September 2000 archives, part 3

September 29-October 1 — Disabled rights roundup. The U.S. Supreme Court has agreed to decide whether the PGA golf tour must bend its rules to allow disabled golfer Casey Martin to ride in a golf cart (“U.S. High Court To Decide Case of Disabled Golfer”, Reuters/FindLaw, Sept. 26; see April 10, our May 1998 take). The government of Great Britain is considering legislation that would compel its armed forces to accept disabled recruits, and pressures are rising to accept handicapped military personnel in front-line as well as auxiliary positions, given the principle of nondiscrimination (Michael Smith, “Disabled want frontline jobs in ‘pc’ Services”, Daily Telegraph (London), Sept. 26; “Forces may have to admit disabled”, Aug. 21; UK Disability Discrimination Act). And a trend that has been well established under U.S. disabled rights law for some time — doctors’ having to hire sign-language translators at their own expense when a deaf patient wishes to call on them for a consultation — is exemplified by a consent decree negotiated by the office of New York Attorney General Eliot Spitzer, requiring an upstate doctors’ group to provide interpreters-on-demand for “all significant medical encounters” (“Spitzer Announces Agreement With Upstate Physician’s Practice To Provide Sign Language Interpreters for Deaf Patients”, press release, June 21; see also May 31).

September 29-October 1 — Annals of zero tolerance: Tweety bird chain. In suburban Atlanta, the Garrett Middle School has suspended 11-year-old Ashley Smith from sixth grade for two weeks on charges of breaking its zero-tolerance weapons policy by bringing a chain to school. It’s a 10-inch novelty chain that dangles from her Tweety bird wallet. “It’s only a little chain, and I don’t think it can really hurt anyone,” said Ashley, a “Tweety fan who publishes her own Web site devoted to the cartoon character.” Earlier, the ACLU successfully represented an Atlanta public school student who was charged with criminal weapons possession after she brought African tribal knives to school for a project (“Girl suspended for Tweety chain”, AP/Salon, Sept. 28; UPI/Virtual New York) (Ashley Smith’s guestbook) (update Oct. 4: school’s explanation).

September 29-October 1 — French crash, German victims, American payout levels? Air France has sued Continental Air Lines to recoup its costs from the July Concorde disaster in Paris that killed 113 people, charging that a strip of metal that fell off a Continental DC-10 caused the incident. The French airline has already offered to compensate survivor families, who are mostly German, but “German lawyers are pushing for a settlement in the United States, where courts order higher payouts.” (“Airline files Concorde suit”, Reuters/CNNfn, Sept. 27).

September 29-October 1 — “Denny’s fights back against false suits”. The restaurant chain, dogged by past charges of racial discrimination, releases more details on how it uses videotapes and other techniques to disprove dubious copycat claims (see Aug. 29-30). In Oakland, Calif., the lawyer son of John S. Harrison Sr. sued Denny’s claiming that a white couple had been served before his father though they had arrived later. “Mr. Harrison conceded he had been a customer for 20 years and ate at that Denny’s counter twice a day for 10 to 12 years with no problems in a store whose clientele was 50 percent black.” He had been happy with the meal and had left a tip. A federal magistrate threw out the suit and gave Denny’s legal fees. (Frank Murray, Washington Times, Sept. 25).

September 29-October 1 — “Supersize small claims”. Prairielaw columnist David A. Giacalone argues for reviving the nearly moribund institution of small claims court by boosting the threshold value of claims handled by such courts to $20,000, a change also endorsed by the HALT legal reform group. Thresholds around $3,000 are now common. Such a shift might relieve some of the docket pressure on regular courts while allowing ordinary citizens to vindicate more claims without lawyers’ assistance, a feature that may help explain why the bar shows little enthusiasm for the idea (undated, but appeared Aug.) (see also Oct. 3).

September 27-28 — Welcome UserFriendly.org readers. We’re picked as the link of the day by the website for the cartoon strip User Friendly, by Illiad.

September 27-28 — “Blind customers want to touch club lapdancers”. In East Sussex, England, the Brighton and Hove municipal council says it will consider a request by the Pussycats Club that its blind patrons be permitted to touch the exotic dancers as a form of handicap accommodation. The club says its vision-impaired customers appreciate the proximity of the lapdancers and their perfume but would get a better idea of what they looked like if they were allowed a hands-on experience, which is currently forbidden by the club’s license. (David Sapsted, Daily Telegraph (London), Sept. 26).

September 27-28 — Welcome Toronto Star readers. “One of my favourite Web sites is overlawyered.com, a collection of the most asinine stories from the admittedly ordinarily twisted universe of American law,” writes columnist Jason Brooks. He interviews our editor about a current proposal for Ontario to enact its own law emulating the Americans with Disabilities Act. No one seems to have any very clear idea what such a law would cost, but the Ontarians with Disabilities Act Committee says “the idea of a total cost figure misses the point.” Uh-oh…. (Jason Brooks, “Will new act go too far for the disabled?”, Toronto Star, Sept. 25).

September 27-28 — “Controversial drug makes a comeback”. A small Canadian firm, Duchesnay Inc., wants to reintroduce to the U.S. market Bendectin, the pregnancy-nausea drug driven off the market by mass litigation claiming that it caused birth defects. “Bendectin was the archetypical case of junk science scuttling a perfectly safe product,” Dr. Michael Greene, director of maternal-fetal medicine at Massachusetts General Hospital, tells New York Times science correspondent Gina Kolata. “It was a sad episode in American jurisprudence.” Although ultimately the manufacturer never paid damages, it spent $100 million in defense costs, says Prof. David Bernstein of George Mason University (Sept. 26)(reg).

September 27-28 — Stuart Taylor, Jr. on Gore and Vetogate. Another scathing, must-read column on trial lawyers and politics by the National Journal columnist, written before Janet Reno’s announcement last week that the Justice Department would not pursue an investigation of the Umphrey call sheet affair. Did you know that lawyers as a group have donated nearly ten times as much to the Democrats during this election cycle as the tobacco industry has given Republicans? (“Gore’s Shameless About Posing As A Populist”, National Journal/Atlantic Unbound, Sept. 26) .

September 27-28 — Microsoft wins one. The U.S. Supreme Court has turned down a Justice Department request that it hear the Microsoft case immediately, instead allowing the D.C. Circuit Court of Appeals to review the case, which is what the company preferred; past D.C. Circuit rulings suggest that it may be more sympathetic to Microsoft’s position than was the trial judge. (“High Court Defers to Microsoft”, AP/Wired News, Sept. 26; Declan McCullagh, “Microsoft gets what it wants”, Wired News, Sept. 26). And a number of courts have thrown out statewide consumer class actions against Microsoft based on the sale of Windows, although this doesn’t really come as much of a surprise in the case of states that bar indirect (end-user) antitrust claims, since cases filed in those courts were always long shots (Jonathan Groner, “The Cases Microsoft Is Winning”, Legal Times (Washington), Sept. 18).

September 27-28 — Bank error in your favor. Latest coins- found- under- the- sofa- cushions class action settlement: Wilmington, Del.-based credit card giant MBNA Corp. agrees to pay $3.57 each to current and former customers to settle claims that its ads were misleading in the early 1990s when they promoted a low interest rate for balances transferred from another card, but did not warn that the low rate did not apply to newly incurred charges. Lawyers for the plaintiff class, meanwhile, are set to pocket $1.3 million. Major credit card companies are frequent targets of class action litigation; Chase Manhattan and Providian Financial have recently settled such actions, and Citibank and Bank One/First USA face pending claims (Joseph N. DiStefano, “MBNA settles suit over card ads”, Philadelphia Inquirer, Sept. 26).

September 27-28 — Final innings for Kennewick Man. Score stands at archaeologists 0, multiculturalists 1, as Interior Secretary Bruce Babbitt announces that the 9,000-year-old skeleton found along the Columbia River four years ago will be given to local Indian tribes, who intend to bury the remains without allowing a complete examination. “If Babbitt’s ruling stands, the loss to science is beyond comprehension,” writes National Review Online‘s John Miller (“Kennewick Man’s last stand”, Sept. 26; see also Oct. 11, 1999).

September 25-26 — New data on state campaign contributions. Triallawyermoney.org, the project of the American Tort Reform Foundation that tracks plaintiff lawyers’ political contributions, has just expanded its coverage to include local elections in seven key states as well as federal elections. The states include Alabama, Florida, Illinois, Michigan, Ohio and Texas; there is also a link to similar data collected by the Civil Justice Association of California (launched Sept. 19 — “State Races“).

September 25-26 — “Skier to be tried for manslaughter in Colorado in fatal collision”. Although two county courts ruled that a reasonable person would not have expected skiing too fast to result in another person’s death, prosecutors in Denver have insisted on pressing a manslaughter rap against Chico, Calif. college student Nathan Hall, who in 1997, at the age of 18, headed down Vail Mountain and collided with 33-year-old Denverite Alan Cobb on the slope, killing him almost instantly. (AP/CNN, Sept. 11). Update Nov. 21: Hall convicted of criminally negligent homicide.

September 25-26 — Wal-Mart’s tobacco exposure. Through a little-known subsidiary named McLane Co., the Bentonville, Ark.-based retailer is the largest distributor of cigarettes to convenience stores, which makes it the biggest handler of that commodity aside from the tobacco companies themselves. Despite Wal-Mart’s deep pockets, plaintiff’s attorneys seem not to have noticed it yet. (Kelly Barron, “Smoking gun”, Forbes, Aug. 21) (see also July 7).

September 25-26 — A job offer for the judge. Following protests from defendants, Judge Edward Angeletti of Baltimore, Maryland Circuit Court removed himself from a series of asbestos-injury cases over which he was presiding and declared a mistrial after it was revealed that he had received a job offer from plaintiff’s attorney and political kingmaker Peter Angelos (see Oct. 19 and Dec. 9, 1999, March 15, 2000). According to AP/CNN, “Angelos has said that he made a ‘very substantial’ offer for Angeletti to head his office’s pursuit of lawsuits against lead paint manufacturers.” Angelos, who has become immensely wealthy through his handling of asbestos litigation, controls about three of every four asbestos cases in the Baltimore court. (“Job offer from lawyer leads judge to step down from asbestos trial”, AP/CNN, Aug. 1; “Judge removes himself from absbestos [sic] trials”, AP/Prince George’s County [Md.] Journal, Aug. 2)

September 25-26 — Kopel on zero-tolerance policies. Dave Kopel, Paul Gallant, & Joanne D. Eisen of the Independence Institute comment on the school zero-tolerance policies under which possession of an obvious toy gun — or sometimes just making a thumb-and-first-finger “gun” gesture — is considered grounds for punishment. (“Gunning for the Kiddies”, National Review Online, Sept. 22).

September 25-26 — Treaties rule. A federal judge in San Francisco has thrown out a lawsuit against Japanese defendants over World War II atrocities. In 1951 we signed a peace agreement with Japan which prohibited exactly these sorts of claims. Now we have to live up to our end of the treaty — period. (Louis Sahagun, “Suit on WWII Slave Labor in Japan Voided”, L.A. Times, Sept. 22; Reuters/FindLaw; see Sept. 20, 1999).

September 22-24 — “N.Y. Lawyer Charged in Immigrant Smuggling”. In a 44-count indictment, federal prosecutors on Wednesday charged the Manhattan lawyer who runs the country’s largest political asylum practice, Harvard Law-educated Robert Porges, with a wide range of offenses including concocting thousands of fictitious stories of persecution by which detained aliens could avoid deportation, advising smugglers how best to avoid detection by the Immigration and Naturalization Service, and “helping smugglers detain illegal immigrants until debts were paid.” According to prosecutors, paralegals wrote out longhand accounts of persecution, claiming of women clients, for example, that they had suffered forced abortions under China’s “one-child” policy, and then coached the immigrants on how to carry off the story convincingly. Porges is said to have “collected as much as $13 million in fees for helping to transport as many as 7,000 illegal immigrants from mainland China to the United States”. (Hanna Rosin and Christine Haughney, Washington Post, Sept. 21). Update Sept. 21, 2003: Porges and wife sentenced in 2002 to about eight years.

September 22-24 — RN’s illusions. Ralph Nader campaigns on the theme that anti-business advocates like himself are somehow kept from circulating their message or swaying policy. Is he really so disconnected from reality as to think that? (Sebastian Mallaby, “Victim of His Success”, Washington Post, Sept. 17). Before you get too enthusiastic about the Greens, suggests James Lileks, take a look at their platform: “They want your money, your job, your freedom and your car.” (“A look at Nader and his merry Greens”, San Francisco Examiner, July 14). And since some Nader groups have proposed the setting aside of a new .sucks domain to express discontent with powerful institutions (ibm.sucks, mcdonalds.sucks, etc.) some Seattle libertarians have turned the tables by founding the rudely named but inevitable Nadersucks.org, which bills itself as the largest collection of critical links about him online, outpacing the “Nader Skeleton Closet” feature at Realchange.org.

Other links of note from a Nader-watcher’s scrapbook: Doug Henwood, “1.75 cheers for Ralph”, Left Business Observer, Oct. 1996; discussion on LBO mailing list re RN finances, Sept. 9, 1998; RN denounces tort reform in campaign press release, VoteNader.org, Aug. 11; Robert Bryce, “Naturally Nader”, Austin Chronicle, April 7; Mike Allen, “Nader: The Little Guy’s Multimillionaire” (worth $3.8 million, heavily invested in tech stocks, still refuses to reveal income tax records), Washington Post, June 18; Paul West, “Corporate gadfly turns out to be rich”, Baltimore Sun, June 17; Michael Lewis, “Campaign Journal: The Normal Person of Tomorrow”, The New Republic, May 20, 1996.

September 22-24 — From our mail sack: hyperactive lawyers. Reader Scott Replogle, M.D., writes from Colorado: “I see (Sept. 18) that trial lawyer Richard Scruggs is suing psychiatrists and the makers of the drug Ritalin, alleging they conspired to ‘create’ a disease, Attention Deficit/Hyperactivity Disorder, and then overdiagnose it for monetary gain. Which raises the question: when can we sue the people who not too long ago ‘created’ the previously unknown disorders of ‘silicone disease’ and ‘human adjuvant disease’ during the breast-implant controversy, and conspired to overdiagnose those diseases for monetary gain? And does it matter that many of those people were trial lawyers?” (see also April 13, 2001)

September 21 — Missouri tobacco fees. Lawyers stand to make $100 million or more for representing the state of Missouri in the Medicaid-tobacco litigation and the state’s largest newspaper, the St. Louis Post-Dispatch, says that sum “is out of proportion to the work performed and the risk involved … troubling … grossly overpays the lawyers involved … creates an unholy alliance between the state and tobacco interests” It’s also “a political gravy train” since “the five law firms involved in the case donated a total of more than $500,000 in campaign contributions over the past eight years, mostly to Democrats”; a prominent Republican former judge and Democratic former mayor of St. Louis were also cut in. “An important issue of public policy — the lawyers’ fees — will be determined outside the public forum” given that a secret arbitration proceeding will be employed to set the fees. “…It is private money in the public trough. But that doesn’t make the sight of the lawyers lining up to feed any prettier.” (“All aboard the gravy train” (editorial), St. Louis Post-Dispatch, Sept. 17).

Brent Evans, a state senate candidate in Missouri, has posted extensive documentation on the circumstances surrounding state attorney general Jay Nixon’s hiring of outside lawyers to prosecute the suit. According to Evans, the lawyers’ campaign contributions of $561,000 included $139,000 for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan (“The Tobacco Papers“; the lawyers; their generosity; the work they might have done to justify the fees; “Attorneys mum about how much they’re seeking” (fee request “confidential”), Jefferson City News-Tribune, April 26, 1999; Jack Cashill, “Warning: Tobacco Settlements May Endanger The Integrity of Your Elected Officials” (also discusses Kansas fees), Cashill.com, undated 1999; “Appeals court sides with Nixon on legal fees in tobacco settlement”, Jefferson City News-Tribune, May 31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau, Mo.), June).

Last year Missouri Digital News reported that Paul Wilson, lead attorney on the matter with AG Nixon’s office, “urged lawmakers to pass legislation that will protect the major tobacco companies from a market-share loss once the impact of the tobacco settlement sets in. Off-brand cigarette companies, those not participating in the settlement, could otherwise undercut the prices of the major tobacco companies. Missouri will keep getting its billions so long as the market share of the signatories does not dip below 95 percent. If it were to do so and Missouri had no off-brand tobacco law, explained Wilson, the terms of the settlement let the major tobacco companies stop paying.” (Anna Brutzman, “Legislators Bewildered By Settlement”, April 4, 1999). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.

September 21 — Dangerous divorce opponents. It’s tough enough going through a divorce in any case, but you’d really better watch out if your spouse is a successful lawyer, according to the New York Post. Advice: try for a change of venue. (Laura Williams, “Attorneys’ Wives Court Disaster”, Sept. 20).

September 21 — Eastwood trial begins. Jurors will hear an Americans with Disabilities Act complaint against the actor’s Mission Ranch hotel in Carmel. For our coverage of the Eastwood case and related Congressional hearings, see May 18, March 7, Feb. 15 and Jan. 26. (“Eastwood to Jurors: ‘Make My Day'”, AP/Fox News, Sept. 20; Shannon Lafferty, “Eastwood in the Line of Fire,” The Recorder/CalLaw, Sept. 21).

Filed under: ACLU, Alabama, antitrust, arbitration, asbestos, Atlanta, ATRA, attorneys general, Baltimore, Canada, Colorado, deep pocket, Denver, divorce, Eliot Spitzer, Europe, France, Germany, hospitals, Illinois, Janet Reno, lead paint, Maryland, Massachusetts, Michigan, Missouri, Ohio, Philadelphia, Provost Umphrey, Ralph Nader, Seattle, silicone breast implants, strippers and exotic dancers, tobacco, tobacco settlement, zero tolerance

September 2000 archives

September 8-10 — Netscape “Cool Sitings” of the day. Overlawyered.com was one of the picks on Thursday’s edition of Netscape’s much-surfed “Cool Sitings” feature. Their write-up: “Legal Shenanigans. If the joke: ‘What do you call 1000 lawyers at the bottom of the sea? A good start’ rings true for you, check out this site” (Sept. 7). And we’re also today’s (Friday’s) web pick of the day at the Memphis Commercial Appeal‘s “C.A. Eye“.

September 8-10 — …Than never to have been born at all. By a 4-3 margin, the Ohio Supreme Court has declined to let a 7-year-old with spina bifida sue her parents’ doctors on a claim of “wrongful life”. The little girl’s argument — at least, the argument put forth on her behalf in court — is that had the doctors told her parents about the availability of a prenatal test that would have disclosed her abnormality, they would have had an abortion, and that she suffered injury because they failed to do so. “Chief Justice Thomas J. Moyer, writing for the majority, said courts do not have the authority to decide if a person should or should not have been born.” Justices Paul Pfeifer, Andrew Douglas and Alice Robie Resnick dissented. (Spencer Hunt, “Girl has no right to sue”, Cincinnati Enquirer, Sept. 7; “Ohio Court Rules Against Parents”, AP/FindLaw, Sept. 7; decision, Hester v. Dwivedi) (see also May 9).

September 8-10 — “NZ kids get ‘license’ to play with toy guns”. “Children as young as four in New Zealand are being required to apply for ‘licenses’ for toy guns.” They must explain why they want one, and playing cops and robbers is not a good enough reason. (Sydney Morning Herald, Sept. 6). Also: an Australian radio talk show host, convicted of improperly soliciting information about the deliberations of a jury, was “given a 15-month suspended sentence … because the judge believed he was too wealthy to fine and too famous to jail.” (Stephen Gibbs, “Laws too famous to jail, says judge”, Sydney Morning Herald, Sept. 6).

September 8-10 — “A perverse use of antitrust law”. “The Justice Department could hardly have come up with a more harmful set of demands than those it now makes [on Microsoft],” writes Charles Munger, vice chairman of famed investor Warren Buffett’s Berkshire Hathaway. “If it wins, our country will end up hobbling its best-performing high-tech businesses. And this will be done in an attempt to get public benefits that no one can rationally predict.” (Charles Munger, Washington Post, Sept. 1). More: “Did Microsoft Harm Consumers? Two Opposing Views”, by David S. Evans, Franklin M. Fisher, Daniel L. Rubinfield, and Richard L. Schmalensee, AEI-Brookings Joint Center for Regulatory Studies (abstract, full text (PDF format), order form); David Boaz, “The theft of Microsoft”, Cato Daily, July 27; Jonathan Rauch, “The Microsoft Case: Fair, Necessary, and Totally Random”, National Journal, June 10.

September 8-10 — “State errors unfairly cast some dads as deadbeats”. A federal law has mandated toughening of state child support collection systems. Unfortunately, reports Marilyn Gardner of the Christian Science Monitor, the resulting overhauls have increased the rate of billing errors in some of the systems and led to parents mistakenly being labeled deadbeats (August 9).

September 8-10 — $1.5 million estate bill included 900 hours spent on fees. An Indiana appeals court has rebuked a law firm which billed heirs $1.5 million for handling an inheritance case, including 900 hours it says it spent calculating its fees. The Indianapolis law firm of Henderson, Daily, Withrow & DeVoe had worked on the estate of former Conseco Inc. executive Lawrence W. Inlow, who died without a will at age 46 in a helicopter accident leaving an estate of $185 million. “Requiring a client to pay an additional amount for being told what he owes in the first instance is neither good business nor good law,” wrote Judge Sanford M. Brook for the appeals court. (“Court Rejects Attorneys’ Charge”, AP/FindLaw, Sept. 7) (court opinion, Inlow children v. Estate of Inlow).

September 6-7 — Prosecution fears slow crash probes. Aviation accidents almost never used to result in the filing of criminal charges, but in recent years they’ve been the subject of several highly publicized prosecutions. A House Transportation Committee hearing in late July looked into evidence that fear of incarceration or fines is now discouraging witnesses from cooperating with crash investigators. “For decades, we had relied on individuals to tell us what happened in an accident — and they usually, sometimes reluctantly, do so,” said Daniel Campbell, managing director of the official National Transportation Safety Board. But “what has been reluctance to cooperate may become refusal to cooperate.” Campbell said prosecution fears had also made it hard to investigate a recent nonaviation accident, a fatal pipeline explosion in Bellingham, Wash., last year. As a result, “more than a year later, we still have not been able to talk to most of the key individuals who were operating the pipeline when it ruptured and may not be able to in the foreseeable future.” A federal grand jury subpoena also “resulted in a significant delay in the investigation,” Campbell said. “In our view, too much lawyering went on before we were able to test the physical evidence of that tragedy.”

“The recent trend towards the criminalization of aircraft accidents is extremely alarming in that it has the potential to cripple industry’s ability to learn from incidents and accidents, essentially guaranteeing that we will repeat them,” said Capt. Paul McCarthy of the Air Line Pilots Association. He cited the 1996 ValuJet crash in Florida, the USAir 1989 crash at LaGuardia, and the recent Alaska Air crash off the California coast as examples of cases where safety investigations had been slowed. (House Transportation Committee, Aviation Subcommittee, hearing summary, Campbell, McCarthy statements; thread on Professional Pilots bulletin board)

September 6-7 — Update: second chance for Wal-Mart. The giant retailer has won a rematch in the case of former employee Ricky Bourdouvales, who sued alleging discrimination based on transsexualism (male-to-female). Judge Douglas Hague issued a default judgment of $2.1 million when Wal-Mart failed to show up in his New Jersey court (see July 21), but has now agreed to grant a retrial. (“Judge Tosses Trans Bias Award”, PlanetOut, Aug. 28).

September 6-7 — Australian roundup. A now-retired New South Wales judge has come under criticism from the losing plaintiffs in a large case, who complain in their appeal that more than 200 pages of his 247-page opinion consist of material cut and pasted from the submissions made by the two sides. The judge had called the case, over the Copper-7 contraceptive IUD, the longest and most complex product liability case in Australian history. (“Judge ‘cut and paste’ in making his decision on IUDs”, AAP/The Age (Melbourne), Aug. 29). Five partners of a Sydney law firm that handles a large volume of immigration work are suing Immigration Minister Philip Ruddock for defamation, “claiming he implied they were unethical and overcharged clients.” (“Ruddock sued for defamation by lawyers”, AAP/The Age (Melbourne), Aug. 29). And a 1998 finding by a federal justice that a prominent Brisbane law firm engaged in abuse of legal process ignited a debate about the condition of the law in Australia; a national TV show explored widespread discontent over the gamelike aspects of adversary process, interviewing both leading insiders of bench and bar and two outspoken critics, former defense lawyer and prosecutor Brett Dawson and journalist Evan Whitton (“The justice system goes on trial”, Ross Coulthart, reporter, Sunday/NineMSN, Transcript #252, undated). One passage among many that caught our eye:

REPORTER: Do you think there’s a case to argue that some of the ethical rules that lawyers have actually almost encourage dishonesty among lawyers?

JUSTICE [GEOFFREY] DAVIES: Yes I do. One of the examples is that a lawyer can ethically deny an allegation in the opponent’s pleading knowing it to be true.

REPORTER: You’re kidding – so you can basically lie?

JUSTICE DAVIES: Well, what lawyers would say is that you are putting the other side to proof.

REPORTER: It’s a lie though isn’t it?

JUSTICE DAVIES: It is.

September 6-7 — Bill for pizza delivery: $1.25 million? A Cocoa Beach, Fla. jury voted, but a federal judge almost immediately threw out, an award of one and a quarter million dollars to a black family that ordered home delivery from Pizza Hut and found a racial slur included as part of the computer-generated receipt. Judge Patricia Fawsett ruled that responsibility lay with the unauthorized actions of a rogue employee and could not fairly be charged to the company. (“Judge throws out $1.25M verdict against Pizza Hut”, Orlando Sentinel, Sept. 1).

September 5 — EEOC: offbeat beliefs may be protected against workplace bias. “Belief in radically unconventional scientific notions, such as ‘cold fusion’ or cryptic messages from extraterrestrials, may merit the same workplace protections as freedom of religion, according to a ruling by the Equal Employment Opportunity Commission in a job-discrimination case.” The case arose from the April 1999 firing by the U.S. Patent and Trademark Office of patent examiner and astronomer Paul A. LaViolette, who claims the action was taken because he holds unconventional beliefs, including a belief in the highly controversial theory of energy generation through “cold fusion”. In the words of the Washington Post, LaViolette’s website, www.etheric.com, “details his ‘proof’ of the existence of alien radio communication, his theory that the zodiac is a ‘time capsule message’ warning of emanations from the galactic center and his views on the Sphinx, the Tarot and Atlantis, along with his considerable accomplishments in mainstream science.” (Curt Suplee, “EEOC Backs ‘Cold Fusion’ Devotee”, Washington Post, Aug. 23).

September 5 — Tax software verdict: pick a number. A Hinds County, Mississippi jury “awarded the state of Mississippi $474.5 million in its suit against a company that failed to deliver on a new tax processing system that was supposed to modernize the state’s collection efforts.” The verdict against Fairfax, Va.-based American Management Systems Inc. included $299.5 million in actual damages and $175 million in punitive damages. A few days later, the company settled the suit by agreeing to pay the state $185 million. The company has contracts with seven other states to operate similar computerized tax systems; no other lawsuits are pending. (“Company loses tax software suit”, AP/USA Today, Aug. 24; “Settlement cuts tax software verdict”, Aug. 29).

September 5 — Juries and cost-benefit analysis. W. Kip Viscusi, professor at Harvard Law, says businesses today get conflicting signals on the use of cost-benefit analysis in safety matters: a large academic literature encourages them to engage in such analysis as part of their responsibility to the public, but juries get furious when they think that sort of “cold-blooded calculation” has gone on. Moreover, there’s evidence to support the paradoxical finding that the higher a valuation of life and limb a company employs in such an analysis, the more stringently it will be punished by subsequent juries. (“The Trouble With Lawsuits”, TechCentralStation, May 29; Manhattan Institute, luncheon transcript).

September 4 — Emulex fraud: gotta find a defendant. “With the manhunt for the perpetrator of the Emulex fraud [false news report torpedoed company’s stock] apparently over, investors burned by the company’s $2 billion post-fraud swing are now hunting for someone, anyone, to sue for legal damages. Two lawsuits have already been filed, one against Internet Wire, which originally distributed the bogus press release, and one against both Internet Wire and Bloomberg, the financial news service that sent out a story based on the press release.” (Craig Bicknell, “Emulex Victims: Who Can We Sue?”, Wired News, Sept. 1).

September 4 — Record-breaking securities class action fee: $262 million. A federal judge in New Jersey last month approved a fee of $262 million for plaintiffs’ lawyers in the securities fraud case stemming from the collapse in the stock price of Cendant Corporation (see June 20). Judge William Walls upheld the record-breaking fee against objections from New York City, a member of the investor class, reasoning that the two lead law firms, New York’s Bernstein Litowitz Berger & Grossman and Philadelphia’s Barrack, Rodos & Bacine, had taken part in a fairly run auction to determine who would get to represent the investors. (Daniel Wise, “Cendant Lawyers Get Record $262 Million in Securities Fraud Case”, New York Law Journal, Aug. 22).

September 4– “Just put the candy in the bag, lady.” “I’ve been watching the lawsuits over Columbine with interest bordering on disgust. It seems the argument is that someone (preferably a government agent not affiliated with the Postal Service, or failing that, any random person with deep pockets) should have foreseen the future and intervened,” writes Paul Kelly, a former vice chair of the Boulder, Colo. Democratic Party. “…If this new ‘everybody’s negligent all the time’ social philosophy seems silly to you, it’s probably because you’re not a lawyer. To a lawyer this is like Halloween to a 10-year-old. ‘Just put the candy in the bag, lady. And hurry. There are still five families on this block I haven’t sued yet.'” (“Doing nothing may be best option”, Denver Post, Aug. 13).

September 1-3 — Texas tobacco fees: Cornyn’s battle. In December 1998 an arbitration panel awarded a stupendous $3.3 billion in legal fees to five law firms selected by former Texas Attorney General Dan Morales to represent the state in the tobacco-Medicaid litigation, which had ended in a $17 billion settlement. The Big Five firms, all high rollers in Lone Star State personal-injury litigation and all major Democratic Party donors, include Beaumont, Texas’s Provost & Umphrey (Walter Umphrey), Houston’s Williams & Bailey (John Eddie Williams), Harold Nix’s law firm in Daingerfield; Beaumont’s Reaud, Morgan & Quinn (Wayne Reaud); and John O’Quinn’s firm in Houston.

Mr. Morales’s Republican successor as Texas Attorney General, former Texas Supreme Court Justice John Cornyn, ran for office in part on a pledge to investigate the circumstances surrounding the fees, and his probe soon led to some eye-opening revelations (see May 22). A Houston lawyer named Marc Murr, who’d earlier worked at the same law firm with Morales, had stepped forward after the settlement to claim a $520 million (later $260 million) share of the proceeds, a mystifying claim since participants could not remember Murr doing work on the case or being considered part of the state’s team. Murr pointed to a hitherto unsuspected contract with Morales entitling him to a piece of the action, but Cornyn hired forensic experts who concluded that the contract had been doctored and backdated. Rather than be put under oath about the matter, Murr withdrew his claim to the fees; a U.S. attorney’s office has the matter under investigation.

As for the circumstances by which the Big Five came by their fees, Cornyn’s investigation has met with a stone wall of resistance and non-cooperation from Umphrey, Williams, Nix, Reaud and O’Quinn. In particular, he would like to investigate what the Houston Chronicle describes as “longtime allegations that [Morales] solicited large sums of money from lawyers he considered hiring” for the suit. Two years ago famed Houston attorney Joe Jamail, who wasn’t among those picked to represent the state, “said Morales solicited $1 million from each of several lawyers he considered hiring”, in addition to the $2 million that each of the five agreed to front to finance the case. “The money, according to memos prepared by Jamail, purportedly was for a fund to help Morales defend himself against political or public relations attacks from cigarette companies during the litigation.” Last year in sworn testimony Dawn Nelson, ex-wife of Big Five lawyer John Eddie Williams, said “Williams had told her that Morales wanted $1 million from one or more of the lawyers that were hired for the tobacco case,” the Chronicle reported.

In an interview last November cited in the same Chronicle reportage, Morales said that the purpose of the money might have been misunderstood and that he didn’t intend it to be used for his personal or political benefit. In May, the Five filed statements in court saying they had not paid any consideration for the chance to participate in the litigation. But they’ve consistently refused to go under oath to answer Cornyn’s questions, and skillful legal maneuvering on their behalf has kept at bay that alarming prospect — first by their successful removal of his legal action away from state court and into the hands of the same federal judge in Texarkana whom they initially selected to hear the Medicaid-recoupment case (see “Best little forum-shopping in Texas”, Aug. 27, 1999), and now with their obtaining of a ruling by that judge last month that Cornyn has no independent right to question the lawyers except under such terms as he, the judge, may see fit to approve in future (Cornyn plans an appeal of that ruling to the Fifth Circuit). The Five have also sought a gag order to prevent the press or anyone else from getting a look at documents generated by the investigation, notwithstanding the usual publicly proclaimed stand of organized trial lawyers that “protective orders” of that sort are an affront to the public’s right to know and serve only to shroud wrongdoing in secrecy. And, like other lawyers who have represented the states in the tobacco recoupment litigation, they have argued that the fees are not an appropriate subject for review by representatives of the taxpayers because they are formally structured so as to be paid directly by the cigarette companies, rather than be routed through the state as part of its payment as is customary.

The Big Five also claimed $40 million in reimbursement for out-of-pocket expenses (as distinct from legal fees) but at the end of May they returned $6.9 million of this money, saying the earlier sum had been overstated. “Their misrepresentation of expenses just raises more questions and strongly reinforces the need to determine what happened in the tobacco case,” Cornyn said. “After 18 months of assuring the people of Texas that their expenses were justified in every way … [they] are now returning millions of dollars with no satisfactory explanation as to why.” Michael Tigar, attorney for the Five, said the earlier sum had been a good-faith estimate and that deviations from such estimates are common. (DURABLE LINK)

SOURCES: Kelley Shannon, “Cornyn, rebuffed in federal court, vows to appeal”, AP state and local wire, Aug. 16, not online, available on NEXIS; “Five attorneys say Morales not paid for contract in anti-tobacco lawsuit”, AP state and local wire, May 12, not online, available on NEXIS; Brenda Sapino Jeffreys, “As Tobacco Lawyers Return Money, Questions Return”, Texas Lawyer, June 9; “Tobacco trial lawyers admit misrepresentation”, Cornyn press release, June 1; Susan Borreson, “Tobacco Plaintiffs’ Lawyers Won’t Enforce Contract With State”, Texas Lawyer, December 2, 1999; Robert Bryce, “Nicotine Fit”, Texas Observer, November 26, 1999; Janet Elliott, “‘Tobacco Five’ Want Confidentiality Order”, Texas Lawyer, Sept. 9, 1999.; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27. Murr case: Miriam Rozen, “Smoke-filled room”, Dallas Observer, Sept. 17, 1998; “Pay up?”, April 22, 1999; Patrick Williams, “Buzz”, Dec. 17, 1998, May 20, 1999; Jim Brickman, “What Would I Ask Former Attorney General Dan Morales In the Grand Jury Investigation?“, Citizens for Lawsuit Abuse Houston; John R. Butler, Jr., “Dan Morales and Marc Murr Have Some Explaining To Do To All Texans“, CALA Houston.

September 1-3 — “Olympic trials”. At least ten athletes, after falling short in efforts to make the U.S. Olympic team in their sports, have insisted on going to arbitration or in one case to federal court, according to columnist Kimberly Strassel of the Wall Street Journal‘s online Opinion Journal (Aug. 31; see also Mark R. Madler, “Judges Wrestle With Epic Case of Olympic Athlete” (wrestlers), American Lawyer Media, Aug. 31.

September 1-3 — “Don’t talk to the humans”. Some years back the federal government issued regulations on universities’ use of human experimental subjects. How strictly are these rules being enforced? So strictly that a scholar can get in big trouble by not asking an official committee’s permission before visiting a retirement home and chatting with one of the elderly residents about his life. (Christopher Shea, Lingua Franca, Sept.) (via Arts & Letters Daily).

September 20 — Victory in Chicago. A judge last week threw out the city of Chicago’s lawsuit against the gun industry. “In granting the industry’s motion to dismiss, Judge Stephen A. Schiller of Cook County Circuit Court suggested that the city had not shown wrongdoing by the individual defendants. He said that the city’s arguments would be better handled in a legislature than in a courtroom.” However, a West Coast judge denied a defense motion to dismiss a group of cases filed by San Francisco, Oakland, Los Angeles city and county, and other plaintiffs. Pending appeal, judges have now dismissed the suits filed by Chicago, Cincinnati, Bridgeport, and Miami, while declining to dismiss suits filed by Detroit, Atlanta, Boston, New Orleans, Cleveland, and the California cities. (Pam Belluck, “Chicago Gun Suit Fails, but California’s Proceeds”, New York Times, Sept. 16 (reg); “Judge dismisses Chicago suit against gun industry”, Reuters/CNN, Sept. 15; reaction from Illinois State Rifle Association). Plus: John Derbyshire gets radicalized on the tort reform issue when he goes out trying to buy ammunition on Long Island, and discovers that the courtroom assault on the industry is choking the local firearms dealers into oblivion with no legislation needed, simply by causing their liability insurance to dry up. (“First thing we do…”, National Review Online, Sept. 12).

September 20 — Disbarred, with an asterisk. Most clients probably assume that a lawyer thrown out of the profession is gone for good, but the Boston Globe finds that for years bar authorities have been quietly readmitting practitioners, including some whose original offenses were grave. Some of this leniency has been misplaced, since a number of the readmitted lawyers have gone on to commit new offenses against clients. (David Armstrong, “Special Report: Disbarred Mass. lawyers skirt discipline system”, Sept. 17, and sidebars: “Reinstatement process favors lawyers“, “Victims often missing from equation“.

September 20 — “Regulating Privacy: At What Cost?” Free-marketeers finally start organizing to resist the steamroller movement toward online-privacy laws, reports Declan McCullagh. Among new initiatives are a symposium held yesterday on Capitol Hill by George Mason U.’s Mercatus Center, a book entitled The Future of Financial Privacy forthcoming from the Competitive Enterprise Institute, and a privacy-issues website called Privacilla.org. (Wired.com, Sept. 19). And Reason Express a while back alerted us to a website by Jacob Palme in Sweden which recounts some of the less pleasant consequences of that nation’s pioneering (1973) law preventing the electronic gathering or dissemination of information about individuals without their consent. Palme says the law mostly went unenforced as regards web publishing, which is a good thing since if enforced literally it could have rendered unlawful much of the web in Sweden. The few instances that led to enforcement action, as related by Palme, suggest that unpopular and dissident opinions were among the most likely to draw complaints under the law. One man put up a webpage critical of a large Swedish bank, naming individual directors whom he believed had behaved in ethically irresponsible ways; he was prosecuted and fined for violating their privacy. In another case, an animal rights group was subject to legal action for posting a list of fur producers. In a third, a church volunteer was prosecuted for stating on a web page that one named church member had broken a leg and another was a member of the Social Democratic Party; health status and political affiliations are considered especially sensitive under the law. In a fourth case, dissident dog lovers got in privacy-law trouble for criticizing leading members of a dog society by name. The privacy laws were revised in 1998 and again in 1999, following much criticism, and as of June 2000, when Palme’s page was last revised, the highest Swedish court had not yet given its interpretation of the law (“Freedom of Speech, The EU Data Protection Directive and the Swedish Personal Data Act“; “The Swedish Personal Register Law“; “Swedish Attempts to Regulate the Internet“; official Data Inspection Board). (DURABLE LINK)

September 19 — Hollywood under fire: nose of the Camel? In what may take the prize for worst idea of the month, South Carolina Attorney General Charles Condon has proposed filing coordinated state lawsuits to make Hollywood the next tobacco. “Clearly we have here a virtual replay of what the tobacco industry did to our children. Instead of Joe Camel, Hollywood uses Eminem, South Park, Doom and Steven Segal [sic] to seduce children,” Condon wrote in a letter to the National Association of Attorneys General (Condon press release, Sept. 13; David Shuster, “South Carolina AG Threatens Suit Against Entertainment Industry”, Fox News, Sept. 15). It’s time the entertainment business cleaned up its act, writes Clarence Page of the Chicago Tribune, but that doesn’t mean Sens. McCain and Lieberman are right to “justify [an] end run around the 1st Amendment with a public-health argument like that which justifies the regulation of tobacco or liquor.” (“A World Apart: Eminem and Me”, Sept. 17). Owens Corning and Met Life use cartoon characters (the Pink Panther and Snoopy respectively) as advertising mascots, and you might jump to the conclusion that they were committing that dire sin, “marketing to children”, if you didn’t know that fiberglass insulation and insurance are products bought by adults, observes Illinois law prof Ronald Rotunda (“The FTC Report on Hollywood Entertainment“, Federalist Society, Free Speech and Election Law Working Group; FTC report; “Lieberman: Entertainment must police itself”, AP/Miami Herald, Sept. 13). Filmmaker John Waters doesn’t think much of the crusade: “The future CEOs of America are all sneaking into R-rated movies” (Rick Lyman, “Writers, Directors Fear Censorship, Tell Anger Over Violence Hearings”, New York Times Service/Chicago Tribune, Sept. 18). And plaintiff’s lawyers suing entertainment companies over school shootings, who’ve already gotten plenty of favorable ink in the conservative press (see July 22, 1999), are hoping the new report will invigorate their legal cause (Frank Murray, “FTC adds ammo to lawsuits for deaths”, Washington Times, Sept. 13).

September 19 —WSJ‘s Bartley on decline of American law. The establishment of the rule of law, replacing the whim of powerful rulers, was perhaps the supreme achievement of the West in the millennium just past, but the United States has grown careless about its legal inheritance, with systematic injustices mounting in both criminal and civil courtrooms. Last week’s call-sheet scandal illustrates the way “audacious and powerful interests” who have found ways to use the legal system to make their fortunes “have allied themselves with government and politicians.” (Robert Bartley, “The Law and Civilization’s Future”, Opinion Journal (Wall Street Journal), Sept. 18). “Justice Department investigators and prosecutors want to know if there were, in fact, any quid pro quos for the trial lawyers’ extraordinary generosity,” editorializes the San Diego Union-Tribune about the scandal. “With trial lawyers contributing almost 10 percent of all funds raised by the Gore-Lieberman campaign, that remains an urgent question. Voters have a right to some answers before Nov. 7.” (“Veto for sale?”, Sept. 16).

September 19 — Punitive damages for hatemongering? Washington Post‘s editorial page “is gutsy enough to have qualms about Morris Dees’ strategy of bankrupting hate groups with punitive tort damages,” observes Mickey Kaus at Kausfiles (“The Aryan Nations Verdict” (editorial), Washington Post, Sept. 16). “Many advocacy groups that engage in direct actions potentially expose themselves to tort liability…. That danger is compounded by the abusive system of punitive damages, which gives juries wide discretion to ruin people or companies financially in a fashion untethered to the scope of the harm they have done in the specific case at issue,” the Post comments. “That could not have happened to a more deserving bunch than Mr. [Richard] Butler and the Aryan Nations. But it’s worth pausing for a moment to wonder who’s next.”

September 18 — Scruggs v. Ritalin. Latest target for zillionaire tobacco lawyer and recent Time profilee Richard Scruggs: Novartis Pharmaceutical Corp., makers of the drug Ritalin, and the American Psychiatric Association. Scruggs’s firm accuses the two of conspiring to promote an overly broad diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD), with the result that the drug is given to too many youngsters. “Novartis and the APA deny the allegations. In a statement, Novartis says the charges are ‘unfounded and preposterous.'” Some lawyers from the Castano consortium, which pursued tobacco litigation separate from Scruggs’s, are also joining him in the action. (“Lawsuits Accuse Ritalin Makers, APA”, AP/Yahoo, Sept. 15; Excite/Dow Jones; Toni Locy, “Fight over Ritalin is heading to court”, USA Today, Sept. 15) (see also Sept. 22-24 and April 13, 2001).

September 18 — White House pastry chef harassment suit. White House assistant pastry chef Franette McCulloch, 53, is suing her boss Roland Mesnier, claiming he “became hostile and rude when she spurned his advances, ‘screaming’ at her for refusing to have sex, excluding her from designing desserts and once assigning her to peel eight crates of kiwi.” Her suit also alleges that Bill Clinton, as the head of the White House, failed to establish a proper method for employees to bring harassment complaints, and demands $1 million each from Mesnier and Clinton. (AP/CNN, Sept. 13; Ellen Nakashima, “White House Chef Accuses Boss of Sexual Harassment”, Washington Post, Sept. 14). In 1997, the Equal Employment Opportunity Commission ruled against a discriminatory-firing claim by an employee of the White House chef’s office, but said he had been improperly retaliated against for filing his complaint. A former executive chef testified in a sworn deposition that year that the Clintons had paid him $37,000 to quit his post “because of my accent and the fact that I’m overweight.” (more).

September 18 — The teetery inkbottle. “Whenever the law and the facts were against him, Mr. Homans was not one to pound on the table. Instead, he would resort to what he called his ‘trial pen’, a big, old-fashioned device that he would pull out at a critical moment in a trial. On the stand would be the state’s star witness testifying that he had seen with his own eyes as Mr. Homans’s client pulled out a gun and pointed it directly at the bank teller’s head. But the jurors’ eyes would be on Mr. Homans, who, with trembling hand, would be filling the pen from a bottle of India ink perched so precariously, half over the edge of the defense table, that the jury would be caught up in the suspense of when it would fall.” — from an obituary, “William Homans, 75, Dies; Boston Civil Rights Lawyer”, by the late Robert McG. Thomas, Jr., New York Times, February 13, 1997 (fee-based archives, search on “William Homans”).

September 18 — That’ll be $2 trillion, please. A former resident has filed three lawsuits against the town of Rocky River, Ohio, “claiming everything from false arrest to injury of reputation,” and demanding $2 trillion. The town isn’t amused and is countersuing her, saying it’s had to expend money to defend itself. (Sarah Treffinger, “Rocky River sues woman who sued for trillions”, Cleveland Plain Dealer, Sept. 13).

September 15-17 — Day Two of Vetogate. George W. Bush in a California speech says the new call-sheet revelations are evidence that Gore “may have crossed a serious line … The appearance is really disturbing”, Janet Reno refuses to talk about the status of the investigation, the New York Times Washington bureau frets about being (just barely) webscooped by Time.com on the story, and Gore campaign spokesman Chris Lehane curiously describes the sensational disclosures as “recycled”, though no one in the press remembers seeing them before now (CNN; Drudge special; Yahoo/Reuters; Wash. Times).

September 15-17 — Who caught the tire problem? “Who provided the information that instigated the current recall? Who acted to protect the consumer? None other than ‘greedy’, profit-seeking State Farm Insurance Company. Eager to earn ever higher profits by reducing injury claims and lawsuits, State Farm’s statistical bureau noticed an increase in claims related to Firestone tires and passed the information along to the NHTSA which had been asleep at the switch. [See Devon Spurgeon, “State Farm researcher’s sleuthing helped prompt Firestone recall’, Wall Street Journal , Sept. 1]. The profit seeking of a big, bad, private insurance company may help save hundreds of lives.” (James Ostrowski, “The Tire Fiasco”, Ludwig von Mises Institute, Sept. 8).

In the New York Times Sept. 11, Keith Bradsher reports that by the end of 1998 trial lawyers “had already sued Firestone, and sometimes Ford as well, in cases involving 22 deaths and 69 serious injuries”. However, few of these cases had come to the attention of the National Highway Traffic Safety Administration; until recently NHTSA had received very few complaints, and none of fatalities. In fact, Bradsher reports, trial lawyers were pursuing a conscious policy of not reporting tire incidents to the agency, apparently because of tactical concerns — if the agency learned about such cases too early and in too small a number, it might do a perfunctory investigation and miss the pattern of defectiveness, and then the lawyers would have more trouble winning their cases. This strikes us as a fairly damning indictment to be leveling against the trial lawyers — they flout the public interest in learning crucial safety information, just in order to angle for monetary advantage? Isn’t that what Firestone is accused of doing? — but Bradsher quotes Ralph Hoar, a well-known plaintiff’s-side consultant in auto-design cases who provided the numerical tabulation cited at the beginning of this paragraph, as cheerily portraying the lawyers as just doin’ their job, saying they have to concern themselves with their clients’ best interests, not anyone else’s.

Meanwhile, Ford Motor had been named in a few suits but “paid little attention, because automakers routinely face thousands of lawsuits after crashes.” In other words, the background level of litigation against a company of that size is so high that it’s hard to notice patterns that do turn out to be meaningful (Keith Bradsher, “Documents Portray Tire Debacle as a Story of Lost Opportunities”, New York Times, Sept. 11 (reg)). (DURABLE LINK)

September 15-17 — Ciresi bested in Senate bid. Michael Ciresi, the trial lawyer who sought to parlay his representation of the state of Minnesota in the tobacco litigation into a seat in the U.S. Senate, has lost the Democratic nomination to department store heir Mark Dayton by a margin of 41 to 23 percent, with other candidates dividing the rest. (Dan Bernard, “Dayton Grabs DFL Nomination”, WCCO/Channel 4000, Sept. 13; St. Paul Pioneer Press; Minneapolis Star-Tribune).

September 15-17 — Cash return sought by murder-for-hire convict. “A criminal defense attorney who paid an undercover agent $11,000 in a failed murder-for-hire plot is asking the government to return the money. Frederick Ford, 48, who is serving an eight-year prison term for planning to kill two former clients he thought could implicate him in a kidnap plot, is seeking the return of the money he admitted he gave to a U.S. Department of Labor agent last year.” (“Convicted attorney seeks return of murder-for-hire retainer”, AP/CNN, Sept. 13; Shelley Murphy, “Hit man hirer wants money back”, Boston Globe, Sept. 13).

September 14 — “I know [you] will give $100K when the president vetoes tort reform, but we really need it now.” The New York Times reports in today’s editions that Justice Department campaign finance investigators have launched a preliminary probe into documents that have surfaced from the Clinton/Gore 1996 fundraising operation, including a “call sheet” prepared for Vice President Gore regarding Beaumont, Texas lawyer Walter Umphrey, a major Democratic benefactor who shared in Texas’s $3.3 billion tobacco contingency fee and is well known to readers of this space. The sheet describes Umphrey as “closely following tort reform” and suggests asking him for $100,000 to finance Democratic Party TV commercials. The White House claims that Gore did not make the call, but two weeks later a staffer for then-Democratic National Committee chairman Donald Fowler prepared a call sheet reading as follows: “Sorry you missed the vice president. I know [sic] will give $100K whn [sic] the president vetos [sic] tort reform, but we really need it now. Please send ASAP if possible.” DNC officials propose that the “missed” might have referred to the two men not connecting at an in-person event; Fowler disclaims any memory of talking with Umphrey about campaign donations and says he would never have used the language on the call sheet. According to the Times, “Trevor Potter, a former chairman of the Federal Election Commission, called the call sheet’s language ‘extraordinarily ill-advised,’ saying prosecutors would probably be investigating whether the solicitation violated either a bribery statute or a law prohibiting ‘illegal gratuities,’ a ‘gift’ given after an elected official takes a public action.”

The Washington Post reports that Umphrey says he doesn’t recall “any of that” and otherwise declines comment, while Payne was talking to the Times only through her lawyer. And attorney Michael Tigar, who represents Umphrey and the rest of the Big Five Texas tobacco lawyers, issued this small gem of legalistically worded denial: “Tying campaign contributions to legislative or executive action has never been illegal in the United States unless there is proof that the public official extorts the money by threatening to give or withhold action based on the contributions,” he said; moreover, his clients, including Mr. Umphrey, “have repeatedly been asked in many forums whether they have ever given money to a candidate or officials as a quid-pro-quo for official action, and they have repeatedly said under oath that they have never done so.” The Times account adds considerable background on the epic pace of Clinton/Gore fundraising among Texas plaintiff’s lawyers of late, including a little-reported fundraiser thrown for Hillary Rodham Clinton’s Senate campaign by Big Five stalwart John Eddie Williams of Houston. (Don Van Natta Jr. with Richard A. Oppel Jr., “Memo Linking Political Donation and Veto Spurs Federal Inquiry”, New York Times, Sept. 14 (reg); Susan Schmidt, “1995 Documents Appear To Link Lawyer’s Contribution To Veto”, Washington Post, Sept. 14; more on Umphrey and the Big Five: Sept. 1, May 22; more on trial lawyers’ political clout). More breaking coverage (via Drudge): Time, Fox News, AP. (DURABLE LINK)

September 13-14 — “Violent media is good for kids”. Good kids, as well as bad ones, are naturally fascinated with violence, catastrophe and retribution, and letting them explore these matters in the relatively safe territory of the printed page and popular entertainment is part of the process by which they learn how to fit themselves into a frightening world, argues cartoonist Gerard Jones, in an excerpt from a book due out next year from Basic with co-author Melanie Moore (“Reality Check”, Mother Jones, June 28; Reason magazine, “The Kids Are All Right“, “Breaking Issues”; Christopher Stern, “Violent Material Marketed To Youth”, Washington Post, Aug. 27; Mike Allen and Ellen Nakashima, “Clinton, Gore Hit Hollywood Marketing”, Washington Post, Sept. 12).

September 13-14 — Gregoire’s home front. Washington state attorney general Christine Gregoire gained a high national profile jetting around the country to take a leading role in the tobacco-Medicaid affair and other big-case AG litigation, and followed up by assuming the presidency of the National Association of Attorneys General (see July 17). Now it may be time to wonder whether she was keeping enough of an eye back home on the unglamorous routine of the AG’s office, which plays a vital role in protecting the state’s legal interests. In March a Pierce County jury awarded the largest verdict ever against the state, $17.8 million, on behalf of three developmentally disabled men whose families said they were abused in a state-supported home. Gregoire’s office announced plans to appeal but, embarrassingly, proceeded to lose the state’s right to do so by missing a filing deadline. With interest, the total bill has now mounted to $18.7 million. (Eric Nalder and Mike Carter, “State won’t give up bid to appeal $17.8 million verdict”, Seattle Times, Sept. 12; Eric Nalder, “No excuse for missed appeal, court says”, Seattle Times, Aug. 22; see also update Nov. 30). The Capital Research Center has issued a new report critical of recent attorney general activism, by Ron Nehring of Americans for Tax Reform (“National Association of Attorneys General: Opening the Door to a New Era of Regulation Through Litigation”, Organization Trends (CRC), Sept.)

September 13-14 — Prescription: 24-7 monitoring. Adding to Evergreen State taxpayers’ legal woes, a Pierce County, Wash. jury Sept. 1 ordered the state government to pay $22 million to survivors of a driver killed in an auto accident by a man who was at the time serving the community-supervision portion of a sentence for third-degree assault. The verdict broke an earlier $17.8 million record for lawsuits against the state, set in March by the same plaintiff’s attorney, Jack Connelly (see above item). Gov. Gary Locke vowed to appeal the verdict, saying if upheld it could make the entire enterprise of community supervision unworkable. “This man was convicted of … third-degree assault connected with a domestic dispute,” he said. “Imposing liability for his involvement in an auto accident extends public liability too far.” A Locke aide questioned whether the state could monitor the 55,000 persons on community supervision adequately to prevent any of them from being a menace on the highway. One of the alternatives to risking failure-to-supervise liability — keeping the 55,000 locked up — would apparently be okay with lawyer Connelly, who said, “If you’re not even going to try to do your job, then don’t put these guys on community supervision. Put them in jail.” (Eli Sanders, “Family awarded $22.4 million in wrongful death lawsuit against state”, Seattle Times, Sept. 2). See also Chris Solomon, “Cities leery of new probation rules”, Seattle Times, July 11 (local governments fear being financially wiped out by Washington Supreme Court ruling allowing negligence lawsuits against municipalities over crimes committed by probationers).

September 13-14 — More bank spying? Despite strongly negative public reaction to withdrawn “Know Your Customer” regulations that would have accelerated banks’ sharing of customer “profiles” with law enforcement, legislators like Rep. James Leach (R-Iowa) are back with proposals that raise similar civil liberties concerns (Scott C. Rayder, “The Counter-Money Laundering Act: An Attack on Privacy and Civil Liberties”, Heritage Foundation Executive Memorandum, Aug. 31; our take on the last round).

September 13-14 — Judges’ words, copyrighted. Officials in the California judiciary would like to revamp the instructions that judges give juries before trial deliberations, in hopes of making them clearer and more understandable, but have run into an unexpected problem. The Los Angeles County courts turn out to hold copyright in the most widely used current instructions and collect royalties when other California courts use them, which have generated $2.5 million for the county’s use over the past decade. “‘When we first began this effort three years ago, all of us just assumed that we would take [Los Angeles instructions] and improve on them,’ said Associate Justice James D. Ward of the state Court of Appeal in Riverside, vice chairman of the task force. ‘Then they announced to us that they owned them.'” The L.A. courts have held back from cooperating in the statewide revision efforts, which if successful would result in a set of instructions that courts could use for free. (Caitlin Liu, “Say What, Your Honor?”, Los Angeles Times, Sept. 7).

September 12 — Goodbye to gaming volunteers? Online multiplayer gaming has grown to be a big Internet institution in no small part because large numbers of unpaid enthusiasts join in on a volunteer basis to suggest and beta-test new features, run discussion boards and perform countless other services. “But maybe not for long. On Monday, August 28 … Origin Systems Inc. (OSI) [makers of Ultima Online, one of the leading fantasy role-playing games], announced the termination of free game account privileges for hundreds of community volunteers…. While company representatives have not said so outright, it appears the move to eliminate what amounted to a $10 a month gratuity for volunteers is related to a recent New York class action lawsuit, brought by former volunteers at America Online (AOL)” (see Sept. 7, 1999). The class action lawyers in that case are charging that because AOL benefits from the content devised by its volunteers, and has given them at least nominal compensation in the form of free services and the like, it is therefore obliged to keep track of how much time they put into volunteering and pay them at least the minimum wage. If the lawyers succeed in their efforts, online community providers could find themselves facing large retroactive wage bills. “Origin is just the first game company to move to protect itself legally by removing any perks that could be seen as differentiating its volunteers from all the other players. The major subscription-based role-playing services may soon follow suit. While the short-term effects may be limited (some volunteers may quit, but could be replaced), the long-term future of volunteer work on online releases seems doubtful all of a sudden.” (Bruce Rolston, “The End of the Smurfs?”, Adrenaline Vault, Sept. 1).

September 12 — Curious feature of lawyer’s retainer. Texas trial lawyers are in a flutter over a Waco case in which an appeals court ruled that a client family in an industrial accident case was within its rights to withdraw from a contingent-fee legal contract it had signed. The agreement the lawyer had gotten the family to sign included a curious feature: a provision entitling him to settle the case without their consent. Such a provision, the court ruled, “clearly violates” the Texas professional code for lawyers, making the entire contract voidable. The lawyer, J.W. Stringer, plans motions for rehearing and appeal. (Jenny Burg, “Opinion Has Lawyers Reviewing Contingent-Fee Contracts”, Texas Lawyer, Aug. 21).

September 12 — This little piggy got taken to court. More pig farmers are facing legal action as outlying towns change “from rural, mind-your- own-business farm communities to residential, what’s-that-smell, suburban neighborhoods,” according to a Cleveland Plain Dealer report. Five residents of Medina County, Ohio, including a truck driver and two auto mechanics, have been sent to jail this summer for refusing to clean up pig living arrangements on their properties (Stephen Hudak, “Proud Pig Man’s smelly pork farm lands him in poke”, Sept. 7) (via Romenesko’s Obscure Store) And a Marlin County, Florida pig farmer sued by an adjoining golf course has put up a website which solicits moral support and legal defense contributions, as well as purchases of the squiggle-tailed offenders (Pigfarmer.com) (more on pig litigation: Oct. 4, 1999).

September 11 — “Feeding Frenzy Over Firestone”. “Lawyers all over the country see opportunity in the escalating legal, commercial and public relations disaster for Ford and Firestone.” (Bob Van Voris and Matt Fleischer, National Law Journal, Sept. 5; Yahoo Full Coverage).

September 11 — Harassment law roundup. At an Alcoa plant in North Carolina, one of the black complainants in a race discrimination suit went out to the parking lot, made a list of all the workers’ vehicles with Confederate flag stickers on them, and filed this as evidence of “hostile racial environment” in the case. The company promptly banned employees from having such stickers on their cars, a ban it insists had absolutely nothing to do with the lawsuit (Steve Chapman, “Trouble in Mind: Is the First Amendment Void in the Workplace?” Chicago Tribune, Aug. 24). In an excerpt from his book The Unwanted Gaze: The Destruction of Privacy in America, New Republic legal correspondent Jeff Rosen urges courts to reconsider the “hostile environment” analysis that has become an accepted part of harassment law: “A jurisprudence originally designed to protect privacy and dignity is inadvertently invading privacy and dignity” (“Fall of Private Man”,New Republic, June 12; more on book). Clarence Thomas, alone among the nine Justices of the Supreme Court, wanted to tackle the “troubling First Amendment issues” raised by a court’s injunction against workers’ use of racial epithets on the job at an Avis Rent-a-Car franchise; a California court had ordered the drawing up of a list of words that employees were to be forbidden to use in conversation with each other, whether anyone present found the words objectionable or not (Tony Mauro, Freedom Forum, May 23). And early this year it was reported that an “affirmative action officer in Falmouth, Massachusetts — whose job it was to enforce the town’s sexual harassment policy — has been fired for sexually harassing a town employee. The official, Jayme Dias, was in charge of promoting and enforcing fairness in hiring and employment practices.” (Monster.com, “Week in Work”, Jan. 31).

September 11 — “Mother sues over lack of ice time for goalie son”. In Rimouski, Quebec, “Hélène Canuel is seeking $1,000 in damages from the Rimouski Minor Hockey Association because her son, David, was denied the right to play in a critical game during a hockey tournament last December.” David is 14 years old. (Arpon Basu, Montreal Gazette/National Post, Aug. 24).

September 29-October 1 — Disabled rights roundup. The U.S. Supreme Court has agreed to decide whether the PGA golf tour must bend its rules to allow disabled golfer Casey Martin to ride in a golf cart (“U.S. High Court To Decide Case of Disabled Golfer”, Reuters/FindLaw, Sept. 26; see April 10, our May 1998 take). The government of Great Britain is considering legislation that would compel its armed forces to accept disabled recruits, and pressures are rising to accept handicapped military personnel in front-line as well as auxiliary positions, given the principle of nondiscrimination (Michael Smith, “Disabled want frontline jobs in ‘pc’ Services”, Daily Telegraph (London), Sept. 26; “Forces may have to admit disabled”, Aug. 21; UK Disability Discrimination Act). And a trend that has been well established under U.S. disabled rights law for some time — doctors’ having to hire sign-language translators at their own expense when a deaf patient wishes to call on them for a consultation — is exemplified by a consent decree negotiated by the office of New York Attorney General Eliot Spitzer, requiring an upstate doctors’ group to provide interpreters-on-demand for “all significant medical encounters” (“Spitzer Announces Agreement With Upstate Physician’s Practice To Provide Sign Language Interpreters for Deaf Patients”, press release, June 21; see also May 31).

September 29-October 1 — Annals of zero tolerance: Tweety bird chain. In suburban Atlanta, the Garrett Middle School has suspended 11-year-old Ashley Smith from sixth grade for two weeks on charges of breaking its zero-tolerance weapons policy by bringing a chain to school. It’s a 10-inch novelty chain that dangles from her Tweety bird wallet. “It’s only a little chain, and I don’t think it can really hurt anyone,” said Ashley, a “Tweety fan who publishes her own Web site devoted to the cartoon character.” Earlier, the ACLU successfully represented an Atlanta public school student who was charged with criminal weapons possession after she brought African tribal knives to school for a project (“Girl suspended for Tweety chain”, AP/Salon, Sept. 28; UPI/Virtual New York) (Ashley Smith’s guestbook) (update Oct. 4: school’s explanation).

September 29-October 1 — French crash, German victims, American payout levels? Air France has sued Continental Air Lines to recoup its costs from the July Concorde disaster in Paris that killed 113 people, charging that a strip of metal that fell off a Continental DC-10 caused the incident. The French airline has already offered to compensate survivor families, who are mostly German, but “German lawyers are pushing for a settlement in the United States, where courts order higher payouts.” (“Airline files Concorde suit”, Reuters/CNNfn, Sept. 27).

September 29-October 1 — “Denny’s fights back against false suits”. The restaurant chain, dogged by past charges of racial discrimination, releases more details on how it uses videotapes and other techniques to disprove dubious copycat claims (see Aug. 29-30). In Oakland, Calif., the lawyer son of John S. Harrison Sr. sued Denny’s claiming that a white couple had been served before his father though they had arrived later. “Mr. Harrison conceded he had been a customer for 20 years and ate at that Denny’s counter twice a day for 10 to 12 years with no problems in a store whose clientele was 50 percent black.” He had been happy with the meal and had left a tip. A federal magistrate threw out the suit and gave Denny’s legal fees. (Frank Murray, Washington Times, Sept. 25).

September 29-October 1 — “Supersize small claims”. Prairielaw columnist David A. Giacalone argues for reviving the nearly moribund institution of small claims court by boosting the threshold value of claims handled by such courts to $20,000, a change also endorsed by the HALT legal reform group. Thresholds around $3,000 are now common. Such a shift might relieve some of the docket pressure on regular courts while allowing ordinary citizens to vindicate more claims without lawyers’ assistance, a feature that may help explain why the bar shows little enthusiasm for the idea (undated, but appeared Aug.) (see also Oct. 3).

September 27-28 — Welcome UserFriendly.org readers. We’re picked as the link of the day by the website for the cartoon strip User Friendly, by Illiad.

September 27-28 — “Blind customers want to touch club lapdancers”. In East Sussex, England, the Brighton and Hove municipal council says it will consider a request by the Pussycats Club that its blind patrons be permitted to touch the exotic dancers as a form of handicap accommodation. The club says its vision-impaired customers appreciate the proximity of the lapdancers and their perfume but would get a better idea of what they looked like if they were allowed a hands-on experience, which is currently forbidden by the club’s license. (David Sapsted, Daily Telegraph (London), Sept. 26).

September 27-28 — Welcome Toronto Star readers. “One of my favourite Web sites is overlawyered.com, a collection of the most asinine stories from the admittedly ordinarily twisted universe of American law,” writes columnist Jason Brooks. He interviews our editor about a current proposal for Ontario to enact its own law emulating the Americans with Disabilities Act. No one seems to have any very clear idea what such a law would cost, but the Ontarians with Disabilities Act Committee says “the idea of a total cost figure misses the point.” Uh-oh…. (Jason Brooks, “Will new act go too far for the disabled?”, Toronto Star, Sept. 25).

September 27-28 — “Controversial drug makes a comeback”. A small Canadian firm, Duchesnay Inc., wants to reintroduce to the U.S. market Bendectin, the pregnancy-nausea drug driven off the market by mass litigation claiming that it caused birth defects. “Bendectin was the archetypical case of junk science scuttling a perfectly safe product,” Dr. Michael Greene, director of maternal-fetal medicine at Massachusetts General Hospital, tells New York Times science correspondent Gina Kolata. “It was a sad episode in American jurisprudence.” Although ultimately the manufacturer never paid damages, it spent $100 million in defense costs, says Prof. David Bernstein of George Mason University (Sept. 26)(reg).

September 27-28 — Stuart Taylor, Jr. on Gore and Vetogate. Another scathing, must-read column on trial lawyers and politics by the National Journal columnist, written before Janet Reno’s announcement last week that the Justice Department would not pursue an investigation of the Umphrey call sheet affair. Did you know that lawyers as a group have donated nearly ten times as much to the Democrats during this election cycle as the tobacco industry has given Republicans? (“Gore’s Shameless About Posing As A Populist”, National Journal/Atlantic Unbound, Sept. 26) .

September 27-28 — Microsoft wins one. The U.S. Supreme Court has turned down a Justice Department request that it hear the Microsoft case immediately, instead allowing the D.C. Circuit Court of Appeals to review the case, which is what the company preferred; past D.C. Circuit rulings suggest that it may be more sympathetic to Microsoft’s position than was the trial judge. (“High Court Defers to Microsoft”, AP/Wired News, Sept. 26; Declan McCullagh, “Microsoft gets what it wants”, Wired News, Sept. 26). And a number of courts have thrown out statewide consumer class actions against Microsoft based on the sale of Windows, although this doesn’t really come as much of a surprise in the case of states that bar indirect (end-user) antitrust claims, since cases filed in those courts were always long shots (Jonathan Groner, “The Cases Microsoft Is Winning”, Legal Times (Washington), Sept. 18).

September 27-28 — Bank error in your favor. Latest coins- found- under- the- sofa- cushions class action settlement: Wilmington, Del.-based credit card giant MBNA Corp. agrees to pay $3.57 each to current and former customers to settle claims that its ads were misleading in the early 1990s when they promoted a low interest rate for balances transferred from another card, but did not warn that the low rate did not apply to newly incurred charges. Lawyers for the plaintiff class, meanwhile, are set to pocket $1.3 million. Major credit card companies are frequent targets of class action litigation; Chase Manhattan and Providian Financial have recently settled such actions, and Citibank and Bank One/First USA face pending claims (Joseph N. DiStefano, “MBNA settles suit over card ads”, Philadelphia Inquirer, Sept. 26).

September 27-28 — Final innings for Kennewick Man. Score stands at archaeologists 0, multiculturalists 1, as Interior Secretary Bruce Babbitt announces that the 9,000-year-old skeleton found along the Columbia River four years ago will be given to local Indian tribes, who intend to bury the remains without allowing a complete examination. “If Babbitt’s ruling stands, the loss to science is beyond comprehension,” writes National Review Online‘s John Miller (“Kennewick Man’s last stand”, Sept. 26; see also Oct. 11, 1999).

September 25-26 — New data on state campaign contributions. Triallawyermoney.org, the project of the American Tort Reform Foundation that tracks plaintiff lawyers’ political contributions, has just expanded its coverage to include local elections in seven key states as well as federal elections. The states include Alabama, Florida, Illinois, Michigan, Ohio and Texas; there is also a link to similar data collected by the Civil Justice Association of California (launched Sept. 19 — “State Races“).

September 25-26 — “Skier to be tried for manslaughter in Colorado in fatal collision”. Although two county courts ruled that a reasonable person would not have expected skiing too fast to result in another person’s death, prosecutors in Denver have insisted on pressing a manslaughter rap against Chico, Calif. college student Nathan Hall, who in 1997, at the age of 18, headed down Vail Mountain and collided with 33-year-old Denverite Alan Cobb on the slope, killing him almost instantly. (AP/CNN, Sept. 11). Update Nov. 21: Hall convicted of criminally negligent homicide.

September 25-26 — Wal-Mart’s tobacco exposure. Through a little-known subsidiary named McLane Co., the Bentonville, Ark.-based retailer is the largest distributor of cigarettes to convenience stores, which makes it the biggest handler of that commodity aside from the tobacco companies themselves. Despite Wal-Mart’s deep pockets, plaintiff’s attorneys seem not to have noticed it yet. (Kelly Barron, “Smoking gun”, Forbes, Aug. 21) (see also July 7).

September 25-26 — A job offer for the judge. Following protests from defendants, Judge Edward Angeletti of Baltimore, Maryland Circuit Court removed himself from a series of asbestos-injury cases over which he was presiding and declared a mistrial after it was revealed that he had received a job offer from plaintiff’s attorney and political kingmaker Peter Angelos (see Oct. 19 and Dec. 9, 1999, March 15, 2000). According to AP/CNN, “Angelos has said that he made a ‘very substantial’ offer for Angeletti to head his office’s pursuit of lawsuits against lead paint manufacturers.” Angelos, who has become immensely wealthy through his handling of asbestos litigation, controls about three of every four asbestos cases in the Baltimore court. (“Job offer from lawyer leads judge to step down from asbestos trial”, AP/CNN, Aug. 1; “Judge removes himself from absbestos [sic] trials”, AP/Prince George’s County [Md.] Journal, Aug. 2)

September 25-26 — Kopel on zero-tolerance policies. Dave Kopel, Paul Gallant, & Joanne D. Eisen of the Independence Institute comment on the school zero-tolerance policies under which possession of an obvious toy gun — or sometimes just making a thumb-and-first-finger “gun” gesture — is considered grounds for punishment. (“Gunning for the Kiddies”, National Review Online, Sept. 22).

September 25-26 — Treaties rule. A federal judge in San Francisco has thrown out a lawsuit against Japanese defendants over World War II atrocities. In 1951 we signed a peace agreement with Japan which prohibited exactly these sorts of claims. Now we have to live up to our end of the treaty — period. (Louis Sahagun, “Suit on WWII Slave Labor in Japan Voided”, L.A. Times, Sept. 22; Reuters/FindLaw; see Sept. 20, 1999).

September 22-24 — “N.Y. Lawyer Charged in Immigrant Smuggling”. In a 44-count indictment, federal prosecutors on Wednesday charged the Manhattan lawyer who runs the country’s largest political asylum practice, Harvard Law-educated Robert Porges, with a wide range of offenses including concocting thousands of fictitious stories of persecution by which detained aliens could avoid deportation, advising smugglers how best to avoid detection by the Immigration and Naturalization Service, and “helping smugglers detain illegal immigrants until debts were paid.” According to prosecutors, paralegals wrote out longhand accounts of persecution, claiming of women clients, for example, that they had suffered forced abortions under China’s “one-child” policy, and then coached the immigrants on how to carry off the story convincingly. Porges is said to have “collected as much as $13 million in fees for helping to transport as many as 7,000 illegal immigrants from mainland China to the United States”. (Hanna Rosin and Christine Haughney, Washington Post, Sept. 21). Update Sept. 21, 2003: Porges and wife sentenced in 2002 to about eight years.

September 22-24 — RN’s illusions. Ralph Nader campaigns on the theme that anti-business advocates like himself are somehow kept from circulating their message or swaying policy. Is he really so disconnected from reality as to think that? (Sebastian Mallaby, “Victim of His Success”, Washington Post, Sept. 17). Before you get too enthusiastic about the Greens, suggests James Lileks, take a look at their platform: “They want your money, your job, your freedom and your car.” (“A look at Nader and his merry Greens”, San Francisco Examiner, July 14). And since some Nader groups have proposed the setting aside of a new .sucks domain to express discontent with powerful institutions (ibm.sucks, mcdonalds.sucks, etc.) some Seattle libertarians have turned the tables by founding the rudely named but inevitable Nadersucks.org, which bills itself as the largest collection of critical links about him online, outpacing the “Nader Skeleton Closet” feature at Realchange.org.

Other links of note from a Nader-watcher’s scrapbook: Doug Henwood, “1.75 cheers for Ralph”, Left Business Observer, Oct. 1996; discussion on LBO mailing list re RN finances, Sept. 9, 1998; RN denounces tort reform in campaign press release, VoteNader.org, Aug. 11; Robert Bryce, “Naturally Nader”, Austin Chronicle, April 7; Mike Allen, “Nader: The Little Guy’s Multimillionaire” (worth $3.8 million, heavily invested in tech stocks, still refuses to reveal income tax records), Washington Post, June 18; Paul West, “Corporate gadfly turns out to be rich”, Baltimore Sun, June 17; Michael Lewis, “Campaign Journal: The Normal Person of Tomorrow”, The New Republic, May 20, 1996.

September 22-24 — From our mail sack: hyperactive lawyers. Reader Scott Replogle, M.D., writes from Colorado: “I see (Sept. 18) that trial lawyer Richard Scruggs is suing psychiatrists and the makers of the drug Ritalin, alleging they conspired to ‘create’ a disease, Attention Deficit/Hyperactivity Disorder, and then overdiagnose it for monetary gain. Which raises the question: when can we sue the people who not too long ago ‘created’ the previously unknown disorders of ‘silicone disease’ and ‘human adjuvant disease’ during the breast-implant controversy, and conspired to overdiagnose those diseases for monetary gain? And does it matter that many of those people were trial lawyers?” (see also April 13, 2001)

September 21 — Missouri tobacco fees. Lawyers stand to make $100 million or more for representing the state of Missouri in the Medicaid-tobacco litigation and the state’s largest newspaper, the St. Louis Post-Dispatch, says that sum “is out of proportion to the work performed and the risk involved … troubling … grossly overpays the lawyers involved … creates an unholy alliance between the state and tobacco interests” It’s also “a political gravy train” since “the five law firms involved in the case donated a total of more than $500,000 in campaign contributions over the past eight years, mostly to Democrats”; a prominent Republican former judge and Democratic former mayor of St. Louis were also cut in. “An important issue of public policy — the lawyers’ fees — will be determined outside the public forum” given that a secret arbitration proceeding will be employed to set the fees. “…It is private money in the public trough. But that doesn’t make the sight of the lawyers lining up to feed any prettier.” (“All aboard the gravy train” (editorial), St. Louis Post-Dispatch, Sept. 17).

Brent Evans, a state senate candidate in Missouri, has posted extensive documentation on the circumstances surrounding state attorney general Jay Nixon’s hiring of outside lawyers to prosecute the suit. According to Evans, the lawyers’ campaign contributions of $561,000 included $139,000 for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan (“The Tobacco Papers“; the lawyers; their generosity; the work they might have done to justify the fees; “Attorneys mum about how much they’re seeking” (fee request “confidential”), Jefferson City News-Tribune, April 26, 1999; Jack Cashill, “Warning: Tobacco Settlements May Endanger The Integrity of Your Elected Officials” (also discusses Kansas fees), Cashill.com, undated 1999; “Appeals court sides with Nixon on legal fees in tobacco settlement”, Jefferson City News-Tribune, May 31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau, Mo.), June).

Last year Missouri Digital News reported that Paul Wilson, lead attorney on the matter with AG Nixon’s office, “urged lawmakers to pass legislation that will protect the major tobacco companies from a market-share loss once the impact of the tobacco settlement sets in. Off-brand cigarette companies, those not participating in the settlement, could otherwise undercut the prices of the major tobacco companies. Missouri will keep getting its billions so long as the market share of the signatories does not dip below 95 percent. If it were to do so and Missouri had no off-brand tobacco law, explained Wilson, the terms of the settlement let the major tobacco companies stop paying.” (Anna Brutzman, “Legislators Bewildered By Settlement”, April 4, 1999). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.

September 21 — Dangerous divorce opponents. It’s tough enough going through a divorce in any case, but you’d really better watch out if your spouse is a successful lawyer, according to the New York Post. Advice: try for a change of venue. (Laura Williams, “Attorneys’ Wives Court Disaster”, Sept. 20).

September 21 — Eastwood trial begins. Jurors will hear an Americans with Disabilities Act complaint against the actor’s Mission Ranch hotel in Carmel. For our coverage of the Eastwood case and related Congressional hearings, see May 18, March 7, Feb. 15 and Jan. 26. (“Eastwood to Jurors: ‘Make My Day'”, AP/Fox News, Sept. 20; Shannon Lafferty, “Eastwood in the Line of Fire,” The Recorder/CalLaw, Sept. 21).

Filed under: Alaska, antitrust, arbitration, attorneys general, Australia, Beaumont, Cincinnati, Dallas, deep pocket, Denver, Houston, Indiana, Joe Jamail, John O'Quinn, libel slander and defamation, Manhattan Institute, Mississippi, New Jersey, New Zealand, Ohio, Philadelphia, Provost Umphrey, tobacco, trademarks, wrongful birth and wrongful life

August 2000 archives

August 10 — Coffee-spill suits meet ADA. In Vallejo, California, a woman is suing McDonald’s, “saying she suffered second-degree burns when a handicapped employee at a drive-thru window dropped a large cup of hot coffee in her lap. …The suit said that the handicapped employee couldn’t grip the cardboard tray and was instead trying to balance it on top of her hands and forearms when she dumped the coffee on Aug. 25, 1999,” scalding Karen Muth, whose lawyer, Dan Ryan, told a local newspaper that she’s entitled to between $400,000 and $500,000. “We recognize that there’s an Americans with Disabilities Act, but that doesn’t give them the right to sacrifice the safety of their customers,” he said. (“Woman sues McDonald’s over spilled coffee”, AP/SFGate, Aug. 7). And British solicitors have organized 26 spill complainants into a group suit against the same chain over the overly piping nature of its beverages: “Hot coffee, hot tea and hot water are at the centre of this case. We are alleging that they are too hot,” said Malcolm Johnson of Steel and Shamash, a London law firm. (“McDonald’s faces British hot drink lawsuit”, Reuters/FindLaw, Aug. 2) (more on hot beverage suits: July 18; “Firing Squad”, Reason, May 1999 (scroll halfway down in piece); and resulting letters exchange, Aug./Sept. 1999 (scroll to last items), April 4).

August 10 — “Imperfect laws add to danger of perfect storms”. “In an ill-advised attempt to prevent overfishing in the [Gulf of Mexico], the government reduced the red snapper season to a very short nine-day opening” — a “snapper derby”. Unfortunately, menacing weather came up during that brief nine-day window, and snappermen were left with a choice of which risk to run, physical or economic. Most went to sea, “and at least two boats encountered life-threatening conditions. One boat was lost in raging seas off Louisiana.” Alaska suffered a series of avoidable accidents and fatalities under a similar “halibut derby” until it switched to a better system: the sort of individual transferable quotas often recommended by economists (Peter Emerson and Felix Cox, Dallas Morning News, July 25).

August 10 — “Justice, not plunder”. We thought we were hard-liners on the topic of excessive lawyers’ fees, but Washington Post columnist Robert Samuelson goes us one better by proposing a maximum limit of $1 million or $2 million a year as the most anyone could earn from lawyering in a year. It might sound less outlandish if we went back to the old idea of lawyers as “officers of the court” — i.e., a species of civil servants, even if more fancily dressed. (July 27).

August 10 — Welcome readers (especially Daves). Among the diverse sites we’ve noticed linking to us are: Dave Dufour’s site, from Elkhart, Indiana; gasdetection.com, website of “Interscan Corporation, manufacturer of toxic gas detection systems”, which names us “Mike’s Cool Site of the Week”; Bonehead of the Day Award (citing us for material, not naming us as the awardee!); Miss Liberty Film & TV World, Jon Osborne’s newsletter reporting on film and television events of libertarian interest; Dave’s Corner, published by a different Dave from the one above; Peter Brimelow’s vdare.org, with a line-up of authors critical of immigration and multiculturalism; Big Eye — Alternate News Center, assembling many anti-establishment links; Hittman Chronicle, by yet a third Dave, Dave Hitt, whose July number takes a caustic view of the recent Florida tobacco verdict; Adirondacks2000.com (we’re their current “Featured Internet Site”); and Wrisley.com, “An Electronic Magazine for Thinkers” out of South Carolina.

August 8-9 — Senator Lieberman: a sampler. “Miracles happen,” said the Senator on learning that he was going to be the Democratic pick for VP. (Ron Fournier, “Gore Picks Sen. Lieberman for VP”, Washington Post, Aug. 7). As far as legal reform goes, we’d have to agree — for him to be on the same ticket with Al Gore counts as nothing short of a miracle:

“In vetoing this bipartisan product liability reform, the President went against his own White House Conference on Small Business and members of his own party. … Connecticut Democrat Sen. Joseph Lieberman said, ‘the President is dead wrong about this bill.’ And no less a journalistic authority than the Washington Post called the President’s decision to veto the bill, ‘a terrible one.'” (Rep. Dave Hobson (R-Ohio) newsletter, May 3, 1996)

“In complaining about trial lawyers’ influence on the liability bill, Sen. Joseph Lieberman, D-Conn., told the Wall Street Journal: ‘This is a remarkable story of a small group of people who are deeply invested in the status quo who have worked the system very effectively and have had a disproportionate effect.'” (Dallas Morning News, March 28, 1996, available on Nexis, but not online)

“Mr. President, in my view, you can add the civil justice system to the list of fundamental institutions in our country that are broken and in need of repair. … Ultimately it is the consumers who suffer most from the status quo. …

“I did not always support a national or Federal approach to product liability reform or tort reform generally … What changed my mind was listening to people in Connecticut. …

“I would say that our current medical malpractice system is a stealth contributor to the high cost of health care. … There is a well regarded consulting firm called Lewin-VHI. They have stated that hospital charges for defensive medicine were as high as $25 billion in 1991. That is an enormous figure. Basically what they are saying is that as much as $25 billion of the costs — this is not paid by strangers out there, this is paid by each of us in our health insurance premiums — is the result not of medical necessity but because of defensive practice occasioned by the existing medical malpractice legal system.” (Lieberman floor statement, April 27, 1995, reprinted by Health Care Liability Alliance).

When the Senate (temporarily) voted by a one-vote margin to curb the gargantuan fees obtained by trial lawyers for representing states in the tobacco-Medicaid litigation, a step later blocked by opponents, Lieberman was one of four Democrats to buck the party’s trial lawyer supporters by voting yes (Action on Smoking and Health, June 17, 1998, citing New York Times and C-SPAN).

With Sen. Spence Abraham (R-Mich.), Lieberman introduced the proposed Small Business Liability Reform Act of 1999, which would limit the exposure of small businesses to punitive damages and joint liability for non-economic damages in most cases, limit the application of joint and several liability to small businesses, and make it harder to add wholesalers and retailers to lawsuits against manufacturers. The bill has had trouble attracting support from other Democrats, however (World Floor Covering Association website).

With Senator Mitch McConnell (R-Ky.) and Rep. Dick Armey (R-Tex.), Lieberman introduced the Auto Choice Reform Act, bitterly opposed by trial lawyers, which would encourage car owners to opt out from the “pain and suffering” lottery in exchange for lower rates. “According to Joseph Lieberman, a co-sponsor, ‘our auto insurance and compensation laws violate the cardinal rule I think those of us in the business legislating have a duty to follow: to draft our laws to encourage people to minimize their disputes, and to encourage those who do have disputes to resolve them as efficiently, as economically, and as quickly as possible.'” — Bionomics Institute, “Driving Them Crazy”, August 15, 1997, citing Congressional Record, April 22, 1997. Sen. Daniel Patrick Moynihan (D-N.Y.) also supports the idea (Dan Miller, “Auto Choice: Relief for Businesses & Consumers”, Joint Economic Committee).

“Jim Kennedy, press aide for Lieberman, indicated that Nader, a lawyer, is watching out for the interests of his profession. ‘What he’s left out is the trial lawyers’ lobby which is bankrolling the opposition. They have the most to lose and they are the ones making money out of the system,’ he said.” (quoted in States News Service, May 3, 1995, after Ralph Nader attacked the Senator for sponsoring liability reform; available on Nexis, but not online).

Addendum: Although a strong supporter of gun control in general, Lieberman joined Republicans and a minority of Democrats on a 1992 procedural vote in support of preventing the District of Columbia from using liability lawsuits as a means toward that end. (S. 3076, vote #152, July 27, 1992) (DURABLE LINK)

August 8-9 — Break in Florida tobacco-Medicaid fee case? Harvard professor Alan Dershowitz says he’s determined to press suit against the Florida lawyers who extracted $3.4 billion in legal fees in the state’s tobacco-Medicaid settlement, saying they promised him 1 percent, or $ 34 million (see July 17). Dershowitz says he’s acting as “a pro bono who intends to give most of the money to charities.” “Where does he get his numbers? They’re preposterous. He has an ego the size of a mountain,” said an attorney for the lawyer-defendants. “Suing me is a serious mistake,” said Pensacola lawyer Robert Kerrigan, of Dershowitz’s action; we’d call that tone intimidating, under the circumstances. “These guys have chutzpah,” Dershowitz said. “I don’t care how rich these guys are or how many judges’ campaigns [Robert] Montgomery contributes to, I’m fighting back.” And: “Now the public can finally see the inside of the cigarette lawyers industry.” We can’t wait, since the record-breaking Florida fee haul has been shrouded in much secrecy up to now (see April 12) (Cindy Krischer Goodman, “Harvard prof suing lawyers over tobacco settlement”, Miami Herald, Aug. 2).

August 4-7 — Republican convention finale. No mention of legal reform in W’s acceptance speech, but the topic did make its way into the earlier remarks from the podium by Jan Bullock, widow of Democratic Lt. Gov. Bob Bullock (gopconvention.com).

August 4-7 — Now that’s bread. A San Francisco jury has awarded $121 million in punitive damages, atop $11 million in compensatory damages, to 21 black workers at an Interstate Bakeries plant (see July 10). Among the charges were hostile work environment, being subjected to racial slurs, and lack of promotions; one worker testified that he hadn’t been allowed to take Martin Luther King Day off although white workers had been allowed time off to watch the San Francisco Giants play. The company is known for making Wonder bread and Hostess snack cakes. (“‘Wonder Bread’ Workers Get $121 Million in Lawsuit “, Reuters/Yahoo, Aug. 3; “Jury Awards Workers in Bread Case”, AP/FindLaw, July 31) Update: judge reduces award by $97 million (see Oct. 10).

August 4-7 — Update: Hirschfeld convicted, sentenced. Eccentric New York City real estate developer, politician and public figure Abe Hirschfeld has been sentenced to one to three years in prison after being convicted on charges of trying to have his business partner killed. Hirschfeld still faces separate retrial on tax fraud charges, following a jury deadlock after which a mistrial was declared; in that case, Hirschfeld created a sensation by handing each juror a check for $2,500, a step apparently not in violation of any court rule at that time (see Sept. 13, Sept. 17, 1999). The judge in the murder-for-hire case, however, explicitly barred Hirschfeld from bestowing any gratuities on jurors after the case’s conclusion. (Samuel Maull, “Real estate mogul gets sentence of 1 to 3 years”, Phila. Inquirer, Aug. 2; same, Phila. Daily News.)

August 4-7 — “Ease up on kids”. Salt Lake Tribune criticizes school safety hysteria and the resort to suspension or expulsion for behavior that once would have merited a trip to the principal’s office. “Utah’s Legislature passed a law this year requiring that secondary education students be expelled for a year if they bring even a fake weapon to school, and it allows no review process through which real threats can be separated from pranks.” (editorial, July 28)

August 4-7 — Losers should pay. Environmental groups’ use of the courts to seek delays in large-scale development projects — which can inflict huge financial losses through the costs of delay even if the challenges eventually fail on the merits — points up the case for loser-pays principles, including bonding where appropriate, as in a recent Northern California case, argues columnist and Hoover Institution scholar Thomas Sowell. “Of all the ways of making decisions, one of the most ridiculous is putting decisions in the hands of third parties who pay no price for being wrong.” (“Costs and Decisions”, TownHall.com, Aug. 2).

August 4-7 — Take that, .hk and .tw. A Chinese law firm, suing on behalf of a dissatisfied consumer, has hauled Japanese-owned cameramaker Canon into court because some of its subsidiaries’ promotional material, including CD packaging and a website, list Hong Kong and Taiwan as separate “countries” in which it does business. Although Taiwanese have lived for more than fifty years under a government different from that of mainland China, Beijing’s official posture is still that the island is part of one China. Canon (Hong Kong) has apologized in newspaper ads, but the Chongqing Hezong Law Firm says its explanation is unconvincing. (“Canon (under) fire: China sues over Web site’s calling Hong Kong, Taiwan countries”, China Online, Aug. 1)

August 3 — Jury orders “Big Chocolate” to pay $135 billion to obese consumers. Lawyers charged Hershey’s with knowingly adding nuts to lure helpless chocoholic buyers. Keep repeating to yourself: it’s just a parody. … it’s just a parody (for now). … it’s just a parody. The Onion, August 2 (via Arts & Letters Daily). Plus: recently launched legal spoof site, ScaldingCoffee.com, profiles not-quite-true courtroom controversies such as the one over “Tapster”, the new system that allows Internet sharing of dance step patterns, much to the economic detriment of Arthur Murray franchisees (July) (latest).

August 3 — Wednesday’s GOP and legal reform. How many distinct references to litigation reform have come up in the Republican convention proceedings? We counted four on Wednesday evening (all favorable): they came in speeches by California small business owner Hector Barreto, dotcom exec Christina Jones, and, of course, vice presidential nominee Dick Cheney, who praised Gov. George W. Bush for his success in passing legal reform (“Today the legal system [in Texas] serves all the people, not just the trial lawyers.”) Then there was the comment made by the representative of the state of Washington when its turn came in the roll call: in a pointed reference to the Microsoft case, she said the Evergreen State was in favor of “innovation, not litigation”. If you spotted other references, let us know.

August 3 — CSE event in Philly. Citizens for a Sound Economy, which has been calling attention on the campaign trail to legal-system excesses, will be holding an event in Philadelphia today featuring its giant-fish mascot “Sharkman,” a “Who Wants to be a Trial Lawyer Billionaire” contest and more. The purpose is to honor lawmakers and other officials from Alabama, Illinois, Texas, and Florida who’ve stood up to the litigation lobby in their states. Specifics: Thurs. Aug. 3, 2-5 p.m., Maui Entertainment Complex, Pier 53 N. Delaware Ave., Phila. (CSE website). See you there? Adds the CSE website: “On Sunday, Senator [John] McCain [R-Ariz.] invited Sharkman and CSE staff to attend a reception with all of Senator McCain’s national delegates. Senator McCain grew fond of Sharkman during the primaries, often inviting him on stage in New Hampshire and South Carolina.”

August 3 — And what were the damages? An unemployed 56-year-old Los Angeles machinist named Cornell Zachary says he was the victim of a phone-number mixup in which the British pop group Duran Duran mistakenly posted his phone number on the Internet “as the one to call for T-shirts, souvenirs and tickets.” He then was kept running to the phone day and night by a vast number of wrong-number calls from fans of the group. And what were the damages, you ask — since without damages a lawsuit isn’t much of a lawsuit? Well, Zachary’s lawsuit, filed last week, claims he suffered ‘life-threatening high blood pressure episodes,’ nerve damage, sleep disturbance, and permanent health problems … ‘They had me to the point where my doctor told me I could have a stroke.'” Notwithstanding that dire medical advisory, he didn’t ask the phone company to change his number: “I don’t think that I have to change my number,”‘ he explained. “I didn’t make the mistake. I had had the number already over a year.” His suit also asks punitive and exemplary damages and attorneys’ fees. (Sarah Tippit, “L.A. Man Sues Duran Duran for Posting Number on Web”, Yahoo/Reuters, Aug. 1).

August 2 — Tinkerbell trademark tussle. On Friday in federal court in Scranton, Penn., a company called New Tinkerbell Inc. of New York sued the Walt Disney Company for trademark infringement of the registered trademark “Tinkerbell”, of which it says it and its affiliates are the exclusive lawful owners and licensees. The gossamer-winged character, whose continued existence is made possible only by observers’ willingness to suspend their rational disbelief in her (which already gives her a lot in common with many phenomena of the legal system) dates back to J. M. Barrie’s children’s classic Peter Pan, which has now fallen out of copyright and into the public domain, but the New York company says that it obtained the rights to use her name in commerce in 1952, a year before Disney released its hugely popular movie Peter Pan. There followed a line of “Tinkerbell-emblazoned products for children,” including shampoos, glitter, hair bands, “scrunchies,” umbrellas, sunglasses, pencil kits, and many more; for a while, the complaint alleges, Disney itself bought and resold New Tinkerbell items in its stores, but then decided it wanted to enter the field itself, and has since used on its products such marks as “Tinkerbell, Tinker Bell, Tink, or a proxy for a female fairy.” The suit accuses Disney of unlawful use of “a female fairy character in interstate commerce”. (Roger Parloff, “Fairy Serious Business: Disney Accused of Misappropriating Tinkerbell”, Inside.com, July 31)

August 2 — Judge rebukes EPA enforcement tactics. “In a harsh rebuke to the federal Environmental Protection Agency‘s pursuit of criminal polluters, a judge has ruled the government unnecessarily harassed a Northbridge mill owner and pursued a case against him even though it didn’t have any credible evidence.” Following up on a tip from a former employee of the mill, which makes wire mesh used for lobster traps, a “virtual ‘SWAT team’ consisting of 21 EPA law enforcement officers and agents, many of whom were armed, stormed the [mill] facility to conduct pH samplings. They vigorously interrogated and videotaped employees, causing them great distress,'” wrote federal judge Nathaniel Gorton. Moreover, EPA in obtaining a search warrant apparently concealed evidence from its own testing indicating that the plant’s wastewater emissions may not have breached federal standards. “The case marks the first time in the region that a judge has ruled in favor of an application of the Hyde Amendment, a three-year-old federal law that allows an exonerated defendant to seek legal fees from the government if the criminal prosecution was ‘frivolous, in bad faith or vexatious.'” (David Armstrong, “US judge rules EPA harassed mill owner”, Boston Globe, Aug. 1).

August 2 — Clinton before trial lawyers: a footnote. Press reports had been contradictory about whether or not prospective disbaree Bill Clinton in his Sunday speech became the first sitting president ever to address the Association of Trial Lawyers of America (see July 31, Aug. 1). Molly McDonough of American Lawyer Media appears to clear up the discrepancy: the only other president to visit the organization was Lyndon Johnson in 1964, but he spoke to ATLA’s board of directors, which leaves Clinton as the first to appear before the organization’s general membership (“Clinton Addresses Trial Lawyers at Annual Bash”, Aug. 1).

August 2 — “Mugging victim ‘stupid,’ judge says”. A judge in Winnipeg, Canada, has caused an outcry by acquitting an alleged mugger and then lambasting the complainant for openly carrying money in a dangerous neighborhood. “‘What I am satisfied is that we have a very stupid civilian, who admits that he was stupid,’ said [Judge Charles] Rubin, who interrupted the Crown’s closing submission Tuesday to deliver his verdict. ‘If you walk around jingling money in your hand . . . it’s like walking in the wolf enclosure at the city zoo with a pound of ground beef in your hand. And it’s almost the same type of predators you’re going to find out there.'” The judge also advised the complainant to walk in future in the middle of the street for safety, rather than on the sidewalk. (Mike McIntyre, Winnipeg Free Press, July 20).

August 1 — Clinton’s trial-lawyer speech, cont’d. In his partisan-fangs-bared speech Sunday to the Association of Trial Lawyers of America, the president brought up the topic of vacant seats on the Fourth Circuit U.S. Court of Appeals, and accused Republican senators of deliberately not confirming black judicial nominees he’s proposed to that court simply because those nominees are black — which is to say, accused them of engaging in racism. (Neil A. Lewis, “President Criticizes G.O.P. for Delaying Judicial Votes”, New York Times, July 31). As Smarter Times points out (July 31), yesterday’s New York Times reported these rather incendiary charges and yet omitted to include any sort of response to them from Republican senators or anyone else, simply allowing Clinton to make them uncontradicted. For those interested in the issue on other than a demagogic basis, Ramesh Ponnuru at National Review Online wrote a piece July 17 adducing a sufficiency of non-racist reasons why senators might be leaving the seats vacant (other coverage in USA Today, New York Post).

However, the Times partially redeems itself by some original reporting on the exact nature of the differences between Democratic candidate Al Gore and Green Party candidate Ralph Nader. It reported that Nader, “who has been closely allied with trial lawyers on the issue of civil litigation rules, said Mr. Gore was allowing the president to take the heat of associating with the lawyers while he was reaping the benefits. ‘He’s just slinking around taking money like crazy from these guys, and at the same time he’s not really standing up for the civil justice system,'” said Ralph, who himself has steered a different course from Gore at least as to the latter course of conduct, since he’s known for his vocal defense of virtually every trial lawyer depredation yet invented.

As AP reports: “Common Cause, a non-partisan group that advocates campaign finance reform, calculates that trial lawyers gave $2.7 million to Democrats in 1999. That is about 1,000 times more than trial lawyers donated to Republicans last year, and twice the amount donated in the same period during the last election cycle.” (Anne Gearan, “GOP keeping minority judges off bench, Clinton says”, AP/Bergen County (N.J.) Record, July 31). However, you would be wrong if you imagine that Common Cause, as “a non-partisan group that advocates campaign finance reform”, might see cause for concern that those donations might not entirely further the public interest. After all, Common Cause recently named as its president Scott Harshbarger, former Democratic attorney general of Massachusetts, who in that office worked closely with trial lawyers and in fact bestowed on them a tobacco representation agreement which brought them an unprecedented fee bonanza. And now Mr. Harshbarger, newly speaking for Common Cause and quoted in the Times piece, ardently defends the particular special interest he has reason to know best, saying massive trial lawyer donations are no more than an appropriate way of leveling the playing field given that those whom the lawyers sue — which includes pretty much every other group in the economy — also donate a lot to politicians. In the new Common Cause universe, it seems, some special-interest influences on politicians are a lot more objectionable than others.

August 1 — “Lawsuits to fit any occasion”. According to the L.A. Times, a 43-year-old local attorney has been involved in 82 lawsuits on his own behalf since 1982. Robe rt W. Hirsh “sued the single mother he hired to stain the woodwork in his Hancock Park Tudor-style home, claiming she left some streaks on the wood. He sued his stockbroker for not getting him into Microsoft stock.” He sued a dissatisfied client to demand his fee, and then, when an arbitration panel instead awarded the client $25,000 against him, sued the lawyers who had represented him in the arbitration. “Hirsh even sued the synagogue where he was married, claiming that the religious elders had botched the catering of his wedding by, among other things, serving his guests cold vegetables and not giving his family all the leftovers. ‘Either he has the worst luck in the world, or he likes to sue,'” said Loyola law prof Laurie Levenson. Many of the suits have succeeded in bringing him settlements, but Hirsh (who also disputes the number of cases in which his critics say he has been involved) now faces a proceeding under California’s rarely used court rules against vexatious litigants, which could curb his activities in future. (“Davan Maharaj, “Lawsuits to Fit Any Occasion”. Los Angeles Times, July 29).

August 1 — Movie caption trial begins. Trial set to begin this week in a closely watched lawsuit in which Portland, Oregon, deaf activists have charged movie theater proprietors with violating the Americans with Disabilities Act because they haven’t installed elaborate captioning systems throughout the theaters (Kendra Mayfield, “Films Look to Captioned Audience”, Wired News, July 28). Meanwhile, the recording industry is concerned that a system installed to help the hearing-impaired at live concerts has become a prime vehicle for bootleggers to obtain concert tapes of unusually high quality for pirate sale; the ADA requires arenas to offer the assistive listening devices (Larry McShane, “Bootleggers Use Hear Aid to Record”, Yahoo/AP, July 30). And given the ADA’s many unintended consequences, outrageous results and manifest failures, Chicago Tribune columnist Steve Chapman wonders why tenth-anniversary press coverage of the act’s passage took such an overwhelmingly celebratory tone; his column quotes our editor (“The Other Side of the Disabled Rights Law”, July 30).

August 18-20 — Why the bad guys can’t stand John Stossel. The ABC News correspondent is the one TV reporter who again and again has exposed and ridiculed in devastating style the abuses of litigation and misconduct of lawyers, the excesses of scare-environmentalism, and countless instances of over- and mis-government (his hourlong special “The Trouble With Lawyers” a couple of years back is just one of many highlights; Stossel’s website at ABC). You can bet he’s made a long list of enemies in the course of doing this, and now, after a flub by his staff in a report on organic foods (for which he apologized last Friday on camera) there’s a well-organized campaign under way to take his journalistic scalp. That would reduce from one to zero the number of prominent contrarian TV voices on many of these issues, leaving in place, of course, the large amount of vigorous advocacy journalism from the point of view opposite to his. A recent New York Times roundup on the controversy quotes our editor (Jim Rutenberg and Felicity Barringer, “Apology Highlights ABC Reporter’s Contrarian Image”, Aug. 14); if you wonder what sorts of grossly misleading stories the network newsmagazines have run over the years without anyone’s feeling obliged to apologize for them, check out our article “It Didn’t Start With NBC Dateline“.

Now the Competitive Enterprise Institute has launched a website project devoted to documenting and exposing the campaign to get John fired, and to collecting letters, petition signatures, and other signs of support so that ABC will know how big a fan base he has rooting for him. (SaveJohnStossel.org, temporarily hosted at counterprotest.net/stossel).

August 18-20 — “Caffeine added to sodas aims to addict — study”. Because most consumers in a small study could not tell by taste whether a soda had caffeine in it or not, some researchers at Johns Hopkins arrived at the conclusion that the substance appears in sodas for the sole purpose of “addicting” consumers. (Most of the biggest mass-market sodas offer a choice of caffeinated and non-caffeinated versions; typically the latter is considerably less popular with consumers, who are presumably helpless to choose between the products, enslaved as they are by their addiction.) “The study appeared in Archives of Family Medicine, which is published by the American Medical Association”. (“Pop made to hook drinkers”, Reuters/Detroit News, Aug. 15; “Cola makers rip study on caffeine addiction”, AP/Spokane Spokesman-Review, Aug. 15). Advocates who have participated in the demonization of the tobacco industry and other businesses have frequently denied that the food industry is next on the list. It’s certainly on some folks’ list, however. Last year Yale University researcher Kelly Brownell said: “I have called the food environment in the United States toxic … The food companies and their advertisers are, in fact, luring our children into deadly behavioral patterns … Sooner or later, the food companies will be considered in the same way we regard the tobacco industry.” (“Regulation by Litigation: The New Wave of Government-Sponsored Litigation”, sponsored by Manhattan Institute, Chamber of Commerce of the U.S., and Federalist Society, June 22, 1999, conference proceedings)

August 18-20 — Weekend reading: Macaulay’s bicentenary. Your editor being a longtime admirer of the great classical liberal Thomas Babington Macaulay, his latest Reason column is devoted to appreciating the Whig historian’s written legacy on the 200th anniversary of his birth (Walter Olson, “Confessions of a Macaulay Fan”, Reason, August/September). An outfit called Electric Book is generous enough to webpost downloadable versions of many of his essays, free for individual use (zip files of PDF documents).

August 18-20 — Snakes’ rights not always paramount. Notwithstanding endangered species law, New York environmental authorities have decided not to press charges against 72-year-old Phillip Wheaton for killing a protected rattlesnake that had bitten him. Wheaton had just stepped from his car on a rural road in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton proceeded to hit the snake with his cane, injuring it; it was taken to a veterinary hospital where it later died. “I had a fight with that snake and I won,” Wheaton said later. “I didn’t cause no fight with that rattlesnake but he caused it with me.” (“Slain serpent”, AP/Fox News, Aug. 16). Last year (Oct. 12) we reported on a court’s ruling, also in New York, that a private landowner was obliged to host rattlers on its property; it ordered the tearing down of a “snake-proof” fence that had prevented the venomous creatures from approaching an area where humans were at work.

August 16-17 —Fortune on Lerach. Don’t miss this long but grippingly reported account of the rise, prosperity and current woes of the world’s most widely feared plaintiff’s securities lawyer, Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable material new to us (Peter Elkind, “The King of Pain Is Hurting”, Fortune, Sept. 4). Earlier this summer the same magazine published a colorfully detailed account of infighting among the troop of plaintiff’s lawyers angling to bring down the HMO industry (John Helyar, “They’re Ba-a-ack!”, Fortune, June 26).

August 16-17 — Okay to make lemonade. In Eustis, Fla., the city government has backed down from an inspector’s attempt to close down the lemonade stand that nine-year-old Rachel Caine runs across the street from her home. (Stephanie Erickson, “Eustis officials back down from order to make girl, 9, close lemonade stand”, Orlando Sentinel/Ft. Lauderdale Sun-Sentinel, Aug. 9). And in Longmont, Colo., 11-year-old “Soda Girl” Caitlin Rezac is back in business with her fizzy-refreshment stand after a run-in with the Boulder County health department, which had busted her for operating without a hand sink and $110 license; a local business donated the sink (search Denver Post archives on “Caitlin Rezac” (excerpts free, fee for full story); letter to the editor from county official Ann Walters, Boulder Daily Camera, Aug. 12 (scroll) (via Liberzine)).

August 16-17 — Olympics website’s accessibility complaint. The United States isn’t the only place where controversy is simmering over websites that “exclude” blind and other disabled users (by not adopting design and syntax that cater to them). At a recent hearing of the Human Rights and Equal Opportunity Commission in Australia, organizers of the Sydney Olympics defended themselves against charges that they hadn’t made their website usable by the vision-impaired. (Rachel Lebihan, “Olympics web site riddled with blind spots”, ZDNet, Aug. 9). America Online has reached a provisional settlement of the complaint filed against it by the National Federation of the Blind (see Nov. 5); the online service pledges to alter its software to bring it into fuller compatibility with screen reader technology and says it will train its employees to be sensitive to disabled users’ needs, in exchange for which NFB agrees to postpone suing for a year (Oscar S. Cisneros, “AOL Settles Accessibility Suit”, Wired News, July 28). Also: a clip we missed earlier on Congress’s February hearing on this topic: “Do Web Sites Violate the Americans with Disabilities Act?”, TechLawJournal, Feb. 10.

August 16-17 — “City gun suit shot down on appeal”. An appeals court has unanimously upheld a lower court’s dismissal of the city of Cincinnati’s lawsuit against the gun industry, likening that suit “to the ‘absurdity’ of suing the makers of matches because of losses from arson.” Prominent tort attorney Stanley Chesley (see June 1, March 30), representing the city, says he will appeal to the Ohio Supreme Court, which, ominously for the gunmakers, is currently controlled by a majority of justices well disposed to trial-lawyer arguments (see May 8, 2000; Aug. 17 and Aug. 18, 1999). (Dan Horn, Cincinnati Enquirer, Aug. 12; “Cincinnati can’t sue gunmakers for damages, court rules”, Reuters/FindLaw; text of decision (Cincinnati v. Beretta; retrievable Word document, not website).

August 16-17 — Web-copyright update: “Dialectizer” back up, “MS-Monopoly” down. The “Dialectizer“, a website that will translate another page of your choice into a variety of stagey dialects including Redneck, Cockney, Elmer Fudd and Pig Latin, is back up and running; we reported May 18 that the site had closed itself down for fear of being sued by businesses that might view such automated translation of their websites’ contents to be an infringement on their copyright. However, the “MS-Monopoly” parody site, which adapted elements from the popular board game Monopoly to comment on the Microsoft case (see Dec. 3) has been pulled down at the behest of lawyers for toymaker Hasbro, which puts out the real game: “MS-Monopoly.com ‘Cease and Desist’ed by Hasbro Lawyers“. In Forbes, Virginia Postrel says big companies are being shortsighted when they sic lawyers on fan sites that happen to use copyrighted material; News Corp.’s Fox properties, for example, have issued rumbling letters to online enthusiasts of cult shows such as The X-Files and Buffy the Vampire Slayer. (“The Shortsighted Site Busters”, Forbes/Reason Online, July 24).

August 15 — Plastic surgeons must weigh patients’ state of mind, court says. By a 3-2 margin, a New York court has allowed a claim to proceed against a cosmetic surgeon for conducting liposuction and abdominoplasty procedures on a patient while “fail[ing] to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw,” which meant that her consent to the procedures might not really count as informed. The patient made at least fifty visits to the doctor’s office. (Michael A. Riccardi, “Doctor Must Weigh Patient’s Mental State”, New York Law Journal, June 29; Renee Kaplan, “What Should Plastic Surgeons Do When Crazy Patients Demand Work?”, New York Observer, July 31). (Update June 11, 2001: she loses in New York’s highest court). The American Life League, an anti-abortion group, plans to take a leaf from its counterparts on the left and launch a systematic litigation campaign based on malpractice, consumer protection and other theories to shut down abortion clinics, while a conservative writer suggests approaching sympathetic state attorneys general and getting them to file a tobacco-style megasuit against abortion providers (Julia Duin, “Pro-life advocates aim to hit clinics in the pocketbook”, Washington Times, Aug. 10; Chuck Morse, “Big Tobacco and the Abortion Industry”, EtherZone, June 12). In Erie, Pennsylvania, a judge has declared a mistrial in a medical malpractice trial after a juror fainted during the trial and the defendant physicians revived him; the judge thought it necessary, lest this act of kindness be thought to have improperly prejudiced the proceedings, to restart the whole ordeal from scratch (“Doctors accused of malpractice aid juror who fainted”, AP/CNN, Aug. 11). And Overlawyered.com‘s page on law and medicine has been selected as a resource by the MedExplorer medical search site.

August 15 — The Veep that got away. It’s been widely reported that the other finalist in the process by which Al Gore picked his running mate was youthful Sen. John Edwards of North Carolina, who’d have been an equally noteworthy pick from litigation reformers’ perspective but for opposite reasons: after briefly representing record companies Edwards “moved to Raleigh, N.C., in 1981 and became a plaintiffs’ lawyer. That made him a millionaire. His fortune has been estimated at $20 million to $50 million.” Edwards proceeded to sink an estimated $10 million from his own pocket into his first and only political campaign, knocking off incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw Edwards as telegenic, a skillful speaker and from an important state, but worried that his past could backfire among voters unhappy with trial lawyers for “doing things like suing doctors and winning big verdicts, which then drive up health care costs — and Edwards has been an incredibly successful one of that breed.'” (Michael Kramer, “Aides: Al Leaning Toward Edwards”, New York Daily News, Aug. 6).

August 15 — “Teams liable for fans’ safety”. A Colorado court of appeals has ruled that “sports teams must protect fans from known dangers — such as flying hockey pucks — unless lawmakers specifically exempt the teams from such liability.” Diane Smith, a lawyer for the now-defunct Denver DareDevils roller hockey team, said fans sit in the more hazardous area near the goal because they want the best view and “if you are going to sit where the action is, there are risks that go along with that”; appeal to the state’s high court is planned (Howard Pankratz, Denver Post, Aug. 4).

August 14 — Bush-Lieberman vs. Gore-Nader? Our editor contributes a guest column today (pinch-hitting for the vacationing Holman Jenkins) for Opinion Journal, the Wall Street Journal editorial page’s new online venture. The column discusses the strong record Sen. Joe Lieberman has compiled on litigation reform, the dilemma this poses for Vice President Gore, the wrath it calls down on his head from fellow Connecticut resident Ralph Nader, and the reasons why America is unusual in treating the pro-litigation position as “progressive” when it isn’t deemed to be such in much of the rest of the world (“Not All Liberals Love Lawsuits”, Aug. 14).

August 14 — “Disney must pay $240 million in sports park lawsuit”. A jury in Orlando “ruled Friday that the Walt Disney Co. stole the idea for a sports theme park from a former baseball umpire and his architect partner and must pay $240 million in damages,” a sum that the judge has discretion to increase because the jury found Disney acted with malice. “The notion that we had to steal the idea from the plaintiffs, an idea as old as ancient Greece, is preposterous,” said Disney general counsel Lou Meisinger, who said “the plaintiffs lawyers had tried to frame the case as ‘little people against big business’ and attempted to ‘inflame their prejudice.’ Plaintiffs’ lawyer Willie Gary”, well known for his work on the Loewen and Coke cases, “called Disney’s reaction ‘sour grapes.’ ‘We beat ’em and quite frankly we’ll beat ’em again if we need to,’ Gary said. ‘They’re crying like little babies.'” Another member of the team of plaintiff’s attorneys was Johnnie Cochran of O.J. Simpson case fame (CNN, Aug. 11; Beth Piskora, “Ump and architect sue Disney for $1.5 B”, New York Post, Aug. 10; “The Mouse Stole Idea”, Aug. 12; Yahoo Full Coverage).

August 14 — “Airbag chemical on trial”. Because of the airbag in her $30,000 Mercedes, Edith Krauss and her husband walked away from a 1997 crash that otherwise might have killed them. But Krauss is suing the luxury automaker anyway: she “contends that she has been plagued by throat ailments since the crash and they stem from her inhaling sodium azide, the chemical that allows for the forceful deployment of airbags.” The company says the concentration of the chemical in an airbag is too low to cause harm. Trial began last week in Elizabeth, N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug. 8).

August 14 — Embarrassing Lawsuit Hall of Fame. Among recent lawsuits with details so embarrassing it’s a wonder anyone would file them: a Barberton, Ohio woman is suing an acquaintance in small claims court, saying he reneged on a promise to let her pay in sexual favors for part of the sale price for a truck (Stephanie Warsmith, “An unusual ‘contract’ is in court”, Akron Beacon Journal, Aug. 10); the Massachusetts Commission Against Discrimination has recommended dismissal of a complaint by an employee of the town of Plymouth, who had charged that a town official inflicted a hostile working environment on her by (among other things) subjecting her to flatulence, the commission reasoning that the passing of gas is not sexual in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed a very intimate injury committed to his person after he got on stage at a club and allowed an exotic dancer to sit on his chest (Glen McGregor, “Man sues hospital over testicle removal”, Ottawa Citizen/National Post, Aug. 8; more exotic dancer litigation: July 26, May 23 (also from Canada), Jan. 28).

August 11-13 — Litigation reform: the Texas experience. Citizens for a Sound Economy releases a report evaluating the results of the 1995 package of litigation reforms enacted in Texas under Gov. George W. Bush (more about package, from Governor’s office). Prepared by the Perryman Group of Waco, Tex., the report estimates that the reforms contributed significantly to reducing prices, raising personal incomes and stimulating economic development in the Lone Star State, with resulting benefits to the average Texas household of $1,078 a year. (“The Impact of Judicial Reforms on Economic Activity in Texas”, Aug. 9; executive summary links to PDF document).

Earlier, Texas insurance commissioner Jose Montemayor estimated that insurance buyers in the state would save a cumulative $2.9 billion by 2000 through mandated rate reductions linked to the lawsuit reforms: “Tort reform has been a tremendous success.” (“Commissioner says tort reform saves Texans $2.9 billion”, AP/Abilene Reporter-News, Oct. 2, 1999). Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, “Tort Reform Savings on Insurance Overstated”, Dallas Morning News, Dec. 21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable lengths to publicize their case since then (see Richard A. Oppel Jr. and Jim Yardley, “Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch”, New York Times, March 26, 2000, excerpted at Democratic National Committee site; now 404 Not Found, but GoogleCache has preserved a version). For a riposte from the reform side, see Tom Beaty, “Legal reform has brought benefits to business”, Houston Business Journal, Feb. 21, 2000.

And see: Constance Parten, “Texas Holds Its Own in Insurance Rates”, Insurance Journal, June 26, 2000 (reform package wasn’t expected to bring major savings in auto insurance, as opposed to commercial and medical lines, but did so anyway); Lone Star Report, Aug. 27, 1999 (scroll halfway down for item); and Texans for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston, has posted a variety of materials on the controversy at its website, including a summary of reforms; Jon Opelt, “$3 Billion Hardly Chump Change“; and Cora Sue Mach, “Governor Bushwhacked over Lawsuit Savings“. (DURABLE LINK)

August 11-13 — “Ohio cracks down on keggers”. Under a new Ohio law, people who want to give parties for which they’ll buy five or more kegs of beer must register the location of the party in advance, wait five days to take possession of the kegs, and “allow liquor agents and police to enter the property to enforce state liquor laws, a requirement that bothers the American Civil Liberties Union and others.” Several states have or are considering similar laws. “Maryland has required keg registration since 1994 to allow the containers to be traced to the buyer and the seller, both of whom are held accountable if minors are caught drinking the alcohol.” (Liz Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).

August 11-13 — Stay away, I’ve got a court order. Last year Maryland passed a new law allowing residents to apply for a civil restraining order to keep away people who they say have frightened or harassed them, a type of protection long available in matrimonial cases. Now the law is being used more than proponents expected, and not just by unmarried paramours and other intimates but as a way to settle — or escalate — spats among schoolmates, neighbors, co-workers and virtual strangers. (Donna St. George, “Residents Seeking ‘Peace’ Invade Md. Courts”, Washington Post, Aug. 7).

August 11-13 — “Not even thinking about” fees. With appeals and other legal maneuvering expected to last quite a while after a Miami jury’s $145 billion punitive damage award against tobacco companies, Knight-Ridder asked plaintiff’s attorney Stanley Rosenblatt about fees he might reap from the action. “It’s so far down the road that we’re not even thinking about it,” he claimed. (Uh-huh.) “Generally lawyers’ fees in class-action suits are about 25 to 30 percent of the award or settlement,” the news service reports, though it speculates that trial judge Robert Kaye might approve a smaller fee award than that, perhaps a mere $1 billion. Rounded off in the overall context, that would count as almost nothing, right? (“Smokers’ lawyers could get $1B — or zilch”, Knight Ridder/Norwalk (Ct.) Hour, July 26, not online). Plus: commentary by the Cato Institute’s Robert Levy (“Litigation Lunacy in Florida”, Cato Daily, July 31).

August 31 — Update: Alabama campaign-tactics case. A judge has sentenced prominent Alabama trial lawyer Garve Ivey to 30 days in jail after a jury convicted him on misdemeanor charges arising out of a smear campaign against the state’s Lieutenant Governor, Steve Windom (see Sept. 1 and Aug. 26, 1999). Shortly before the 1998 election, with Windom running a hard-fought race against a trial lawyer-backed opponent, a former prostitute and heroin addict named Melissa Myers Bush stepped forward with a lawsuit dramatically charging that Windom had raped and beat her seven years earlier when she worked for an escort service. Ivey, who was serving at the time as an official of the state trial lawyers association, paid to have 300 copies made of a videotape of Bush describing her charges, “which were distributed to news outlets across the state”. But as questions arose, Bush soon recanted and said she’d been paid to tell her story and that it was false. According to later testimony at trial, Bush accepted $2,700 from Birmingham businessman Scott Nordness, money that was later reimbursed by Ivey. Nordness was granted immunity by prosecutors seeking his testimony and charges were filed against Ivey and a private investigator who’d worked with him, Wes Chappell.

On June 22 a Mobile County jury acquitted Chappell of the charges and rendered a split decision in Ivey’s case, acquitting him on the felony count of bribing Bush to give false testimony while convicting him on two misdemeanor counts of witness tampering and criminal defamation. According to AP, the witness tampering charge arose from Ivey’s having gotten Nordness to sign a sworn statement after Bush’s lawsuit which, in prosecutors’ view, seemed to suggest that no money had changed hands in the case. Windom says he feels vindicated after two years and expects an apology from the state trial lawyers’ group, which he says tried to dodge the appearance of involvement in the smear efforts when trial testimony indicated the contrary. “The evidence clearly showed that there was a great deal of involvement at every stage. They need to come clean with the public and with their own members,” he said. (The AP coverage does not include a response from the trial lawyers’ group.) Ivey’s lawyers plan an appeal; still pending as well are civil suits that Ivey and Windom have filed against each other over the affair. Update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).

SOURCES: “Ivey sentenced to 30 days in jail on witness tampering”, AP, August 9, not online, available on NEXIS; Garry Mitchell, “Chappell cleared, Ivey found guilty in Windom trial”, AP/Decatur Daily, June 23; Garry Mitchell, “Windom wants apology from trial lawyers”, AP state and regional wire, June 23, not online, available on NEXIS; Gary McElroy, “Former call girl testifies”, Mobile Register, June 16; “Chuck’s Page” (page by Chuck Harrison, a witness called in the case; scroll down halfway to “Just Desserts”).

August 31 — “Diva awarded $11M for broken dream”. Last week a Little Rock, Ark. jury awarded aspiring opera singer Kristin Maddox, now 23, $11 million “for injuries she suffered when an American Airlines jet went off a runway last year while landing in a thunderstorm”. Maddox was studying opera in hopes of becoming a star but says damage to her voice box and hands in the crash ruined her professional chances. Her lawyer, “Bob Bodoin, told jurors that no amount of money would make up for her pain and the loss of a career that could have rivaled opera stars Beverly Sills or Luciano Pavarotti’s”. However, a university voice teacher who evaluated one of Maddox’s pre-crash performances on video said she had a voice that, while “lovely”, was also too light to fill an auditorium in the Sills or Pavarotti manner. (AP/Philadelphia Daily News, Aug. 25; discussion on Professional Pilots Rumour Network boards).

August 31 — “Breaking the Litigation Habit”. The business-oriented Committee for Economic Development released a report in April which “calls our litigation system ‘too intrusive, too slow, and too expensive.’ The current system does not adequately or fairly compensate people for injuries; it imposes costs that threaten to impair economic innovation; and it undermines the trust and civility among our citizens that are essential to a well-functioning, democratic society.” The report goes on to endorse “Early Offers” and “Auto Choice” reforms, both aimed at providing rapid compensation for injuries without litigation (introductory page links to executive summary and full report in PDF format).

August 29-30 — Back-to-school roundup: granola bars out, Ritalin in. The Fallingbrook Community Elementary School, in an Ottawa suburb, has “banned all snacks except fruits and vegetables in an attempt to protect children with allergies”. Children in K-4 “have been asked not to bring cheese and crackers, dips, yogurt, candy bars or homemade muffins for snacks” for fear of triggering reactions in other kids with peanut, dairy, egg or other allergies. Fallingbrook parent Theresa Holowach would like to send cereal bars or homemade muffins with her eight-year-old son and kindergartner-to-be daughter but was willing to settle for rice cakes, cheese and crackers; her requests, however, “were refused on the grounds that the school would be legally liable if actions were not taken to limit the risks for children with serious allergies. ‘To me the school is going to have serious liabilities if my child chokes on a carrot because you’ve forced me to give her raw fruit and vegetables,’ said Ms. Holowach”. (Gina Gillespie, “School bans all snacks except fruit, vegetables”, Ottawa Citizen/National Post, Aug. 26).

Meanwhile, both the New York Law Journal and USA Today say there are other cases, besides the recently reported one near Albany, N.Y. (see July 26), in which schools are resorting to legal action to compel unwilling parents to dose their children with Ritalin, the controversial psychiatric drug. (John Caher, “New York Ritalin Case Puts Parents, Courts on Collision Course”,New York Law Journal, Aug. 18; Karen Thomas, “Parents pressured to put kids on Ritalin”, USA Today, Aug. 8). The Christian Science Monitor also reports on a different kind of legal pitfall that may await the non-medicating parent: in 1995 the Wisconsin Supreme Court upheld a $170,000 jury verdict against parents whose fourth-grade special-ed student attacked his teacher after they took him off medication that had reduced his aggressive behavior. (Katherine Biele, “When students get hostile, teachers go to court”, Christian Science Monitor, Aug. 22). However, the Wisconsin court stressed in that case that it was not imposing on parents a duty to keep the child on medication, but rather a lesser duty to warn the school if they decided to discontinue the drug (summary on Spedlaw.com website of Nieuwendorp v American Family Ins Co., 22 IDELR 551 (1995)).

The Monitor reports that educators are taking kids themselves to court over an ever-wider range of misconduct, especially defamation (see Sept. 28, Nov. 15). Most students are deemed “judgment-proof” but state laws specify a limited measure of parental financial responsibility for kids’ misbehavior, usually limited to such sums as $1,000 or $2,500, which can however escalate to unlimited amounts if the parents are deemed negligent, as in the Wisconsin case. And in Rhode Island, to update an earlier story (see April 19), two years of wrangling over whether Westerly High School sophomore Robert Parker was out of line to wear a rock band T-shirt displaying the numerals 666 have ended, with the school facing a cumulative bill for the dispute of $60,000. (American Civil Liberties Union/AP, July 6).

August 29-30 — Denny’s bias charges: let’s go to the videotape. Another day, another discrimination suit demanding money from the Denny’s restaurant chain on charges of racially based denial of service. But it so happened that a security video camera was running during the alleged Cutler Ridge, Fla. incident, and the story told by its tape was so at odds with the story the complainants were telling that their lawyer, Ellis Rubin of Miami, felt obliged to withdrew from the case for fear of facing sanctions if he continued. “In 1994, Denny’s settled a $46 million class action with hundreds of black customers who had alleged that they were refused service at the chain’s restaurants”; despite the diversity training it’s instituted since then it still faces many new public-accommodations suits, but its management vows to fight those that it considers opportunistic. (David E. Rovella, “Denny’s Serves Up a Winning Video”, National Law Journal, Aug. 24) (see also Sept. 29).

August 29-30 — Welcome Yahoo Internet Life readers. Last Friday’s installment of “Ask the Surf Guru” carried this nice accolade: “*** Special to Gwendolyn: Like Cassandra said in Mighty Aphrodite, “I see disaster. I see catastrophe. Worse, I see lawyers.” But better is seeing Walter Olson’s daily odes to odious lawyering at Overlawyered.com, where he chronicles how attorneys clog the drain of American life with lawsuits that redefine the word ‘frivolous.'” Thanks! (ZDNet/Yahoo Internet Life, Aug. 24 — final item).

August 29-30 — “Lawyers want millions as cut of Holocaust settlement”. “On April 12, 1997, Arthur Bailey, one of the dozens of lawyers who helped negotiate a $1.25 billion settlement finalized last month between Swiss banks and Holocaust survivors, bought a copy of the book ‘Nazi Gold’ by Tom Bower and spent 8.6 hours reviewing it. Cost to plaintiffs: $2,365, or $275 an hour.” Lengthy telephone conversations between lawyers and a half-hour interview granted by a lawyer to the Washington Post are among other outlays of lawyers’ time for which reimbursement is being sought in the $13.5 million fee request, which Elan Steinberg, executive director of the World Jewish Congress, described as “outrageous”: “We said from the beginning that the lawyers should be acting pro bono,” i.e., without compensation. (Steve Chambers, Newhouse News Service/Cleveland Plain Dealer, Aug. 15).

August 29-30 — Imagine if she’d had a photo of a gun too. Police in Davidson, North Carolina “are defending an officer’s decision to search a woman’s car for drugs after spotting a photo of a marijuana plant on the cover of a newspaper in her car.” The driver, when stopped at 1 a.m., had a copy of an alternative weekly in her car with a cover story on police use of helicopters against marijuana growers, and consented to the search request, police said. A journalism professor says carrying such material could not possibly be probable cause for a car search. Nothing unlawful was found in the vehicle. (“Police say photo of marijuana plant sufficient cause for drug search”, AP/Raleigh News & Observer, Aug. 25) (via Progressive Review).

August 28 — “Man killed in gas explosion told to clean up rubble”. “One day after a Brooklyn couple died in a gas explosion at their home, city officials fired off a letter to the dead husband insisting that he was responsible for immediately cleaning up the rubble.” On July 11 a massive blast leveled the home of Leonard Walit, 72, and his 66-year-old wife Harriet, who were buried under the rubble of the four-story brownstone with a third victim. “The responsibility to [repair or demolish the premises] is yours, and because of the severity of the condition, the work must begin immediately,” declared the form letter from building commissioner Tarek Zeid, which warned the deceased couple that if they delayed the city would perform the necessary work and bill them for the expenses. Critics say the city should have known better given that the blast made big headlines, and a spokesman for the Buildings Department has apologized. (AP/Yahoo, Aug. 26).

August 28 — Campaign consultants for judges. At $15,000 a pop it gets expensive fast to hire professional campaign help, but elected Florida judges increasingly feel they have to shell out for two, three or four of the hotshot local consultants — especially since if they don’t put them on retainer, they might just find themselves facing a challenger who has. It’s another reason reformers are hoping to move to an appointive system. (Tony Doris, “Full-Court Press”, Miami Daily Business Review, Aug. 23).

August 28 — “Relatives find ‘proof’ they own New York”. “Descendants of an 18th-century privateer are hoping that a copy of an ancient lease discovered in an attic in South Wales may finally prove that they are the rightful owners of the world’s most valuable piece of real estate,” reports London’s Sunday Times. “For 120 years the descendants of Robert Edwards have been trying to establish their rights to 77 acres of Manhattan on which now stand Wall Street, the New York Stock Exchange, [lower] Broadway and the World Trade Center.” And who’s to say they won’t succeed, given the enthusiasm shown by American courts for hearing Indian land suits (see Feb. 1), liability claims arising from the sale of products in the first years of the Twentieth Century, and perhaps, before long, slavery reparation cases as well? (Simon de Bruxelles, Sunday Times (London), Aug. 22).

August 25-27 — Mich. high court: tough on working (arsonist) families. As the nasty race for the Michigan Supreme Court heats up (see May 15, May 9, Jan. 31), opponents have rolled out television ads assailing three Republican justices as “antifamily” and biased toward business, on the strength of 43 decisions they’ve rendered that supposedly fit that pattern. However, when the Detroit Free Press‘s Dawson Bell looked into the details, he discovered that among the rulings being flayed as “antifamily” is one from last year denying insurance coverage to “a pair of convicted arsonists who burned down a row of buildings”. A look at the rest of the cited court decisions likewise “indicates that the content provided in the ads borders on the bogus.” For example, in six cases the ad-makers counted government defendants in lawsuits — that is to say, the taxpayers — as “corporations”; they omitted a half dozen cases that obviously didn’t fit their pattern, while including “at least seven cases in which an individual won, or a corporation wasn’t a party;” and they included fourteen cases in which the court’s Democrats agreed with the outcome. Where’s the state Democratic Party getting the money for its big ad buy trashing the GOP judges? It’s hard to know for sure, but trial lawyers are said to have privately pledged millions to defeat the trio at the polls (see May 9). (Dawson Bell, “Party politics enters high court race”, Detroit Free Press, Aug. 3; Kathy Barks Hoffman, “Chamber runs ads to counter Democrats’ attacks on justices”, AP/Detroit News, Aug. 17; Charlie Cain, “High court race will be nasty, pricey”, Detroit News, June 23). Opponents of the three justices have mounted not one but two websites: AgainstMichiganFamilies.com and The Justice Caucus. But in fact “Michigan’s Supreme Court may be the nation’s best example of a court committed to interpreting the law — not manufacturing it,” contends National Review Online contributor Peter Leeson (“Michigan’s Supreme Court Is Supreme”, Aug. 22). That makes it a notable contrast with the high court in neighboring Ohio, where a narrow majority of justices last year (see Aug. 18, 1999) used activist reasoning to strike down legislated liability limits, and are now being heavily backed by trial lawyers in their re-election bids (Thomas Bray, “A Nation of Laws, or of Judges?”, Opinion Journal, Aug. 17).

August 25-27 — “Albuquerque can seize homes hosting teen drinking”. Under a bill approved by the city council of New Mexico’s largest city, you can now look forward to losing your house if the neighbors complain about repeated gatherings of tippling teens while you’re away. (Kate Nash, Albuquerque Tribune/Nando Times, Aug. 23).

August 25-27 — “How do you fit 12 people in a 1983 Honda?” Brazen, well-organized car-crash fraud rings thrive in the Big Apple, according to a series of New York Post exposés this summer. Other states are well ahead of New York in enacting legislation aimed at curbing fraud; meanwhile, the “Pataki administration is in court trying to overturn a decision in which the trial lawyers and medical profession successfully sued to have the state’s existing no-fault regulations thrown out.” June 25 (related story); June 26; June 27; July 16 (related story); August 6). Last year New York City recouped $1 million following the racketeering and fraud convictions of attorney Morris Eisen, a one-time major filer of injury claims who prosecutors say introduced fraudulent evidence in at least 18 cases, including three against the city (press release from office of Comptroller Alan Hevesi, May 18, 1999).

August 25-27 — Retroactive crash liability. Following years of lobbying by trial lawyers, Congress passed and President Clinton signed in April a new law retroactively raising the amounts payable in lawsuits to relatives of those killed in three air crashes over international waters, including the loss of TWA Flight 800. The little-publicized passage, “nestled on page 71 of a 137-page budget bill … carries an effective date of July 16, 1996” — almost four years before its signing. It abolishes old limitations on lawsuits set by the historic Death on the High Seas Act so as to expand the sums recoverable for “non-pecuniary” losses, such as the “care, comfort and companionship” of the deceased. The result is to ensure substantially higher payouts in litigation over the TWA crash, for which that airline and Boeing are being sued, as well as the Atlantic downings of Swissair Flight 111 and EgyptAir Flight 990. Sen. Slade Gorton (R-Wash.), who represents Boeing’s home state, had argued to no avail that it was unfair to expand the companies’ obligation retroactively. (Frank J. Murray, “Retroactive move allows big awards in TWA crash”, Washington Times, Aug. 24).

August 23-24 — Class actions: are we all litigants yet? If you’re a member of American Airlines’ frequent-flier plan, you may have received by now a class action settlement notice in which the airline agrees to make legal amends for the atrocity of having raised from 20,000 to 25,000 miles the point level needed to claim a free coach round-trip. After slogging through the legal jargon, St. Petersburg Times columnist Susan Taylor Martin finds that the “most that ‘class members’ in my category can expect is this: a 5,000-mile discount on a frequent-flier award or a certificate for $75 off on a ticket costing at least $220. Wow. But let’s read on. In return for negotiating this settlement, the lawyers representing me and other plaintiffs will apply for fees ‘not to exceed $25 million.’ No wonder we’re such a lawsuit-happy nation.”. She asks her newsroom colleagues if they’ve been represented in class actions, and they inundate her with responses. Then she goes on to cite this website, quote a number of comments from our editor, discuss proposed reforms that would redirect nationwide class suits to federal courts, and finally take up the much-recurring question: what’s the best way to discourage further legal excesses of this sort, to fill out and return the claims form, or toss it in the waste basket? (Susan Taylor Martin, “Is anyone not involved in a class-action lawsuit?”, St. Petersburg Times, Aug. 20). Also see Sarah Haertl, “Bill Limits Class-Action Fees for Attorneys”, Office.com, June 19.

August 23-24 — Funds that don’t protect. “Client protection funds” are supposed to reimburse persons who fall victim to thievery by their lawyers, but a National Law Journal investigation finds the funds “poorly endowed, stingy about payouts and virtually a secret, even to many lawyers, whose bar dues help finance them”. Many victims get just pennies on the dollar, or nothing at all: “cheated clients are getting twice betrayed by the legal professionals who should be protecting them”. (“Wronged Clients Face an Empty Promise in Some States”, Aug. 21).

August 23-24 — Fateful carpool. The consent of one’s spouse is no excuse for violating a restraining order obtained by her earlier, as Blaine Jeschonek has learned to his sorrow in Bedford, Pennsylvania. When Jeschonek, 44, arrived in court accompanied by his estranged wife Beth, Judge Thomas Ling promptly ordered him arrested and charged with criminal contempt for violating a court order forbidding him to have contact with her. “The Jeschoneks had traveled together to court to ask Ling to dismiss the restraining order. ‘I will not tolerate these orders being violated in my presence, under my nose, in my own courtroom,’ Ling said.” (“Pennsylvania man carpools to court and faces contempt”, AP/CNN, Aug. 14).

August 23-24 — Bankrupting Canadian churches? A remarkable legal story is unfolding in Canada, where down through the 1960s the country’s major churches, under an arrangement with the national government, administered residential schools for youths from Indian tribes. A significant share (perhaps 20 percent) of all school-age Indians attended these schools, thus being separated from native communities for much of their childhood. As ideas of multiculturalism made headway, the schools with their premise of assimilation to English culture came to be regarded as an embarrassing legacy, though at the time they had enjoyed the support of most Indian bands. In recent years adults who attended the schools in their youth have filed legal actions against the school proprietors, originally in small numbers over claims of past physical and sexual abuse, but more recently in much larger numbers, more than 7,000, with the predominant alleged injury among new cases being “cultural deprivation” years or decades earlier. Claimant recruitment by attorneys has played a major role in the expansion of the dispute; one lawyer alone, Tony Merchant of Regina, Saskatchewan, has assembled no fewer than 4,300 former school residents from across Western Canada to press claims. Although very few cases have yet reached court, early rulings suggest that the litigation may inflict money transfers and legal costs so large as to bankrupt or financially cripple some or all of the church defendants: the Anglican Church of Canada, United Church of Christ, Presbyterian Church of Canada and Roman Catholic Church of Canada (David Frum, “The dissolution of Canadian churches”, National Post, Aug. 19; “Tending the flock”, editorial, Aug. 16; Richard Foot, “Deputy PM to meet Church leader over bankruptcy crisis”, Aug. 16; Ian Hunter, “Paying for past injustice is unjust”, July 20; “Sins of the fathers”, editorial, July 17; Ferdy Baglo, “Canada’s Anglican Church Considers Possibility of Financial Ruin“, Christianity Today). (DURABLE LINK)

MORE RESOURCES: Law Commission of Canada; Anglican Church of Canada (main page; apology; in Oji-Cree syllabics (pdf)); United Church of Canada (FAQ, news); Turtle Island Native Network (resources, news); Diane Rowe for White Oppenheimer & Baker (plaintiff’s law firm); Jane O’Hara and Patricia Treble, “Abuse of Trust”, Maclean’s, June 26; “Residential Schools: An Essential Component of Genocide” (University of Victoria); Jay Charland, “St. Paul diocese part of $195M suit”, Western Catholic Reporter; Patrick Donnelly, “Scapegoating the Indian Residential Schools”, Alberta Report, Jan. 26, 1998, reprinted at Catholic Educator Resource Center.

August 23-24 — Welcome screenwriters. It’s hard to beat what goes on in courtrooms for sheer drama, which may be one reason at least two sites catering to professional screenwriters link to Overlawyered.com. CreateYourScreenplay.com gives us a nice encomium on its “Research” page (scroll down to “O”) and we also figure on the “Miscellaneous” links page of DailyScript.com.

August 21-22 — Tobacco- and gun-suit reading. National Journal columnist Stuart Taylor, Jr. pens a powerful critique of the tobacco litigation (“Tobacco Lawsuits: Taxing The Victims To Enrich Their Lawyers”, Aug. 1; quotes our editor). The American Tort Reform Foundation has published a review of the state tobacco suits, with particular attention to the questionable interrelationships between private for-profit lawyers and state attorneys general; the authors are well-known Wall Street Journal editorialist John Fund and Martin Morse Wooster (“The Dangers of Regulation Through Litigation: The Alliance of Plaintiffs’ Lawyers and State Governments,” March 30, available through ATRF). Prof. Michael Krauss, of George Mason University School of Law, has written an analysis for the Independent Institute exploring the manifold legal weaknesses of the recoupment actions filed by states and cities against both firearms and tobacco makers (“Fire and Smoke”, orderable through II). And we’ve now posted online our editor’s op-ed from last month on the Florida jury’s $145 billion punitive damage award in Engle v. R.J. Reynolds (Walter Olson, “‘The Runaway Jury’ is No Myth”, Wall Street Journal, July 18).

August 21-22 — A thin-wall problem. A suburban Chicago attorney with Tourette’s Syndrome, the neurological condition that causes its sufferers to experience tics often in the form of uncontrollable utterances or gestures, is going to collect upwards of $300,000 in settlement of a lawsuit against the condominium association of which he and his wife were members. Jeffrey Marthon, 54, agreed in exchange to move out and to drop his suit contending that the association had violated fair-housing laws by attempting to evict him; the association had filed a legal action complaining of the noise from his involuntary hooting and foot-stomping. “Several neighbors said in affidavits that they were losing sleep because of noises coming from Marthon’s third-floor condo,” and engineers said it was impossible to install soundproofing to mitigate the problem. (Dan Rozek, “Man with Tourette’s cuts deal vs. condo”, Chicago Sun-Times, Aug. 18).

August 21-22 — Fit to practice? The California Supreme Court, reversing a lower panel, has unanimously ruled against granting a law license to convicted felon Eben Gossage, a scion of an affluent San Francisco family who says he’s turned his life around and is fit to become an attorney notwithstanding an extensive record of past trouble with the law, most notably a manslaughter conviction for having brutally killed his own sister (Kevin Livingston, “Convicted Killer Denied California Bar Card”, The Recorder/CalLaw, August 16). At a June hearing, Justice Joyce Kennard “made it clear she was bothered by Gossage omitting 13 of his convictions on his Bar application.” (“How Long Is Long Enough?”, June 7). Several prominent Bay Area politicians had appeared as witnesses for Gossage, among them state senate president John Burton; after the one nonlawyer member of the lower disciplinary panel dissented from the panel’s decision that Gossage should be allowed to practice law, Burton introduced and helped secure passage of a bill which abolished that nonlawyer’s seat on the panel, sending, in the view of commentator George Kraw, an unsubtle message — “Don’t antagonize important legislators” (“Friends in High Places”, July 31; Mike McKee, “Court Sounds Leery of Bar Court Shuffle”, May 4; Mike McKee, “State Bar Court Braces for Upheaval”, June 29, reprinted at Kerr & Wagstaffe LLP site). Meanwhile, at least two lawyers implicated in California’s famous “Alliance” scandal are trying to regain their licenses to practice; the “Alliance”, a covert joint venture between plaintiffs’ and defense lawyers to manufacture and prolong legal claims for which the insurers would be obliged to employ legal counsel, bilked large insurance companies out of hundreds of millions of dollars in the 1980s (Mike McKee, “Scoundrel — or Scapegoat?”, The Recorder/CalLaw, June 13; more about Alliance (Kardos CPA site)).

August 21-22 — Watch those fwds. Last month “Dow Chemical, the No. 2 U.S. chemical company, fired about 50 workers and suspended another 200 for up to four weeks without pay, for sending or storing pornographic or violent e-mail messages. ” The “range of material” involved includes “stuff that would be in a swimsuit edition” as well as more offensive material, the company says; in a fit of mercy, it did not discipline workers who merely received such material as email and did not forward it to others. Under widely accepted interpretations of harassment law, companies that fail to take action against circulation of ribaldry in the workplace face possible liability for allowing a “hostile working environment”. (“Dow Scrubs 50 for Eyeing Porn”, Reuters/Wired News, Jul. 28). Workers who imagine that their email is private, readily deleted, and secure don’t seem to realize the current state of the law and the technology, says a risk-consulting division of law firm Littler Mendelson (Chris Oakes, “Seven Deadly Email Thoughts”, Wired News, Aug. 8). Nor are “anonymous” postings to bulletin boards really anonymous once the legal actors — including private lawyers — launch their subpoenas (Carl S. Kaplan, “In Fight Over Anonymity, John Doe Starts Slugging”, New York Times, June 2; Michael J. McCarthy, “Can Your PC Be Subpoenaed?”, ZDNet, May 24; Lauren Gard, “Yahoo Hit With Novel Privacy Suit”, The Recorder/CalLaw, May 15).

Filed under: Alabama, Alaska, arbitration, attorneys general, Borat, Connecticut, copyright, Dallas, Delaware, hospitals, Illinois, Indiana, Louisiana, Massachusetts, New Hampshire, Ohio, Oregon, Philadelphia, pro bono, Ralph Nader, South Carolina, tobacco, tobacco settlement, trademarks, Utah

July 2000 archives

July 10 — Tobacco: why stop at net worth? Trial judge Robert Kaye, presiding over the Engle tobacco class action in Miami (see July 8, 1999, Sept. 28, June 2, our WSJ take July 1999), has declared that in calculating a basis for punitive damages there’s no reason jurors should feel obliged to stop at a sum representing the tobacco companies’ net worth. “There’s much more to this case than net worth or stockholder equity,” he said. Earlier, Judge Kaye ruled that it was proper to place before the jury the companies’ capacity to borrow funds to help meet a punitive damage award, and also agreed to let the jury consider companies’ operations worldwide in assessing those damages, though foreign countries might wonder why the hypothesized victimization of smokers worldwide should result in a punitive payoff exclusively to (certain) Floridians, and though overseas court systems are generally far more averse than ours to the award of punitive damages. Moreover, Judge Kaye “barred the defendants from arguing to the jury that they have already been punished enough by their earlier settlements with states valued at $246 billion” even though those settlements took place in the shadow of demands for punitive damages. (Imagine copping to a plea bargain in one court over your past doings, and then finding you get no double jeopardy protection when hauled up for punishment by a second court — after all, your plea bargain was “consensual”, so how can it count as punishment? But American courts are in fact permitted to assess punitive damages against civil defendants an unlimited number of times to chastise them for a single course of conduct, so it’s not as if any due process is owed or anything.)

Plaintiffs offered an expert witness, Prof. George Mundstock of Univ. of Miami School of Law, who testified that the nation’s five biggest cigarette makers “are worth $157 billion domestically and have a ‘strikingly rosy’ future”, per AP, which appears to make hash of suggestions that lawyers’ efforts previous to this point have made a vital difference in putting us on the road to a “smoke-free society”. Mundstock’s methodology reportedly reduced to a present value stream the surplus of all future tobacco company income over expenses. Even the Wall Street Journal‘s Milo Geyelin, not a reporter suspected of pro-business leanings, writes that Kaye’s handling of the legal issues in the suit has been “unorthodox”. At the New York Times, meanwhile, reporter Rick Bragg last month interviewed several of the dozen or more smoking-ravaged spectators who throughout the trial have taken highly visible seats in the courtroom day after day where the jury can hear and see their labored breathing, oxygen tanks, and mechanical voice boxes. While extracting considerable human-interest content from these interviewees, Bragg’s story does not display the least curiosity as to whether the idea of attending just happened to occur to all of them spontaneously, or instead, as defendants have hinted, was the result of an orchestrated effort by plaintiff’s attorneys Stanley and Susan Rosenblatt, which might have been ruled out of bounds as manipulative and prejudicial by a jurist less agreeable to the plaintiffs’ cause than Judge Kaye.

SOURCES: Milo Geyelin, “Judge Won’t Allow Tobacco Industry To Cite Settlements”, Wall Street Journal, May 18; “Jury can hear about tobacco industry’s borrowing power, judge rules”, FindLaw, May 31, no longer online; “Economist estimates tobacco industry worth $157 billion”, AP/FindLaw, June 6, no longer online; Gordon Fairclough, “Judge in Smoking-Illness Suit Tells Jury Not to View Settlements as Punishment”, Wall Street Journal, June 14; “Judge KO’s Tobacco Try on Damages”, AP/FindLaw, July 6; Milo Geyelin, “Judge Reverses, Lets Jury Weigh Foreign Tobacco Sales”, Wall Street Journal, June 7; Rick Bragg, “Where Smoking Damages Are Argued, Plaintiffs Fight for Air”, New York Times, June 3.

July 10 — “Why You Can’t Trust Letters of Recommendation”. Fear of lawsuits isn’t the only factor inhibiting candid letter-writing in higher education, but it’s an important one, especially since a recent decision by the Virginia Supreme Court stripped professors of immunity for allegedly defamatory reference-giving in the tenure process. Open-records laws add to the difficulties, as in the University of California system, where job candidates enjoy a big head start in figuring out who’s saying what about them (Alison Schneider, “Why You Can’t Trust Letters of Recommendation”, Chronicle of Higher Education, June 30) (via Arts & Letters Daily).

July 10 — Wonder Bread hierarchy too white, suit charges. What more symbolically fraught company to get sued on race discrimination charges than Wonder Bread? Bay Area politician/attorney Angela Alioto, representing 21 black workers at Interstate Brands’ San Francisco bakery, thinks $260 million an appropriate amount to ask for failure to promote and other sins; the trial began May 24. A feud has also developed between Alioto and co-counsel Waukeen McCoy, with Alioto accusing McCoy of swiping three of her clients. (Dennis J. Opatrny, “Wonder Bread Race Discrimination Trial Opens in S.F.”, The Recorder/CalLaw, May 30; Alioto website). Update: jury awarded $11 million in compensatory and $121 million in punitive damages (see Aug. 4).

July 7-9 — Veeps ATLA could love. For the organized plaintiff’s bar, more reason to smile: recent speculation about a running mate pick for Al Gore has centered on such names as Senator Dick Durbin (D-Ill.) and Defense Secretary Bill Cohen, a Republican Senator from Maine before joining the Clinton Administration. Trial lawyers have had few better friends in the U.S. Congress than Durbin, who’s taken a prominent role in advancing their interests in virtually every hot area of recent years: tobacco (where, notwithstanding language on his website about how he’s worked to prevent “unnecessary windfalls for special interests“, he led the successful fight against limiting multi-billion-dollar lawyers’ fees), gun and HMO liability (in both cases sponsoring legislation that would make it easier to sue) and product liability (where he helped lead opposition to various GOP-sponsored bills, such as one to ease liability pressure on biomaterials used in implants and other advanced medicine). (PBS “NewsHour with Jim Lehrer” transcript, May 19, 1998 (tobacco — scroll to near end); Bob Barr (R-Ga.) press release on Durbin gun bill, March 4, 1999; Durbin press release on HMO liability, April 29, 1998; Jeffrey J. Kimbell, “Biomaterials Access Bill Continues To Move Through Congress”, American Society for Artificial Internal Organs, undated 1998) (also see May 8). Cohen, though unlike Durbin not closely identified with the trial lawyer agenda, has the unusual distinction of having worked early in his career for both the Association of Trial Lawyers of America (as an assistant editor-in-chief) and the Maine Trial Lawyers Association (as vice president); not surprisingly, he acquired a reputation on the Hill as one who often strayed from the Republican fold on litigation issues. (Biographical note, University of Maine/Orono; Ramesh Ponnuru, “The Case for Bill Cohen”, National Review Online “Washington Bulletin”, July 3). (DURABLE LINK)

July 7-9 — Inmate: You didn’t supervise me. A former inmate at the Spartanburg County, S.C. jail has filed a lawsuit saying officials negligently failed to supervise him while he engaged in horseplay alone in his cell. Torrence Johnson, of Rock Hill, who was in jail after his arrest on charges of driving with a suspended license and another traffic infraction, says he fell and broke a vertebra with resulting paralysis. “If jail personnel had done a better job of supervising him, Johnson claims, he never would have been able to engage in the ‘horseplay’ that paralyzed him.” “He stood up on a desk in his cell and was cutting back flips off of it,” said jail director Larry Powers. “With the small number of detention officers we have, there’s no way that we can constantly monitor every inmate continuously around the clock.” (Tom Langhorne, “Paralyzed man blames jail for injury”, Spartanburg (S.C.) Herald-Journal, July 6).

July 7-9 — The Wal-Mart docket. The world’s largest retailer gets sued with such regularity that an enterprising Nashville lawyer has erected a site entitled the Wal-Mart Litigation Project devoted to the subject. You can browse 99 Verdicts Against Wal-Mart, search for attorneys who volunteer a willingness to sue the company, or consult a price list of packets you can buy on dozens of specialized topics such as “Pallets or Dollies Left in Aisle Ways (12 items, $100)” “Shopping Carts – Overloaded (4 items, $45)”, and “Restrooms – Water on Floor (3 items, $40)”. Some of the bigger-ticket lawsuits against the chain assert liability over the sale of guns later used to commit crimes, over abductions and other crime occurring in parking lots, and over tobacco sales: a suit in Arkansas last year labeled the retailer a “co-conspirator” with cigarette companies. Update: for another suit, see July 21-23.

SEE ALSO: “Ala.Wal-Mart to pay up to $16 million over shotgun used to kill woman”, AP/Court TV, Feb. 23; Trisha Renaud, “Tangled Mind, Tangled Case”, Fulton County Daily Report (Atlanta), March 24; Bob Van Voris, “Wal-Mart Discovery Tactics Hit”, National Law Journal, March 29; Bob Van Voris, “More Sanctions for Wal-Mart”, National Law Journal, April 14; Seth Blomeley, “Pair sues Wal-Mart, tobacco firm, calls them ‘co-conspirators'”, Arkansas Democrat-Gazette, Dec. 16, 1999 (no longer online); Bob Van Voris, “Wal-Mart’s Bad Day”, National Law Journal, June 5.

July 7-9 — Welcome Australian Bar Association members. Our editor was a featured speaker at the Association’s conference in New York this week, which has helped boost this site’s already considerable traffic from Down Under. For more on Dame Edna’s fateful gladiolus toss, mentioned in our remarks, see our May 26 commentary.

July 6 — Foreign policy by other means. The Constitution entrusts to the President and his appointees the task of managing this nation’s relations with foreign powers, but now some in Congress are keen on giving private litigators ever more authority to initiate courtroom fights against those foreign powers, whether or not the State Department considers that such hostilities fit well into a coordinated national policy. A bill that would entitle U.S. victims of Iranian-backed terrorism to collect compensation payments from blocked Iranian bank accounts is moving swiftly on Capitol Hill, despite a plea from the Clinton Administration’s Stuart Eizenstat that significant foreign policy interests of the government will be impaired if blocking of foreign assets becomes simply a preliminary to attachment of those assets on behalf of particular injured litigants. (Jonathan Groner, “Payback Time for Terror Victims”, Legal Times (Washington), June 7). The touchy issue of U.S. relations with member nations of OPEC has in the past and might someday again engage this nation in armed conflict abroad, but Rep. Benjamin Gilman, R-N.Y., chairman of the House International Relations Committee, has just introduced a Foreign Trust Busting Act that could empower litigants to seize OPEC assets in this country, removing a legal obstacle known as the “Act of State” doctrine, under which U.S. courts generally avoid ascribing liability to the official acts of foreign governments. Presumably oil sheiks would proceed to submit to depositions in American courtrooms and negotiate over the size of the fees payable to entrepreneurial class action lawyers. (Ted Barrett, “Bill will allow antitrust suits against OPEC”, CNN, June 24). And lawyers for Argentine veterans and relatives are in Strasbourg, France, preparing to file a war crimes case against Great Britain over the 1982 sinking of the cruiser General Belgrano, which killed 323 seamen; Britain and Argentina were at war at the time over Argentina’s invasion of the Falkland Islands. (“Argentine war victims sniff justice in Belgrano case”, Reuters/CNN, July 3) (see Feb. 14 commentary and links there, and July 14).

July 6 — Trial-lawyer candidates. New York Press columnist Chris Caldwell, reflecting on the New Jersey Senate primary victory of Goldman Sachs executive Jon Corzine, predicts that more millionaire candidates will enter Democratic politics by staking their own campaigns, but says “[i]t’s unlikely most of them will be finance executives. More probably, they’ll resemble North Carolina Sen. John Edwards, who made his 25 million as a trial lawyer. Trial lawyers are the Democratic Party’s biggest contributors, and the party repays the favor by helping create a favorable litigating climate, and even breeding such golden-egg-laying geese as the various state tobacco agreements. But they’re increasingly coming to the conclusion that there’s no reason to bribe the party when you can run it yourself.

“Typical of the new lawyer/candidate class is Minnesota’s Michael Ciresi, who’s seeking the Democrat/ Farm[er]/ Labor nomination for Senate. Ciresi’s law firm got $400 million of Minnesota’s tobacco money. Why? Because then-state Attorney General Skip Humphrey (Hubert’s son) said it should. We seem to be arriving at a situation in which it is the government itself that puts up candidates.” (“Hill of Beans: Iron Jon (second item), New York Press, June 13).

July 6 — Update: Canadian skydiver recovers damages from teammate. A judge has awarded C$1.1 million ($748,000) to Gerry Dyck, a veteran skydiver who sued teammate Robert Laidlaw for allegedly failing to exercise proper care toward him during a dive. The case, along with other recent suits, had been criticized by some in the skydiving community as bad for the sport (see May 26) (“Canadian skydiver wins lawsuit against teammate”, Reuters/FindLaw, June 26).

July 5 — Feds’ own cookie-pushing. Even as the White House and Senators wring their hands over the threat to privacy posed by visitor tracking by private websites, dozens of federal agencies use cookies to track visitors, including those dispensing information on such sensitive topics as drug policy and immigration. (Declan McCullagh, “Feds’ Hands Caught in Cookie Jar”, Wired News, June 30; Eric E. Sterling, “Uncle Sam’s ‘cookie’ is watching you”, Christian Science Monitor, July 3). So does the website of a New Jersey Congressman who’s expressed high dudgeon about privacy issues in the past (Declan McCullagh, “How Congressional Cookies Crumble”, Wired News, June 30; John T. Aquino, “Senate Online Profiling Hearing Suggests Movement Toward Federal Legislation”, E-Commerce Law Weekly, June 16). Meanwhile, state attorneys general, emboldened by taking tobacco and Microsoft scalps, are moving closer to filing cases against cookie-setting dot-coms: “It’s like the thought police. It’s really an alarming specter in terms of privacy”, claims Michigan AG Jennifer Granholm, of the ability of servers to detect particular repeat visitors to their sites (Gail Appleson, “States may launch privacy suits”, Reuters/ZDNet, June 20). The Federal Trade Commission has moved to regulate privacy policies at financial services sites, and is asking Congress for legislation that would extend its authority much further (Keith Perine and Aaron Pressman, “FTC Publishes Internet Privacy Rule”, Industry Standard/Law.com, May 16; Keith Perine, “FTC Asks Congress for Online Privacy Laws”, Industry Standard/Law.com, May 24).

July 5 — Prospect of injury no reason not to hire. In May, the Ninth Circuit U.S. Court of Appeals ruled that employers can’t deny a job to a disabled applicant even if the work poses a “direct threat” to that applicant’s health or safety. Chevron had turned away Mario Echazabal for a job at the “coker unit” of its El Segundo, Calif., oil refinery in 1995 after a pre-employment exam revealed that he had a liver disorder that the company’s doctors feared would worsen in the unit’s harsh environment (“coker units” explained: Industrial Fire World site). Prominent liberal jurist Stephen Reinhardt, writing for a unanimous three-judge panel, held that it should be up to a disabled worker whether to risk a toxic exposure — never mind that the employer will predictably be presented with much or all of the bill if the exposure does wind up incapacitating the worker. Jeffrey Tanenbaum, with the San Francisco office of the management-side law firm Littler Mendelson, said “either the decision is terribly wrong, or the ADA is written in a ludicrous manner,” because “it makes no sense to make an employer violate a federal or state health and safety law,” referring to Occupational Safety and Health Administration statutes that require employers to avoid exposing employees to injury. (Michael Joe, “Employment Bar in Tizzy Over 9th Circuit Decision”, The Recorder/CalLaw, June 16).

July 5 — “Exporting tort awards”. Study of more than 7,000 personal injury cases by Eric Helland (Claremont McKenna College) and Alexander Tabarrok (Independent Institute) finds civil awards against out-of-state defendants ran an average of $652,000 in states where judges reach office by partisan election, but only $385,000 where selection is nonpartisan. For cases against in-state defendants, the gap was a narrower $276,000 vs. $208,000 — suggesting that while one effect of partisan judicial elections may be to raise the level of awards, an even more important effect may be to worsen the bias against out-of state entities which are not represented in a state’s political process but are subject to wealth redistribution by its courts (“Exporting Tort Awards“, Regulation, vol. 23, no. 2 (autoredirects to pdf document); “The Effect of Electoral Institutions on Tort Awards” (links to pdf document), Independent Institute Working Paper #1).

July 5 — We probably need a FAQ. “Does your law firm handle driving under the influence cases?” — thus a recent email to this site from a Mr. R.S. We do seem to spend an inordinate amount of time explaining to correspondents that we aren’t a law firm or legal referral service, and that we can’t advise folks with their legal problems, no way, nohow — both from lack of time and inclination and because we fear being dragged off to the Unauthorized Practice dungeons where they stow people who presume to dispense such advice without advance permission from the bar.

July 3-4 — “Parody of animal rights site told to close”. Several years ago internet entrepreneur Michael Doughney registered the web address www.peta.org and used it to put up a site called People Eating Tasty Animals, parodying the militant animal rights group People for the Ethical Treatment of Animals. Now a federal judge “has ordered him to relinquish the web address to PETA and limit his use of domain names to those not ‘confusingly similar'”. Doughney’s lawyer says he plans to appeal and says it’s not a cybersquatting case because his client had no wish to sell the domain name but simply wanted to use it for parody. Doughney has moved the site here; it includes a substantial list of links to sites which take the position that there’s nothing unethical about animal husbandry as such, as PETA would have it. (“Parody of animal rights site told to close”, Ananova.com, June 21; “Domain Strategies for Geniuses”, Rick E. Bruner’s Executive Summary, May 12, 1998). As for PETA, it’s not a group to shy away from charges of hypocrisy: it itself registered the domain name ringlingbrothers.com and used it for a site decrying alleged mistreatment of circus animals. A lawsuit by the real Ringling Brothers Circus ended with PETA’s agreement to relinquish the name. (“PETA’s Internet hypocrisy”, Animal Rights News (Brian Carnell), May 18, 1998; DMOZ).

July 3-4 — Multiple chemical sensitivity from school construction. At Gloucester High School on Massachusetts’s North Shore, some present and former staff members and students have sued the architects and contractors after a school construction project whose fumes, some of them say, sensitized them to the point where they now grow ill from a whiff of window cleaner, perfume, hairspray, or new upholstery, or even from contact with people who’ve laundered their clothes in regular detergent. The reporter doesn’t quote anyone who seems familiar with the skeptics’ case against MCS, but to us this sounds like a case for Michael Fumento (see his “Sick of It All”, Reason, June 1996). (Beth Daley, “Disrupted lives”, Boston Globe, June 26)

July 3-4 — A Harvard call for selective rain. “So far, legislators, loath to tamper with the dot-com wealth machine powering the U.S. economy, have left Web companies alone. But Jonathan Zittrain, executive director of Harvard’s Berkman Center for Internet and Society, believes that era is ending. Hot-button issues like personal privacy are putting Web companies under a microscope, he says. And continuing advancements in technology will soon make it easier for companies to patrol their sites much more aggressively. ‘No one wants to rain on the Internet parade so much that you wash it out,’ Mr. Zittrain says. ‘But people are starting to realize you’ll be able to very selectively rain on the parade'”. Aside from feeling some alarm at the content of these remarks by Mr. Zittrain, we hereby nominate them for the Unfortunate Metaphor Award: if rain is the sort of thing he thinks can be made to fall “very selectively”, why do we keep hearing that it falls on the just and the unjust alike? (Thomas E. Weber, “E-World: Recent Flaps Raise Questions About Role of Middlemen on Web”, Wall Street Journal, June 5) (fee).

July 3-4 — Overlawyered.com one year old. We started last July 1 and have set new visitor records in nearly every month since then, including last month … thanks for your support!

July 19-20 — “Coke Plaintiff Eavesdrops on Lawyers; Case Unravels”. After lawyers suing Coca-Cola on discrimination charges hold a conference call with their clients and with Jesse Jackson, one of the clients, a Coke security guard named Gregory Clark, quietly decides to stay on the line, rather than hang up as the others and Jackson do, and listen to what the lawyers say among themselves. The sensational results are aired in this remarkable article in the Atlanta legal paper, which just might blow the tightly screwed cap off the whole issue of lawyers’ management of litigation in their own interest — don’t even think of missing it (R. Robin McDonald, Fulton County Daily Report (Atlanta), July 18) (Atlanta Journal-Constitution special page on Coke discrimination litigation).

July 19-20 — Editorial roundup: “The wrong verdict on tobacco”. By a wide margin, the American people believe that though cigarettes are harmful, it should be lawful to sell them. “Last week’s verdict by a Florida jury, however, suggests that what the American people want is no longer terribly important when it comes to tobacco.” (Chicago Tribune, editorial, July 18). “[T]he judge prohibited any testimony relating to choice and personal responsibility,” contends the New York Post. In plain English, the fix was in.” (“Milking the Tobacco Cow”, July 18). Jury foreman Leighton Finegan said he was “insulted” when tobacco company lawyers raised the possibility that the throat cancer of one of the plaintiffs might have been caused by occupational dust exposure, but it’s perfectly legitimate for defendants to point out that health problems arise from multiple origins, which sheds light on the unmanageable nature of the supposed “class” (Hickory (N.C.) Record, “$145,000,000,000!”, July 17). “It says something about the class-action lawsuit Florida smokers filed against the industry that two of the lead plaintiffs in the case were medical officials who bragged of their own ignorance,” comments the Washington Times. “Said one, a 44-year-old nurse, ‘I had no idea there was anything wrong with cigarettes at all.” (“That will be $145 billion, please”, July 17). And Smarter Times, the new online venture edited by Ira Stoll that keeps a watchful journalistic eye on the New York Times, notes that the newspaper’s July 15 editorial “basically comes out in favor of using class action lawsuits to put companies out of business, even when the Congress or state legislatures are unwilling to declare the products illegal.” (Issue #28).

July 19-20 — Disabled accessibility for campaign websites: the gotcha game. The Washington Post‘s online edition plays gotcha with political campaign websites, most of which fail to heed disabled-accessibility guidelines of the sort that may already be legally binding on a wide range of private sites. The Al Gore (D) and Rick Lazio (R-N.Y.) websites are among the minority that comply with “Bobby“, the most widely used program for evaluating a site’s disabled accessibility. Sites that fall short on “Bobby” include those of George W. Bush (R), Hillary Clinton (D-N.Y.), Ralph Nader (Green) and Patrick Buchanan (Reform). (Ryan Thornburg, Mark Stencel and Ben White, “Political Graffiti Goes Online” (third item), WashingtonPost.com, July 17).

However, running the Thornburg-Stencel-White article itself through a “Bobby” check discloses that as of Tuesday evening it itself suffered from at least fifteen violations of disabled accessibility rules: lack of alternative text for images (12 instances), lack of redundant text links for server-side image map hot-spots (2 instances), and lack of alt text for image-type buttons in forms (1 instance) (full “Bobby” evaluation of Post article). The article is also reprinted on Slate, where as of Tuesday evening it suffered from at least 19 Bobby infractions, including lack of alt text (18 instances) and lack of button text (once) (evaluation). Numbers are subject to change if and as the pages change, of course.

July 19-20 — Target Detroit. “Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause,” writes the Detroit News‘ Jon Pepper, since the state’s leading industry, automaking, could face assault from some of the same litigation forces. (“Auto industry could follow guns, tobacco into courtroom”, June 4). Many lawyers are eager to pin liability on the design of sport utility vehicles because of their tendency to inflict higher than usual damage on other motorists and pedestrians, but they’ve had trouble so far finding a theory that will stick (Keith Bradsher, “S.U.V. Suits Still Face Long Odds”, New York Times, May 30). And a federal judge has refused to dismiss a defamation countersuit by Philadelphia class action firm Greitzer & Locks against DaimlerChrysler and its associate general counsel, Lew Goldfarb, arising from charges DaimlerChrysler filed last fall (see Nov. 12) charging the Greitzer firm and another attorney with the filing of abusive class action litigation. The Greitzer firm is now suing Mr. Goldfarb personally for defamation and interference with contractual advantage and cites, as evidence of malice, his description of the cases filed by Greitzer & Locks as “a form of legalized blackmail” and of one such suit as one that “belongs in the class action hall of shame.” How many times do we have to warn you to watch very carefully what you say when you criticize lawyers? (Shannon P. Duffy, “DaimlerChrysler GC Can Be Sued in Pennsylvania”, The Legal Intelligencer (Philadelphia), June 30; “Greitzer & Locks Takes a Swing Of Its Own at DaimlerChrysler”, Jan. 14).

July 18 — Florida tobacco verdict. Our editor has an op-ed piece in today’s Wall Street Journal discussing last week’s punitive award in the Florida tobacco class action: Walter Olson, “‘The Runaway Jury’ is No Myth”, Jul. 18. For more on the Engle case, see July 10; our editor’s Wall Street Journal op-ed from Jul. 12, 1999; the related commentaries on our tobacco-litigation page; and the press clips at Yahoo Full Coverage. Also check our numerous commentaries, from yesterday and earlier, on the multistate tobacco settlement, which counts as trial lawyers’ bird-in-the-hand compared with Engle‘s bird-in-the-bush. Later developments in case: see May 15, 2004 and links from there.

July 18 — “Court says warning about hot coffee unnecessary”. It makes a contrast to the famed McDonald’s case: the Nevada Supreme Court, upholding a lower court’s decision, has dismissed a lawsuit against a restaurant and its suppliers alleging negligent failure to warn about the dangers of hot coffee. Lane Burns had sued the Turtle Stop restaurant after spilling coffee on his leg and suffering burns, but District Judge Gene Porter ruled that the “danger is open and obvious.” That differs from the sentiments of the judge and jury in Albuquerque, New Mexico, where octogenarian Stella Liebeck won a $2.9 million judgment against the fast-food chain, which was later reduced to $480,000 and settled for an undisclosed sum. (Cy Ryan, “Court says warning about hot coffee unnecessary”, Las Vegas Sun, July 11).

July 18 — “Chutzpah is. . .” Eugene Volokh of UCLA law school writes as follows: “Chutzpah is . . . when you get a job working for your wife’s parents because you are their son-in-law, and then when you and she get divorced and her parents fire you, you sue them for marital status discrimination.

“This is exactly what happened in Matteson v. Prince, Inc., Montana Dep’t of Lab. & Indus. No. 9901008658 (1999) (pdf document). Amazingly, the agency held that the employer’s behavior was illegal discrimination, but Matteson wasn’t entitled to any damages because in this particular case the ex-son-in-law would have been fired in any event because he had gotten into a shouting match with his employers at work.”

July 18 — Breakthrough for plaintiffs on latex gloves? Last Thursday an Alameda County, Calif. jury returned an $800,000 award to a health care worker against Baxter Health Care, which formerly made latex gloves for hospital use. Naturally occurring substances in the gloves sometimes trigger virulent allergies in health care workers which prevent them from continuing in medical work, and lawyers have argued that had Baxter instituted a practice of washing the gloves before sale to remove surface proteins, it would have reduced their allergy-stimulating potential. Hundreds more latex allergy lawsuits are pending, and lawyers are hoping the new case, McGinnis v. Baxter Health Care, will serve as a model for others. (Sonia Giordani, “California Latex Glove Verdict Sets Tone”, The Recorder (San Francisco), July 17) (more about latex allergies) (see also Oct. 26).

July 17 — Dershowitz’s Florida frolic? Alan Dershowitz is demanding $34 million for putting in 118 hours of work on the state of Florida’s Medicaid-reimbursement tobacco suit, according to two of the lawyers who helped mastermind that suit, Robert Montgomery and Sheldon Schlesinger. The two filed suit against the famed Harvard law prof last week, asking a judge to determine whether he’s entitled to a bonus they say they never promised him. Through their attorney they allege that Dershowitz is asserting an entitlement to 1 percent of the gargantuan $3.4 billion fee award made to the attorneys who represented the state, which would amount to $34 million, but they say he hasn’t submitted any hourly time sheets to back up that claim. “He wants a lot of money, and he’s not entitled to it,” said J. Michael Burman, attorney for Montgomery and Schlesinger. If the lawyers’ figures are accurate, $34 million divided by 118 hours would work out to $288,000 an hour. (Jon Burstein, “Lawyer wants $34 million for working 118 hours on Florida’s case against tobacco companies”, Fort Lauderdale Sun-Sentinel, July 14; more on Florida tobacco fees: April 12, December 27-28).

July 17 — Ness Motley’s aide-Grégoire. In a single day, December 8, 1999, Christine Gregoire, the attorney general from the state of Washington who’s been mentioned as a possible AG in a Gore administration, saw her re-election campaign kitty more than double. The benefactors, who sent nearly $23,000, weren’t Washington residents at all, but rather two dozen lawyers and their relatives associated with the Charleston, S.C. law firm of Ness, Motley, which is expected to pocket a billion dollars or more in fees from the multistate tobacco settlement that Gregoire was instrumental in brokering. An aide to Gregoire, who engaged Ness Motley to represent Washington along with the many other states it represented, dismisses talk of payoffs and calls the contributions “a reflection that someone has a high regard for an elected official.” “I only wish we had given her more,” says Ness superlawyer Joe Rice, quoted in this article in Mother Jones spotlighting the sluicing of tobacco-fee money to friendly Democratic pols. (Rick Anderson, “Tobacco money flows both ways”, Mother Jones, July 6).

July 17 — Challenging the multistate settlement. In a Cato Institute paper, Thomas C. O’Brien argues that the anticompetitive provisions of the multistate tobacco settlement, such as those curbing entry by newly formed cigarette companies, should rightly be seen as themselves an antitrust violation and as going beyond the duly constituted power of the fifty states, which would open up the possibility of injunctive relief and treble damage remedies “available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies.” (Thomas C. O’Brien, “Constitutional and Antitrust Violations of the Multistate Tobacco Settlement”, Cato Policy Analysis No. 371, May 18 (summary links to PDF document)). Also from Cato, Richard E. Wagner of George Mason University offers another critique of the multistate settlement (“Understanding the Tobacco Settlement: The State as Partisan Plaintiff”, Regulation, vol. 22, no. 4 (table of contents; follow links to PDF document). Cato, the Competitive Enterprise Institute and the National Smokers Alliance filed an amicus brief last week urging the Third Circuit to invalidate the nationwide tobacco settlement agreement on constitutional grounds. (“Public Interest Groups Urge Court to Invalidate Tobacco Agreement ” CEI press release, July 13). On collusive aspects of the multistate settlement, see our commentary for July 29 of last year; Rinat Fried, “Distributors Challenging Tobacco Deal”, The Recorder/CalLaw, June 30, 1999; and “Puff, the Magic Settlement” (Reason, January).

July 14-16 — “Are lawyers running America?”. Time‘s feature story this week on the Fourth Branch leads with the tale of tobacco/HMO nemesis Dickie Scruggs’ recent appearance before the Connecticut State Medical Society (see Feb. 22, “P.S.”), where he “was introduced so gushingly that even he was embarrassed. ‘You forgot to mention,’ he chided the society’s head, ‘that I rested on the seventh day.'” Among bits of new-to-us info about the great legal magnates, we learned that “Wayne Reaud (pronounced Ree-oh) has used his hundreds of millions of dollars in fees from asbestos and other ‘toxic tort’ litigation to buy the local newspaper and a chunk of downtown real estate in his hometown of Beaumont, Texas,” while Florida’s Frederic Levin “concedes his firm’s $300 million take [from tobacco] was ‘totally obscene’ and says he’s giving much of it to charity,” having already had the University of Florida Law School named after him following a big gift. Who’s to be sued next? All sorts of targets, but the magazine reports that some lawyers “are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same ‘negligent marketing’ allegations that have been lodged against gunmakers.” Quotes our editor twice, too. Most memorable line: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it. ‘Somebody’s got to do it,’ he says, laughing.” (Adam Cohen, “Are lawyers running America?”, Time, July 17)

July 14-16 — “‘Whiplash!’ America’s most frivolous lawsuits”. Michigan Lawsuit Abuse Watch is promoting this new book by comedy writer James Percelay and Jeremy Deutchman (Andrews & McMeel). Five of the cases from the book are retold at the M-LAW site, including ones involving a woman who sued a guide-dog service because the dog it provided did not keep its blind human master from stepping on her foot and breaking her toe; a man who cut off his hand, believing it Satanically possessed, refused a doctor’s pleas to let him reattach it, and then sued the doctor later for complying with his instructions; a college student who tried to “moon” friends from a third-floor window, fell out and sued for his injuries; a criminal who filed an excessive-force suit against police after being apprehended for a particularly brutal crime, and won a $184,000 jury verdict, later thrown out; and a man who spilled a cold chocolate milkshake on himself, was so startled that he crashed his car, and sued McDonald’s. (All five cases were sooner or later unsuccessful in the courts.) We haven’t seen the actual book yet (or fact-checked the five cases, although we remember most of them from when they originally happened) but it seems to be selling pretty well on Amazon. Also check out M-LAW’s “obligatory disclaimer“.

July 14-16 — Never too stale a claim. Asbestos, lead paint, small-plane and machine-tool liability cases have all demonstrated that American lawyers are willing to trace responsibility back at least as far as the first decades of the twentieth century if that’s what it takes to find a deep pocket chargeable with injury. So it shouldn’t really have come as much of a surprise when a Texas court entered a $234 million default judgment against the government of Russia on behalf of a man whose grandfather’s property was confiscated during the 1917 Bolshevik Revolution. Dan Nelson, attorney for claimant Lee Magness, “says he will start trying to collect by seizing any Russian art exhibits on tour in this country”, and preliminary maneuvers to that effect led to a temporary delay in two art tours. The Russian government has filed a protest with our State Department (for more on the foreign-policy repercussions of the American way of suing, see July 6). The extreme willingness of our current legal system to revisit very old transactions in search of grist for litigation — much in contrast with an earlier law’s concern for repose and finality — probably made it inevitable that we’d see the current boomlet of discussion regarding reparations claims over slavery: if we’re already willing to go back 83 years to 1917, why not a further 52 years to 1865? Besides, some of us have our eye on the British, who’ve enjoyed virtual impunity for much too long over their burning of American homes during the Revolutionary War and War of 1812. (Susan Borreson, “Texans’ Default Judgment Against Russians Stands”, Texas Lawyer, Feb. 1).

July 13 — Class-action assault on eBay. It’s doubtful whether eBay, the massively popular electronic flea market, would ever have gotten off the ground had its proprietors been required to warrant the goods being sold. In April, however, attorney James Krause of the San Diego-based class-action firm of Krause & Kalfayan filed a lawsuit on behalf of six California residents who had bought sports memorabilia, the subject of widely reported fakery, over the online marketplace. An eight-year-old provision of California law stipulates that dealers in autographed sports memorabilia must provide a certificate of authenticity. Krause is seeking class-action status on behalf of all California buyers, and is asking for the penalties laid out in the statute, which according to AuctionWatch “entitles the buyer to ten times the purchase amount and other damages should an autograph prove to be forged or come without this certificate”. EBay contends that it is not a dealer or auctioneer but simply provides the modern equivalent of newspaper classified ads, so that only the individual sellers could properly be held liable. “If successful, the suit could undermine eBay’s business model,” reports the Industry Standard. “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Krause & Kalfayan has also filed suits on unrelated theories against such firms as Microsoft (see Dec. 23), Federal Express, Atlantic Richfield, Nine West and Charles Schwab (complaint and related news story at Krause & Kalfayan site; Victoria Slind-Flor, “EBay Denies Auctioneer Status”, National Law Journal, July 10; Miguel Helft, “EBay: We’re Not Auctioneers”, Industry Standard, May 1; “The Class Action Suit”, AuctionWatch, undated). Bonus:Weird eBay Auctions (WhatTheHeck.com) (& update Nov. 22-23: judge certifies class action)

July 13 — Nader on the Corvair. The litigation advocate’s presidential candidacy makes a good occasion to revisit his original claim to fame, the Corvair episode. The car’s safety record turned out in hindsight far better than you’d have guessed reading Unsafe at Any Speed, but “being wrong on the Corvair hasn’t hurt Nader’s career one bit,” writes Ronald Bailey, science correspondent for Reason. (“‘Saint Ralph’s’ Original Sin”, National Review Online, June 28).

MORE LINKS: Bill Vance, CanadianDriver.com (“The Corvair’s handling would later be exonerated, but the damage had been done”); Corvair Society of America (CORSA); Brock Yates, Car & Driver, reprinted in CORSA’sThe Windmill, Nov./Dec. 1971, and Charles B. Camp, “Popularity of Nader Declines to Its Nadir Among Corvair Owners”, Wall Street Journal, July 23, 1971, reprinted at Rick’s Corvair Scrapbook; Thomas Sowell, “Lawsuits and Legal Visions”, 1987 speech at Shavano Institute Seminar, reprinted at tsowell.com; Andrew Gurudata, “Great Car At Any Speed“, Corvair Webring; Corvair Project.

July 13 — Access to something. Federal prosecutors are investigating claims that attorney Denice Patrick of Lynnwood, Washington, outside of Seattle, violated ethics and conflict-of-interest rules. Specifically, they’re looking into allegations that while employed to write legal decisions for the federal Social Security Administration, she also “moonlighted for more than a year as a private lawyer who devoted much of her practice to bringing claims against the agency.” Ms. Patrick, whose attorney denies the charges and says they’re being brought against her in retaliation for whistleblowing about agency wrongdoing, has been active on a Washington State Bar Association panel promoting “access to justice“. (Sam Skolnik, “Lawyer allegedly violated ethics”, Seattle Post-Intelligencer, May 22).

July 12 — Battered? Hand over your kids. Latest advance in child protection: seizing and placing in foster care children whose moms are abused by their husbands or boyfriends or vice versa. New York City can remove kids from their homes if either parent is believed to “engage in acts of domestic violence,” such as slaps, kicks, shoves, or more serious violence, whether or not these acts are directed at the children. “Often,” reports the New York Times‘s Somini Sengupta, the parent who loses children this way “may have done nothing wrong or negligent, but simply lacked the financial or emotional resources to leave an abusive partner.” The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers. And while it’s clearly not good for a child to observe parents engaged in domestic battles, advocates say the city underestimates the trauma to kids of being yanked out of the home they know and sent to live among strangers. (Somini Sengupta, “Tough Justice: Taking a Child When One Parent Is Battered”, New York Times, July 8 (reg)). Update Oct. 31, 2004: New York high court ruling favorable to mothers; Dec. 19, 2004 city agrees to change policy.

July 12 — Forum-shopping in South Carolina. Last year, AP reports, the big railroad CSX paid out about $5 million in five accident lawsuits filed in Hampton County, S.C., and it faces another 15 cases pending in the county, all represented by the Hampton law firm of Peters, Murdaugh, Parker, Eltzroth & Detrick. However, none of the five accidents being sued over had actually taken place in Hampton County; all had been taken there from elsewhere in search of the plaintiff-friendly brand of justice handed out in the impoverished county, where 40 percent of residents have not graduated high school. “They are poor people who don’t like big corporations,” said Dick Harpootlian, a prominent plaintiff’s lawyer in the state capital, Columbia, as well as chairman of the state’s Democratic Party. “We don’t mind being there if we belong there, but these cases are being valued at between two and three times what they would elsewhere,” said Jim Lady, a lawyer for the railroad, who adds that it would be equally unfair if the law permitted his client to remove all cases to Lexington County, where jurors are known as being as conservative as those in Hampton are liberal. Now a move is afoot in the state legislature to curb forum-shopping by giving plaintiffs a choice of at most three venues: the one where the accident took place, the one where they live, or the one where the railroad is headquartered. Trial lawyers are upset: “If they are paying us more than what they are paying elsewhere, it’s because they are not paying fairly in other counties,” says Johnny Parker, a lawyer with the Peters firm in Hampton. State Sen. Brad Hutto (D-Orangeburg), whose district includes Hampton County and who also happens to be a trial attorney, says that the move “smacks of special-interest legislation … Every courthouse in this state is presided over by a judge. If CSX doesn’t like the result of a court case, they have the right to appeal. It’s not the law firm that’s being punished, it’s the person bringing the suit.” The Virginia legislature some years back enacted similar legislation curbing the ability of lawyers from around the state to file railroad suits in the city of Portsmouth, where juries had a reputation for big-ticket verdicts. (Associated Press, “Bill would make generous Hampton County juries unavilable in many railroad suits,” South Carolina state/regional wire, June 12).

July 12 — Suing Nike for getting hacked. Some Web-watchers have been predicting (see Feb. 26) that lawsuits may be forthcoming attempting to lay the costs of hacker attacks on deep-pocket entities that, it’s argued, should have done more to prevent them. Now a Web entrepreneur named Greg Lloyd Smith says his lawyers are drawing up a complaint against Nike. “His beef: When Nike’s website was hijacked [last month], whoever hijacked the domain re-directed Nike.com’s traffic through Smith’s Web servers in the U.K., bogging them down and costing Smith’s Web hosting company time and money.” (Craig Bicknell, “Whom to Sue for Nike.com Hack?”, Wired News, June 29; “Webjackers Do It To Nike”, Wired News, June 21).

July 11 — Australia: antibias laws curb speech. An official civil-rights tribunal in New South Wales, the most populous state in Australia, has ruled that the Australian Financial Review committed an unlawful act of bias when it published an article on its opinion page making slighting comments about Palestinians. The offending piece, a short item by journalist Tom Switzer, had suggested that Palestinians had engaged in acts of terrorism, could not be trusted in Mideast peace talks, and remained “vicious thugs who show no serious willingness to comply with agreements”. The tribunal “found it was irrelevant whether the author intended to incite racial hatred or whether anyone had in fact been incited”, and dismissed a free-comment defense as irrelevant. It has yet to decide on a “remedy” for the speech; among its powers are to order a retraction and apology, and to order the paper, which is owned by the John Fairfax Group, to “implement a program or policy aimed at eliminating unlawful discrimination”. (Mike Seccombe, “Finding ‘restricts’ freedom of speech”, Sydney Morning Herald, Jul. 10) (via Freedom News Daily).

July 11 — “Report on medical errors called erroneous”. You read it here first (see Feb. 22, Feb. 28, March 7 commentaries): more critics are stepping forward to find fault with that highly publicized study alleging that “medical errors” kill between 44,000 and 98,000 patients a year. In the Journal of the American Medical Association, three doctors associated with the University of Indiana’s Regenstreif Institute explain why they believe the study is so constructed as to exaggerate the avoidable damage done by medical mistakes, and study author Lucian Leape, of Harvard’s School of Public Health, responds with a defense. (Rick Weiss, “Report on Medical Errors Called Erroneous”, Washington Post, July 5; Clement J. McDonald; Michael Weiner; Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report” (text) (pdf); Lucian L. Leape, “Institute of Medicine Medical Error Figures Are Not Exaggerated” (text) (pdf), JAMA, July 5 (table of contents))

July 11 — ADA’s unintended consequences. The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied. Thomas DeLeire, assistant professor at the University of Chicago, Harris Graduate School of Public Policy Studies, analyzed data for a sample of men aged 18 to 65 and found that labor force participation fell after the act for virtually every identifiable subgroup of disabled men, but that the relative slippage was worst for those with lower levels of job experience and education, and those with mental impairments. DeLeire believes the law has imposed on employers perverse incentives not to hire and retain disabled workers, since they now risk the possibility of costly and uncertain disputes should they differ with the worker about what constitutes “reasonable” (and thus obligatory) accommodation. (“The Unintended Consequences of the Americans with Disabilities Act”, Regulation, v. 23, no. 1 — table of contents links to pdf document).

July 31 — Clinton’s date with ATLA. Bill Clinton’s speaking engagement yesterday before trial lawyers at their convention draws this hard-hitting column by New York Post‘s Rod Dreher, who writes: “Though he has signed a few small tort-reform measures, the President has vetoed every major effort to rein in the berserk lawsuit culture, which is turning civil courts into casinos for trial lawyers and greedy plaintiffs.” Dreher’s column also quotes this site’s editor at length about how tobacco lawyers since their lucrative settlement have become “an institutional ATM for the Democratic Party”; on how Gov. George Bush pushed through legal reform in Texas, a state where they said it couldn’t be done; and on what’s likely to happen if voters don’t break the lawyers’ momentum at the polls this fall (Rod Dreher, “Greedy Dems Refuse to Curb Lawsuit Madness”, New York Post, Jul. 30). Best of all, Dreher refers to this site as “the must-bookmark www.overlawyered.com”.

July 31 — No diaries for Cheney. “A small anecdote about a large facet of his [Dick Cheney’s] personality. [At a White House dinner] in the summer of 1992 … President Bush’s sister turned to him and said she hoped he would someday write a book, and hoped he was keeping a diary. He sort of winced, and looked down. No, he said, ‘unfortunately you can’t keep diaries in a position like mine anymore.’ He explained that anything he wrote could be subpoenaed or become evidence in some potential legal action. ‘So you can’t keep and recount your thoughts anymore.’ We talked about what a loss this is for history. It concerned him. It was serious; so is he. Then everyone started talking politics again.” (Peggy Noonan, “The Un-Clinton”, Wall Street Journal, July 26, subscriber site).

July 31 — Nader cartoon of the year. By Henry Payne for the Detroit News, it depicts Ralph as the parrot on a pirate’s shoulder, and you can guess who’s the pirate (at News site — July 25) (via National Journal Convention Daily).

July 31 — Our most ominous export. Trial lawyers in the United States have been steadily internationalizing their activities, bringing the putative benefits of American-style product liability suits to faraway nations. Now it’s happening with litigation against gunmakers: attorney Elisa Barnes, who managed the Hamilton v. Accu-Tek case in Brooklyn, is assisting a Brazilian gun-control group in a suit against local firearms maker Taurus International over sales of its lawful product. (“Brazil’s biggest gun maker under fire from rights group”, AP/Dallas Morning News, July 27).

July 31 — Running City Hall? Stock up on lawyers. “Time was that most small cities in California were represented by one in-house attorney, who likely had a sole practice on the side. Today, laws such as the Americans With Disabilities Act, requirements such as environmental impact reports and intricate ballot initiatives make running a city too complicated for that kind of legal staffing.” (Matthew Leising, “Meyers Nave spins cities’ legal hassles into gold”, National Law Journal, August 9, 1999, not online).

July 28-30 — Clinton to speak Sunday to ATLA convention. Confirmed on ATLA’s website: President Bill Clinton is scheduled to address the annual convention of the Association of Trial Lawyers of America at Chicago’s Hyatt Regency on Sunday at 2:30 p.m., the first such appearance by a sitting president ever, and another confirmation that this administration is friendlier to the litigation lobby than any before it in American history. More than 3,000 trial lawyers are expected to attend.

July 28-30 — New subpage on Overlawyered.com: Trial lawyers and politics. Former California Assembly Speaker Willie Brown has called plaintiff’s lawyers “anchor tenants” of the Democratic Party, and they’re rather well connected in many Republican circles as well (as for their longtime role in backing Ralph Nader, currently running as a Green, don’t get us started). Is anyone keeping proper tabs of their activities in the political sphere? We’re not sure, but figure it can’t hurt to start a new subpage on that topic.

July 28-30 — Wall Street Journal “OpinionJournal.com” launches. Today the Wall Street Journal is scheduled to go live with its eagerly awaited OpinionJournal.com, which is expected to embody the crusading spirit of the paper’s editorial page. They tell us Overlawyered.com will be listed among OpinionJournal.com’s “favorite” sites, with a standing link.

July 28-30 — “How the ADA Handicaps Me”. “I graduated from a good law school but finding a job has been difficult, much more difficult, than I expected,” writes Julie Hofius, an Ohio attorney who uses a wheelchair. “Getting interviews has not been a problem. Getting second interviews or job offers has been. … The physical obstacles have been removed, but they have been replaced with a more daunting obstacle: the employer’s fear of lawsuits. … job-hunters with disabilities are viewed by employers as ‘lawsuits on wheels.'” (“Let’s get beyond victimhood of disabilities act”, Houston Chronicle, July 25, and Cato Daily Commentary, July 26). The tenth anniversary of the enactment of the Americans with Disabilities Act has occasioned a flood of commentary and reportage, an ample selection of which is found at Yahoo Full Coverage. Check out in particular Carolyn Lochhead, “Collecting on a Promise”, San Francisco Chronicle, July 26, and Aaron Brown, “What’s Changed? Assessing the Disabilities Act, 10 Years Later”, ABCNews.com, July 26 (sidebar, “Too Many Lawsuits?” by Betsy Stark, quotes this site’s editor).

July 28-30 — Smoking and responsibility: columnists weigh in. “I watched my father die from smoking … [he] would not have taken kindly to being portrayed as an innocent victim of the tobacco industry,” writes the New York Press‘s John Strausbaugh. “The popularity of the fairy tale in which Demon Philip Morris pins innocent victims to the ground and forces them to smoke cigarette after cigarette until they die is another example of the way Americans enjoy infantilizing themselves and shirking responsibility for their own lives.” (“Demoned Weed”, Jul. 22). Legendary Pittsburgh shortstop Honus Wagner, of baseball-card fame, “demanded that his card be taken off cigarette packs because smoking was bad, and habit-forming. That, my friends, was in 1910. Even back then we all knew cigarette smoking was bad. … When do we stop blaming other people?” (Steve Dunleavy, “Cig-Makers Paying Price for Smokers’ Free Choice”, New York Post, Jul. 16). $145 billion, the punitive damages figure assessed by a Florida jury earlier this month, amounts to “more than twice the gross domestic product of New Zealand. It is, in short, a ridiculous number, pulled out of thin air …Why not $145 trillion?” (Jacob Sullum, “The $145 Billion Message”, Creators’ Syndicate column, July 19). And even before the state settlement jacked up the price of cigarettes for the financial benefit of state governments and their lawyers, government was reaping a bigger profit through taxes from tobacco than were manufacturers: roughly 74 cents per pack, compared with 28 cents’ profit for Philip Morris, according to Sullum. “Some will protest that there is a moral distinction here. To be sure: While politicians and tobacco companies both take money from smokers, only the tobacco companies give them something in return.” (Jacob Sullum, New York Times, July 20, reprinted at Reason site).

July 28-30 — Lenzner: “I think what we do is practice law”. Profile of Terry Lenzner, much-feared Washington private investigator in the news recently for his firm’s attempts to buy trash from pro-Microsoft advocacy groups on behalf of client Oracle, and whose services are in brisk demand from law firms and Clinton Administration figures wishing to dig dirt on their opponents. Known for his operatives’ irregular methods of evidence-gathering — he recommends posing as journalists to worm information out of unwary prospects — Lenzner recently addressed a seminar at Harvard about his calling. “I think what we do is practice law, although I use a lot of nonlawyers, he told the attendees.” (Brian Blomquist, “Gumshoe’s reputation is all heel and no soul”, New York Post, Jul. 18).

July 26-27 — Losing your legislative battles? Just sue instead. Lawyers for Planned Parenthood in Seattle have filed a lawsuit against the Bartell drugstore chain, claiming it amounts to sex discrimination for the company’s employee health plan not to cover contraception. Many employers’ health plans curb costs by not covering procedures not deemed medically necessary, such as cosmetic surgery, contraception, in vitro fertilization, and elective weight reduction. Planned Parenthood had earlier sought legislation in Olympia, the state capital, to compel employer plans to cover contraception, as has been done in about a dozen states, but strong opposition defeated their efforts; running to court, however, dispenses with the tiresome need to muster legislative majorities. A Planned Parenthood official said Bartell was selected as the target for the test case “because the drugstore chain is generally considered to be a good employer and progressive company” — that’ll teach ’em. (Catherine Tarpley, “Bartell sued over contraceptives coverage”, Seattle Times, July 20; David A. Fahrenthold, “Woman Sues for Contraception Coverage”, Washington Post, July 22; Planned Parenthood of Western Washington advocacy site, covermypills.org).

July 26-27 — Update: Tourette’s bagger case. The Michigan Court of Appeals has upheld the right of the Farmer Jack supermarket chain to refuse to employ Karl Petzold, 22, as a bagger in its checkout lines. Petzold suffers from coprolalia, a symptom of Tourette’s Syndrome that causes him involuntarily to utter obscenities and racial slurs (see June 9). “We find it ridiculous to expect a business … to tolerate this type of language in the presence of its customers, even though we understand that because of plaintiff’s condition, his utterance of obscenities and racial epithets is involuntary,” the court wrote in a 3-0 decision reversing a trial court’s denial of summary judgment. Petzold’s attorney vowed an appeal to the Michigan Supreme Court. (“Court Rules on Tourette Suit”, AP/FindLaw, Jul. 21) (text of decision, Petzold v. Borman’s Inc.) (via Jim Twu’s FindLaw Legal Grounds).

July 26-27 — “It isn’t about the money”. An Atlanta jury has awarded former stripper Vanessa Steele Inman $2.4 million in her suit against the organizers of the 1997 Miss Nude World International pageant as well as the Pink Pony, the strip club at which the week-long event was held. Ms. Inman said organizers rigged the balloting to favor a rival contestant and “blackballed her from nightclubs around the country owned by the Pink Pony’s owner, Jack Galardi”, to retaliate for her refusal to do lap dances on a tour bus, let herself be “auctioned off” to drunken golfers, or allow her breasts to be employed in conjunction with whipped cream in a manner not really suitable for description on a family website. The jury awarded her $835,000 in compensatory damages, in part to make up for the impairment of her earnings in the exotic dance field, plus $1.6 million in punitive damages. “It isn’t even about the money,” she said. “Now people believe what I had to say.” (Jim Dyer, “Former stripper awarded $2.4 M against pageant organizers”, Atlanta Journal- Constitution, Jul. 25) (more on litigation by strippers: May 23, Jan. 28). Update Apr. 17, 2004: Georgia Court of Appeals overturns verdict.

July 26-27 — “Power company discriminates against unemployed”. In New Zealand, the Human Rights Commission is telling an electricity supplier to amend its “discriminatory” policies regarding prospective customers who might have trouble paying their bills. “A woman complained that her application to become a customer was rejected because she was unemployed, did not have a credit card and did not own her own home.” The company has already agreed to cease asking applicants whether they are employed, but the commissioners say it has been “indirectly discriminating against unemployed people by requiring its customers to have a credit card, own their own home and have an income greater than $10,000 a year.” (“Stuff” (Independent Newspapers Ltd.), Jul. 26).

July 26-27 — Couple ordered to give son Ritalin. A family court judge in Albany County, N.Y. has ordered Michael and Jill Carroll to resume giving their 7-year-old son Ritalin, the controversial psychiatric drug. The couple, who reside in the town of Berne, had taken their son Kyle off the medication, which is used to treat attention deficit/hyperactivity disorder; they feared the drug was harming his appetite and sleep. An official at the Berne-Knox-Westerlo School District proceeded to inform on them to the county Department of Social Services, which filed child abuse charges against the couple on charges of medical neglect. The charges, which might have led to the son’s removal from the home, were dropped when they agreed before the judge to put Kyle back on the drug; they will, however, be allowed to seek a second opinion on whether the boy should get Ritalin and return to court to argue for the right to discontinue the drug at some future date. (Rick Carlin, “Court Orders Couple To Give Son Drug”, Albany Times-Union, July 19 (fee-based archive — search on “Ritalin” or other key words to find story)) (update — see Aug. 29-30).

July 24-25 — Update: drunken bicyclist out of luck. A Louisiana appeals court has thrown out a trial court’s $95,485 award against city hall to a drunken bicyclist who was injured when he ran a stop sign and collided with a police car responding to a call (see Dec. 1). Plaintiff Jerry Lawrence’s lawyer explained the verdict at the time by saying, “Drunks have some rights, too”. (Angela Rozas, “No cash for drunken bicyclist”, New Orleans Times-Picayune, May 20). Police chief Nick Congemi said one reason Lawrence got as far as he did in his suit was that the department hadn’t issued him a ticket at the time for bicycling while intoxicated. “We learned a lesson, too. Because he was injured so badly, we decided not to give him any citations. … we’re going to change our policies on that. Here on out, we’re going to issue citations, even if they’re injured.” More proof of the inspirational things litigation can accomplish! (via “Backstage at News of the Weird”, May 29)

July 24-25 — “Going after corporations through jury box”. Christian Science Monitor takes a look at what comes next in mass torts after the Florida tobacco verdict, which Lawrence Fineran of the National Association of Manufacturers calls “really scary”. Quotes this site’s editor, too (Kris Axtman, July 24).

July 24-25 — Welcome Wall Street Journal readers. In its Friday editorial on the sensational developments in the Coke discrimination case, the Journal suggested people learn more by visiting this site (if you’re here to do that, see July 21-23 and July 19-20; click through from the latter to the big article on the case in the Fulton County Daily Report). Thanks in no small part to the Journal, last week (and Friday in particular) saw this site set new traffic records. (“The Practice”, July 21) (requires online subscription).

July 24-25 — “Poll: majority disapprove of tobacco fine.” Gallup asked 1,063 adults their opinion of a Florida jury’s $145 billion punitive verdict against tobacco companies. 59 percent “disapprove”, 37 percent “approve” and 4 percent had “no opinion.” Asked who was predominantly to blame for smokers’ illnesses, 59 percent said smokers themselves “mostly” or “completely” were and 26 percent said tobacco companies were (20 percent “mostly”, 6 percent “completely”). Another 14 percent blamed the two equally. Disapproval of the award increased among older age groups and with political conservatism; the results are consistent with a 1994 poll on tobacco liability. In December the public was asked whether it agreed with the U.S. government’s view that gun manufacturers could rightly be held financially responsible for the costs of shootings; it said no by a 67 to 28 percent margin. (Carol Rosenberg, Miami Herald, July 19)

July 24-25 — Florida verdict: more editorial reaction. “Given the industry’s history of evasion and equivocation about the health risks of smoking, it is tempting to welcome as a comeuppance a Florida jury’s $144.8 billion judgment against six tobacco companies. The temptation should be resisted. The judgment is a disgrace to the American legal system and an affront to democracy…. These issues should be confronted by the people’s elected representatives. They should not be hijacked by the judicial process under the guise of a tort case.” (“Smoke signal: An anti-tobacco verdict mocks law and democracy”, Pittsburgh Post-Gazette, July 21). “Ridiculous … outrageous … A ruling that completely ignores personal responsibility is a joke.” (Cincinnati Enquirer). “The biggest damages here may be to the reputation of the legal system.” (Washington Post). “Monstrous … Now that they have taken an unwise gamble on their health, the Florida plaintiffs portray themselves as victims of Big Tobacco. … outlandish” (San Diego Union-Tribune). “Falls somewhere between confiscation and robbery” (Indianapolis Star). A “fantasy verdict” (Cincinnati Post/Scripps Howard). “The bottom line is that courtrooms are not the proper forums for setting public policy, and personal responsibility should not be dismissed out of hand. ” (Tampa Tribune). “Yuck…. [the] tendency to run from personal accountability is one of the least attractive of modern human characteristics. A lot has also been said about the wrongness — yes, the fundamental wrongness — of a system that makes billionaires of attorneys based on their ability to minimize the responsibility of their clients when a deep-pockets defendant is in the dock.” (Omaha World-Herald). “You don’t have to love tobacco companies to recognize the wrong that’s been going on in Florida for the past six years…. [a lawsuit] ran amok.” (Louisville Courier-Journal). “Ambitious and politically motivated lawyers are usurping decision- and policymaking that in a democracy is appropriately left to the voters and their representatives. Tyranny of the tort may be putting it too strongly — at least for now. But who knows who will be next on the trial lawyers’ hit list?” (Chicago Sun-Times). “Justice is not served … ridiculous.” (Wisconsin State Journal (Madison)). “Absurdly excessive … provides a further reminder that the national “settlement” between Big Tobacco and the states aimed at curbing lawsuits over smoking hasn’t resolved much of anything.” (Memphis Commercial Appeal). “‘This was never about money,’ the plaintiffs’ attorney said immediately after the verdict. Whooooo, boy.” (Des Moines Register). Newspapers that approved of the verdict included the New York Times, USA Today, Dallas Morning News, San Francisco Chronicle, Milwaukee Journal Sentinel, Bergen County (N.J.) Record, Palm Beach Post, Spokane Spokesman-Review, Buffalo News, and Charleston (W.V.) Gazette.

July 21-23 — Principal, school officials sued over Columbine massacre. Three families were already suing the Jefferson County sheriff’s office, the killers’ parents and others, and now they’ve added Principal Frank DeAngelis and other school officials as defendants. After all, the more different people you sue, the more justice will get done, right? (“Columbine principal sued by victims of massacre”, CNN/Reuters, Jul. 19). Update Nov. 30-Dec. 2, 2001: judge dismisses most counts against school and its officials, parents having settled earlier.

July 21-23 — Washington Times on lawyers. Reporter Frank J. Murray’s series examining the legal profession has been running all week with installments on lawyer image, the boom in pay, lack of teeth in the lawyer-discipline process and more (July 17-21).

July 21-23 — Complaint: recreated slave ship not handicap accessible. A group of disabled New Haven, Ct. residents is charging that the publicly funded schooner Amistad, a traveling historical exhibit, is not accessible to wheelchairs as required by the Americans with Disabilities Act. The Amistad was the scene of an important slave revolt in 1839-1842 and its recreated version helps evoke the overcrowding and other inhumane conditions of the slave trade. (“Amistad Raises Concerns About Handicap Access”, AP/Hartford Courant (CtNow.com), July 18).

July 21-23 — Class-action lawyers to Coke clients: you’re fired. As we mentioned yesterday, there have been sensational new developments in the Coca-Cola Co. bias-suit saga, following an episode in which a plaintiff lingered on the line after a conference call and heard what his lawyers told each other when they thought they were among themselves (see July 19-20). One reader writes to say he found it “an interesting commentary on class action litigation. The plaintiff becomes dissatisfied with the way his attorneys are handling his law case. So the client fires the attorney, right? Wrong. The attorney fires the client and continues the case with other plaintiffs. What’s wrong with this picture?”

July 21-23 — When sued, be sure to respond. A “default judgment” is what a plaintiff can obtain when a defendant fails to show up in court and contest a suit, and it’s often very bad news indeed for the defendant, as in a case out of New Brunswick, N.J., where a judge has ordered Wal-Mart “to pay more than $2 million to a former cashier who said he was harassed and fired after a boss learned he was undergoing a male-to-female sex change.” Ricky Bourdouvales, 27, says his troubles began when he confided to a manager that he was in the middle of crossing genders, though when he was fired in January he was told it was because of discrepancies with his cash register count. The giant retailer says it will ask the judge to overturn the award, saying it was aware that a document had been filed in May but did not realize its nature. “We were totally unaware of the lawsuit, and we want to have the opportunity to defend ourselves,” said its spokesman. (“Judge Orders Wal-Mart to Pay Fired Transsexual $2 Million in Bias Case”. AP/FindLaw, July 18) (more on suits against Wal-Mart: July 7-9). Update Sept. 6-7: judge grants retrial.

Filed under: animal rights, antitrust, Arkansas, Atlanta, attorneys general, Australia, Bay Area, Canada, Chevron, France, John Edwards, Massachusetts, Michael Ciresi, Michigan, Minnesota, New Jersey, North Carolina, Stanley and Susan Rosenblatt, tobacco

January 2000 archives, part 2

January 31 — Scorched-earth divorce tactics? Pay up. Lawyers in Massachusetts are assessing the impact of two recent cases in which, departing from usual practice, courts have penalized family-law litigants for engaging in carpet-bombing tactics by ordering them to pay attorneys’ fees to their victimized opponents. In one case, Basel v. Basel, a husband was ordered to pay $100,000 of his wife’s legal bill after he unsuccessfully accused her of being a drunk, a drug addict, and a child abuser; the judge ruled that he’d engaged in a “calculated campaign of outrageous behavior to destroy (his) wife’s credibility” and called his portrayal of his wife “nefarious” and “fraudulent”. “By the time it was over,” the Boston Globe reports, “the lengthy litigation had cost more than $600,000 in legal fees, half of which was paid by [the husband’s] parents.”

Peter Zupcofska, vice chairman of the Boston Bar Association’s family law section, said the ruling by Worcester probate judge Joseph Lian Jr. could signal a new departure in the state of matrimonial practice: “if the litigation that’s waged is clearly done to harass, harangue, and intimidate the other party, and to create a kind of economic slavery by utilizing vast amounts of marital funds in a really destructive way,” he said, “then the judge is going to do something to redress that imbalance.” In another recent Bay State case, Krock v. Krock, a probate judge awarded $81,000 in fees against a wife found to have engaged in wrongful litigation. “You can no longer assume that having money gives you the right to wage these frivolous, scorched-earth campaigns without risking paying the price for the other side,” said Boston family law practitioner Elaine Epstein. “And if you do, you do so at your own peril.” (Sacha Pfeiffer, “A warning to battling spouses”, Boston Globe, Jan. 23).

January 31 — Coils of forfeiture law. For Joe Bonilla, the good news is his acquittal three months ago on charges of drunken driving. The bad news is that New York City has no plans to give back the $46,000 Ford Expedition he was driving when cops pulled him over. Bonilla, a 34-year-old construction worker, is paying $689 a month on the vehicle, which he’d been driving for only two days when stopped last May on his way home, he says, from a late screening of the movie “Shakespeare in Love”. A Bronx judge declared him not guilty on the charge, but that doesn’t mean he can have his car back, the city says. (Tara George, “He’s Not Guilty of DWI, But Cops Still Have Car”, New York Daily News, Jan. 25) (more on forfeiture: Oct. 7, F.E.A.R., Reason, Fumento).

January 31 — Do as we say…. Serious fire code violations are threatening to snarl plans to open a $1-million public facility in Charleston, W.V. It’s kinda embarrassing since the facility is itself a fire station. “Not only is a firewall improperly installed inside the $1 million station house, but there are no smoke alarms in the sleeping quarters.” (Todd C. Frankel, “Fire station also lacking smoke alarms”, Charleston Daily Mail, Jan. 19).

January 31 — Showdown in Michigan. Battle royal shaping up this November in the Wolverine State, whose Supreme Court, since a series of appointments by Republican Gov. John Engler, has been assuming a national leadership role in rolling back litigation excesses. Trial lawyers, unionists and others are furiously plotting revenge when the judges stand for their retention elections. A Detroit News editorial provides a quick rundown on what promise to be some of this year’s most closely watched judicial races (Jeffrey Hadden, “State Supreme Court in partisan Catch-22”, Detroit News, Jan. 18).

January 29-30 — Update: OSHA in full retreat on home office issue. The Occupational Safety and Health Administration announced on Wednesday that it will not, after all, seek to regulate hazardous conditions in workers’ home offices, such as rickety stairs, ergonomically inappropriate chairs, or inadequate lighting. Accepting the agency’s spin, the New York Times‘s Steven Greenhouse reports the new stance as a “clarification” meant to dispel “confusion”. Translation: the agency has baldly reversed its earlier policy. When OSHA’s November advisory letter came to public notice earlier this month, the Washington Post summarized its contents this way: “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site.” (see Jan. 5, Jan. 6, Jan. 8-9 commentaries). Under the new policy, the word “not” will simply be inserted before the word “responsible” in that sentence. (At least as regards home offices: manufacturing activities conducted at home will still come under its jurisdiction, the agency says.)

Why did the earlier OSHA directive cause such an uproar? According to the Times‘ Greenhouse, it “alarmed thousands of corporate executives and angered many lawmakers, particularly Republicans” who began “using it” as a political issue — very naughty of them to do such a thing, we may be sure. But as most other news outlets reported, word of the policy had scared not just bosses but innumerable telecommuters themselves, who not unreasonably expected that the new policy would result in (at a minimum) more red tape for them and quite possibly a chill on their employers’ willingness to permit telecommuting at all. And while opposition from Republicans might come as scant surprise, the newsier angle was the lack of support from the measure from many elected Democrats; even a spokeswoman for Rep. Richard Gephardt said it “seemed excessive”.

OSHA director Charles N. Jeffress announced that the “bottom line” remained what it had “always been”: “OSHA will respect the privacy of the home and expects that employers will as well.” Translation: the agency was stung so badly by the public reaction to its initiative that it’s going to pretend it never proposed it in the first place (Steven Greenhouse, “Home Office Isn’t Liability For Firms, U.S. Decides”, New York Times, Jan. 28; Frank Swoboda, “OSHA Exempts White-Collar Telecommuters”, Washington Post, Jan. 27; “OSHA Exempts Home Offices”, Reuters/FindLaw, Jan. 27).

January 29-30 — Update: judge angered by obstructive SEPTA defense. After last month’s $50 million jury award against the Philadelphia transit authority over the maiming of 4-year-old Shareif Hall on an escalator, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million; Authority Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6; see Dec. 17-19 commentary).

January 28 — Law prof wants to regulate newspaper editorials. Libertarians have long warned that laws curbing private buying of campaign ads constitute a dangerous incursion on free speech and are likely to pave the way for further inroads. In last June’s Texas Law Review, Associate Professor Richard L. Hasen of Loyola University Law School (Los Angeles) proceeds to prove them correct by endorsing government regulation of newspaper editorials. He writes: “If we are truly committed to equalizing the influence of money of elections, how do we treat the press? Principles of political equality could dictate that a Bill Gates should not be permitted to spend unlimited sums in support of a candidate. But different rules [now] apply to Rupert Murdoch just because he has channeled his money through media outlets that he owns… The principle of political equality means that the press too should be regulated when it editorializes for or against candidates.”

Hasen happily looks forward to the day when the Supreme Court can be persuaded to overturn Buckley v. Valeo and the way will be clear for such regulation of the expression of opinion in newspapers: “op-ed pieces or commentaries expressly advocating the election or defeat of a candidate for federal office could no longer be directly paid for by the media corporation’s funds. Instead, they would have to be paid for either by an individual (such as the CEO of the media corporation) or by a PAC set up by the media corporation for this purpose. The media corporation should be required to charge the CEO or the PAC the same rates that other advertising customers pay for space on the op-ed page.” (Quoted by Stuart Taylor, Jr., “The Media Should Beware of What It Embraces”, National Journal, Jan. 1, no longer online; see also Richard Hasen, “Double Standard,” Brill’s Content, Feb. 1999).

January 28 — From our mail sack: unclear on the concept. To judge from the summaries of our search-engine traffic, a nontrivial number of visitors land on this website each day because they’re looking to get in on class-action lawsuits. We fear that we do not always succeed in giving full satisfaction to these visitors. For example, last week the following note arrived in our inbox, signed K.E.: “Please send me the website or address re the Toshiba settlement. I need to file. Why was this not on your site where it could readily be found?”

January 28 — Strippers in court. A group of San Francisco exotic dancers sued their employers last month, saying they’d been improperly categorized as independent contractors with the result that they were denied overtime pay and were unfairly forced to purchase their own “supplies”, in the form of expensive drinks. (National Law Journal, “The Week in Review: The Flux”, Dec. 27-Jan. 3). In Canada, a judge has ruled against Loredana Silion, 24, in her petition for a work permit to perform as an exotic dancer. While Ms. Silion had danced in a nightclub in her native Rumania, the job there involved only topless dancing, which the judge ruled was not a close enough match in skills for the task of dancing at Toronto’s Sunset Strip club, where nothing at all is worn. (Marina Jimenez, “Stripper told she’s not naked enough to work in Canada”, National Post, Jan. 14). And exotic dancer Doddie L. Smith has now sued an Arizona plastic surgeon, saying the doctor’s augmentation surgery left her breasts “too high” with the result that she is “unable to be a ‘featured dancer’ at exotic dance clubs, model as a centerfold in adult magazines, or promote her modeling career”. Estimated wage loss: $100,000. (Gretchen Schuldt, “Exotic dancer claims doctor botched breast surgery”, Milwaukee Journal Sentinel, Jan. 12) (Update: more on strippers in court: May 23, July 26-27).

January 26-27 — Florida ADA complaint binge. Invoking the Americans with Disabilities Act, “a half-dozen non-profit corporations and associated individuals [ ] have filed more than 600 federal suits in Miami, Fort Lauderdale and West Palm Beach” charging building owners and service providers with failing to make their facilities accessible to the handicapped, according to Miami’s legal publication, the Daily Business Review. Targets of the complaints, large and small, range from Kmart and Carnival Cruises down to local funeral homes and the little Coconut Court Motel in Fort Lauderdale, as well as nonprofits and public entities such as the local Baptist hospital and the city of Pompano Beach. A six-lawyer Miami Beach law firm, Fuller, Mallah & Associates, has spearheaded the assault, helping form three nonprofits that account for most of the filings. Indeed, no less than 323 of the cases name as plaintiff 72-year-old wheelchair user Ernst Rosenkrantz. “When pressed to explain how he hooked up with the law firm, Rosenkrantz said law firm partner John D. Mallah is his nephew.” However, “Mallah didn’t mention that relationship when asked about Rosenkrantz in an earlier interview,” notes reporter Dan Christiansen.

Most cases settle when the charged business agrees to make some modification to its facilities and pay the complainant’s legal fees — $275 an hour plus expenses in Mallah’s case. The ADA allows complainants to file suit without warning the target, and it displays considerable solicitude for the welfare of lawyers filing cases: “the attorney’s fees provisions are such that even if they get [nothing more than] the telephone volume controls changed, they automatically win the case,” says one defense lawyer. First Union, the large bank, says it refuses on principle to settle cases filed by the group: “The fees that are being charged seem to be way out of line to the amount of work that they do,” says one of its lawyers, besides which the bank had been moving forward on its own with an ADA compliance program. Rep. Mark Foley (R-Fla.) has asked the U.S. Department of Justice to investigate mass ADA filings in Broward County. (Dan Christiansen, “Besieged by Suits”, Miami Daily Business Review, Dec. 21). (Feb. 15 update: Congressmen introduce legislation) (DURABLE LINK)

January 26-27 — Seattle police: sued if they do… The constabulary of the northwest metropolis now faces a slew of lawsuits over its handling of the World Trade Organization protests in late November and early December. According to the Post-Intelligencer, the claims divide into two broad groups: those accusing the city of cracking down on the protesters too hard, and those accusing it of not cracking down hard enough. (Mike Barber, “Police sued for doing too little, too much”, Seattle Post-Intelligencer, Jan. 25).

January 26-27 — Feelings of nausea? Get in line. In 1997 a barge accident and chemical spill on the Mississippi sent a foul-smelling haze over much of Baton Rouge, La. A steering committee of attorneys formed to sue for compensation for local residents over symptoms such as “nausea, severe headaches and fatigue” experienced after smelling the odors. And did the claims ever start to roll in: by November of last year 13,000 forms had already been submitted, according to one lawyer, and the pace became even more frenetic as the Jan. 14 final deadline approached for filing claims. Long lines stretched around the block outside the old federal building; one woman said she waited six hours to get in the door, while more than 100 others were turned away at the end of the day, to come back the next day if at all; and many grumblings were heard about missing work. (Adrian Angelette, “Long line awaits claimants in chemical leak suit”, Baton Rouge Advocate, Jan. 14).(DURABLE LINK)

January 26-27 — From our mail sack: the lawyer’s oyster. Regarding our Jan. 15-16 “Poetry Corner” reprint of “The Benefit of Going to Law”, from Benjamin Franklin’s Poor Richard’s Almanack, 1733, New York attorney John Brewer writes: “Just a few days after noting the verse by Ben Franklin you had posted on your site, I came across an earlier and more concise exposition of the same image, viz.:

“Two find an Oyster, which they will not part,
Both will have all or none, the Lawyer’s art
Must end the strife; he fits their humour well,
Eats up the fish, and gives them each a shell.

“According to the recently published Oxford Companion to the Year (“An exploration of calendar customs and time-reckoning”), this appeared in the 1665 edition of Poor Robin’s Almanack (note possible Franklin influence of the name), as one of four such bits of doggerel marking the traditional four law terms. The oyster stanza was for Michaelmas Term.

“You might also find salient the verse for Hilary Term:

Anoint thy Lawyer, grease him in the fist,
And he will plead for thee e’en what thou list;
He’ll make thy cause strong though the same were weak,
But if thy purse be dumb, his tongue can’t speak.

“The verses for Easter and Trinity Terms are similarly on the theme of the costliness of going to law and its financial benefit to none but the bar, but have somewhat less punch and clarity of expression.”

January 25 — Feds’ tobacco hypocrisy, cont’d: Indian “smoke shops”. It seems when the Clinton Administration isn’t filing lawsuits to brand tobacco-marketing as “racketeering” (see Sept. 23 commentary), it’s quietly staking taxpayer money to help its constituents get into the business. A Senate Small Business Committee probe has found that since 1997 the Department of Housing and Urban Development has laid out $4.2 million to enable four Indian tribes to build “smoke shops” that sell discounted cigarettes free from state taxes. Why, one wonders, should subsidies be needed to facilitate an intrinsically high-profit activity that might be likened to lawful smuggling? And of course the source of this largesse is the very same HUD whose Secretary Andrew Cuomo has so loudly endorsed lawsuits against gun sellers whose wares are said to inflict spillover damage on other localities’ public health. A crowning hypocrisy is that some of the tribes that derive income from smoke shops are themselves now suing tobacco companies (see July 14 commentary).

The Senate committee uncovered six instances in which tribes obtained HUD subsidies to open smoke shops, five in Oklahoma and one in Nevada, but it is likely that the true number is larger. For example, this site’s editor, in his March Reason column (not yet in subscribers’ mailboxes, but previewing at the Reason site), identified another similar-sounding case: in 1997 HUD furnished the Reno Sparks Indian Colony with $450,000 “to build a smoke shop along Interstate 80 near the California border,” according to the Bend, Oregon, Bulletin. (Wendy Koch, “Tribes get funds to build ‘smoke shops'”, USA Today, Jan. 24; Walter Olson, “The Year in Double Takes”, Reason, March). (DURABLE LINK)

January 25 — Line forms on the right for chance to suffer this tort. A woman has won $5,135 in damages from owners for having been locked overnight in an Irish pub. “Marian Gahan fell asleep on the toilet in Searsons Pub in central Dublin, and did not wake until 2 a.m., by which time the pub was closed”. She argued that the pub managers should have checked the toilets before locking up. The trial had to be adjourned early on when Ms. Gahan’s barrister, Eileen McAuley, burst into uncontrollable fits of laughter while recounting her own client’s case. (“Woman locked in pub wins $5,135 damages”, Reuters/Excite, Jan. 18; “Tears and laughter at trauma in toilet”, Irish Times, Oct. 21).

January 25 — Recommended reading. On the unnerving ease with which charges of abuse and violence can be pulled from a hat to provide legal assistance in a divorce (Dan Lynch, “We’ll see how blind justice is”, Albany Times-Union, Jan. 19); on the war underway in legal academia over many scholars’ acceptance of the idea that the Second Amendment does indeed protect individual gun rights (Chris Mooney, “Showdown”, Lingua Franca, February); on the chill to workplace banter now that harassment law has gotten well established in Britain (Roland White, “Careless talk makes the office world go round”, The Times (London), Jan. 23).

January 25 — Latest lose-on-substance, win-on-retaliation employment claim. It’s pretty common, actually: the suit-prone worker flatly loses on his original claim of discrimination, but his claim for “retaliation” comes through to save the day because after the job relationship had turned adversarial the employer was shown to have treated him less favorably than before. Bad, bad employer! This time a Delaware jury decided that Eunice Lafate had not in fact been passed over for a promotion at Chase Manhattan because of her race, but awarded her $600,000 anyway on her retaliation charges; after filing the complaint, she said, she’d been cut out of management meetings and given less favorable evaluations. (Jim DeSouza, “Jury Wants Chase Manhattan to Pay $600,000 for Retaliating Against Employee”, Delaware Law Weekly, Dec. 9)(see also Sept. 29 commentary).

January 24 — Latest shallow-end pool-dive case. In Massachusetts, the state’s Supreme Judicial Court has agreed to hear the appeal of Joseph O’Sullivan, who was visiting his girlfriend’s grandparents in Methuen and decided to dive into the shallow end of their pool. An experienced swimmer and 21 years old at the time, O’Sullivan was not paralyzed but did crack two vertebrae and proceeded to sue the grandparents for not stopping him or providing warnings. Boston Globe columnist Derrick Z. Jackson takes a dim view of O’Sullivan’s case, and the lower court did not find it persuasive either (“A shallow case for the SJC”, Jan. 12).

January 24 — “Mormon actress sues over profanity”. Christina Axson-Flynn, 20, is suing the University of Utah, charging that the theater department insisted that she use foul language in character portrayals even though they knew it violated her religious principles to do so. The department disputes the contentions in her suit, which asks for unspecified damages. (Yahoo/AP, Jan. 14; Jim Rayburn, “U. theater department sued over language”, Deseret News (Salt Lake City), Jan. 14). Update Feb. 16, 2004: appeals court lets suit proceed.

January 24 — “Ambulance chaser” label ruled defamatory. The Second Circuit federal court of appeals has ruled that a New York attorney can sue over a printed description of him as an “ambulance chaser” given to taking only “slam dunk cases”. The American Association of University Women and its related AAUW Legal Advocacy Fund had put out a directory in 1997 which listed 275 attorneys practicing in its fields of interest. Appended to the contact information for attorney Leonard Flamm was the following description: “Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment and promotion. Note: At least one plaintiff has described Flamm as an ‘ambulance chaser’ with an interest only in ‘slam dunk cases.'” U.S. District Judge Denny Chin had dismissed Mr. Flamm’s resulting lawsuit against AAUW, ruling that the comments, although “beyond the pale” and “seriously derogatory”, were protected as expressions of opinion under the First Amendment. On appeal, however, a panel led by Judge Thomas Meskill reinstated the action, noting that the objectionable passage might be read as implying specific factual assertions relating to unethical solicitation of business, that it appeared in italics, and that the other entries in the directory were generally of a factual rather than opinion-based nature. (Mark Hamblett, New York Law Journal, Jan. 6).

January 24 — No clash between clauses. Cincinnati attorney Richard Ganulin has filed a notice of appeal after a federal court dismissed his lawsuit claiming that the government’s observing of Christmas as a public holiday violates the Bill of Rights’ Establishment Clause. Last month U.S. District Judge Susan Dlott rejected Ganulin’s action, ruling that Congress was “merely acknowledging the secular cultural aspects of Christmas by declaring Christmas to be a legal public holiday. … A government practice need not be exclusively secular to survive”. She also prefaced her opinion with a bit of free verse: “The court will uphold /Seemingly contradictory causes /Decreeing “The Establishment” and “Santa” /Both worthwhile Claus(es).” (Ben L. Kaufman, “Challenge to Christmas holiday appealed”, Cincinnati Enquirer, Jan. 10).

January 21-23 — “Tracking the trial lawyers”: a contributions database. American Tort Reform Foundation today unveils a handy interactive database for keeping track of which lawyers have been donating to which politicians and parties. You can search by lawyer, by law firm, by recipient politician or institution, and more. Hours of alarming fun (“Follow the Money“).

January 21-23 — From our mail sack. Julia Vitullo-Martin of the Vera Institute of Justice writes, regarding our Jan. 18 report on the strange-warning-labels contest:

“I can tell you were never a teenage girl that you think the advice ‘never
iron clothes while they’re being worn’ is wacky. We used to do this in high school all the time. We’d be in a big hurry — having wasted hours trying on & discarding one another’s clothes — and would finally find the right thing to wear only to notice that the sleeve, say, was wrinkled. Why take it off? Just retract your arm & iron. The occasional small burn never deterred us that I can recall.

“I do like your newsletter.”

January 21-23 — Y2K roundup: poor things! Lack of century-end catastrophes is a “calamity” of its own for lawyers who’d been set to file suits galore demanding damages for outages and data loss. “Lawyers were licking their chops,” Madelyn Flanagan of the Independent Insurance Agents of America told the Washington Post‘s David Segal. “I think the whole world is relieved.” (David Segal, “A Y2K Glitch For Lawyers: Few Lawsuits”, Washington Post, Jan. 10.) Ross & Co., a British solicitors’ firm that had been planning a big Y2K practice, still hopes for the best: “It Ain’t Over Till the Fat Lady Sues“, claims its website. (“Lawyers still gearing up for millennium bug attack”, FindLaw/Reuters, Jan. 20). Don’t count us out yet either, says Philadelphia attorney Ronald Weikers (softwarelitigation.com), who’s hoping the state of Delaware will sue manufacturers over a glitch that knocked out 800 slot machines for three days, thus preventing the state from slurping up locals’ spare coins over that period. Then there are the remediation-cost suits: thus the commonwealth of Puerto Rico, which made the transition “without a murmur”, is considering suing tech firms over the $80 million it says it spent to upgrade systems. (“Puerto Rico Government Considers Suing Over $80 Million In Y2K Work”, DowJones.com, Jan. 4) The reliable Ralph Nader has chimed in with his reasons for blaming everything on the deep pockets (“Y2Pay”, San Francisco Bay Guardian, Dec. 29.) And here come the backlash suits: the Independent of London reports that one company has sued outside consultants for exaggerating the risk from the calendar rollover (Robert Verkaik, “Y2K consultants sued by firm for exaggerating risk”, The Independent, Jan. 11). (DURABLE LINK)

January 21-23 — Cartoon that made us laugh. By Ruben Bolling, for Salon: “….We can’t take those off the market! Dangerous products are a gold mine for the government!” (Jan. 20 — full cartoon)

January 21-23 — Civil disabilities of freethinkers. Imagine letting a murderer go free because you’d excluded the crime’s only witness from testifying on the grounds that as a religious unbeliever he could not take a proper oath. Absurd? Yet such notions survive today in the constitution of the state of Arkansas: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.” Along with Arkansas, the constitutions of Maryland, North and South Carolina, Pennsylvania, Tennessee, and Texas retain historic provisions that contemplate or mandate the exclusion of unbelievers — and in some cases, minority religionists who reject the idea of a retributive afterlife — from public office, admission as witnesses in court, or both. Thus Article IX, Sec. 2, of the Tennessee constitution: “No person who denies the being of God, or a future state of rewards and punishments shall hold any office in the civil department of this state.” Widely considered unenforceable today, such provisions might at some point resume practical importance given today’s highly visible movement to re-infuse religious sentiment into government; in the meantime, they symbolically relegate to second-class citizenship those who hold one set of opinions. “The Arkansas anti-atheist provision survived a federal court challenge as recently as 1982”. (Tom Flynn, “Outlawing Unbelief”, Free Inquiry, Winter 1999). (DURABLE LINK)

January 20 — The joy of tobacco fees. In his January Reason column, this website’s editor pulls together what we now know about the $246 billion state-Medicaid tobacco settlements, including: the role of the settlement in imposing a cartel structure on the industry and chilling entry by new competitors; the happy situation of some lawyers who are in line to collect hundreds of millions of dollars when they simply “piggybacked” on others’ legal work, with little independent contribution of their own; and the often more-than-casual ties between tobacco lawyers and the state attorneys general who hired them, to say nothing of such influentials as President Bill Clinton and Senate Majority Leader Trent Lott (both of whose brothers-in-law were in on the tobacco plaintiffs’ side). Maybe it’s time to retire Credit Mobilier and Teapot Dome as synonyms for low points in American business-government interaction. (Walter Olson, “Puff, the Magic Settlement”, Reason, January).

January 20 — “The case for age discrimination”. You do it, Supreme Court justices do it, we all do it: generalize about people based on their ages. It’s clear that most age-based discrimination isn’t “invidious” in the original sense of race bias, and it’s only rational for an employer to avoid investing in costly retraining for a worker who’s likely to retire soon. So how’d we wind up with a law on the books purporting to ban this universal practice, anyway? (Dan Seligman, “The case for age discrimination”, Forbes, Dec. 13).

January 20 — Watchdogs could use watching. Beginning in 1993 Brian D. Paonessa employed an active solicitation campaign in conjunction with various Florida law firms to sign up hundreds of securities investors to pursue arbitration claims against Prudential Securities Inc. Not prominently featured in Paonessa’s marketing, apparently, was the fact that federal securities regulators were on his own tail on charges that he’d pocketed $149,500 in “ill-gotten gains” at the expense of investor clients. Since then, as the busy rainmaker has become embroiled in legal disputes over alleged fee-splitting arrangements with the law firms, some colorful charges have made it onto the public record. (Stephen Van Drake, “Florida Fee-Sharing Suit May Open Door to Direct-Solicitation Scrutiny”, Miami Daily Business Review, Oct. 11).

January 20 — Gotham’s plea-bargain mills. “Last year each judge sitting in the New York City Criminal Court, on average, handled nearly 5,000 cases. With calendars that huge, the system is reduced to a plea bargain mill, with no true trial capability offering balance to the process. It’s no secret. Everyone — including the repeat offender — knows this.” — New York chief judge Judith Kaye, State of the Judiciary Address, Jan. 10 (New York Law Journal site).

January 19 — “Private job bias lawsuits tripled in 1990s”. “Aided by new federal laws, private lawsuits alleging discrimination in the workplace more than tripled during in the 1990s, the Justice Department said.” According to the Department’s Bureau of Justice Statistics, “job bias lawsuits filed in U.S. District Courts soared from 6,936 in 1990 to 21,540 in 1998….The percentage of winning plaintiffs awarded $10 million or more rose from 1 percent in 1990 to 9 percent in 1998.” (AP/FindLaw, Jan. 17; Bureau of Justice Statistics abstract and link to full report, “Civil Rights Complaints in U.S. District Courts, 1990-98”).

January 19 — Santa came late. Faced with outages and high volume, the e-tailing operation of Toys-R-Us failed to deliver many toys by Christmas as promised. Now Seattle attorney Steve Berman has filed a lawsuit seeking class-action status to represent all customers who did not receive their shipments by Dec. 25. According to George magazine’s profile of tobacco lawyers last year (see Aug. 21-22), Berman’s firm is in line to receive roughly $2 billion from representing states in the tobacco settlement — enough to stake a very large number of bets like this one, should he see fit. The named plaintiff is Kimberly Alguard of Lynnwood, Washington. (“ToysRUs.com Sued: Santa Failed”, Reuters/WiredNews, Jan. 12).

January 19 — The costs of disclosure. In 1992 Tacoma, Wash. attorney Doug Schafer fielded what seemed a routine request from businessman-client Bill Hamilton to draw up incorporation papers for a new venture. But the details Hamilton provided convinced Schafer that his client was involved with Tacoma lawyer Grant Anderson in dishonest business dealings arising from Anderson’s milking of an estate. To make things worse — and raising the stakes considerably — Anderson shortly thereafter was elevated to a Superior Court judgeship.

What should a lawyer do in those circumstances? Schafer later decided to go public and seek an investigation of the judge and the transaction, thus beginning a struggle whose eventual results included an order by the Washington Supreme Court throwing Judge Anderson off the bench (for “egregious” misconduct) and a $500,000 recovery by a hospital in a lawsuit against the judge and others over their conduct. But in the state of Washington — as in a majority of other states — a lawyer has no right to breach his obligation of confidentiality to clients even when the result is to bolster public integrity or provide a remedy to defrauded parties. And so next month Doug Schafer will appear before a panel of the Washington State Bar Association to defend himself against disciplinary charges. Moreover, the reputation he’s picked up as a single-minded scourge of the corruption he perceives in the system has helped devastate his legal career, while Judge Anderson, though forced off the bench, has as yet faced no other consequences from bar enforcers, though an investigation is ongoing. (Bob Van Voris, “The High Cost of Disclosure”, National Law Journal, Jan. 4; Mary Lou Cooper, “The Cadillac Judge”, Washington Law & Politics, Sept. 1998; Tacoma News-Tribune coverage, 1998, 1999; Schafer’s website). Update Jul. 26, 2003: Washington Supreme Court suspends Schafer for six months.

January 19 — 175,000 pages served on Overlawyered.com. Thanks for your support!

January 18 — “Never iron clothes while they’re being worn”. That’s the winning entry in Michigan Lawsuit Abuse Watch’s third annual Wacky Warning Label Contest. Bonnie Hay of Plano, Texas, found the warning on an iron. Second place was awarded to a Traverse City, Mich. man’s discovery of “Not for highway use” on his 13-inch wheelbarrow tire, and third place went to “This product is not to be used in bathrooms” on a bathroom heater. M-LAW president Robert B. Dorigo Jones said the contest had a serious point, to illustrate manufacturers’ growing fear of lawsuits and the retreat of principles of individual responsibility. Finalists in earlier years’ contests have included sleeping pills labeled “May cause drowsiness”; a cardboard sunshield to keep sun off a car’s dashboard that warned “Do not drive with sunshield in place”; and a cartridge for a laser printer that warned the consumer not to eat the toner. (CNN/AP, Jan. 13; M-LAW; contest results).

January 18 — Courts mull qui tam constitutionality. The Civil War-era False Claims Act provides stringent civil penalties for anyone who submits inflated or false bills to government procurement officials, and the “relator” provisions of that act allow any private citizen to bring suit to enforce the law and obtain damages for the United States. The relator — who may be an employee of the defendant enterprise, or a complete stranger — can then by law collect a share of between 15 and 30 percent in any recovery obtained by the government, with no need to prove an injury to himself. Qui tam actions have soared in number in recent years, actively solicited by lawyers seeking rich contingency payouts (the law was liberalized in 1986 to provide treble damages). For their part, businesses, hospitals and universities complain that the quality of accusations filed against them is often low (see Sept. 9 commentary) and that the law can actually encourage bad behavior by bounty-hunting employees who (for example) may fail to report billing irregularities promptly to higher management finding it more lucrative to let them mount and then file a legal complaint. In Pennsylvania, eyebrows were raised when one entrepreneur pitched his services to a hospital as a consultant for the prevention of false claims, and then, having been turned down for that job, proceeded to sue that hospital and 99 others as relator based on a statistical analysis of their billing patterns.

Recently the qui tam provisions have come under heightened scrutiny. On November 15, writing for a panel of the Fifth Circuit U.S. Court of Appeals, Judge Jerry Smith struck down as unconstitutional the portions of the act that authorize actions by uninjured parties in the absence of a go-ahead from Washington, ruling that such suits encroach on the Constitutionally guaranteed separation of powers by impairing the executive branch’s right to control litigation that goes on in the name of government interests. The case will be reheard by the full Circuit. Moreover, the decision may have had immediate repercussions at the U.S. Supreme Court, which had already agreed to consider whether the state of Vermont can be sued by one of its own former staff attorneys, acting as relator, for allegedly exaggerating the proportion of its employees’ time that was allocable to federally reimburseable environmental programs. Apparently responding to the Fifth Circuit decision, the Court ordered the lawyers in the Vermont case to brief the issue of whether the relator provisions are unconstitutional. Even if the Court does not go that far, it might rule that the application of the law to states as defendants violates the Constitution. Justice Stephen Breyer called it “one thing” to allow individuals to sue private federal contractors and “quite another” to “set an army of people loose on the states.” Update: The Court later upheld the constitutionality of the act’s relator provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, reprinted at Cadwalader, Wickersham & Taft site) See also April 30, 2001, July 30, 2001.

SOURCES: Peter Aronson, “Whistleblower Breaks New Ground”, National Law Journal, Oct. 27; Susan Borreson, “5th Circuit Slams Qui Tam Suit”, Texas Lawyer, Nov. 22; Vermont Agency of Natural Resources v. United States ex rel. Stevens, Supreme Court case 98-1828; Kenneth Jost, “Qui Tam Comes To the High Court”, The Recorder/CalLaw, Nov. 30; Charles Tiefer, “Don’t Quit on Qui Tam”, Law News Network, Nov. 29. MORE BACKGROUND: Fried, Frank; Steven G. Bradbury, “The Unconstitutionality of Qui Tam Suits”, Federalist Society Federalism and Separation of Powers Working Group Newsletter, v. 1, no. 1; Mark Koehn and Donald J. Kochan, “Stand Down”, Legal Times, Dec. 6, 1999, reprinted at Federalist Society site; Dan L. Burk, “False Claims Act Can Hamper Science With ‘Bounty Hunter’ Suits”, The Scientist, Sept. 4, 1995; Ridgway W. Hall Jr. and Mark Koehn, “Countering False Claims Act Litigation Based on Environmental Noncompliance”, National Legal Center for the Public Interest, Sept. 1999 (PDF format). Pro-qui tam sites, many of which double as client intake sites for law firms, include those of Taxpayers Against Fraud; Phillips & Cohen; Ashcraft & Gerel; Miller, Alfano & Raspanti; QuiTamOnline.com; and Chamberlain & Kaufman.

January 18 — Columnist-fest. Pointed opinions on issues that aren’t going away:

* Major League Baseball, meet Soviet psychiatry? Charles Krauthammer on the John Rocker case, and why it’s dangerous to view racism and general unpleasantness of opinion as suitable candidates for mental-health treatment (“Screwball psychologizing”, Washington Post, Jan. 14)

* John Leo on how courts and legislatures often seize on ambiguous enabling language as a blank check for vast social engineering: vague provisions in state constitutions get turned into an excuse to equalize school funding or strike down tort reform, domestic violence gets federalized on the grounds that it affects interstate commerce, and more. (“By dubious means”, U.S. News & World Report, Jan. 24).

* Clarence Page asks why states fight so hard to keep convicts in prison even after newly emergent DNA evidence clears them of the original rap. Do prosecutors and wardens care more about maintaining high inmate body counts, or about doing justice? (“When Innocence Isn’t Good Enough”, Chicago Tribune, Jan. 3).

January 17 — New York court nixes market-share liability for paint. In a setback for lawyers hoping to make lead paint their next mass-tort breakthrough, a New York appeals court has rejected the plaintiffs’ request that “market-share liability” be applied to the industry. This theory allows claimants to dispense with the need to show whose products they were exposed to, in favor of simply collecting from all defendants who sold the item, in proportions based on their market share. In explaining why such methods of assigning liability would be unjust, the court observed that paint makers did not have exclusive control over risks arising from their products, that makers sold at different times and to different markets, and that the composition of paint differed substantially from one maker to the next. (Jim O’Hara, “Court Sinks Lead Poisoning Case”, Syracuse Online, Jan. 10).

January 17 — Montreal Gazette “Lawsuit of the year”. “Two bagpipers sued Swissair for lost income from tourists at Peggy’s Cove because of the plane crash that killed 229 people in September of 1998. They claim their income declined dramatically while the lighthouse area was closed to the public.” (“Technology”, Dec. 31; Richard Dooley, “Swissair responds to bagpipers’ lawsuit”, Halifax Daily News, June 22, 1999).

January 17 — Dot-coms as perfect defendants. They’re flush with venture-capitalist and IPO cash, they’re run by hormone-crazed kids who bring a party atmosphere to the office, and they haven’t developed big human resources bureaucracies to make sure nothing inappropriate goes on. Why, they’re the perfect sexual harassment defendants! New York contingency-fee attorney David Jaroslawicz, a veteran of securities class actions and now “an aspiring scourge of the Internet“, hopes to spearhead a resulting “Silicon Alley sex-suit wave”. He has filed three suits on behalf of disgruntled female employees, including two against free-access provider Juno.com, one of which has been dismissed, and a third against Internet-TV producer Pseudo.com.

Asked why he happened to ask for the same amount, $10 million, in both lawsuits against Juno, Jaroslawicz says the damage request “is ‘arbitrary, whatever the secretary types in’ — just as long as it has enough zeros”. You ‘put in some high absurd number, because you can always take less,’ Mr. Jaroslawicz explained.” (Renee Kaplan, “The Sexual Harassment Suit Comes to Silicon Alley”, New York Observer, Jan. 17).

January 17 — New improvement to the Overlawyered.com site: better search capability. This weekend we installed the PicoSearch internal search engine, which you’ll find to be a big leap forward from our previous search system: fast results displayed in context, fuzzy logic to catch near-misses, no ads, search boxes available on key pages, and so forth. In addition, the database indexed now includes our editor’s home page (with a wide selection of articles, mostly on legal themes). Give it a test run, either by visiting our search page or just by typing your search into the box in the left column and hitting “return”.

Filed under: arbitration, Arizona, Arkansas, attorneys general, baseball, Cincinnati, deep pocket, Delaware, Detroit, divorce, domestic violence, federalism, free speech, hospitals, Ireland, lead paint, Maryland, Massachusetts, Michigan, Mississippi, Oklahoma, Oregon, Pennsylvania, Philadelphia, qui tam, Ralph Nader, Seattle, South Carolina, strippers and exotic dancers, Switzerland, Tennessee, tobacco, tobacco settlement, Utah, Vermont, Washington state

January 2000 archives

January 15-16 — “Blatant end-runs around the democratic process”. “If I had my way, there’d be laws restricting cigarettes and handguns,” writes former Secretary of Labor Robert Reich, a prominent liberal, in this widely noted piece in the new American Prospect. But “[f]ed up with trying to move legislation, the White House is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker.”

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.” The federal gun case prefigures liability for the makers of such products as “alcohol and beer, fatty foods, and sharp cooking utensils.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”. (Robert Reich, “Smoking, guns”, The American Prospect, Jan. 17).

January 15-16 — “Public paranoia, and other losses”. George Williams of Cut Off, Louisiana is suing the Fair Grounds Corp. and assorted other defendants over two winning trifecta bets he placed at an off-track betting parlor which paid $80.80 and $36.60 when the television monitor suggested that the actual payout should be $121.20 and $41.80 respectively. The suit charges the race track and various other defendants with wire fraud, mail fraud, theft and breach of contract, and claims damages for “mental anguish and emotional distress, loss of enjoyment of life, embarrassment, humiliation, loss of sleep, public paranoia, and other losses.” Williams’ attorney, Corey Orgeron of Cut Off, “said he simply wants to get to the bottom of the discrepancies between what Williams thought he won and what he was actually paid. ‘It very easily could be nothing more than simple negligence,’ Orgeron said. ‘I don’t think there was any criminal intent.'” Then why’d he throw in the charges of fraud, theft, and so on? (Joe Gyan Jr., “Man accuses OTB parlor of fraud”, Baton Rouge Advocate, Jan. 8) (& letter to the editor, Jan. 16, 2001).

January 15-16 — Poetry corner: Benjamin Franklin. Thanks to Tama Starr for suggesting this one:

The Benefit of Going to LAW

Two Beggars travelling along,
One blind, the other lame,
Pick’d up an Oyster on the Way
To which they both laid claim:
The matter rose so high, that they
Resolv’d to go to Law,
As often richer Fools have done,
Who quarrel for a Straw.
A Lawyer took it strait in hand,
Who know his Business was,
To mind nor one nor t’other side,
But make the best o’ th’ Cause;
As always in the Law’s the Case:
So he his Judgment gave,
And Lawyer-like he thus resolv’d
What each of them should have;

Blind Plaintiff, lame Defendant, share
The Friendly Laws’ impartial Care,
A Shell for him, a Shell for thee,
The Middle is the LAWYER’S FEE.

— Benjamin Franklin, Poor Richard’s Almanack, 1733 (& see Jan. 26-27 update).

January 15-16 — Welcome HealthScout visitors. In an article on the “Internet addiction” defense (see Jan. 13-14) and other creative legal theories, the online health news service concludes: “If you wonder whether America’s legal system is getting out of control, check out Overlawyered.com (yes, that’s its real name) to read more about the Columbine case and other questionable legal tactics.” (Serena Gordon, “‘The Web Made Me Do It!'”, HealthScout, Jan. 13). Check out our subpage on law and medicine.

January 13-14 — Latest excuse syndromes. A Florida teenager accused of making a threat of violence in an email to Columbine High School was suffering from “Internet intoxication”, his lawyer plans to argue. Michael Ian Campbell was “role-playing” when he sent a message threatening to “finish” what Eric Harris and Dylan Klebold began in their massacre last April, according to Miami attorney Ellis Rubin. In earlier cases, Rubin offered “television intoxication” as a defense for a teenager eventually convicted of murdering an elderly neighbor, and defended a woman who eventually pleaded guilty to prostitution by saying that the antidepressant Prozac had turned her into a nymphomaniac. Meanwhile, a black Pennsylvania man accused of bank robbery is offering an insanity defense, saying that he had been driven to mental derangement by the racism of the white culture around him. “Police said [Brian] Gamble dressed as a woman when he went into the bank on July 3 and robbed tellers at gunpoint.” (Steve Gutterman, “Internet Defense in Columbine Case”, Washington Post, Jan. 12; “Robbery suspect claims racism made him insane”, AP/CNN, Dec. 23).

January 13-14 — “Litigation Bug Bites Into Democracy”. “Fueled by the success of the class-action war on Big Tobacco, class-action ‘lawfare,’ if you will, is also now being waged against — among others — gun manufacturers, makers of lead paint, Microsoft, the health maintenance organization industry, makers of genetically altered seed, the vitamin industry and the airlines.” Chicago Tribune editorial also points out, regarding charges that American businesses poured too much money into averting even minor Y2K glitches, that of course they were terrified out of any reasonable cost-benefit calculation: “it wasn’t just fear of the millennium bug. It was fear of lawyers waiting to pounce. Didn’t spend enough money to fix your computers, eh? Created a public safety problem, did you? Surely you knew your negligence would disrupt us. We’ll see you in court.” (editorial, Jan. 10).

January 13-14 — Huge jump in biggest jury verdicts. Survey by Lawyers’ Weekly USA finds the ten biggest jury awards to individual plaintiffs approached an aggregate $9 billion in 1999, nearly tripling from the amount in 1998. “Something totally unparalleled in history is going on in our legal system,” says the weekly’s publisher, not without a touch of magniloquence. Besides the Anderson (Chevy Malibu) verdict against GM, set by the jury at $4.9 billion and reduced by a judge to $1.1 billion (see Dec. 16, Aug. 27, July 10 commentaries), the other billion-dollar case was an award of $1.2 billion to the family of 32-year-old Jennifer Cowart, who died of burn injuries after a go-cart accident at a Pensacola, Fla. amusement park. (AP/FindLaw, Jan. 11).

January 13-14 — Watch your speech in Laguna Beach. The use of slurs, catcalls and other “hate speech” on the street is not in itself unlawful, but police in Laguna Beach, Calif. have begun documenting episodes of such verbal nastiness anyway on the theory that perpetrators often “graduate” to physical violence later on — a sort of gateway theory, as they call it in the drug war. Police Chief James Spreine said the database of hate-speech incidents will help his department identify suspects in serious crimes — raising the danger that constitutionally protected speech, although not to be punished itself, will bring with it something akin to official suspect status when unknown parties commit bias crimes later on (Mayrav Saar and Barbara Diamond, “Laguna Beach police will document hateful speech”, Orange County Register, Jan. 12).

January 13-14 — “Americans Turn To Lawyers To Cure Nation’s Social Ills”. Uh, speak for yourself, would you mind, please? Last week’s flattering news-side Wall Street Journal profile of class-action impresario Michael Hausfeld (anti-guns, anti-HMOs, anti-biotech) got the most basic premise wrong about the class action biz when it said that “more and more frequently, they [referring to “people” or “society”] turn to courts when the traditional avenues of politics or activism seem obstructed.” But the “people” don’t hire class action lawyers; more typically those lawyers hire themselves, and if necessary go out and find a representative plaintiff to sue for. Of course these lawyers would love to establish that their activities simply coincide with what the public wants them to do, but why is the Journal‘s news side lending them a hand by assuming what is to be proven? (Paul Barrett, “Americans Turn To Lawyers To Cure Nation’s Social Ills”, Wall Street Journal, Jan. 4)

January 13-14 — Your fortune awaits in Internet law. Five years ago this Ohioan was toiling away as a computer operator for a sleep clinic, but now he’s moved on to a career in the fast-growing world of Internet law — representing a client who cybersquatted on such domain names as “dolphins.com” and “jets.com” and now wants major bucks from the football folks on the grounds that they interfered with his sale of the names. “Mr. DeGidio sees such issues as fertile ground for dispute.” (George J. Tanber, “Web challenges kindle this attorney’s interest”, Toledo Blade, Jan. 10).

January 13-14 —Overlawyered.com announcement list now hosted at ListBot. It was getting too big to be managed any other way — besides, this way you can volunteer fun demographic information about yourself. To join the list, look for the red Listbot button in the column at left and enter your email address.

January 13-14 —Correction: surname of Pennsylvania AG. Our January 10 report mistook the surname of Attorney General Mike Fisher of Pennsylvania. We’ve fixed it now. Our apologies.

January 12 — Finally! Reform may be in the wind for New York City’s patronage-ridden courts, following a burgeoning scandal in Brooklyn. Two top officials resigned last month from the law committee of the Brooklyn Democratic Party, complaining that despite their “unquestioned loyalty” to the party they’d been cut out of lucrative court assignments. The letter painted a damning picture of the operations of the city’s notoriously buddy-buddy system of fiduciary appointments, by which judges appoint clubhouse lawyers to fee-intensive positions managing the estates of decedents, orphans, failed businesses, foreclosed properties and other entities that can’t tend to their own affairs. Mayor Rudy Giuliani promptly called for reform to purge the system of its continuing machine taint, and now the state’s chief judge, Judith Kaye, has announced that she’s appointing an investigator with subpoena power to uncover improprieties and make the fiduciary appointment process worthy of public confidence. If that works, our friend Augeas has some stables that need cleaning out. Update Dec. 20, 2001: investigation results in report exposing abuses.

SOURCES: Alan Feuer, “2 Brooklyn Lawyers, Ex-Insiders, Outline a Court Patronage System”, New York Times, Jan. 5; Thomas J. Lueck, “Giuliani Urges Chief Judge to End Patronage in Courts”, New York Times, Jan. 6; Winnie Hu, “Political Favoritism by Judges Faces an Investigation”, New York Times, Jan. 11 (all Times links now dead); John Caher, “NYS Courts to Probe Judicial Appointments of Lawyers”, New York Law Journal, Jan. 11; Tracey Tully, “Judge To Probe Patronage”, New York Daily News, Jan. 11; Frederic U. Dicker and Maggie Haberman, “Top Judge Orders Probe of B’klyn Patronage Scandal”, New York Post, not dated.

January 12 — Disabled accommodation in testing. Sunday’s L.A. Times notices the trend: “The number of students who get extra time to complete the SAT because of a claimed learning disability has soared by more than 50% in recent years, with the bulk of the growth coming from exclusive private schools and public schools in mostly wealthy, white suburbs.” (Kenneth R. Weiss, “New Test-Taking Skill: Working the System”, Los Angeles Times, Jan. 9; see our editor’s “Standard Accommodations“, Reason, February 1999.) The U.S. Department of Justice has sued the Law Schools Admissions Council for allegedly following overly rigid rules in responding to physically disabled applicants’ requests for extra time on the Law School Admissions Test. “We are extremely disappointed that the Department of Justice has decided to litigate this matter and even more disappointed that they issued a press release about the lawsuit before serving us with the complaint,” says the Council’s president. (Shannon P. Duffy, “Disabled Students Denied Accommodation to Take LSAT, Suit Says”, The Legal Intelligencer (Philadelphia), Dec. 9). Columnist Robyn Blumner isn’t the only one reminded of the Kurt Vonnegut story, “Harrison Bergeron”. (“The high cost of equality: our freedom”, St. Petersburg Times, Dec. 19).

January 12 — Ontario judge okays hockey-fan lawsuit. Justice Michel Charbonneau ruled that a lawsuit by season-ticket holders against player Alexei Yashin (see Oct. 20 commentary) can proceed even though the law in the area is “relatively undeveloped”. “This is groundbreaking because this is the first time we can examine an athlete’s state of mind regarding fans,” said attorney Arthur Cogan. “Does he ever think about fans’ interests?” Next up: lawsuits by inconvenienced customers against workers who go out on unauthorized strikes? (Kevin Allen, “Yashin to face fans’ discontent”, USA Today, Jan. 6; “Judge: Fans’ lawsuit against Yashin can proceed”, CBS SportsLine, Jan. 5).

January 12 — Warn and be sued. “When Gwinnett County police officer Gordon Garner III told clinical psychologist Anthony V. Stone during a fitness-for-duty interview that he had had a vision of killing his captain, and thoughts about killing eight to 10 others including the chief and a county commissioner, Stone took it seriously.” He “consulted a lawyer for the Georgia Psychological Association, Susan Garrett, who advised him he had a duty to warn the individuals Garner had named”, according to court papers. Two weeks after the initial interview, he did warn them — walking right into a lawsuit from Garner for breach of confidentiality which culminated last month in a jury award of $280,000. Sued if you do, sued if you don’t? “In previous reported cases in Georgia, mental health professionals have been sued for failing to warn third parties that they might be in danger; Stone was sued for issuing that precise warning.” (Trisha Renaud, “Ex-Cop Wins Rare Confidentiality Case”, Fulton County Daily Record, Jan. 5).

January 11 — Health plans rebuffed in bid to sue cigarette makers. Now we find out! Helping close the door on the premise of the state Medicaid suits (after that $246 billion horse has already escaped from the barn), the Supreme Court yesterday let stand lower-court rulings denying union health plans the right to sue tobacco companies to recoup smoking-related health outlays. (“Union health plans lose round with cigarette makers”, AP/FindLaw, Jan. 10; Joan Biskupic, “Court Rejects Union Tobacco Suits”, Washington Post, Jan. 11). For a brief run-down of why these third-party payor claims have no law on their side, we recommend Judge Frank Easterbrook’s enjoyably abrasive 7th Circuit opinion, issued in November, dismissing suits filed by union funds and Blue Cross/Blue Shield plans in Illinois.

January 11 — Microsoft temps can sue for stock options. “In another victory for temporary workers at Microsoft, the Supreme Court today let stand a ruling that greatly expanded the number of employees who could sue the software giant to purchase stock options and get other benefits.” If you’re an employer who was counting on the old notion of freedom of contract to hold temps and independent-contractor employees to the benefits they bargained for, be afraid. (James V. Grimaldi, “High court rules 15,000 Microsoft temps can sue”, Seattle Times, Jan. 10; Dan Richman, “Microsoft ‘Permatemps” Win”, Seattle Post-Intelligencer, Jan. 11) (see also Aug. 19 commentary).

January 11 — “Update from the Year 2050”. The protagonist of this 1984-like tale wakes up to tepid home-brewed coffee: “Today, no house could be programmed to prepare scalding fluids. No ice cubes either: People choked on them and died. As Plaintiff in Chief Rodham Bush liked to say, ‘Extremes are unhealthy.'”. It was in the 00’s decade that the lawyers really took over: “By piling lawsuit atop lawsuit, the attorneys could bankrupt any company that tried to fight them….Politicians had discovered that by joining in the lawsuits, the government could take a cut of the settlements.” Now there was just one big company left, McNikeSoft, which efficiently settled hundreds of thousands of suits a day on the Litigation Exchange, and which the lawyers refrained from bankrupting because that would end the game. “Profits flowed efficiently from the real economy directly to the attorneys. Everybody was happy.” Hurry up and read this new satire by Jonathan Rauch before the folks he skewers find some way to sue him for writing it (National Journal, Jan. 7 — see Reason archive)

January 11 — Can they get a patent on that? “Two top executives and two high-level officers at a consulting firm that serves lawyers and insurance companies were indicted by a federal grand jury [in November] on charges of designing a computer program that automatically inflated the bills it sent to clients.” The indictment charges that a computer programmer at the firm, S.T. Hudson International Inc. of Wayne, Pa., “developed a program he called the ‘gooser’… which automatically multiplied every hour worked by a consultant by 1.15 and then added an extra half hour to the total hours,” with resulting overpayments by clients and affiliated companies totaling more than $320,000. (Shannon P. Duffy, “Consulting Firm Indicted for Inflating Bills Sent to Lawyers”, Legal Intelligencer (Philadelphia), Nov. 30).

January 11 — “Dear Abby: Please help…” “…I fell in love with a married man. He claimed he loved me. My husband caught us and now has filed for divorce. My lover called it quits and ran back to his wife.

“Can I sue my lover for breach of promise because he promised to get a divorce and marry me?” — Destroyed in the U.S.A.

“Dear Destroyed: I recommend against initiating such a lawsuit.”

— An entry, reprinted in its entirety, from “Dear Abby“, January 2.

January 11 — Welcome, Yahoo and About.com visitors. Our page on overlawyered schools has recently won listings at Yahoo “Full Coverage: Education Curriculum and Policy” and J. D. Tuccille’s popular Civil Liberties section at About.com.

January 10 — Pokémon litigation roundup. The Burger King Corporation last month recalled about 25 million pull-apart plastic balls containing the cartoon characters, which had been distributed as premiums with childrens’ meals, after a young child apparently suffocated on half of one of them. The company offered a small order of french fries in exchange for each returned ball, which did not save it from class action lawyers in Dallas who dashed at once to court, their named client a local mother whose son was entirely unharmed by the balls but who (or so the premise of the suit went) considered the french fries inadequate compensation for the toys’ return. (“Burger King Hit With Pokémon Lawsuit”, Reuters/FindLaw, Dec. 30; Jenny Burg, “Dallas Mom Sues Burger King Over Poke Balls”, Texas Lawyer, Jan. 5).

In other Pokémon litigation news, showman Uri Geller, whose act is best known for his purported ability to bend spoons by the power of remote mind control, is threatening to sue the makers of the cards over the inclusion of the character Kadabra, which is shown wielding a spoon and which boasts “special mental powers: It plagues bystanders with a mysterious pain in the brain'”, to quote the New York Post. Japanese children are said to have nicknamed the character “Uri Geller”; “There’s no way that they’re allowed to do this,” Geller says his lawyer told him. (Lisa Brownlee, “Pokémon card trick makes magic man mad”, New York Post, Dec. 30). And the American Lawyer has now given a write-up to the recent imbroglio (see Oct. 13 commentary) in which class-actioneers Milberg Weiss Bershad Hynes & Lerach filed a lawsuit charging that the trading cards are a form of unlawful gambling, without realizing that a company it represented owned the licensing rights to the characters — with the result that it sued its own client for treble damages for alleged racketeering. (Sherrie Nachman, “Cartoon Conflicts”, American Lawyer, Dec. 20) (earlier Pokémon coverage: Dec. 16, Oct. 13, Oct. 1-3).

January 10 — Pennsylvania tobacco fees: such a bargain! “One lawyer spent 12 minutes reading the Wall Street Journal and billed $62. Another charged $290 for the hour he took identifying and ordering books.” Lawyers’ bills like that might stand in need of a little revising, you might think — but in the case of the Pennsylvania tobacco fees the revision was upward, from $7.1 million to a negotiated deal of $50 million. On a per-capita basis that still ranks among the lowest tobacco fees in the country, but eyebrows have been raised by the fact that the prominent and generally business-oriented law firms that handled the work for the state, Buchanan Ingersoll of Pittsburgh and Duane, Morris & Heckscher of Philadelphia, were selected in what critics say was not an open or competitive process, and happened to be major campaign contributors of Attorney General Mike Fisher, the one doing the selecting (Fisher also made the key decisions in the eventual negotiated fee settlement). “Obviously,” says one critic, Philadelphia attorney Lawrence Hoyle, Jr., “it was a political kind of deal.”

“The $50 million that Duane, Morris and Buchanan Ingersoll will share over the next five years dwarfs the combined total of the Ridge administration’s bills for outside legal counsel last year: about $35 million to 241 law firms, with none getting more than $2.3 million.” And by the time Pennsylvania sued, other states had developed the legal theories on which the case rested. Tobacco-fee zillionaire Joseph Rice, who represented many states in the affair, agrees that the late-filing Keystone State did not face as much legal risk as states that filed earlier, but says: “I don’t think we should quibble about it.” But then, he would say that, wouldn’t he? (Glen Justice, “In tobacco suit, grumblings over legal fees”, Philadelphia Inquirer, Oct. 4)(& see Oct. 24, 2002).

January 10 — Back pay obtained for illegal aliens. Scoring an early win for its new policy of backing lawsuits by undocumented workers over the loss of jobs it was unlawful for them to hold in the first place, the federal government has extracted a $72,000 settlement from a Holiday Inn Express Hotel and Suites in Minnesota on behalf of nine illegal Mexican immigrants. The National Labor Relations Board and Equal Employment Opportunity Commission had charged the hotel with firing the workers because they were leading a union organizing drive, along with other employment and labor law infractions. The workers are still in the country and are resisting a deportation order. (“Hotel Settles Illegal Aliens Case”, AP/FindLaw, Jan. 7) (see Oct. 29, Oct. 28 commentary).

January 8-9 — OSHA at-home worker directive. No wonder the AFL-CIO spoke favorably of this abortive (see Jan. 6, Jan. 5) proposal; as recently as the 1980s it was calling for an outright ban on telecommuting. Communications Workers of America president Mort Bahr, for example, warned that allowing stay-home employment was dangerous “particularly if that worker wants to work at home”. (Quoted in James Bovard, “How Fair Are Fair Labor Standards?”, Cato Inst./Regulation mag.) “Traditionally, unions have opposed telecommuting/work-at-home programs because they fear that such programs represent a return to cottage industry piecework. A distributed workforce makes it more difficult for unions to organize, represent members, and police collective bargaining agreements”. (“Telecommuting and Unions”, Telecommute America California Style).

Curiously, the only newspaper we could find that commented favorably on the new OSHA intervention was Silicon Valley’s own San Jose Mercury News (link now dead) (cynics might point out that since at-home tech workers in Bakersfield, Boise and Bangalore directly compete with the face-to-face Valley culture, they’re not exactly the Merc‘s constituency). At other papers it was a more or less uniform hail of dead cats: the Washington Post, USA Today, Wall Street Journal, Hartford Courant (“Bureaucrats Gone Berserk”), Los Angeles Times, Dallas Morning News, Boston Globe, Chicago Tribune, Detroit News, Cincinnati Post, Denver Post, Washington Times, Arizona Republic, Birmingham News, as well as Sen. Kit Bond, the American Electronics Association (EE Times) and commentators Steve Chapman (quotes our editor), Dick Feagler, Marjie Lundstrom, Bruce Harmon (Bridge News), and Ken Smith (many of these links via Junk Science)(many links now dead).

When the OSHA letter hit the nation’s front pages, reports the Washington Post, “A number of companies immediately put on hold plans to expand telecommuting privileges to employees”. But the letter was hardly a frolic or detour on the part of some low-level Munchkin: the agency spent two years on it, and it was “considered a declaration of existing policy by OSHA officials”. Among the possible real-world effects of the letter, the Post quotes a Labor Department official as saying, is to have been “used by courts to make it easier to hold employers accountable for injuries that occur in home offices” — i.e., in litigation. And “since Labor Department officials had originally regarded the letter [as] a statement of existing policy, it is unclear whether withdrawing the letter had much practical effect.” (Frank Swoboda, “Labor Chief Retreats on Home Offices”, Washington Post, Jan. 6)

January 8-9 — Right to win unlimited carnival prizes. Florida’s Busch Gardens has put a limit of ten a year on the number of prizes — stuffed animals, football jackets and the like — that its patrons can win at its carnival games. One of the park’s frequent patrons, Herman James, is so adept at the games that he says he makes a side business of reselling the many prizes he wins. Now Mr. James is suing the park, saying the ten-prize-a-year limit is unfair to him. The park denies that its limit is directed specifically at Mr. James. (“Man sues Florida’s Busch Gardens for the right to win unlimited prizes”, AP/Court TV, Jan. 5)

January 8-9 — Shenanigans on the bayou. Someone — who was it? — posed as a staff person with the clerk of court’s office and placed calls to potential jurors’ residences, inquiring about their plans, while a multimillion-dollar asbestos case was going through its jury-selection stage this fall in Plaquemine, La. Soon ugly charges were flying back and forth between Exxon Corp. and prominent Dallas plaintiff’s firm Baron & Budd. The case has been referred to the Office of Disciplinary Counsel, which regulates the state’s lawyers, but it’s expected to be at least a year before the ODC completes its investigation. A year? They sure take their time down there (Angela Ward, “Baron & Budd’s Bayou Blues”, Texas Lawyer, Nov. 11).

January 8-9 — No warning given to cousin-spouses. 22-year-old Leslie Zambrana and her husband Alfredo are seeking millions of dollars in a lawsuit against the University of Miami School of Medicine, Jackson Memorial Hospital and a health clinic for failing to warn them that their daughter might be born with Down’s Syndrome, the genetic disorder whose effects include mental retardation. The suit contends that even though Leslie told the clinic’s physician that she and her husband, the baby’s father, are first cousins to each other, she was not administered a recommended “triple screen” blood test for high-risk mothers that might have detected the syndrome and caused her to seek an abortion. The couple’s grandparents are also first cousins to each other. (Jay Weaver, “Married cousins sue over baby’s disability”, Miami Herald, Jan. 3).

January 7 — Hire that felon, or else. Our editor’s December Reason column, now online, looks at what happened after the state of Wisconsin passed a first-of-its-kind law forbidding employers in most circumstances from discriminating against job applicants on the grounds of those applicants’ criminal records. Among the consequences: the cash settlement won by the notorious “Halloween killer” from a company that declined to hire him on his release from prison, and a case where the Milwaukee school system learned it was not free to deny a job to a man convicted of felony child endangerment. (Walter Olson, “Reasonable Doubts: Felon Protection”, Reason, Dec. 1999) (see also our Sept. 24 commentary).

January 7 — Protests just aren’t what they used to be. We reported in our November 3 installment on how flag-burning protesters in at least one sizable American city (Las Vegas) are now legally required to take out advance environmental permits — smoke emissions into the atmosphere, and all that. Now John Leo, in a U.S. News column on the way many campus newspapers have faced intimidation and thefts of their stock after printing material that offends identity groups, tells what happened after “the Ohio State Lantern [ran] a comic strip poking fun at the women’s studies department….A noisy crowd took their protest to the front porch of cartoonist Bob Hewitt and attempted to burn a bra, but thanks to consumer protection regulations, the flame-retarding brassiere failed to ignite.” (John Leo, “The 1999 Sheldon”, U.S. News, Jan. 3)

January 7 — GQ on Gov. Bush, Karl Rove and litigation reform. The new January issue of GQ profiles Karl Rove, key strategist in the George W. Bush campaign and “easily the team’s most pivotal player after W. himself.” Aside from the intrinsic interest of the following passage, it allows our editor to get away with more shameless self-promotion about how his book The Litigation Explosion (buy it now!) gets read in high places:

“Of the four issues he ran on in ’94 [education, welfare, juvenile justice, tort reform], I can honestly say I played a role in only one of them,” Rove told interviewer Robert Draper. “I’m a huge tort-reform advocate, and I said, ‘See what you’ve talked about here — a thread of responsibility runs through all of these. We have a society where people are being held responsible for their actions not to the degree of their responsibility but to the degree of their monetary worth, and someone’s life’s work can disappear overnight because he happens to have deep pockets and gets hit by junk and frivolous lawsuits.’ And I gave him Wally Olson’s book [The Litigation Explosion] and a couple of others. He had feelings about the topic, but he hadn’t thought about it. And look — that’s the way the best candidates are. They need people around them to execute the mechanics of the campaign, the tactical considerations . And the strategy is born out of their heart, soul and gut.” (Robert Draper, “W’s Brain”, GQ, Jan. 2000 — not online)

January 6 — “Accord tossed: Class members ‘got nothing'”. A panel of the Seventh Circuit U.S. Court of Appeals has thrown out a settlement in a class-action suit over the mailing by Equifax Check Services Inc. of allegedly unlawful debt collection letters. Judge Frank Easterbrook, joined by Judges Richard Posner and Ilana Diamond Rovner, said the settlement provided no tangible benefit for the 214,000 class members while funneling fees, later determined to be $78,000, to the lawyer for the class. Equifax agreed to stop using a form letter and to donate $5,500 to a law school consumer clinic; “Crawford and his attorney were paid handsomely to go away; the other class members received nothing (not even any value from the $5,500 ‘donation’) and lost the right to pursue class relief,” Judge Easterbrook wrote. (opinion, Cases Nos. 99-1973 & 99-2122, decided January 3; Patricia Manson, “Accord tossed: Class members ‘got nothing'”, Chicago Daily Law Bulletin, Jan. 4)

January 6 — Haunted house too scary. “A woman suing Universal Studios contends the theme park operator’s annual Halloween Horror Nights haunted house attraction was too scary and caused her emotional distress.” Cleanthi Brooks, 57, says that when she and her granddaughter were visiting the Florida park in 1998, an employee wielding a (chainless) chainsaw chased them toward an exit, with the result that they slipped on a wet spot and suffered unspecified physical injuries. (Tim Barker, “Universal fall leads to lawsuit”, Orlando Sentinel, Jan. 5; “Woman sues haunted house over injuries, emotional distress”, AP/FindLaw, Jan. 5)

January 6 — OSHA backs off on home office regulation. Moving quickly to nip mounting public outrage, Secretary of Labor Alexis Herman now explains that the Occupational Safety and Health Administration never intended to bring home working conditions under full-fledged federal regulation — why, the idea never even crossed their minds! The advisory letter to that effect has been withdrawn, but Republicans on the Hill are promising hearings. (“Labor Department does about-face on home office letter”, AP/CNN, Jan. 5; see yesterday’s commentary)

January 6 — Backyard trash burning. Researchers from the Environmental Protection Agency and the New York State Department of Health report that the burning of ordinary trash by households, still a common practice in many rural areas, is an unexpectedly important likely source of release into the atmosphere of polychlorinated compounds such as dioxin, long a subject of regulatory scrutiny because of their potential toxicity. A family of four burning trash in a barrel on their property “can potentially put as much dioxin and furan into the air as a well-controlled municipal waste incinerator serving tens of thousands of households”. (“Backyard Burning Identified As Potential Major Source Of Dioxins”, American Chemical Society/Science Daily, Jan. 4)

January 5 — Beyond parody: “OSHA Covers At-Home Workers”. “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site, according to a Labor Department advisory,” reports the Washington Post. The policy covers not only telecommuters but even the parent who briefly takes work home to be with a sick child. “Although the advisory does not provide specifics, in effect it means that employers are responsible for making sure an employee has ergonomically correct furniture, such as chairs and computer tables, as well as proper lighting, heating, cooling and ventilation systems in the home office.” Employers may also be responsible for identifying and repairing such hazards as, for example, rickety stairs that lead down to a basement home office. They “must also provide any needed training to comply with OSHA standards, and may have to ensure that the home work space has emergency medical plans and a first-aid kit.”

The new directive “makes sense”, says AFL-CIO health and safety director Peg Seminario: “Employers have to provide employees a workplace free from hazards.” Pat Cleary, vice president for human resources policy at the National Association of Manufacturers, takes a different view: “This is nuts”. And at Slate “Breakfast Table”, Matt Cooper is almost equally succinct: “This is one of those regulatory rulings that sets liberalism back a generation.” Washington lawyer Eugene Scalia calls the development “part of a string of recent initiatives intended to court union leaders as the presidential primaries approach.”

Sources: Frank Swoboda and Kirstin Downey Grimsley, “OSHA Covers At-Home Workers”, Washington Post, Jan. 4; Slate “Breakfast Table”, Jan. 4 (third item); “Workplace Rules Protect Home Office”, AP/FindLaw, Jan. 4; “Workplace Safety Rules Cover Telecommuters — OSHA”, Reuters/Excite, Jan. 4; Eugene Scalia, “Gore, Unions Invite OSHA to Your Home” (op-ed), Wall Street Journal, Jan. 5 (online subscription required).

Sequel: faced with mounting public outrage, the Department of Labor announced within 24 hours that it was withdrawing the new directive and rethinking its policy (see January 6 commentary)

January 5 — Calif. state funds used to compile tobacco “enemies list”. The Daily News of Los Angeles reported last month that the Americans for Nonsmokers Rights Foundation, a Berkeley advocacy group, has received $1.2 million from the state of California over the past four years to track and counter critics of “tobacco control”. Among its activities: “[m]onitoring people who attended and spoke on tobacco issues at city council meetings in cities throughout the state”, “[i]nvestigating a federal judge in North Carolina who issued a ruling in a case involving second-hand smoke,” and “[i]ncorrectly accusing John Nelson, a spokesman for former Assembly Speaker Curt Pringle, of being on the payroll of the tobacco industry. After Nelson complained, the foundation apologized.”

A state official acknowledges that the private foundation has been asked to monitor groups that have “interfered in tobacco control activities” — such “interference” taking the form, for example, of opposing municipal smoking-ban ordinances. Steve Thompson, vice president for government affairs of the California Medical Association, called the program “a political surveillance operation on people that this group perceived as unsympathetic to the anti-smoking movement.” Among those who learned that his name was on the resulting lists was Los Angeles attorney Bradley Hertz, who led the opposition to an anti-smoking ordinance in Long Beach but says he was erroneously listed in the advocacy group’s reports as a participant in pro-tobacco efforts on a statewide level; Hertz says that in his view public funds should not be used to “spy on citizens”. Jon Coupal, president of the Howard Jarvis Taxpayers Association, went further, charging that the dossier-compiling “smack[ed] of Gestapo tactics…. Taxpayers are actually financing an abuse of government power.” However, some on the other side dismissed the criticism and said they found nothing improper about the program. “To protect the public interest, there must be independent monitoring of these front groups — the job cannot be left to newspapers or public officials,” said Sen. Tom Hayden (D-Los Angeles).

In North Carolina, many attorneys “leapt to the defense” of U.S. District Judge William Osteen, who the Nonsmokers Rights group targeted with an exposé after he handed down a 1998 ruling overturning a federal report on secondhand smoke. “To me it’s just one more example of a focused interest group trying to intimidate judges,” said the recently retired chief justice of the N.C. Supreme Court, Burley Mitchell. “It’s part of the meanness that’s crept into public life at all levels.”

Sources: Terri Hardy, “Smokers’ Spy Tax; Using Tax Funds for ‘Enemies List’ Not What Public Intended, Critics Say”, Daily News (Los Angeles), Dec. 6; and “Group Assailed for Sloppy Work; Man Says Organization Hurt His Reputation When it Got Facts Wrong”, sidebar to above, same date (fee-based archive, search Daily News file on “Nonsmokers Rights Foundation”); same, reprinted as “Tax-funded group had ‘enemies list'”, Orange County Register, Dec. 6 (fee-based archive, see above); David Rice, “Lawyers back N.C. judge on anti-smoking group’s ‘hit’ list”, Winston-Salem (N.C.) Journal, Dec. 9, link now dead. See also “Tobacco industry influence and income on decline in California”, press release, Oct. 12, for an account of “research” at the Univ. of California, S.F., into constitutionally protected advocacy and campaign contributions from tobacco sources; the work was funded by the tax-supported National Cancer Institute as well as the American Cancer Society.

January 5 — New page on Overlawyered.com: cyberlaw. The legal woes of such class-action defendants as Microsoft and Toshiba, liability for improper linking and non-handicap-compliant web design, domain-name squabbles, state-of-the-art ways for your litigators to sift through your enemies’ and competitors’ internal emails, and other news of the growing inroads being made against America’s most successful business, high-tech, by its second most successful business, litigation.

January 4 — Gun-buying rush. “More than a million Americans asked for background checks so they could buy guns in December, a surge insiders say has something to do with Millennium mania, but more to do with pending litigation,” Reuters reports. “Current and pending litigation…is making many consumers rush to buy arms before any anti-gun verdicts or new laws further restrict their purchase,” in the view of a spokesman for gunmaker Sturm, Ruger & Co. Better exercise those Second Amendment rights before mayors, trial lawyers and Clinton cabinet secretaries take ’em away for good! Yet such a result is far from the outcome of any democratic decision process; indeed, senior analyst H. Sterling Burnett of the National Center for Policy Analysis) cites the results of a poll conducted by the Tarrance Group finding firearms manufacturer liability a singularly unpopular idea — “only 5 percent [of respondents] feel that manufacturers or retailers should be held responsible for firearm misuse”.

A second Reuters report, from London, suggests the havoc litigation can wreak on its targets’ businesses through its sheer uncertainty, independent of outcome. British-based conglomerate Tomkins PLC would like to sell its U.S. handgun maker Smith & Wesson, according to the Financial Mail on Sunday. But the newspaper “said the prospect of class action lawsuits against gun makers in the United States could block any sale of Smith & Wesson. ‘Tomkins will (sell Smith & Wesson) if it can, but until the lawsuits are settled, it may be difficult to sell,’ [a] source close to Tomkins was quoted as saying.”

Sources: “Century End, Lawsuit Threats Spark Gun Sales Spike”, Reuters/FindLaw, Dec. 28; H. Sterling Burnett, “Latest Gun Lawsuits Leading Us Down a Slippery Slope,” Houston Chronicle, Dec. 11, 1999; Burnett, NCPA op-ed, Dec. 12; “U.S. gun maker sale mulled”, Reuters/CNNfn, Jan. 2.

January 4 — Lawsuits over failing grades. In Bath Township, Ohio, 15-year-old Elizabeth Smith and her mother Betsy Smith have sued the Revere School District and 11 teachers over the girl’s failing grades. The suit, which seeks $6 million, says the school’s grading practices punished the girl for her frequent lateness and absences even though “Elizabeth has chronic tonsillitis that caused her to miss school, and she has had to stay home in the mornings to put her twin siblings on their elementary school bus because her mom, a single parent, had to be at work,” said her lawyer, James Childs. And Kerry Grandahl has sued the Massachusetts College of Pharmacy and Allied Health Sciences after her dismissal for poor exam scores, charging that under the Americans with Disabilities Act the school should have accommodated her “exam phobia,” which she says was triggered by depression. Because the exam room was noisy and thronged with other students, Kerry “could hardly concentrate, much less remember what she knew,” according to the suit filed by attorney Nicholas Kelley, which faults the school for not allowing her to take exams in smaller rooms with her own monitors. (Donna J. Robb, “Student fails over failing grades”, Cleveland Plain Dealer, Dec. 8; Shelley Murphy, “Ex-student sues college for ignoring ‘test phobia'”, Boston Globe, Dec. 21).

January 4 — Expert witnesses and their ghostwriters. Critics have long voiced alarm about the way American lawyers can orchestrate the testimony of expert witnesses they hire. In a recent case in Michigan a federal magistrate judge threw out the testimony of an expert hired by plaintiffs in a “vanishing-premium” case against Jackson National Life Insurance Co. The magistrate found that the report filed by actuary Philip Bieluch avowing his opinion as to the facts of the Jackson case had improperly reused verbiage from a report he had filed for the same lawyers in a separate case in Iowa, and was “substantially similar” to the language of a report filed by an entirely different expert in a Louisiana case. U.S. Magistrate Judge Joseph Scoville concluded that the lawyers themselves had furnished Bieluch with the wordings: “This is one of the most egregious cases of providing witness-for-hire testimony that I’ve ever seen, and at some point the courts have to say that enough is enough,” he said. The plaintiff’s executive committee in the Jackson National litigation included representatives of four firms, including well-known class-action powerhouse Milberg Weiss Bershad Hynes & Lerach. (Emily Heller, “An Insurance Expert Is Bounced”, National Law Journal, Oct. 28).

January 3 — Lawyers for famine and wilderness-busting? “Pitched on its environmental merits, the class-action lawsuit filed [last month] against Monsanto would be thrown out in short order,” argues Peter Huber of the Manhattan Institute. “So the lawyers dressed it up as an antitrust case instead.” Class-action high rollers such as Washington’s Michael Hausfeld have lent their assistance to longtime ludfly Jeremy Rifkin in organizing the suit. “They aren’t trying to save free markets from a monopoly, and the last thing they want is more competition in this field. What Mr. Rifkin is after is something even less competitive than a monopoly. He wants nobody in the genetic technology business at all.” If that happens, lawyers will have managed to stop today’s best hope — given the new methods’ success in boosting crop yields — for enabling the Third World to feed itself without pushing its agriculture into yet more wilderness.

“Perhaps the most ridiculous aspect of this whole farce,” writes “Moneybox” columnist James Surowiecki at Slate, “is Rifkin’s use of the word ‘populist’ to describe the suit” — which, after all, seeks to shift power away from elected officials and farming populations and into the hands of elite lawyers and activists who effectively appointed themselves. Surowiecki calls the action and its arguments “spurious”, a “publicity stunt” and “a haphazard and scattershot collection of charges that might have been designed to demonstrate the excesses to which the U.S. legal system can be driven.”

Meanwhile, the world’s most prominent environmental group, the million-donor, supposedly respectable Greenpeace, has been openly conducting property-destroying sabotage against biotech installations in the United Kingdom; the “direct action” bug has now crossed the Atlantic, and last year vandals struck more than a dozen crop sites in the United States.

Sources: Philip Brasher, “Antitrust lawsuit to fight biotech farming”, AP/Spokane Spokesman-Review, Sept. 14; “Rifkin sues Frankenfood giant”, Reuters/Wired News, Dec. 14, link now dead; Peter Huber, “Ecological Eugenics”, Wall Street Journal, Dec. 20, now reprinted at Manhattan Institute site; James Surowiecki, “Jeremy Rifkin’s Spurious Suit Against Monsanto”, Slate, Dec. 20; Michael Fumento, “Crop busters”, Reason, January; anti-biotech site Genetech.

January 3 — Overlawyered.com forums on hold for now. Over the holiday weekend we attempted to install an upgrade for this site’s bulletin board software. Bad move: we managed instead to knock out the forums entirely, and haven’t even succeeded in figuring out yet what went wrong. We’d like to keep the forums idea going, but are mulling over a number of options at this point, including the possibility of forums hosted off-site, which might lessen the demand on our already overstretched techie skills. Advice from experienced forum-managers is welcome.

January 3 — This side of parodies. Calls for a ban on lawyer jokes as hate speech? A Million Lawyer March on Washington to protest anti-attorney stereotyping? Well, maybe not yet, but it can be hard to pick out which elements of this whimsical column are based on fact and which parts are invention. (Richard Dooling, “When you prick us…”, National Law Journal, Oct. 11).