suing Democratic-run counties and Bush suing those run by the GOP, the opposite of what you might expect if the point of election challenges is to expose and correct partisan irregularities? (“Bench Press”, New York Press, Dec. 12).

December 13-14 — Latest female Santa case. Donna Underwood of Mount Hope, W.V. has sued a company that had hired her to play Santa Claus for children at a mall in Beckley. “She said the company fired her after one of the mall’s managers complained about having a female Santa.” (“Woman Fights for Right to Be Mr. Claus”, FoxNews.com, Dec. 11). In October (see Oct. 12) the Kentucky Commission on Human Rights said it was okay for Wal-Mart not to employ a female Santa.

December 13-14 — “Economy-class syndrome” class action. A Melbourne, Australia law firm is filing a proposed class action on behalf of victims of “economy-class syndrome” against airlines and travel agents. The suit will claim that the complainants were not warned that sitting for prolonged periods in cramped conditions might lead to blood clots in the legs and elsewhere, and were not advised to get up from time to time to walk about the cabin. (Alison Crosweller, “‘Economy-class syndrome’ victims to sue”, The Australian, Dec. 11).

December 13-14 — Internet service disclaimers. Anxious to limit their liability, Internet service providers insert into their service agreements a lot of “defensive legalistic blather designed to keep the company out of court”, which taken literally would place many of their ordinary users in violation for doing things like maintaining multiple chats at once. They also reserve the right to change the rules: “‘They could suddenly demand you wear a bra and panties and dance in the street, and you are contractually bound to it, the way this is written,’ says Andrew Weill, a partner at Benjamin, Weill & Mazer, an intellectual property firm in San Francisco.” In practice users treat the language as a joke (but also are slower to sue). (John Dvorak, “Nihilists at Home”, Forbes, Oct. 2).

December 13-14 — Hamilton’s example. “Few men contributed as much to the ratification of the Constitution as Alexander Hamilton, who wrote the majority of The Federalist Papers. Hamilton worked as a lawyer. Unlike the landed gentry, he had to earn a living. The individual whose economic policies ensured the young Republic’s survival did not amass a huge personal fortune. In Alexander Hamilton, American, Richard Brookhiser explains: ‘His skill and success put him in great demand . . . and if he did not become rich from his practice, it was because of the interruptions of public life and because he charged low fees.’

“Low fees? Those words seldom appear in stories about, for instance, the tobacco lawsuits. Hamilton didn’t eat in a soup kitchen or live in a shelter, but he didn’t make enough to buy the era’s equivalent of a sports team, either. And if all lawyers followed his example, then audiences would not hoot and howl during a certain intense Shakespearean scene.” (“Law school” (editorial), Richmond Times-Dispatch, Nov. 28).

December 11-12 — What was the Florida court thinking? In Slate, University of Utah law professor Mike McConnell clears up why the actions of the Florida Supreme Court in the recount case are properly reviewable by the federal courts: “Article II, Section 1 [of the Constitution] provides that electors [of a state] shall be appointed ‘in such Manner as the Legislature thereof may direct.’ Any significant deviation from state statutory law is therefore a federal issue.” McConnell explains how the Florida high court has now (again) attempted to impose a method for the counting of votes (and thus for the resultant appointment of electors) markedly at odds with the manner laid down before the election by its legislature, making it proper for the U.S. Supreme Court to intervene a second time to vacate its action. And McConnell raises the interesting question: if the Florida high court really thought a statewide hand count advisable, why didn’t it order one earlier, when it had access to the same basic information and there was much more time to conduct one? (“What was the Florida court thinking?”, Dec. 9).

More: Michael Barone on how the Florida fiasco is likely to bring judicial activism into further disrepute (“Red Queen rules”, U.S. News & World Report, Dec. 18). George Will finds lawyer David Boies getting away with some pretty fast moves before the Sunshine State jurists (“Truth Optional”, Washington Post, Dec. 10). The Chicago Tribune says the Florida court’s “reckless leaps of illogic not only have threatened the integrity of the election, but also have risked tossing the nation into real turmoil.” (“A Supreme Blow for the Rule of Law” (editorial), Dec. 10)

December 11-12 — “Stock Options: A Gold Mine For Racial-Discrimination Suits?”. Lucrative tactic for lawyers representing disgruntled minority employees of firms like Microsoft, Gateway, Sun, Cisco and AOL: claim that had it not been for racism your client would have gotten stock options. Given the way these stocks have been behaving lately, they’d better hurry up with this theory while the options are still worth something (Jordan Pine and Linda Bean, DiversityInc.com, Dec. 5 (reg after first page teaser)).

December 11-12 — New Jersey OKs retroactive tort legislation. “Filling in for Gov. Christie Whitman, the New Jersey Senate president, Donald T. DiFrancesco, [last month] signed into law a measure that eliminates a two-year statute of limitations on wrongful death lawsuits involving victims of murder or manslaughter. The law is meant to give distraught families time to deal with the trauma of losing a loved one before turning to the task of seeking compensation from the people, businesses or institutions [emphasis added] they believe are responsible for the death. Yesterday’s measure applies retroactively, and therefore allows … past victims’ families to sue, [according to a spokeswoman for Sen. DiFrancesco]. “Frank Askin, founder of the constitutional litigation clinic at Rutgers University, said that he did not see a problem with the clause being retroactive, so long as the defendants in lawsuits had been convicted, thus establishing beyond reasonable doubt that a murder or manslaughter did occur, and that the evidence was clear and convincing.” Askin’s answer seems curiously beside the point given that the most frequent financial targets of such suits are sure to be not the actual individual killers, but the “businesses or institutions” that will be accused of such sins as “negligent security” (based on, say, allegedly inadequate lighting or patrolling of parking lots). These defendants normally will not have been charged with any criminal offense at all in connection with the incidents, let alone had such guilt established beyond reasonable doubt, yet now are apparently being opened to suit retroactively, despite the expiration of the statute. Sen. DiFrancesco is expected to run for governor of New Jersey in 2001. (“New Law Ends Time Limits On Wrongful Death Lawsuits”, New York Times, Nov. 18) (more on decay of statutes of limitation).

December 11-12 — Florida lawyers’ day jobs, cont’d. The election isn’t the only reason a lot of lawyers hang out in the Sunshine State these days: “If South Florida is the Wild Wild West of the class-action world, then the region’s posse of plaintiff lawyers are the cowboys. Some of the wealthiest, most prominent power brokers in the community, these litigators have turned South Florida into a hotbed for class-action lawsuits.” (Julie Kay, “Along for the Ride”, Miami Daily Business Review, Oct. 24) (quotes our editor). St. Petersburg Times columnist Bob Trigaux found in October that the state of Florida won the not-coveted award for the year’s worst suit (“The most frivolous lawsuit award goes to …”, Oct. 4) (also quotes our editor) (and see Dec. 8-10).

December 11-12 — Trustworthy professionals. Nurses, pharmacists and veterinarians score highest in a survey of which occupations are viewed as most honest and ethical; teachers, clergy, judges and police also do well. Attorneys are “consistently rated among the top five professions for prestige, but near the bottom for ethics and honesty.” (Daniel B. Wood, “Who people trust — by profession”, Christian Science Monitor, Nov. 28).


December 29, 2000-January 2, 2001 — Gambler rebuffed. Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due “for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time.” (Grand Casino Tunica v. Robert Shindler, Dec. 14).

December 29, 2000-January 2, 2001 — Makes others pay, doesn’t pay himself. Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as “acts of civil disobedience that will be organized at targeted Burger Kings across the country.” The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case. “U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a ‘clear and unambiguous’ agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. ” (“Sharpton Plans Lawsuit Against Burger King”, FoxNews.com, Dec. 18).

However, the wherewithal for Sharpton’s hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago. During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, “says he owns no suits, but has ‘access’ to a dozen or so. He says he owns no television set because the one he watches in his home was purchased by a company he runs. He says he has no checking accounts, no savings accounts, no credit cards, no debit cards … The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring.” (“Sharpton says he has no assets to pay slander victim”, AP/CNN, Dec. 7; Alan Feuer, “Asking How Sharpton Pays for Those Suits”, New York Times, Dec. 21; “It Depends on What You Mean by ‘Own'” (sidebar), Dec. 21). (Update June 22-24, 2001: he finally pays Pagones).

December 29, 2000-January 2, 2001 — Seats in all parts. “Tiered” stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them. But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints. “The ADA has proved a powerful tool on a similar issue — handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena.” (Matthew Mosk, Ian Shapira, “Buying a Ticket to Court”, Washington Post, Dec. 8; Mark Pratt, “Theaters Sued Over Disabled Seating”, AP/FindLaw, Dec. 18). And: “Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so ‘pretty women’ could sit in the first two rows. Brooks’ attorney denied the allegation, saying people in the front rows are generally Brooks’ friends. A judge ruled Friday that the complaint can proceed to trial, but said Brooks’ liability is limited because he had no control over concert operations at Seattle’s Key Arena.” (“Brooks accused of discrimination”, AP/Washington Post, Dec. 17).

December 29, 2000-January 2, 2001 — Enviro litigator: debate belongs in Congress, not courts. We promise we didn’t make up the following quote, though we understand why it might astound readers familiar with the environmental movement’s record over the past three decades of heading for court in quest of victories it couldn’t win in Congress: “Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the “nondelegation” doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies. ‘We think EPA’s policy on this issue is a good policy,’ said Fox, who is representing the American Lung Association in the case. ‘But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.'” (Margaret Kriz, “Trying to Roll Back the Regulators”, National Journal, Nov. 4, not online). See also Gregg Easterbrook, “Green values”, The New Republic, Nov. 13).

December 26-28 — That’ll teach ’em. In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack. The ambulance arrived eight and a half minutes after the mother’s 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which “constituted ‘willful and wanton misconduct,’ the standard for erasing municipal immunity.” Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools’ invisible-fist theory. (Margaret Cronin Fisk, “911 Incident Brings $50 Million Award”, National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004).

December 26-28 — Appearance-blind hiring? Green-haired Santas, take hope! A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth. “But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.” They may be violating employment law if they want to hire only “lithe” or “athletic-looking” personnel, for example. However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more “natural-looking”. (Virginia Postrel, “When the ‘Cool’ Look Is Illegal”, Forbes, Nov. 27).

December 26-28 — Updates. Further developments in stories already covered in this space:

* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under “sue and labor” clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue. Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along. (Barnaby J. Feder, “Court Rules on Year 2000 Claim”, New York Times, Dec. 22 (reg)).

* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center’s rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, “Court Overrides Hospital’s Ban on Photographs in Intensive Care Unit”, New Jersey Law Journal/Law.com, Dec. 4).

* In the latest sign that “baby Castano” (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies (“NY court rejects smokers’ class-action certification”, Reuters/FindLaw, Nov. 30).

December 22-25 — Victory in Philadelphia. “A federal judge yesterday dismissed Philadelphia’s lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue.” Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their “novel legal theories” would have failed as a matter of law. “The city’s drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit.” His successor as mayor, John Street, did proceed to sue. Many other cities’ gun suits have also been dismissed, most recently Chicago’s. (Frederick Cusick, “Court rejects city gun lawsuit”, Philadelphia Inquirer, Dec. 21).

December 22-25 — Suits even ATLA admits are frivolous dept. An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic. Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: “Life has its disappointments. Some come out of the blue/ But that doesn’t mean a prisoner should sue.” (“Dissatisfied Customer”, Reuters/ABCNews.com, Dec. 20)

December 22-25 — Britain’s delicate soldiery. The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on “what he called a culture of ‘risk aversion’, warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. … In a swipe at the ‘litigious nation’ Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. … He added: ‘But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. … There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.'” In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: “we need to guard against such ill-conceived ideas in future”. (Richard Norton Taylor, “Defence chief lays into culture of ‘risk aversion'”, The Guardian (UK), Dec. 20). (“Armed Forces ‘under threat from human rights legislation'” (text of speech), Daily Telegraph, Dec. 21; Michael Smith, “Guthrie attacked over ban on disabled”, Daily Telegraph, Dec. 21; “General alert” (leader/editorial), Dec. 21). And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise. “‘One solution would be to provide ear protectors during training, but then soldiers couldn’t hear their sergeant major giving orders,'” said a spokesman. (“British Army Bands May Have to Pipe Down”, Reuters/Excite, Dec. 21).

December 22-25 — Not pro bono, not nohow. The roundtable discussion in the November Harper’s on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, “came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:”

Alexander Pires, Jr.: So would you all work for free?

Dennis Sweet: What?

Richard Scruggs: Um.

Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, “Why would you want me working unhappy for you? [If I’m unhappy,] I’ll get you 100,000 bucks. If you got me happy, I’ll get you 2 million.”

Pires: Maybe I’m wrong.

Jack Hitt (moderator): I guess that issue’s resolved. (Harper’s, November; quoted in American Lawyer, Dec. 2000)

December 22-25 — Welcome visitors. Among the many personal websites linking to Overlawyered.com: Ellen’s Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio — Aug. 3).

December 21 — Errin’ Brockovich? “An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film ‘Erin Brockovich‘, found that Brockovich’s testimony in the arbitration proceeding ‘was hardly credible’,” notes the Wall Street Journal‘s Opinion Journal. Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him. Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been “preoccupied with other significant matters” during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie. “[Faulty representation] is evidenced not only by the poor result, but also by the firm’s overall lack of professionalism; by the firm’s putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct,” wrote Krivis. Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator’s excessive credence in Baroody’s witnesses; it is not known whether his professional liability insurer will appeal. Moreover, “a claim isn’t necessarily because you did something wrong,” Cathy Hastings, insurance manager for the State Bar of California, told a reporter. “It’s only because someone decided to sue you.” That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves. (Brad Smith, “Law firm made famous by film ruled negligent in case”, Ventura County Star, Dec. 13).

December 21 — ADA requires renting to addiction facility. A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts. Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility. The jury did turn down the drug program’s request for millions of dollars in damages, however. Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection. (Kate Shatzkin, “Judge orders long-term lease for ship treating drug addicts”, Baltimore Sun, Dec. 12).

April 2000 archives


April 10 — “Pilloried, broke, alone”. Canadian journalist’s probe of “deadbeat dad” issue finds some bad guys but also many who “are too impoverished to pay, have been ordered to pay unreasonable amounts, have been paying for unreasonable lengths of time, or are the victims of bureaucratic foul-ups.” (Donna LaFramboise, “Pilloried, broke, alone”, National Post, March 25, link now dead).

April 10 — Verdict on Consumer Reports: false, but not damaging. After a two-month trial, a federal jury found Thursday that the magazine had made numerous false statements in its October 1996 cover story assailing the 1995-96 Isuzu Trooper sport utility vehicle as dangerously prone to roll over, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had behaved arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but didn’t because “we couldn’t find clear and convincing evidence that Consumers Union intentionally set out to trash the Trooper”. The jury found eight statements false but in only one of the eight did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered. The magazine sees fit to interpret these findings as “a complete and total victory for Consumer’s Union” (attorney Barry West) and “a complete vindication” (CU vice president David Pittle). (DURABLE LINK)

SOURCES: Consumers Union; its reaction (link now dead); Isuzu; its reaction; Dan Whitcomb, Reuters/Yahoo, April 6, link now dead; “Jury clears Consumer Reports magazine of liability in Isuzu case”, AP/CourtTV, Apr. 7; David Rosenzweig, “Jury Finds Magazine Erred in Isuzu Critique”, Los Angeles Times, April 7, link now dead. More background: Max Boot, “Guardian of the Lawyers’ Honey Pot”, Wall Street Journal, Sept. 19, 1996, reprinted at JunkScience.com site, link now dead; Walter Olson, “It Didn’t Start with Dateline NBC”, National Review, June 21, 1993.

April 10 — Lawyers charged with $4.7 million theft from clients. “Two Manhattan lawyers were arrested and charged Friday with stealing $4.7 million from clients, including a widower with two children and a college professor who fractured her skull in an accident.” Jay Wallman and Alan Wechsler, both 60 years of age, “used the money to keep their Madison Avenue law firm afloat and to pay personal expenses, said Assistant District Attorney Doreen Klein”; in Wechsler’s case, that included paying some of his dues at the Willow Ridge Country Club in Harrison, N.Y., where he was president. The two have pleaded not guilty; “Wallman has resigned from practicing law and Wechsler has been suspended, the prosecutor said.” About $2.7 million of the alleged theft was carried out in the handling of an estate, and the rest in the course of representing medical malpractice and other personal injury plaintiffs, some of whom never were given any of the settlements collected on their behalf, prosecutors say. (“Two NYC lawyers arrested”, AP/CNNfn, April 7, link now dead).

April 10 — Diapered wildlife? Large-scale agriculture has come under criticism for its effects on the environment, but researchers are discovering that naturally occurring fauna can be destructive in similar ways. Colonies of seabirds, for example, “are releasing large amounts of ammonia into the atmosphere through their droppings. … Very large emissions of ammonia could have a detrimental impact on the local ecology, and may be just as problematic as intensive farming. Scientists studying a seabird colony on Bass Rock off the east coast of Scotland have already measured ammonia concentrations 20 times higher than those on chicken farms.” Global warming researchers have noted that among the more important contributors to the level of “greenhouse gas” emissions is cows’ natural tendency to emit methane, and controls on bovine flatulence may be necessary in the future if countries like Ireland are to contribute proportionally to world reductions in such emissions. (“The ‘innocent’ polluters”, BBC News (Scotland), March 8; “Don’t forget methane, climate experts say”, CNN/ENN, Nov. 10, 1999; Google search on “bovine flatulence“). (DURABLE LINK)

April 10 — Courts split on disabled golfer issue. “In a 24-hour span [last month], two federal appeals courts gave opposing decisions on whether handicapped golf pros can use motorized carts during tournament play” — that is to say, whether they can do so against the wishes of tournament organizers. In the more publicized of the two cases, the 9th Circuit agreed with Casey Martin’s demand that he be allowed to use a cart in the PGA Tour; but a day later “a three-judge panel with the 7th U.S. Circuit Court of Appeals in Chicago amid much less fanfare affirmed a lower court decision denying Ford Olinger similar mechanical assistance.” Circuit splits make it more likely that an issue will eventually be heard by the U.S. Supreme Court. (Mark R. Madler, “Fed Circuits Suddenly Split on Handicapped Golfers”, American Lawyer Media, March 9). “Olinger himself may have made the most penetrating observation, bemoaning that his appeal was heard by a panel of golfers, while Martin’s was not.” (Robert S. Shwarts, “A Good Walk Spoiled”, American Lawyer Media, March 23).

April 10 — 300,000 pages served on Overlawyered.com. Thanks for your support!

April 7-9 — Silicon siege. With Bill Gates down for the count, who’s next? Antitrust officials, having recently nailed old-line auction houses (“dowagers in the paddy wagon”) Sotheby’s and Christie’s, have now begun an investigation of eBay (“eBay Is Subject of Antitrust Probe, Congress Considers Underlying Issue”, E-Commerce Law Weekly, Feb. 9). Trial lawyers are pressing hard against laptop makers, hoping to repeat their nine-digit take from the Toshiba-glitch class action. (Joe Wilcox, “Data-storage suit sends shockwaves through PC industry”, CNet News, March 1). The many pending claims against AOL include those seeking to reclassify volunteers as workers entitled to back wages and those over the tendency of the 5.0 upgrade to interfere with alternative Internet access (“AOL Sued in Federal and State Court”, E-Commerce Law Weekly, Feb. 9). And privacy suits are being launched against all sorts of Internet leaders, from Yahoo on down (Susan Borreson, “Do You Yahoo?”, Texas Lawyer, Feb. 14). Cypress Semiconductor CEO T.J. Rodgers, in a piece written before the Microsoft ruling, says high-tech firms will just be asking for trouble if they cuddle up to Washington in search of official favors, and would do better to unite in resistance: “Silicon Valley is an island of capitalism in a sea of collectivism …. an island of meritocracy in a sea of power struggles.” (“Why Silicon Valley Should Not Normalize Relations With Washington, D.C.”, Cato Institute monograph (PDF format); Declan McCullagh, “Schmoozing: A Capitol Offense”, Wired News, March 20; “It’s All About Capitalism”, March 20).

April 7-9 — Trips on shoelace, demands $10 million from Nike. “A Manhattan orthopedic surgeon sued Nike Inc. on Wednesday for $10 million, saying shoes made by the athletic footwear giant tripped her and caused permanent injury.” Dr. Deborah A. Faryniarz says that while she was jogging last April “the right shoelace hooked around the back tab of the left sneaker, spilling her onto her wrists and knees” and causing a wrist injury that imperils her future career as a surgeon. Nike spokeswoman Cheryl McCants in Beaverton, Ore., said the company hadn’t yet seen the complaint but that people “sometimes don’t tie their shoes properly.” (“Nike Sued Over Shoelace”, AP/FindLaw, April 5, link now dead).

April 7-9 — School safety hysteria, institutionalized. “North Carolina has quietly launched a program that allows students to call in anonymously or fill out a Web-based form to report on classmates who might appear depressed or angry — or who just scare them,” reports Wired News. The Wave America program and website are run by the Pinkerton Corp., of security fame. On Slashdot, Jon Katz says that the site’s criteria for evaluating whether a fellow student is disturbed or depressed are alarmingly vague. The site also invites students to report anonymously about “intensely prejudiced or intolerant attitudes”, possession of weapons or alcohol on campus, or “anything else harmful to you or your school”. (Lynn Burke, “A Chilling Wave Hits Schools”, April 5; “Why call the WAVE line?“; “Early signs of violence“; Slashdot April 4 thread; our “Annals of Zero Tolerance“).

April 7-9 — L.A.’s mystifying jury summons. Think the long-form census is overkill? “The Los Angeles County court system has come up with a new jury summons form so dense that even some judges can’t make sense of it. The form, resembling a cross between a mortgage application and a deli menu, has generated a flood of complaints — including one from a Pasadena resident called to jury duty: Judge Lance Ito. He filled it out incorrectly.” (David Colker, “Jury Summons Is Guilty of Confusion”, Los Angeles Times, April 3).

April 7-9 — OSHA & telecommuters: the long view. Our editor’s April Reason column finds that this winter’s failed OSHA effort to regulate home offices was no fluke, being in many ways the logical culmination of an animus against home-based work that can be traced through decades of federal labor law (Walter Olson, “Office Managers”, Reason, April). The whole episode reminded columnist Joanne Jacobs of the manner of governance of the Emerald City: “I am OSHA, the Great and Powerful. Pay no attention to that clerk behind the curtain. The Great and Powerful OSHA has spoken. … Sorry. Never mind.” (“Work-at-home employees don’t need this kind of help from Washington”, San Jose Mercury News, Jan. 12, no longer online)

April 6 — Feds file Medicare recoupment suit over silicone implants. “The federal government wants to recover millions of dollars it spent treating thousands of women allegedly injured by silicone breast implants, and it’s trying to get in line ahead of the women for its money,” reports AP. The operative phrase above is “allegedly”, since by now it’s widely conceded that science didn’t bear out the original implant panic stoked by federal regulators and trial lawyers. But the feds undoubtedly did lay out health care moneys to treat immune disorders and other ailments “allegedly” (if not necessarily in reality) caused by the implants, so now the feds are going to demand compensation from the manufacturers. You didn’t think medical-recoupment lawsuit theories were really going to remain confined to tobacco, just because they kept saying that at the time, did you? (Michael J. Sniffen, “US Sues Over Implant Fund Recovery”, AP/Excite, April 1, link now dead; Yahoo Full Coverage; Professor David Bernstein’s breast implant litigation page; Doug Bandow, “Breast Implant Myths”, Cato Daily Commentary, Feb. 24).

April 6 — Columnist-fest. They keep writing them, and we keep linking them:

* Microsoft’s $80 billion plunge in market valuation in recent days has directly or indirectly dealt a blow to the retirement security of as many as 80 million investors, and Schroder & Co. chief economist Larry Kudlow predicts a public reaction against the kind of anti-business grandstanding exemplified by attorneys general Richard Blumenthal (Connecticut) and Eliot Spitzer (New York), whose ubiquitous appearances on cable news have been “limited only by the available volume of airtime.” Also includes some choice quotes from Gov. George W. Bush (“I’m unsympathetic to lawsuits, basically; write that down. …I have been a tort-reform governor. I’ll be a tort-reform president.”) (“Americans Vote Microsoft”, National Review, April 4; “Microsoft’s Market Value Drops $80B”, AP/Washington Post, April 3, link now dead).

* “No aspect of life is untouched by lawyers,” observes Mona Charen, citing recent cases on employer liability (Hawaiian car dealership case, see March 10-12) and personal responsibility (drunk Honda driver’s drowning, see March 28) and mentioning this website. Also quotes from an elaborate disclaimer presented to Girl Scouts before they go horseback riding (“Society is Oppressed by Litigation”, Omaha World Herald, April 5).

* Cathy Young is troubled by the recent decision of Philadelphia’s police commissioner to give outside feminist groups a big role in deciding which ambiguous incidents should be categorized as rape (“Let’s not forget the rights of accused in rape cases”, Detroit News, April 5; see March 27 commentary).

April 6 — High fee dosage. “Twenty law firms are set to share a staggering $175 million fee award for winning the settlement of a class action against drug manufacturers and wholesalers over their pricing practices.” Much of the booty will go to four veteran class action firms that filed the antitrust charges: San Francisco’s Saveri & Saveri, Chicago’s Much Shelist Freed Denenberg Ament & Rubenstein, Chicago’s Specks & Goldberg, and Philadelphia’s Berger & Montague. (Brenda Sandburg, “They’re in the Money”, The Recorder/CalLaw, Feb. 16).

April 6 — For the legal-definition file. Varying standards of proof, as defined by Slate Supreme Court correspondent Dahlia Lithwick: “The Due Process Clause of the 14th Amendment requires that each element of a crime be proved ‘beyond a reasonable doubt.’ This means that jurors must be pretty darn certain before they vote for a conviction. In contrast, the ‘preponderance of the evidence’ standard required under the New Jersey hate-crimes statute [now being reviewed by the U.S. Supreme Court] is a standard used in civil trials to mean that the facts in question are more likely true than not. This is the standard used by parents when they smell beer on your breath.” (Dahlia Lithwick, “Clarence Thomas Speaks!”, Slate, March 28).

April 5 — New Hampshire high court blowup. Yes, scandals happen even up there. Associate Justice Stephen Thayer of the New Hampshire Supreme Court resigned last Friday “after prosecutors concluded he broke the law by trying to improperly influence the assignment of judges hearing his divorce case.” Thayer maintains his innocence, but struck a deal with state Attorney General Philip McLaughlin to resign on a promise that he would not face criminal ethics charges. McLaughlin then released a report saying it was an “institutional practice” at the court for judges who’d excused themselves from cases to review and discuss draft decisions in those cases. Calls for the impeachment or resignation of other justices followed, and are being taken seriously in the state legislature.

However, Chief Justice David Brock says that, Thayer aside, judges have never been permitted to comment on draft opinions in cases where they’d recused themselves because of conflict of interest; and Justice Sherman Horton told a reporter that the sorts of occasions when judges would comment had been when they’d excused themselves for other reasons, such as illness or temporary absence. Accusing the attorney general of grandstanding, Brock said the practice went back decades and that the AG had not given the court a chance to answer the charges before taking them to the press and legislature.

SOURCES: court home page; Holly Ramer, “N.H. Supreme Court Justice Resigns”, AP/Excite, March 31, link now dead; Katharine Webster, “Three N.H. Justices May Be Removed”, AP/Excite, April 1, link now dead; “Whistleblower called hero”, Boston Globe, April 1, link now dead; Norma Love, “Legislators reeling from allegations against justices”, AP/Boston Globe, April 3, link now dead; Brock statement; Kevin Landrigan, “Judge strikes back”, Nashua Telegraph, April 4; Alec MacGillis, “He won’t resign; calls accusations ‘unfounded attack'”, Concord Monitor, April 4; Manchester Union Leader; Foster’s Daily Democrat (Dover). Updates: Brock acquitted at impeachment trial before New Hampshire Senate (Oct. 11); state disciplinary panel gives him admonishment only (May 3, 2001).

April 5 — Update: judge okays “deep linking”. In a much-watched case, Los Angeles federal judge Harry Hupp has ruled that the practice of linking to interior pages of a competitor’s web site does not by itself violate the competitor’s copyright (see our Aug. 13 commentary). The Ticketmaster Corporation had sued California-based Tickets.com, an online tickets service which provides links to the Ticketmaster site for tickets that it does not itself have available. The judge allowed Ticketmaster to proceed with claims that its competitor had breached its copyright in other ways, as by improperly compiling and repackaging information obtained from the Ticketmaster site. (Michelle Finley, “Attention Editors: Deep Link Away”, Wired News, March 30; Brenda Sandburg, “Copyright Not Violated by Hypertext Link”, The Recorder/CalLaw, March 31).

April 5 — Seemed a little excessive. The Pennsylvania Supreme Court has agreed to decide whether it was appropriate for a Chester County court to award $46,000 in legal fees stemming from a dispute over an original $500 legal bill. The case arose in 1988 after Maria P. Bomersbach withheld her monthly owner’s assessment at the Mountainview Condominium Owners Association because of a dispute with the association’s management over her request to inspect its budget documents. The condo association took her to court and the two sides almost settled, but were $300 apart in their offers. Ten years of intensive litigation followed, during which Mrs. Bomersbach, according to judges’ opinions, “engaged in legal ‘trench warfare’ and subjected the association to a ‘pleadings onslaught’ that would render even a competent attorney ‘shell-shocked.'” A dissenting appellate judge called the $46,548 fee “totally unreasonable, and perhaps unconscionable,” and said the condo association shared responsibility for protracting the litigation. (Lori Litchman, “Pa. Supreme Court to Decide Dispute Over $46,000 Fee to Collect $500 Legal Bill”, The Legal Intelligencer, Feb. 28).

April 5 — The booths have ears. In Canada’s National Post, John O’Sullivan writes that his “attention was caught by a small item in the British press: Police in Gloucester are cracking down on local racism by entering restaurants in disguise and listening for racist conversation. In the first week of ‘Operation Napkin,’ one man was arrested for racially aggravated harassment. Another was overheard mimicking an Indian waiter, but the police decided that his behavior did not warrant prosecution.” (John O’Sullivan, “Operation Napkin to the Rescue”, National Post, March 28, link now dead).

April 4 — Microsoft violated antitrust law, judge rules. Competitors gloat: “I think it’s fair to say that the logical conclusion is that the degree to which Microsoft is restrained, that ought to be good for everybody else in tech,” says Sun Microsystems general counsel Michael Morris, henceforth to be known as “Zero-Sum” Morris. NASDAQ investors evidently don’t agree with him, sending the index skidding 349.15 points, or 7.6 percent. “Microsoft has been kept in check by all these antitrust proceedings from doing anything too bold,” says Kevin Fong with Mayfield Fund in Menlo Park; non-boldness has its costs, Microsoft now having slipped behind Cisco in market value for the first time. And Brookings’ Robert Litan calls the ruling “manna from heaven for the private plaintiffs because it basically should eliminate a lot of their need for proof”. (Eun-Kyung Kim, “Judge Rules Against Microsoft”, AP/Yahoo, April 3, link now dead; Dick Satran, “Tech Industry Remains Guarded on Microsoft”, Reuters/Yahoo, April 3, link now dead; Yahoo Full Coverage).

April 4 — Emerging campaign issue: “brownfields” vs. Superfund lawyers. A few weeks ago (see February 26-27 commentary) a report from the U.S. Conference of Mayors found that Superfund liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Now the issue has reached the presidential campaign, with Texas Gov. George Bush yesterday calling for reforms aimed at encouraging brownfield redevelopment, including liability protections for new developers that perform responsible cleanups, an initiative that is anathema to the Superfund bar. “The old system of mandate, regulate and litigate only sends potential developers off in search of greener pastures — literally,” Bush told workers at a plant in Pennsylvania. Vice President Gore has cited the Superfund law as among his proudest legislative achievements, though others have much criticized it as a boondoggle for litigators that slows down actual cleanups. (Patricia Wilson, “Bush on Gore Turf Proposes Environmental Agenda”, Reuters/Yahoo, April 3, link now dead; Bush campaign statement).

April 4 — Progressives’ betrayal. Jonathan Rauch’s new National Journal column argues that the American Left betrayed its principles when it got into bed (much of it, at least) with trial lawyers who have lately pitched their services as ways to bypass the tiresome need for legislation. “Suddenly the American Left is on the side of fantastically wealthy private actors who are accountable to no one.”

“Who elected these lawyers to help legislatures? What will they do next, helpfully, with their billions? If lawyers file and finance lawsuits against an unpopular industry and then channel billions of dollars of booty back into government treasuries, while also channeling millions more into soft-money donations to political parties, how is that any less corrupting than when chemical companies make PAC contributions in exchange for tax breaks? … If the Left ceases to be a counterweight to huge concentrations of unaccountable private wealth and power, of what earthly use is it?” Also, don’t miss the old quote that Rauch unearths from Ralph Nader, about how undemocratic it is for governance to go on in back rooms without informed public consent and participation — this before Ralph’s friends in the trial bar realized they could govern that way. (“Triumphantly, America’s Left Betrays Itself (Again)”, National Journal, March 31).

April 4 — Now it’s hot chocolate. As if the menace of hot take-out coffee were not bad enough, Dunkin Donuts is now being sued over the temperature of the hot chocolate served at one of its outlets in Barre, Vermont. “The suit was filed in Washington County Superior Court by Diane Bradeen who claims her daughter Katrina suffered burns on her lap when the hot drink was spilled.” (“Suit filed over temperature of Dunkin Donuts’ hot chocolate”, AP/Boston Globe, April 3, link now dead).

April 3 — Book feature: “The Kinder, Gentler Military”. “So how did we get from the blood, sweat, and tears version of boot camp, to ‘Bootcamp Lite,’ … ‘battle buddies,’ ‘training time-outs,’ ‘confidence course facilitators,’ and the ‘gender-normed’ grenade throw?…

“Government nineties-style was obsessed with the self-esteem of its citizens and with avoiding injury — psychic and physical. … A doddering kind of hypochondria filled the land. Since so many new kinds of injuries were now validated by the courts and by the culture at large, new classes of victims proliferated, and activities that used to be considered a bit risky (but generally worth it) were treated like virtual minefields of danger …

“It was [also] inevitable that the personal-is-political crowd would get around to the military. They had spent much of the seventies and eighties focusing on the workplace, the home, and schools, but it had been harder to find a way into that monastery standing outside the gates, the preserve of all that was imperialistic, aggressive, violent, hierarchical, uncompromising, authoritarian. … And the military made such an exciting end-of-the-century project. In an era devoted to examining, criticizing, and rebuking masculinity, the armed forces were the last preserve where the species ran free. …

“The new broadly written and subjectively defined infraction [of “hostile environment” sexual harassment] opened up a new frontier for litigation and created a new legal language. A hostile and offensive environment is very difficult to define. … A vague definition combined with lawyers smelling money is a dangerous combination. Wherever there is a possibility for confusion (as between men and women most of the time) there is a possibility for injury, and the law gave us a crude template of victim and victimizer, hurtful act and injury, perpetrator and receiver, to fit over the most complex, the most ambivalent, the most highly charged, of our relationships: between men and women, employer and employee, teacher and student. …

“Nobody really knew where ‘sexual harassment’ began and ended and we were still struggling in the early nineties: Society and the military [are] just beginning to understand that certain behaviors constituted harassment,’ one congressman explained with great earnestness at the time. But while we tried to figure out what sexual harassment was and what it was not, the new law seemed to take on a life of its own. Our half-finished creation began to toddle around the countryside scooping up victims in its large bumbling hands. Even the president could not escape….

“[Quoting military sociologist Charles Moskos:] ‘The Tailhook convention of ’91 was the worst event for the [U.S.] Navy since Pearl Harbor.'”

— from The Kinder, Gentler Military: Can America’s Gender-Neutral Fighting Force Still Win Wars? by Stephanie Gutmann, newly published by Scribner (Review: Richard Bernstein, New York Times, March 24; Yahoo full coverage).

April 3 — Update: junk-fax lawsuit rebuffed. In Houston, Judge Harvey Brown has dismissed the lawsuit discussed in this space October 22, which demanded $7 billion from 80 area businesses that had patronized ad services that faxed coupons and other circulars to what the lawyers said were unwilling recipients. Since the suit was filed in 1995, Texas has passed a law prohibiting unsolicited commercial faxing, but the lawyers had come up with the idea of suing in state court under an earlier federal statute providing for penalties of $500 to $1500 per fax sent, which given the class action format added up to billions: one defense lawyer called it “Powerball for the clever”. (Citizens Against Lawsuit Abuse-Houston, undated; judge’s order made public March 22).


April 20 — Not tonight, gotta coach my kids. “Children as young as 7 and 9 were coached to fake injuries in a car insurance fraud case in western Arkansas, a lawyer for the state Insurance Department said.” Eleven people in the Fort Smith area were charged with setting up liability claims by staging accidents so as to make it appear that other drivers were at fault. “Clay Simpson, an attorney for the department, said some used children as passengers and trained them to act injured after the staged crashes”. One of the adults evidently decided to add realism, according to Simpson, and “physically struck one of the small children in the head so he would have an injury … and be able to go to the hospital.” (Arkansas Insurance Department press release, April 13; Chuck Bartels, “Eleven Charged for Staging Crashes”, AP/Excite, Apr. 13; “The youngest grifters”, AP/ABC News, Apr. 14).

April 20 — Web-advertisers’ apocalypse? Most noteworthy tidbit in WSJ news story a while back on wave of privacy suits against cookie-deploying Web ad firms, quoting Fordham Law’s Joel Reidenberg, a specialist on the topic: “Even advertisers could have some liability to the extent they benefited from and participated in the DoubleClick network. ‘Anybody in the chain of information who participated in the passing off of information to others would be potential targets,’ Mr. Reidenberg says.” (Richard B. Schmitt, “Online Privacy: Alleged Abuses Shape New Law”, Wall Street Journal, Feb. 29, 2000, fee-based archive).

April 20 — Arm yourself for managed care debate. How much higher will medical costs go when Congress makes it easier to sue, and how many more families will get priced out of health insurance? How coherently will a cost control system work once it’s geared to whichever jury gets angriest? Resources: Krishna Kundu, “The Norwood-Dingell Liability Bill: Health Insurance at Risk”, Employment Policy Foundation cost study, Mar. 24; “The Problems with Punitive Damages in Lawsuits against Managed-Care Organizations”, New England Journal of Medicine, Jan. 27; Health Benefits Coalition.

April 20 — Letourneau scandal: now where’s my million? “The teen-ager who fathered two children by his former grade school teacher, Mary Kay Letourneau, is seeking damages from a suburban [Seattle] municipality and school district. Vili Fualaau, now 16, and his mother, Soona, are seeking damages of at least $1 million for emotional suffering, lost income and the cost of rearing the girls, who are in the care of the boy’s mother.” The suit charges school officials with failing to protect the boy from the amorous advances of his teacher, 38, who’s now serving a 7 1/2 year sentence for her involvement with him. “The teen, his mother and Letourneau previously have said in television appearances and in a book that the relationship was consensual.” (“Teen-age boy seeks damages in Washington state teacher sex case”, AP/CNN, Apr. 14).

April 19 — All dressed up. James and Cynthia Harnage of Norwich, Ct. are seeking $21 million in damages from Publisher’s Clearing House, the magazine sweepstakes company, which they say in or around last December sent them repeated notices marked “Document of Title” and “official correspondence from the Publisher’s Clearing House board of judges” with messages such as “Congratulations! Your recent entry was a winner! And Approved for $21 Million!” The Harnages say they came to be convinced that they would receive the grand prize in person on Super Bowl Sunday and even got all dressed up to wait for the knock on the door, but it never came. According to a local paper, Mr. Harnage describes himself as devastated by the letdown; the lawsuit alleges fraud and breach of contract and says the couple suffered emotional distress. (“Disappointed couple sues Publisher’s Clearing House”, AP/Newsday, Apr. 14; “Couple sues Publisher’s Clearing House”, New London (Ct.) Day, Apr. 16).

April 19 — From the incivility frontier. Richard F. Ziegler, writing in the Feb. 7 National Law Journal: “Until recently, the classic example of incivility in litigation was famed Texas lawyer Joe Jamail’s defense of a deposition witness in the 1993 Paramount-QVC Network-Viacom takeover battle. According to the excerpts of the deposition transcript included in an addendum to an opinion by the Delaware Supreme Court, Jamail told the examining lawyer that he could ‘gag a maggot off a meat wagon’ and made other vituperative remarks that the Delaware court labeled ‘extraordinarily rude, uncivil and vulgar.’ . … Mr. Jamail’s ‘maggot’ rhetoric has now been displaced by a new classic in incivility: a pre-suit letter sent by a New York litigator that threatened the prospective defendant with the ‘legal equivalent of a proctology exam’ if the plaintiff’s claim weren’t satisfied without litigation. That wording, plus some other aggressive tactics by the same lawyer, ended up costing the would-be proctologist a $50,000 sanction (now on appeal).” The sanctions were handed down last November by federal judge Denny Chin against litigator Judd Burstein, in a case called Revson v. Cinque & Cinque P.C. However, prospective targets of legal intimidation should not get their hopes up too high: a few years ago the Second Circuit, which includes New York, “sustained as proper a pre-suit letter that sought to encourage settlement by threatening the opposing party with harmful publicity.” (Richard F. Ziegler, “Litigation: The Price of Incivility”, National Law Journal, Feb. 7).

April 19 — Microsoft case: commentators. A gamut of views, ranging from the moderately appalled to the fully appalled:

* Robert Samuelson on the clash between the living thing that is the New Economy and the seemingly robotic lurch of antitrust enforcement (“Puzzles of the New Economy”, Newsweek, April 17);

* Tom Watson, though declaring himself “no cyberlibertarian,” laments that the suit “has permanently created a Federal presence in the development of networked software in the United States. And that means, of course, lots of lawyers getting lots of hourly fees to litigate in an area they clearly don’t understand.” (“Justice Department Saves the Internet, Film at 11”, AtNewYork, April 6 — via Q Queso);

* Michael Kinsley has fun with a New York Times reporter on the question of whether it was shocking for Bill Gates to try to fend off Justice Department assault by — eeeuw! — hiring lobbyists (“The Timesman With a Microchip on His Shoulder”, Slate, April 17).

April 19 — $60,000 battle over $5 t-shirt. In Westerly, Rhode Island, court wrangling has now gone on for two years over whether then-sophomore Robert Parker’s heavy-metal t-shirt (“White Zombie”, number 666 on back) was unnecessarily disruptive and thus in violation of the school dress code. (Michael Mello, “RI ‘Satanic’ T-Shirt Case Continues”, AP/Washington Post, Apr. 10). Update Aug. 29-30: case has settled.

April 18 — Brockovich story, cont’d: the judges’ cruise. Picking up where we left off yesterday with more highlights from Kathleen Sharp’s investigation for Salon:

* Not long after the case settled with its lucrative $133 million lawyers’ fee, the two L.A. lawyers who’d teamed with the Masry/Brockovich firm to handle the PG&E case, Thomas Girardi of Girardi & Keese in Los Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century City, “organized a weeklong Mediterranean cruise for 90 people, including 11 public and private judges. The three PG&E arbitrators were among those invited,” reports Sharp. “One judge called it ‘absolutely incredible.’ A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: ‘This gives decadence a bad name.'”

“The cruise was organized under the banner of Girardi and Lack’s Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the cruise included ‘an extensive professional program,'” which would make it allowable under judicial rules, but retired judge Schoettler can’t recall anyone he knew actually attending a lecture. “The cost was about $3,000 per person, about half the normal rate; Girardi told the Times he and Lack had received a discount for chartering the entire Cunard cruise ship. After some confusion, all of the judges on the trip paid their way, save two unrelated to the PG&E case who were invited to lecture.”

* Some of the judges in the arbitration had an unusually friendly relationship with Girardi: one had officiated at his second wedding, Schoettler had flown in his Gulfstream to attend the World Series, and so forth. “‘I became aware that I should absolutely stay away from [arbitration firm] JAMS or its retired judges when it came to any dealing with Tom Girardi,’ said Laurence Janssen, a partner in the Los Angeles office of Washington law firm Steptoe & Johnson. … ‘The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi.'” The outcry over the post-Hinkley-case cruise helped spur a California Supreme Court inquiry into the arbitration system. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

Incredibly — given all the above — some in the White House and in the Al Gore campaign are hoping to ride the success of the celluloid “Erin Brockovich” into a chance to seize the initiative on behalf of the wonders of the beneficent tort system and the wickedness of the mean old tort reformers who’d like it to be regulated and supervised more closely. That came across in both a relatively light column by the New York Times‘s Maureen Dowd (“The Erin Factor”, April 5) and a thuddingly heavy one by Salon‘s Joe Conason, whose writings often sum up the theme-of-the-week of the Clinton/Gore attack machine (“Lessons from ‘Erin Brockovich'”, March 28). Given the revelations in Kathleen Sharp’s article — which, if there’s any justice, should be in contention for the next round of journalistic prizes — it now may be time for Gore’s backers to hope that public opinion doesn’t start focusing on the Hinkley case. Also recommended: Dennis Byrne, writing in the Chicago Sun-Times that “as I sat through the movie with a reporter’s skepticism, I was uneasy about how one-sided it was,” and offering a list of “movies you’ll never see come out of Hollywood”, (“A feel-good story with a bad taste”, April 12, link now dead); and Michelle Malkin, “The truth about Erin Brockovich”, syndicated/ Jewish World Review, April 17.

April 18 — Catfight! This store’s not big enough for two tigers. Federal appeals court reinstates Kellogg Co.’s suit against Exxon over the two companies’ use of cartoon tigers, both of which date back to the 1950s. For years Exxon’s “tiger in your tank” was mostly seen at the gas pump, but more recently the petroleum company has moved him indoors to tout food items at its convenience stores, angering the Battle Creek-based cereal company, which uses Tony the Tiger to sell its Sugar Frosted Flakes. (“Kellogg Renews Suit Against Exxon over Tiger”, AP/Washington Post, Apr. 12).

April 18 — Update: trial lawyers’ war on Allstate. Plaintiff’s attorneys score some advances in campaign against big insurer known for lawyer-averse claims practices (see “How To Hammer Allstate”, Dec. 22). A New Haven, Ct. federal judge has refused to dismiss a lawsuit claiming that that company committed fraud by discouraging third parties involved in accidents with its insureds from retaining lawyers. A Seattle judge agreed with trial lawyer arguments that for Allstate to urge such third-party claimants not to hire lawyers amounts to the unauthorized practice of law and is thus illegal. And a Nassau County, N.Y. judge has levied sanctions against the company for insisting on its policyholder’s day in court against a claim where it should in the judge’s view have conceded liability. (Mark Ballard, “Allstate Tactics Under Fire,” National Law Journal, Jan. 31; Thomas Scheffey, “Allstate Suit Gets Nod From Connecticut Court”, Connecticut Law Tribune, Feb. 14; Michael A. Riccardi, “Appeal Battle Over Allstate Sanction Case May Help Tort Plaintiffs”, New York Law Journal, Mar. 22). Update Apr. 25, 2004: insurer prevails in Connecticut federal case.

April 17 — Brockovich story breaks wide open. Salon scoops competition with journalist Kathleen Sharp’s impressive investigation of the real lawsuit that inspired “Erin Brockovich”. In the Hollywood tale, after our spunky heroine vanquishes nasty Pacific Gas & Electric, the residents of Hinkley, Calif. win big. In the real world, many of the Hinkley clients feel they got the royal shaft from the lawyers who represented them, and are now proceeding to sue those lawyers, specifically Brockovich’s firm of Masry & Vititoe, headed by Ed Masry:

* Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 mil to cover expenses, yet were short (the clients say) on detail to back up the latter largish number. Worse, they say Masry, Brockovich & Co. held on to their money for six months after the settlement, a delay that appears highly irregular to the experts Salon checks with, while not paying interest or even returning their phone calls (the lawyers claim the payments did include interest). Some with large awards also got steered toward certain financial planners, among whom was Ed Masry’s son Louis.

* When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary-seeming or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. However, an outside lawyer who interviewed 81 of the plaintiffs says he was told they received an average of $152,000, and Salon reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The numbers are in fact secret, which means clients can’t get an accounting of who received what — you’ve gotta protect the privacy of the other plaintiffs, right? Moreover, “there was no mention of the criteria, formula or method by which the money would be divided,” other than a statement that the amounts would be based on clients’ medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident “blew up at one of the attorneys, who didn’t like his attitude,” according to a fellow townsman, and “got a real bad deal,” allotted in the end only $25,000: “fairly or not, some residents say they saw a pattern in the distribution method. ‘If you were buddies with Ed and Erin, you got a lot of money,’ said [client Carol] Smith. ‘Otherwise, forget it.'”

* Even while the case was pending, many clients (as well as the outside press) found themselves unable to keep tabs on its progress; it was resolved in arbitration, which takes place off the public record. “We had no idea what was going on and weren’t allowed to watch,” said one plaintiff. Yet with help from the plaintiffs’ lawyers, Universal Studios managed to obtain a copy of the trial transcript — more than many of the actual plaintiffs in the case have yet managed to do. When journalist Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were “short and explosive and terminated abruptly by the lawyers.” And when an outside lawyer took an interest in the disgruntled clients’ case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.

* What about the science? (see April 14 and March 30 commentaries) Fumes from the application of chromium-6 in industrial settings are indeed dangerous to workers who inhale them, but the crux of the Hinkley controversy was what kind of health risk the substance poses as a trace water pollutant. Sharp quotes toxicologist Sharon Wilbur at the U.S. Department of Health and Human Services, who flatly contradicts Brockovich on whether the contaminant could have caused the various health problems sued over.

* Sharp also unearths allegations leveled by the Brockovich-side lawyers and by others that the first set of lawyers PG&E had used on the case had engaged in potentially serious misconduct, including privacy invasion by hired gumshoes. It’s hard to know how much weight to give these allegations, but if credited even in part they might suggest a motive for the utility to accept a hasty settlement of the case on unfavorable terms.

Some of Sharp’s sources evidently have a bit of an ax to grind against arbitration as an institution, but the article is still a triumph of sheer reportorial legwork, too rich in detail to summarize in one day. Tomorrow: the judges’ posh Mediterranean cruise, mounting press interest in the case, and the politics of it all. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

April 17 — Annals of zero tolerance: kindergartners’ “bang, you’re dead”. Four kindergartners playing “cops and robbers” at Wilson School in Sayreville, New Jersey were given three-day suspensions after they pretended their fingers were guns and played at shooting each other. “This is a no tolerance policy. We’re very firm on weapons and threats,” said district superintendent William L. Bauer. “Given the climate of our society, we cannot take any of these statements in a light manner.” (“N.J. kindergartners suspended for threats during playground ‘cops and robbers’ “, AP/Court TV, April 6; see also Nov. 20 commentary).

April 17 — Another sampling of visitors. The hundreds of diverse websites that link to us include the Wyoming Libertarian Party (“I’d say this country is overlawyered, but some trial lawyer will probably sue me for saying it”), Arrosage Lemay, a pest control and lawn maintenance enterprise in Notre-Dame- de- la-Salette, Québec (catch the antennae-wiggling animations), and Ridgefield Focus, a community site serving a town of which we’re very fond, Ridgefield, Ct.

April 14-16 — Great moments in defamation law. At a sentencing hearing for James Hermann, who’d pled guilty to armed robbery, defense lawyer Robin Shellow argued that despite her client’s extensive criminal record (six previous adult convictions) he deserved to be treated with some leniency because he’d been struggling with a heroin problem. But this last statement of hers was mistaken: though Mr. Hermann admitted in a probation report that he was high on crack cocaine and Valium when he’d used a shotgun to rob a Milwaukee custard store owner, his drug use did not include heroin. Hermann proceeded to sue her for defamation, and although the judge in the criminal case said her slip hadn’t affected the length of the sentence either way, Hermann proceeded to line up an expert witness willing to testify that he’d “suffered psychological harm as the result of being called a heroin addict instead of a cocaine addict”, according to Shellow’s lawyer, Randal Arnold. Psychologist Paul M. Smerz told the court that Hermann had suffered “lessened sense of self-confidence, self-esteem and overall self-image” and even symptoms of post-traumatic stress disorder as a result of his attorney’s groundless comment. The case dragged on for two years and finally settled this spring as it was approaching trial when Shellow agreed to refund $500 of her original legal fee to Hermann. (Cary Spivak, “‘Hey, I use coke, not H’, robber says in suit v. his lawyer”, National Law Journal, Mar. 27).

April 14-16 — “Erin Brockovich”: plume of controversy. Julia Roberts’s screen appeal is undeniable, but how good’s the science? The New York Times‘ Gina Kolata joins the fray (title says it all: “A Hit Movie Is Rated ‘F’ in Science”, April 11), while Brockovich herself, who’s currently traversing the country helping organize toxic tort suits, spars with critic Michael Fumento in the letters column of the Wall Street Journal (letters exchange reprinted at Fumento website; Raphael Lewis, “Opening in a toxics case near you, Erin Brokovich” [sic], Boston Globe, Apr. 1; Edward Lewine, “Writer’s Slam Angers Real Erin Brockovich”, New York Daily News, Apr. 2; this site’s March 30 commentary).

April 14-16 — “Saints, sinners and the Isuzu Trooper”. Column by Washington Post‘s Warren Brown on Consumer Reports/Isuzu Trooper dustup (see April 10) finds plenty to criticize on both sides. “If anything is to be learned from the Isuzu-CU conflict, it is, perhaps, that both David and Goliath deserve equally aggressive scrutiny because both are equally capable of screwing up.” (“Saints, Sinners and the Isuzu Trooper”, April 13 — online chat with Brown scheduled for Monday 11 a.m. EST at Post site).

April 14-16 — Police resent political gun-buying influence. Part of the developing plan for strong-arming independent gunmakers into a Smith & Wesson-type settlement is to get cities and counties to redirect police-gun purchases toward favored manufacturers such as S&W and any companies that sign similar agreements. But many on police forces see it as playing politics with their lives to select guns based on anything other than their optimality for police use, which requires ease of control and use, speed, accuracy and reliability under extreme conditions. (Smith & Wesson has not been a popular brand in police use.) “Adherence to a particular political philosophy” shouldn’t play a part in gun purchases, Gilbert G. Gallegos, national president of the Fraternal Order of Police, told the Los Angeles Times. A few jurisdictions like Atlanta, Berkeley and San Mateo County, Calif. have signed onto the program, but the L.A. County Sheriff’s Department is planning to stick with its 9-mm Berettas. “Politics aren’t going to enter into how we choose our firearms,” said Capt. Garry Leonard of the department. “When you think of what we do for a living, we just can’t take chances.”

Glock general counsel Paul Jannuzzo said that, in a recent phone call, Housing Secretary Cuomo asked about his company’s sales to police and “made it fairly clear” that those sales would be at risk if the company didn’t play ball. “I think the expression he used was, ‘I have a lot of push with these Democratic mayors,'” said Jannuzzo. “There was no doubt in my mind that I’d just been threatened with economic extortion”. Told about the charge, Secretary Cuomo, ever the model of grace in controversy, retorted: “It’s an interesting response from the subject of an antitrust investigation,” referring to the trade-restraint probe recently launched against the gun industry for allegedly shunning S & W (see March 31). (Richard Simon and Eric Lichtblau, “Police Feel Pressure to Choose the ‘Code'”, Los Angeles Times, Apr. 9).

April 13 — Judge dismisses suit blaming entertainment biz for school shootings. U.S. District Judge Edward Johnstone has dismissed an action on behalf of school shooting victims in Paducah, Ky. against 25 enterprises whose movies, videogames and Internet sites had allegedly incited teenage gunman Michael Carneal to go on his rampage (“Federal judge dismisses lawsuit against movie, video game makers”, AP/Freedom Forum, April 7; “Suit blaming media for Kentucky killings dismissed”, CNN/Reuters, April 7; see July 22 and Nov. 2 commentaries). Plaintiffs vowed to appeal the ruling, which came shortly after a Senate hearing at which conservative Sen. Sam Brownback (R-Kansas) lent a sympathetic ear to the lead plaintiff’s charges against the videogame industry (“Witness tells Senate panel: Video games taught teen killer how to shoot”, AP/Freedom Forum, March 22).

Other litigation continues to move forward around the country seeking to blame the media and game makers for school violence, including the Columbine High School massacre in Colorado. Lt. Col. David Grossman, a former Army psychologist signed as an expert witness by the plaintiffs in the Carneal case, has been much in the press lately denouncing such games as Doom and Quake (“The Games Kids Play”, John Stossel/ABC News 20/20, Mar. 22). And Vermont state senator Tom Bahre (R-Addison) has introduced legislation in that state which would hold makers of graphically violent movies and other media liable for the costs of acts of real-life violence that their products are deemed to have incited. An AP report says Bahre’s bill would “place the burden of proof on those producers to show that their depictions of violence did not cause an actual event.” (“Vermont lawmaker wants to hold media responsible for violence”, AP/Freedom Forum, Dec. 29).

April 13 — Bill Gates and the Nasdaq: why didn’t the Munchkins sing? “When the wicked witch is dead, you expect the Munchkins to break out in song. But that was not the reaction in the technology sector this week, after a federal judge found Microsoft Corp. guilty of behaving like a bully.” Nasdaq, composed heavily of tech firms that Microsoft is supposed to have victimized, fell off a cliff. Paradoxical? “Economists Thomas Hazlett of the American Enterprise Institute and George Bittlingmayer of the University of California at Davis recently published a study in the Journal of Financial Economics documenting that whenever the government’s antitrust suit scores a victory, an index of non-Microsoft computer stocks falls — and when Microsoft wins a round, computer stocks rise.” (Steve Chapman, “The Real Cost of the Microsoft Verdict”, Chicago Tribune, April 6).

April 13 — “Congress passes asset forfeiture bill”. Long awaited reforms will make it harder for the government to seize assets first and ask questions later. “The legislation would shift the burden of proof in asset forfeiture cases from the property owner to the government. … It allows federal judges to release property to the owner if continued government possession causes substantial hardship to the owner, extends the time a property owner has to challenge a seizure in court and ends the requirement that a person seeking to recover property post a bond with the court worth 10 percent of the property value.” (AP) To placate prosecutors, however, the bill also gives law enforcement officials a number of new powers. (Jim Abrams, “Congress passes asset forfeiture bill”, AP/Topeka Capital-Journal, April 12; Stephen Labaton, “Congress Raises Burden of Proof on Asset Seizures”, New York Times, April 12).

April 13 — Regulation through litigation: opinion pieces. The topic’s starting to arouse significant attention among the commentariat, and not a moment too soon:

* We think he’s joking dept.: Univ. of Colorado law prof Paul Campos (Jurismania) foresees a gigantic class-action suit against “Big Auto” (“Where are next brave lawyers?”, Rocky Mountain News (Denver), April 11).

* “First, tobacco. Then, guns. Now, Microsoft. Does anyone seriously believe the class-action legal industry will stop there?” asks Wall Street Journal editorialist John Fund, who sees reformist sentiment rising: “In North Dakota and Texas, new ‘sunshine’ laws give the legislature oversight of government contracts with outside lawyers.” (“Litigation gold rush”, MS/NBC, April 4).

* Today’s less-than-spontaneous agitations against each newly designated Industry-To-Hate remind the Kansas City Star‘s E. Thomas McClanahan of China’s old “mass political campaigns” in which the populace was whipped up to support a purge of the “Four Bads” or of “capitalist roaders”. Quotes this site’s editor, too (“Bypassing the checks and balances”, Apr. 10 (click “columns”, then scroll list))

* “None dare call it extortion” is the Las Vegas Review-Journal‘s take (editorial, April 7).

April 12 — Gore amid friendly crowd (again). Bill Clinton and Al Gore have been racing around the country to attend a seemingly unending series of fund-raisers thrown by such prominent personal-injury lawyers as Dallas’s Fred Baron (see Feb. 14) and Cincinnati’s Stanley Chesley (see Mar. 30). Last Thursday it was the turn of Palm Beach, Fla. tobacco-fee tycoon Robert Montgomery (see Aug. 21-22), for a $10,000-a-plate dinner graced by the Veep.

The Washington Post‘s Ceci Connolly writes that at yet another recent lawyer-hosted fund-raiser — this one at the home of Houston’s Denman Heard — Democratic National Committee Chairman Ed Rendell said, with Gore looking on, “we are proud as a party to have the support of the trial lawyers. It is nothing we apologize for”. “Gore summed up the differences this way: ‘We fight for the working people, for those who don’t have the resources,” he said. Republicans ‘draw from the wealthiest, most powerful and well-heeled.'”

To be sure, Mr. Montgomery, who hosted last Thursday’s Gore event, could give most GOPers a lesson or two about what it means to be powerful and well-heeled: together with some colleagues he pulled off the Florida tobacco caper, representing the state government and nabbing what was at the time the biggest legal fee in history, $3.4 billion, his own share amounting (per George magazine’s estimate) to some $678 million. Montgomery is also a longtime donor to political candidates ranging from the Kennedy family to Hillary Rodham Clinton. Maybe it’s not so surprising after all that the Democratic National Committee raised more money in the first quarter than its Republican counterpart. (Ceci Connolly, “Democrats Have No Argument with Trial Lawyers”, Washington Post, April 9; Jonathan Salant, “Democrats raise more money than Republicans”, AP/CNN, April 7).

A proper account of the Florida tobacco affair for a national readership remains to be written. For an introduction, check out the following 1998 coverage by Lucy Morgan in the St. Petersburg Times: “Tobacco trial lawyers say they had to hire [Governor Lawton] Chiles’ friends”, March 25, 1998; “Tobacco team lawyer is called to account”, March 31, 1998 (“Did lawyers hired by Florida to fight the tobacco industry cough up more than $100,000 for the Clinton/Gore campaign in hopes of currying favor with the administration? And were those campaign contributions illegally disguised as legal expenses — and actually paid by the tobacco industry?” — with eyebrow-raising details about a Fort Lauderdale meeting between the tobacco trial team and Vice President Gore on Oct. 15, 1996, shortly before the 1996 election); as well as “Tobacco and torts” (editorial by the paper), Dec. 19, 1998 (calling the eventual arbitration award to lawyers “breathtakingly excessive … It’s almost disgusting to think of such riches going to a few people who gave relatively little time and expertise to ‘earn’ them. … receiving billions of dollars in fees for a case that never went to trial is utterly unconscionable. … [the lawyers have put] a face on greed”.) (DURABLE LINK)

April 12 — Triumph of plastic foliage. New York Times home and garden section advises that artificial plants are making inroads in both interior commercial decor and landscaping; unlike the live kind, “they don’t house pests or provoke allergic reactions (and subsequent lawsuits)”. (William L. Hamilton, “The Flowers That Bloom in Spring, Ha Ha”, New York Times, April 6).

April 12 — Cops shoot civilian; city blames maker of victim’s gun. In a suit filed last week, the city of Riverside, Calif. says gunmaker Lorcin Engineering should bear legal responsibility for the shooting by Riverside police of 19-year-old Tyisha Miller of Rubidoux, because it sold the weapon she had on her lap at the time she was shot in a locked, idling car. Officers from the force were later fired for the tactics they used in the shooting, which led to a wrongful-death lawsuit by Miller’s survivors. The city is now seeking to dodge that suit by impleading Lorcin on the theory that had it provided better user training Miller might have known not to keep a gun on her person in a way that approaching officers might interpret as threatening to them, though her gun was later found to be inoperable. Lorcin shuttered its plant in nearby Mira Loma and declared bankruptcy last year, but an attorney for the city suggests it still has money. “Every single claim against Lorcin was dismissed, but at a very expensive cost of $100,000 here, $100,000 there” in legal fees, said owner James Waldorf. (Lisa O’Neill Hill and John Welch, Riverside Press-Enterprise, April 7) (discuss at Press-Enterprise site).

April 12 — Endorsed again. “oh man, this is great. overlawyered.com. check the left side for ‘personal responsibility’ …” — thus one of the April 10 entries on Array, a weblog specializing in art and applied digital technology, but with a wide miscellany of other topics in there too.

April 11 — Stuart Taylor, Jr., on Smith & Wesson deal. His new column on law-stretching gun and tobacco suits is must reading even aside from the handsome plug it gives this website (see below). “One thing I am sure of is that the Framers of the Constitution created Congress — and assigned to it ‘all legislative powers herein granted’ — to set policy for the nation on such complex questions of social engineering [as gun control]. They also made it hard to enact legislation unless backed by a fairly broad national consensus. That’s a far cry from what’s going on now….

“[T]he gun litigation represents a deeply disturbing way of making public policy. It was started by private lawyers and municipalities with big financial interests at stake. The courts have largely been bystanders as the Clinton Administration and its allies have sought to bludgeon gunmakers into settling before trial.” (Stuart Taylor Jr., “Guns and Tobacco: Government by Litigation”, National Journal, March 27; NJ yanks these free columns after offering them briefly as a teaser, so catch this one now.)

P.S. Okay, and now about that plug: “For a fuller taste of these and other peculiar workings of our legal system, with copious links to news reports, check out an amusingly depressing Web site called Overlawyered.com, created and edited by Walter K. Olson of the conservative-libertarian Manhattan Institute,” writes Taylor. “Amusingly depressing” — an ideal slogan for our banner ads (if we ever get around to devising them; someone wanna help volunteer?).

April 11 — Oops: D.A.’s and judge’s fwding of sex pic deemed “unfortunate event”. Dateline Las Vegas: “A pornographic photograph sent by e-mail to dozens of Clark County employees originated from a deputy district attorney’s computer. The e-mail was then forwarded to a senior judge who passed it on to other county workers.” Apparently the sexually explicit photo was meant to reach only one or two recipients, but was inadvertently blind-cc’d to a longer list. County manager Dale Askew said those involved likely would be suspended without pay. “Needless to say employees were not happy receiving it because it came across their computer unsolicited,” said county spokesman Doug Bradford, who called the episode “an unfortunate event.” How lucky for all concerned that they weren’t at a big private firm, where skittishness over harassment liability might have gotten the senders fired. (Adrienne Packer, “Obscene e-mail traced to deputy DA”, Las Vegas Sun, Feb. 9). (DURABLE LINK)

April 11 — Krugman on MS: his “blood runs cold”. “I don’t know anyone outside Seattle who is really pro-Microsoft. But a lot of us are, at least mildly, anti-anti-Microsoft. That is, we worry that the crusade against Bill Gates sets a bad, even dangerous precedent. …

“The anti-anti-Microsoft case does not deny that there is some truth to that story [that Redmond’s market dominance and hard-guy tactics caused a climate of fear among its competitors], but asserts that taking punitive action will be the worse of two evils because it will create a different, and worse, climate of fear — fear that success itself will be punished. Today Microsoft, tomorrow Intel and eventually (as soon as somebody figures out what it does) Cisco.”

“… [W]hen I hear that a coalition of states is demanding damages from Microsoft, as if Windows caused lung cancer; well, my blood runs cold. I know that there is an intellectually respectable case against Microsoft, but I’ve got a bad feeling about where we are going.” (Paul Krugman, “Rights of Bill”, New York Times, April 9).

April 11 — Chat into the microphone, please. Securities and Exchange Commission announces plans to acquire automated software to trawl websites, Usenet and Yahoo/AOL-type bulletin boards searching for phrases like “get rich quick” and “free stock” which might signal illicit securities promotion. The results, including email addresses and other identifying information about posters, will be copied into a giant database and indexed for the convenience of SEC investigators whose job is to file civil charges against persons suspected of stock-jobbing. One company invited to submit bids on the system, the big accounting firm of Pricewaterhouse Coopers LLP, has already bowed out of consideration, saying it had “serious concerns about the implications for the privacy of individuals”. The proposal “is equivalent to, in my opinion, wiretapping … the equivalent of planting a bug,” said Larry Ponemon, a partner at the firm in charge of privacy issues. Members of Congress have begun to express concern: “Engaging in such a wide level of monitoring will have a chilling effect on free speech online,” Rep. Bob Barr (R-Ga.) wrote to SEC Chairman Arthur Levitt. “While I understand the need to prevent securities fraud, federal agents should not be allowed to sift through the conversations of millions of innocent parties in order to do so.”

Levitt says there’s little difference in principle betwen current practice — in which flesh-and-blood SEC attorneys laboriously traverse the Web looking individually for possible indicia of fraud — and the new proposal. The commission also says it will keep the data confidential and throw out information that does not establish wrongdoing. Other federal agencies are eager to follow the SEC’s lead, such as the Commodity Futures Trading Commission, which has begun talking to vendors: “For us it’s a very exciting prospect,” says acting CFTC director of enforcement Phyllis J. Cela. (Michael Moss, “SEC’s Plan to Snoop for Crime on Web Spraks a Debate Over Privacy”, Wall Street Journal/ZDNet, March 28; Marcy Gordon, “SEC Plans Web Surveillance System”, AP/Excite, March 29; Michelle Finley, “SEC Plan: Free Speech Violation?”, Wired News, March 29; “House panel questions automated surveillance by SEC”, Reuters/Excite, April 4). (DURABLE LINK)

April 11 — Attention librarians. Starting immediately, we’ll be dividing each new month’s archives into three, rather than two, sections; that way readers with low bandwidth won’t have to wait quite so long for those pages to load.


April 28-30 — Degrees of intimidation. Diploma mills (self-proclaimed universities willing to mail out meaningless degrees, in exchange for what is often substantial “tuition”) have flourished lately and efforts to rein them in have foundered, writes a specialist in the field. “In 1982 the American Council on Education announced an impending, hard-hitting, and uncompromising book (I hoped) on fake schools. But by the time Diploma Mills: Degrees of Fraud finally emerged in 1988, the lawyers had marched in, and the book was, at best, soft-hitting and compromised. The authors apologized for lack of specificity (not a single currently operating fake was named) because of ‘the present litigious era.’

“Yes, schools do sue. … I’ve been sued eight times by schools …. Only one ever got to court, and that was thrown out by the judge, as frivolous, in minutes. But there is a cost in both dollars and, my wife will confirm, despondency.” (John Bear, “Diploma Mills: The $200 Million a Year Competitor You Didn’t Know You Had”, University Business, March) (via Arts & Letters Daily).

April 28-30 — Collateral damage in Drug War. Authorities earlier this month arrested Dorothy Jean Manning, 66, Ramona Ann Beck, 61, and Armitta Mae Granicy, 59, for selling iodine crystals without keeping tabs on buyers’ names and vehicle IDs as required by law. All three women work at Granicy’s Feed Store in rural Lancaster, Calif. and have been charged with repeatedly selling the crystals to undercover agents despite warnings. Ranchers use iodine crystals to treat hoof ailments in livestock, but they are also a so-called “precursor chemical” in the production of methamphetamine. (Reason Express, April 17 — third item). (Update: see letter to the editor, May 18, 2001). And Denver’s famous bookstore, the Tattered Cover, is locked in a courtroom battle with the North Metro Drug Task Force over demands that it disclose the identity of the purchaser of two books found in an Adams County residence which also contained a methamphetamine lab; the books, apparently bought from the Tattered Cover with a credit card, contained instructions for manufacturing the drug. “On April 5, five plain clothes Denver police officers showed up at the bookstore with [a] search warrant and insisted on conducting a search” but agreed to wait until a court resolved the situation. (Cheryl Arvidson, “Denver bookstore’s sales records sought in drug-lab investigation”, Freedom Forum, April 20). Update Oct. 27-29: judge orders store to hand over records.

April 28-30 —Legal Times (Washington, D.C.) “Web of the Week”. One of the nicest encomia we’ve received lately makes us anxious to live up to it. “Lawyers and litigation have been lampooned at least since Dickens. Now Walter Olson of the Manhattan Institute, a longtime critic of the excesses of litigation, has launched overlawyered.com, a Web site that gathers daily nearly every story of this type from the media and gently skewers the profession. It remains just this side of acerbic, which actually makes the site more effective. Excessive fees, silly cases, outlandish extenuations, and my favorite, ridiculous warning labels, abound here. Read it and laugh, but take much of it to heart.” (Jonathan Groner, Legal Times, April 10).

April 28-30 — Updating Jane Austen. If the author were writing today. … “After recovering memories of childhood abuse by their father, the novel ends with the Bennet sisters awash in cash, their futures secure, and their romantic lives no longer held in thrall to the economic oppression of the patriarchy.” (Mark Lasswell, “Get real, Jane”, Women’s Quarterly, Winter 2000 (via The Occasional)).

April 27 — Sock puppet lawsuit. Internet pet supply enterprise Pets.com has filed a federal lawsuit against Robert Smigel, a writer with NBC’s “Late Night With Conan O’Brien”, over Smigel’s creation of “Triumph the Insult Comic Dog”, a satirical character reminiscent of Pets.com’s own highly visible sock-puppet mascot. “‘Triumph is a rubber-dog that … regularly uses vulgarity, insults both the humans and other dogs around him and often conducts physical attacks of a sexual nature on female dogs,’ the complaint says.” (“The sock that roared”, TVBarn, April 25; “Pets.com socks it to ‘Late Night’ writer”, AP/FindLaw, April 26, link now dead).

In more news from the world of doll litigation, Barbie-maker Mattel, Inc., has sued the prominent San Diego law firm of Luce, Forward, Hamilton & Scripps for slander and libel. The case arises out of a longstanding legal dispute between the giant toy company and one of Luce Forward’s clients, the Collegiate Doll Co., over sales of dolls by the latter company that allegedly infringed on “college cheerleader” versions of Barbie. Mattel now claims to have been falsely accused of illegalities and unethical conduct in an article published in Luce’s newsletter and on its website. Previously, Mattel successfully sought judicial sanctions against a Luce partner who, having weathered earlier rounds of litigation involving the curvaceous plaything, “began to tout himself as an expert in Barbie disputes,” and whose sanctionable misconduct allegedly included tossing Barbie dolls during a videotaped meeting of counsel. (Gail Diane Cox, “Barbie’s Backers Smack Firm With Slander Suit”, CalLaw, March 2).

April 27 — Let’s go to the tape. “Brian Lopina, a lobbyist for the Association of Trial Lawyers of America [recently broke] the Golden Rule of Washington Voicemail [, which] states that the only message you should ever leave on anyone’s machine is Call me …. Lopina tried to intimidate Sen. Rod Grams, the Minnesota Republican, out of backing a bill that would scrutinize asbestos suits more carefully. … [He] warned Grams that ATLA was bankrolling a set of highly effective ads against senators (like Montana Republican Conrad Burns) who weren’t dancing to the lawyers’ tune. He offered to send over a transcript of the ads, ‘so you’ll see exactly how hard-hitting this stuff is. I think you really ought to get off this bill.’ Lopina claimed to have been calling Grams as a ‘friend,’ and ATLA denied that he’d made the calls at its request. Yeah, sure — he works as a lobbyist but makes threatening calls about legislation in his spare time.” (Christopher Caldwell, “Tele-Grams”, New York Press, April 19-25). The Wall Street Journal beat us to this one with their editorial Tuesday: “The New Commissars”, April 25 (online subscribers only)). See also Dane Smith and Greg Gordon, “Grams said lobbyist tried to ‘blackmail’ him”, Minneapolis Star-Tribune, April 11 (reprinted at Coalition for Asbestos Resolution site).

April 27 — Legal Intelligencer sees Fidel’s sunny side. Whatever divergent views we may hold on the armed seizure and prospective return of Elian Gonzalez, you’d think we could all at least agree in execrating the brutal dictator whose misrule the little boy and his mother were fleeing. But no, even at this late date, the old monster has his defenders — including, it seems, some in the legal profession. Last month Philadelphia’s couldn’t-be-more-respectable Legal Intelligencer ran a kissy account of how fourteen American lawyers went to Cuba on a “fact-finding” mission sponsored by the far-left National Lawyers Guild, met the great man himself, and came back singing his praises. “There is a sense of respect for other human beings there,” effused attorney Joshua Rubinsky. “A respect you don’t see [in the United States] in terms of labor relations.”

Queasy yet? There’s much more. “Fidel Castro is a lawyer,” the account begins (which, for the record, is meaner than anything this site has ever said about lawyers). “He graduated from Cuba’s Havana University with a law degree in 1950, and, although he never practiced law, his political influence has helped shape Cuba’s legal system” — “political influence” being here a remarkable euphemism for the Communist strongman’s tendency to murder or jail opponents and critics. The story proceeds to quote attorney Gail Lopez-Henriquez, who like Mr. Rubinsky practices labor law in Philadelphia, as saying: “People we met really believe that they have a system that has some very important principles and structures that protect people’s rights, dignity and material needs.” The Legal Intelligencer never sees fit to quote even a single critic of the Cuban regime, or indeed anyone outside the admiring circle of trip-goers. (April White, “Meeting Castro Highlight of Study Trip To Cuba for Group of U.S. Labor Lawyers”, The Legal Intelligencer, March 16).

April 25-26 — New page on Overlawyered.com: Free speech & media law. Newest addition to our collection of topical pages covers libel, slander and defamation suits; the use of litigation to suppress or intimidate criticism and political opposition; harassment law’s effects in curbing email jokes, cartoons and workplace banter; efforts to hold makers of shoot-’em-up movies and videogames liable for damages when their customers commit acts of violence; regulation of campaign speech; copyright, broadcast law, and other topics relating to free expression and media law. Also: we’ve updated the desktop links on the front page’s left column, dropping some less-used links, adding a half-dozen new, and creating a new section for “Science/skepticism” links, most of which had previously been found in “Diversions”.

April 25-26 — Celera stockholders vent at Milberg Weiss. Lively discussion breaks out on Motley Fool investment bulletin boards concerning suit filed by class-action filers Milberg Weiss against genome-mapping pioneer Celera after stock price drop (suit announcement). Most of the participants are decidedly unhappy about the suit’s filing, and their email protests succeeded in drawing some response from Milberg Weiss attorneys. Some jumping-off points to browse the discussion: messages #13466, 13594 (cites this site), 13775, 13806, 14041 (view threads).

April 25-26 — Preferred seating. ADA lawsuits against movie theaters proliferate, with a D.C. law firm last week seeking class-action status on behalf of millions of hearing-impaired moviegoers against two of the biggest cinema chains over their failure to install expensive captioning and other assistive technology. (“Hearing-impaired moviegoers sue Lowes [sic] and AMC”, Bloomberg/Boston Globe, April 21, link now dead). In Oregon, where activists filed a suit earlier this year seeking mandatory captioning (see February 19-21 commentary), they’ve now filed another one charging that it’s unlawful for wheelchair users to be seated in front where they may be obliged to crane their necks at an uncomfortable angle (Ashbel S. Green, “Regal Cinemas sued over seats”, The Oregonian (Portland), April 12). The Fifth Circuit, however, recently turned two thumbs down on a similar lawsuit out of El Paso. (Nathan Koppel, “Court Failed to Recognize Disabled Movie Patrons’ Difficulties, Expert Says”, Texas Lawyer, April 13).

April 25-26 — Toronto coach: ich kann nicht anders. Toronto Raptors basketball coach Butch Carter has filed a defamation lawsuit against departed player Marcus Camby, who recently described Carter as a “liar” and unpopular with the team. Camby, who alleges that Carter assured him he’d be kept on the team just before the front office traded him to the New York Knicks, said, “No one likes him and no one wants to play for him. That is the kind of guy that he is.” “I’m responding to an article of untruths in the only manner I can,” said Carter, on the question of why he was suing. “That’s through the courts.” You might think he’s overlooking at least one other manner of responding short of litigation, namely airing his side of the story in the press. Carter hasn’t been shy about doing that in the past: in an upcoming book, he alleges that one of his own former coaches back at Indiana is a “bully” and “self-serving coward” and has used racial slurs. (“Carter would withdraw suit for apology”, ESPN, April 23; “Raptors’ Carter Defends Camby Suit”, Yahoo/AP, April 24; “Carter claims Knight used racial slur”, AP/ESPN, April 14). Update: Carter soon dropped the suit (see May 4 commentary).

April 25-26 — Gray sameness of modern playgrounds. “Is there anything lamer than these new ‘safe’ playgrounds? Where is the fun in the Big Hollow Plastic Cube with Holes Cut in It? Or the Three Axles with Triangular Plastic Spinning Things for Playing Tic-Tac-Toe? … And yet overprotective surrogate mothers from the National Program for Playground Safety insist that still not enough is being done to protect the children. … Give me spinal injury inducing monkey bars over this modern plastic junk any day.” (Eigengrau weblog, April 20 entry).

April 25-26 — Thought for the day. “The history of censorship is a history of folly and cruelty” — Judge Richard Posner in Miller v. Civil City of South Bend, Seventh Circuit, 1990; quoted in the substantial new profile of him in Lingua Franca (James Ryerson, “The Outrageous Pragmatism of Richard Posner”, May).

April 25-26 — Regulation by litigation: what to do? Some ideas that might curb courts’ and trial lawyers’ penchant for acting as surrogate legislatures, including a “Model Separation of Powers Act”, a Sunshine Act requiring that governments disclose the manner in which they hire outside attorneys, and an act making clear that government can’t oust traditional defenses to liability in the course of filing third-party lawsuits over Medicaid reimbursement and the like (assuming governments should be filing such suits at all). (Victor E. Schwartz and Leah Lorber, “Regulation Through Litigation Has Just Begun: What You Can Do To Stop It”, “Briefly…” Series, National Legal Center for the Public Interest, November 1999 (PDF)).

April 24 — Scented hair gel, deodorant could mean jail time for Canadian youth. “A Halifax-area teenager may face criminal charges for wearing Dippity Do hair gel and Aqua Velva deodorant to school after his teacher complained to the RCMP [Royal Canadian Mounted Police, Mounties] about his fragrant abuse of the school’s no-scent policy. Gary Falkenham, 17, has twice been suspended from Duncan MacMillan High School in Sheet Harbour, N.S., for violating the school’s strict policy banning perfumes, aftershaves and scented hairsprays and deodorants.” (Shaune MacKinlay and Adrian Humphreys, “Student may face criminal charge for wearing smelly hair gel”, Halifax Daily News/National Post, Apr. 19. More on the “scent-free” movement, which has made Halifax its poster city: Larry M. Greenburg, “One City Turns Up Its Nose Against the Use of Perfume”, Wall Street Journal, July 28, 1999, reprinted at Junk Science; Betty Bridges, “Halifax Leads the Way With Fragrance-Free Policies”, Flipside, Sept. 1999; Dalhousie U. policy, Environmental Health Network, Fragranced Products Information Network).

April 24 — Court rejects “telephone sex slave” charge. A federal judge has dismissed Doris Ford’s lawsuit charging that Hartford businessman and power broker Arthur T. Anderson had coerced her into being his highly paid “telephone sex slave”. Ms. Ford did not allege that the couple had had physical contact since 1977, and the judge said that even if it were true that the two had more recently engaged in sexually oriented telephone conversations and that she had received sums in excess of $150,000 from Mr. Anderson, the relationship could at most be described as contractual. Anderson’s lawyer says his client had made payments to Ford for years to keep her from revealing their long-ago extramarital relationship. Ms. Ford’s lawyer, Norman A. Pattis, conceded that his claim invoking the federal Violence Against Women Act was “creatively pleaded and probably on the cutting edge.” (Mark Pazniokas, “Judge Rejects Sex Slave Suit”, Hartford Courant, Apr. 21, link now dead).

April 24 — Less suing = less suffering. New England Journal of Medicine study on crash injuries before and after Saskatchewan’s introduction of no-fault insurance finds “the elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury.” Not only did fewer people claim whiplash under the no-fault system, but no-fault’s much faster resolution of claims appeared to be strongly correlated with faster recovery, less intense pain and fewer depressive symptoms. (J. David Cassidy and other authors, “Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury”, New England Journal of Medicine, April 20). A related editorial in NEJM calls the findings “dramatic” and adds: “An obvious concern is whether this change simply forced severely injured patients to suffer in silence without appropriate compensation for ongoing impairments. Several considerations suggest that this explanation is unlikely.” The medical harm done by the fault system, the editorialist proposes, is not so much in encouraging conscious malingering as in generating excessive medical attention and overly alarmist diagnoses that can become self-fulfilling. The editorial also cites studies from Australia and Lithuania suggesting that the legal environment has a profound impact on the amount of perceived pain and disability experienced by whiplash sufferers (“Pain and Public Policy“). Update: trial lawyers’ response (see June 26).

April 24 — Maryland: knowledge, notice not needed to sue landlords over lead. By a 4-to-3 margin, the Maryland Court of Appeals has ruled that apartment owners can be made to face personal-injury claims on behalf of children who ingest lead paint in their units regardless of whether the tenant ever complained about the paint or asked that it be corrected, and regardless of whether the owner knew there was a hazardous condition. The decision overruled a Baltimore Circuit Court jury decision and is expected to open the gates to more widespread legal action against building owners. (Jim Haner, “Landlords can be liable, appellate court rules”, Baltimore Sun, Apr. 21) (more on Maryland and on lead-paint litigation: see Mar. 15, Oct. 19 commentaries).

April 21-23 — The unconflicted Prof. Daynard. On January 8 of this year the British Medical Journal published an article entitled “Tobacco litigation worldwide” by Prof. Richard Daynard of Northeastern University School of Law and two co-authors (Clive Bates of Action on Smoking and Health in London, and Australian barrister Neil Francey). Prof. Daynard is by far reporters’ favorite academic to call when they’re looking for a quote supportive of lawsuits against cigarette makers, and his BMJ article is very much in line with the drift of his previously voiced opinions: it praises such lawsuits as a “productive and promising strategy” for public health, and deplores as “unfortunate” the disapproving attitude toward such lawsuits taken by British courts. So far, so routine. But then at the end of the article appears the following notice: “Competing interests: None declared.”

No competing interests declared? Not any?

Daynard directs the Tobacco Control Resource Center & Tobacco Products Liability Project, and from the way he’s been described in countless press clips over the years (samples: coverage originating in the Washington Post, L. A. Times, AP), you might conclude that he’s contented himself with rendering whatever assistance he can to such suits as a kind of cheerleader from the sidelines, with nothing at stake beyond ideological zeal. So it might have come as a distinct surprise when it was reported in late 1998 that for some time he’d been (in his own view) the owner of an actual contingency share in moneys to be legally extracted from tobacco companies. In December of that year, arbitrators awarded a staggering $8.2 billion in fees to the small band of plaintiff’s attorneys who represented the states of Mississippi, Florida and Texas in the tobacco-Medicaid litigation. At this point we turn the narration over to the National Law Journal: “Richard A. Daynard, the Northeastern University School of Law professor who is a veteran anti-tobacco activist, asked arbitrators for fees for his work on the Florida case, represented by former brother-in-law David Boies, of Armonk, N.Y.’s Boies & Schiller L.L.P. [later famed as the Clinton Justice Department’s lawyer in the Microsoft case — ed.] The arbitrators ruled that they lacked jurisdiction over his claim, leaving him empty-handed. Professor Daynard also says Mr. [Richard] Scruggs promised him 5% of the fees earned by his firm and by the Charleston, S.C., firm Ness Motley Loadholt Richardson & Poole P.A. from the state lawsuits. [emphasis added] Taken together, the two firms represent the lion’s share of states that sued the tobacco industry. Mr. Scruggs said he never made any such promise.” (Bob Van Voris, “Tobacco Road Not Gold for All”, Dec. 28, 1998 – Jan. 4, 1999).

How much would 5 percent of the fees won by the Scruggs and Ness Motley firms amount to? Last year George estimated that the Scruggs firm was going to reap more than $1 billion from its state tobacco representation (see Aug. 21 commentary), and last fall the Dallas Morning News estimated that the Ness Motley firm was going to bag more than $3 billion (see Nov. 1 commentary). If both those estimates were borne out, the share that Prof. Daynard claimed had been privately promised to him might be reckoned at 0.05 x $4 billion, or $200 million — relying as we must on back-of-the-envelope calculations, since far less about this whole topic is a matter of public record than one would like.

Even today, after such eye-openers, most media reports go right on characterizing Prof. Daynard using such anodyne formulas as “head of an anti-tobacco clearinghouse” (AP), “director of a group that encourages lawsuits against tobacco companies” (AP again), and head of a “pressure group” (Sydney Morning Herald). Yet while relaxed standards may prevail on such matters in everyday reporting, medical journals are supposed to be different — a whole lot different. BMJ‘s policy on competing interests reaches back to require disclosure of financial entanglements at any point extending back over five years. Indeed, in recent years the once cozy world of medical journals has been convulsed by a series of controversies over whether existing standards on the disclosure of competing interests have been too lax, as when researchers have been allowed to opine in journal pages about the efficacy of drug compounds without revealing pecuniary ties they might have to drugmaking firms (“Beyond conflict of interest: Transparency is the key”, BMJ, August 1, 1998).

One of those who wondered whether BMJ‘s policy had been lived up to in the Daynard case was Martha Perske of Darien, Ct., who wrote editor Richard Smith in January to call some of the pertinent facts to his attention and ask whether a clarification would be forthcoming in the journal’s pages. Ms. Perske informs this website that Dr. Smith wrote back agreeing that the question deserved to be looked into, and promised to get back to her. That was at the end of February; since then she says she’s heard nothing. Dr. Smith’s own August 1998 editorial on the subject states: “If we learn after publication that authors had competing interests that they did not disclose then we will tell readers.” Later developments: letters, Jan. 31 and Jun. 13, 2001; posts, Aug. 2 and Dec. 17, 2001 (following a persistent campaign by Ms. Perske, and more than a year and a half after the original article, BMJ finally in Oct. 2001 semi-discloses to readers Daynard’s ties to the litigation.) (DURABLE LINK)

April 21-23 — Overlawyered schools: three views. Your chances of being murdered in an American school are almost vanishingly small, but your chances of imagining yourself living through an Orwell novel during your time there are not so remote:

* Now that the White House has turned thumbs down on a “preposterous” plan to set aside a $50 million compensation fund for Columbine victims, a lawyer for survivors says, “We have no recourse but to file suit.” Vincent Carroll of Denver’s Rocky Mountain News reacts: “‘No recourse,’ he says, as if suing people who had nothing to do with the shootings were as unavoidable as breathing. Yet the attorneys’ offer to drop their litigation for a multimillion dollar fund does have the beneficial effect of eliminating all pretense of what the Columbine lawsuits will be about. Not some noble quest to uncover the truth, it turns out, but money. The fund proposal is the proof.” Much more worth reading here too (“Lawsuits Take Therapy’s Place”, April 16)

* Slashdot’s Jon Katz pays a visit to the Pinkerton Corp. to protest the new hotline it runs for North Carolina school-informants (see April 7-9 commentary) and learns “something I hadn’t quite grasped: the anonymous reporting culture is a growing business, now deeply entrenched in the United States, a result of the victimization movement and lawsuit epidemic rampant for nearly a generation. Encouraged by federal and local governments, and many corporate and educational institutions, hotlines operate all over the country to report date rape, sexual harassment, abuse, and other forms of brutality and insensitivity. … Pinkerton itself runs more than 800 such lines. It was inevitable, said Jim, that they would move into schools, and that Pinkerton would extend its security expertise and set them up. … I was transfixed by the idea of a democratic country whose response to social problems was to create an entire new tradition of informing.” (Jon Katz, “Showdown with the Pinkertons”, Slashdot.org, April 13)

* Meanwhile, school authorities run into obstacles in the form of numerous federal laws and court doctrines, notably the 1975 Individuals with Disabilities Education Act, when they try to discipline, suspend or transfer students who genuinely do misbehave in serious ways, according to the Manhattan Institute’s Kay Hymowitz (“Get the lawyers out of schools”, New York Daily News, Apr. 16).