Posts Tagged ‘Allstate’

Johnson v. Allstate Insurance Co.: drunk driving for profit

Wayne Davis, Jr., had a .203 blood-alcohol level, when he drove his pickup across the center line of a Camden County, Missouri, highway on March 24, 2000, and crashed head on into the compact car of Edward and Virginia Johnson.

You’ll be happy to hear that the Johnsons didn’t try to blame the beer company or the auto manufacturer, and simply sued Davis. Davis’s insurer, Allstate, contacted the Johnsons’ attorney, David Sexton, in April, and asked for access to the Johnsons’ medical record. Sexton responded by demanding the policy limits. Allstate requested the medical records three more times, and finally got the records on December 20. (A Dan Margolies Kansas City Star article (via Childs) incorrectly says Allstate did not respond, but the court’s opinion says otherwise.) Allstate immediately agreed to pay the settlement limits, but now Sexton refused, saying his April offer had expired, and he now wanted $3 million from Allstate. We’ll let the Missouri Court of Appeals explain what happened next:

Read On…

Update: Fields v. Allstate

In October 2006, we reported on a $20 million jackpot justice verdict:

Ted Fields was injured in an auto accident with Jimmy Woodley; Woodley’s insurer went bankrupt, so Fields, on January 30, 1997, asked Allstate to pay $25,000 in medical bills and lost wages. Allstate sent Fields forms to fill out, and he did so three weeks later; when Allstate didn’t pay instantaneously, he sued them in March 1997 for bad faith. Fields turned the discovery process into a far-reaching investigation of all of Allstate’s claim procedures; the judge refused to constrain irrelevant deposition questioning, at which point in 1999 Allstate offered Fields the full amount of his $50,000 policy limit rather than waste hundreds of thousands in trial. Fields refused; his attorneys filed several separate motions of default rather than litigate the underlying issues after the trial court denied a summary judgment motion. An appellate court found that Allstate was entitled to summary judgment because of the lack of any evidence of bad-faith in responding to Fields’s claims; the Indiana Supreme Court overturned that ruling on a procedural technicality that the appeal was premature.

The trial court ruled that Allstate was not allowed to present evidence that it was not liable for actual or punitive damages or that it acted “with anything other than dishonest purpose, moral obliquity, furtive design, and/or ill will.” A jury, hearing this one-sided sham of a trial, awarded $20 million in damages, though one would hope the Court of Appeals, hearing a timely appeal, makes the same decision it made before. Press coverage fails to mention that Allstate wasn’t allowed to defend itself at trial; the plaintiff told the jury that the dispute caused high blood pressure, heart problems, and a stroke, though then the question becomes why he isn’t suing his attorney.

Today, the Court of Appeals of Indiana reversed.

Class action settlement: credit ratings in insurance

Allstate used applicants’ credit ratings as one piece of information in rate-setting, a baldly rational policy if you accept that credit ratings do on average help predict future consumer behavior. Lawyers sued claiming that the credit ratings were really an improper proxy for race, and a federal judge has now approved a class action settlement in which Allstate will revamp its policies and pay six named plaintiffs $5,000 each, minority policyholders will be free to seek refunds of $50 to $150 if they get around to it and can prove they qualify, and plaintiff’s lawyers will get $11.7 million. (“Judge Approves Settlement in Allstate Class-Action Suit”, AP/WOAI, Feb. 17).

Jackpot justice: $20M for $25,000 insurance claim

Ted Fields was injured in an auto accident with Jimmy Woodley; Woodley’s insurer went bankrupt, so Fields, on January 30, 1997, asked Allstate to pay $25,000 in medical bills and lost wages. Allstate sent Fields forms to fill out, and he did so three weeks later; when Allstate didn’t pay instantaneously, he sued them in March 1997 for bad faith. Fields turned the discovery process into a far-reaching investigation of all of Allstate’s claim procedures; the judge refused to constrain irrelevant deposition questioning, at which point in 1999 Allstate offered Fields the full amount of his $50,000 policy limit rather than waste hundreds of thousands in trial. Fields refused; his attorneys filed several separate motions of default rather than litigate the underlying issues after the trial court denied a summary judgment motion. An appellate court found that Allstate was entitled to summary judgment because of the lack of any evidence of bad-faith in responding to Fields’s claims; the Indiana Supreme Court overturned that ruling on a procedural technicality that the appeal was premature.

The trial court ruled that Allstate was not allowed to present evidence that it was not liable for actual or punitive damages or that it acted “with anything other than dishonest purpose, moral obliquity, furtive design, and/or ill will.” A jury, hearing this one-sided sham of a trial, awarded $20 million in damages, though one would hope the Court of Appeals, hearing a timely appeal, makes the same decision it made before. Press coverage fails to mention that Allstate wasn’t allowed to defend itself at trial; the plaintiff told the jury that the dispute caused high blood pressure, heart problems, and a stroke, though then the question becomes why he isn’t suing his attorney. (Ken Kosky, “Valpo man wins $20 million verdict v. Allstate”, Northwest Indiana Times, Oct. 6).

Lawsuits of the future

John Michael Dunton of Anaheim was not criminally charged after his five-month-old died of heatstroke September 9 after her father left her in his van for four hours instead of at her babysitter. Dunton held a press conference with his attorney: “I hope that the auto industry or the car seat manufacturers will have some kind of alarm or bell so [parents] won’t forget their kid in a car.” (Wendy Thermos, “After Child’s Hot-Car Death, Father Backs Alarm Systems for Parents”, LA Times, Sep. 25). One awaits with trepidation the first parent/attorney combination with the chutzpah to sue the auto industry for this oversight. Readers of Romenesko are appalled, though Michael Kaufman, tongue firmly in cheek, writes

We really need these warning systems all over the house. For example, I can’t tell you how many times I have started doing laundry without realizing that little Jimmy was still wearing the clothes that I was throwing in the washing machine. If I only had an early warning system on my washer/dryer. Or when I made the bed with Suzie still sleeping. I am actually thinking of suing Allstate for not warning me when I moved and left all the kids behind.

Madison County: Ms. Howell’s two hats

In an article about the controversial Lucent class action settlement ($84 million for the lawyers, $8 million for the class; see Apr. 5) the St. Louis Post-Dispatch talks with Joy Howell, spokeswoman for lead class counsel Stephen Tillery, who’s among Madison County’s most prominent class-action lawyers. Later in the piece it emerges that Ms. Howell “also serves as a spokeswoman for the Coalition to Preserve Access to Justice”, a group that vehemently opposes the reform-minded Class Action Fairness Act on behalf of “more than 80 national consumer, environmental and civil rights groups”. Hmmm. (Trisha L. Howard, “Nixon backs state role in class action suits”, St. Louis Post-Dispatch, Apr. 3). And the local press is casting a skeptical eye on what the Post-Dispatch calls “the strange little courthouse in Edwardsville” (Illinois) and the doings of Judge Nicholas C. Byron in particular (see “It’s a Mad, Mad, Mad Madison County”, Apr. 22) (“Madison County: What’s the judge hiding?” (editorial), St. Louis Post-Dispatch, May 1; Brian Brueggemann, “Judge Byron endures hot seat”, Belleville News-Democrat, May 3; “‘Judicial hellhole’ deepens with law firm’s banishment” (editorial), Bloomington Pantagraph, Apr. 27). Last month “Byron ordered a newspaper reporter to leave the courtroom Monday when [attorney Rex] Carr and Tillery began arguing about the apparently sensitive issue of how much money the firm has earned.” (Brian Brueggemann, “Class-action lawyers fight over money”, Belleville News-Democrat, Apr. 11, and how’s that for a quotidian headline?). Finally, visions of sugar plums seem to have gone a-glimmering for class action attorney Judy Cates, of columnist-suing fame, when a Belleville jury rejected her lawsuit demanding $300 million from Allstate because it does not reimburse its auto policyholders after crashes for the decline in the resale value of their fully repaired cars. According to defense attorney H. Sinclair “Rod” Kerr, the lead plaintiffs, Michael and Tiffany Sims of East St. Louis, Ill., “decided to sue only after a relative called their attention to a newspaper ad placed by Cates’ law firm seeking plaintiffs against Allstate.” (Robert Goodrich, “Jury rejects class-action suit over car repairs”, St. Louis Post-Dispatch, Apr. 29).

Update: trial lawyers’ war against Allstate

Plaintiff’s lawyers have for years pursued a grudge match against the Allstate insurance company because of its “Do You Need An Attorney?” campaign, launched in the mid-1990s, by which the company suggests to persons with possible claims against its policyholders that it may not be absolutely necessary for them to sign up with a lawyer (see Apr. 18, 2000; Dec. 22, 1999). In the state of Connecticut, scene of some of the fiercest skirmishing, the attorneys’ fondest hopes have not been realized: in January a federal judge ruled in Allstate’s favor “on claims it breached an implied contract of good faith and fair dealing, and was engaging in unfair trade practice, unfair insurance practice, recklessness and fraud.” However, it’s not as if the insurer, which is based in Northbrook, Ill., is now free to say whatever it pleases in post-car-crash situations in the Nutmeg State: “In 1996, as president of the Connecticut Trial Lawyers Association, Reardon [New London plaintiffs’ attorney Robert I. Reardon] successfully lobbied for a new law that forbids insurers from discouraging their adversaries from hiring a lawyer.” (Thomas B. Scheffey, “Allstate Victorious in Anti-Lawyer Campaign”, Connecticut Law Tribune, Feb. 2).

Archived legal ethics items, pre-July 2003

Bar discipline and client protection, 2003: Probate’s misplaced trust” (Washington Post series), Jun. 16-17. 2002:Crumbs from the table“, Feb. 8-10.  2001:Law firm sued over fen-phen settlement practices“, Dec. 28; “Updates” (IOLTA), Dec. 15-16 (& Jan. 31); “Holiday special” (Canadian lawyer’s misconduct), May 28; “Mills of legal discipline” (updates on Brock, Hager, Fieger cases), Mar. 3; “Dangers of complaining about lawyers” (Ga. considers easing defamation counter-complaints by lawyers), Mar. 30-Apr. 1.  2000:‘Judge Lenient With Perjurer, Cites Clinton Case’“, Oct. 16-17 (& May 16); “Disbarred, with an asterisk” (Mass. has let many attorneys resume practice), Sept. 20; “Funds that don’t protect” (client protection funds), Aug. 23-24; “Fit to practice?” (California bar disciplinary board), Aug. 21-22; “That Hager case” (American U. law professor Mark Hager, settlement of Warner-Lambert Nix lice treatment case), Feb. 23 (& update May 3, 2001: board recommends three-year suspension). 

New legal ethics weblog” (ethicalEsq.?), Jun. 6-8, 2003.

Judicial conduct, 2003:Year’s most injudicious judges”  (NLJ roundup), May 6. 2002:‘Federal authorities say judge offered illegal payoff’“, Sept. 3-4; “‘Privileged chambers’” (Albany Times-Union series), May 30; “‘Injudicious conduct’” (NLJ roundup), May 1-2; “La. officials seek oyster judge recusal“, Mar. 25-26; “So depressed he stole $300K“, Mar. 19.  2001:‘Pseudologica fantastica’ won’t fly” (judge’s resum?ibs), June 7 (& update Aug. 20-21); “‘Judges behaving badly’” (NLJ roundup), May 11-13.  2000:Year’s most injudicious judges“, Jun. 5, 2000; “Brockovich story, cont’d: the judges’ cruise“, Apr. 18; “New Hampshire high court blowup“, Apr. 5 (& updates Oct. 11: chief justice acquitted at impeachment; May 3, 2001); “The costs of disclosure” (Washington state, Grant Anderson case), Jan. 19. 

Class action lawyer takes $20 million from defendant’s side“, Mar. 15-16, 2003.

Politico’s law associate suspended over ‘runner’ use” (Louisiana), Feb. 14-16, 2003.

Civility:Law’s attraction for the bully“, Dec. 13-15, 2002; “‘Attorney Ordered To Pay Fees for “Rambo” Tactics’“, Oct. 5-7, 2001; “Mills of legal discipline” (Geoffrey Fieger tirade against judges), May 3, 2001 (& more on Fieger: Apr. 23-24, 2002, Sept. 14, 1999; “Another Mr. Civility nominee” (“dreck”, “scum”), June 2-4, 2000; “From the incivility frontier” (“gag a maggot off a meat wagon”, “proctology exam”), April 19; “Majesty of the law” (alleged threat to kill opposing counsel), March 13, 2000 (& update May 17: attorney sanctioned); “Bright future in some areas of practice” (“abusive, hostile” applicant for law license), Oct. 13, 1999 (update, Nov. 23). 

Race-bias cases gone wrong“, Jan. 24-26, 2003.

Lawyers fret about bad image” (Fla. bar plans to rate and monitor tone of journalists’ coverage), Oct. 3, 2002. 

FTC cracks down on excessive legal fees“, Oct. 1-2, 2002. 

Second Circuit: we mean business about stopping frivolous securities suits” (scope of Rule 11), Aug. 29-Sept. 2, 2002. 

Lawyer’s 44-hour workday“, Jun. 28-30, 2002; “Charged $16,000 for brief he copied from book“, May 17-19, 2002; “Lending rules trip up litigation-finance firms“, Dec. 3, 2001; Letter to the editor (incremental billing disclosed?), Oct. 22, 2001; “Law-firm bill-padding?  Say it isn’t so!“, Nov. 18, 1999. 

‘Student gets diploma after threatening lawsuit’“, Jun. 13, 2002.

Truth value, 2002:Lying’s not nice, especially when representing the bar“, Jul. 30-31; “Columbia Law School survey on public attitude toward lawyers“, Apr. 26-28; “‘Ex-student sentenced for rape lie’” (wants to become attorney), Jan. 11-13 (& see May 26-29, 2000: Stephen Glass graduates Georgetown Law).  2001: Criminal defense attorneys, doing what they do best“, Dec. 15-16; “‘Lawyers pay price for cruel hoaxes’” (phony heir claims after plane crashes), Aug. 3-5; “‘Lie-tery winners’“, April 20-22.  2000:What was the Florida court thinking?” (Boies-submitted affidavit), Dec. 11-12; “‘Judge Lenient With Perjurer, Cites Clinton Case’“, Oct. 16-17 (& May 16); “The judge wasn’t asleep” (sanctions for submission of dubious affidavits), June 14-15.  1999:If true, then all the better” (excerpt from Campos, Jurismania), Dec. 3-5; and see witness coaching, below. 

‘”Little” done for firm, Rendell says’” (law firms provide no-show jobs for politicians), May 9, 2002. 

‘Former clients sue attorney O’Quinn’” (Kennedy Heights case), Apr. 8-9, 2002 (& Aug. 4, 1999).

Gary & Co. shenanigans at Maris trial“, Apr. 1-2, 2002. 

Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002. 

Disclosure:Lending rules trip up litigation-finance firms“, Dec. 3, 2001; Letter to the editor (incremental billing disclosed?), Oct. 22, 2001; “Trial lawyers knew of tire failures, didn’t inform safety regulators“, June 25 (& June 28)(& letter to the editor, July 6); Letter to the editor (ghostwriting), June 13; “ABA’s toothless ethics proposals“, Jan. 17, 2001; “Contingency fee reform“, Nov. 1, 2000. 

Contingent fees, 2001:Lending rules trip up litigation-finance firms“, Dec. 3; “Red-light cameras“, Sept. 6, 2001; “‘The Louima millions’“, July 24; “The rest of Justice O’Connor’s speech“, July 6-8; “Evils of contingent-fee tax collection, cont’d“, May 30; “Reclaiming the tobacco loot“, March 15; “Hugh Rodham’s ‘success fee’“, Feb. 23-25; “Dangers of tax farming“, Jan. 10 (& letter to the editor, Jan. 16).  2000:Contingency fee reform“, Nov. 1; “‘Lawyer take all’” (equity stakes in clients), Oct. 27-29.  1999:Piece of the action” (contingent fees for public officials), Dec. 3-5; “Reform stirrings on public contingency fees“, Oct. 15.

Witness coaching, 2001:GAF sues asbestos lawyers“, Feb. 12-13, 2001 (& see Dec. 10).  2000:‘N.Y. lawyer charged in immigrant smuggling’“, Sept. 22-24; “Sunday’s Times on Fred Baron“, June 5 (& see “Thanks for the memories” by Walter Olson, Reason, June 1998 and subsequent letters exchange with William Hodes).  1999:State of legal ethics” (hey, what’s wrong with witness coaching?), Sept. 9. 

‘The Great Mouthpiece’” (Manhattan’s Bill Fallon, 1920s), Dec. 28, 2001. 

‘Halliburton shares plunge on verdict’” (law-firm whistleblowing), Dec. 10, 2001. 

‘2d Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims’“, July 23, 2001 (more on sanctions: Jul. 30-31, 2002). 

Estate law temptations“, July 6-8, 2001; “Lawyers charged with $4.7 million theft from clients“, April 10, 2000; “Lawyers stealing less, clients say“, Dec. 21, 1999. 

Lost his live client, had to substitute dead one instead“, April 11, 2001; “Turn of the screw” (lawyers alleged to have sued without client consent), Oct. 24, 2000; “Curious feature of lawyer’s retainer” (allowed him to settle case without client consent), Sept. 12, 2000. 

‘It’s time to disarm the hired guns’” (Arianna Huffington), Feb. 28-March 1, 2001; “Trustworthy professionals” (survey of public confidence), Dec. 11-12, 2000. 

Fed prosecutors chafe at state ethics rules“, Oct. 16-17, 2000. 

Lenzner: ‘I think what we do is practice law’” (private investigator in Oracle scandal), July 28-30, 2000. 

Access to something” (lawyer accused of working for Social Security Administration while helping clients sue it), July 13, 2000. 

Ready to handle your legal needs” (Stephen Glass graduates Georgetown Law), May 26-29, 2000. 

Steering the evidence” (DaimlerChrysler gets sanctions against lawyers for evidence and witness tampering), May 23, 2000 (& update June 26). 

‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coca-Cola on behalf of clients, enters into a lucrative ad deal with it), May 11, 2000. 

Splash of reality” (sanctions for frivolous litigation in case of claimed Jackson Pollock painting), May 4, 2000. 

Brockovich story, cont’d: the judges’ cruise“, April 18, 2000; “Brockovich story breaks wide open“, April 17, 2000 (& see Dec. 21). 

Majesty of the law” (Phila. attorney Marvin Barish could face sanctions for allegedly threatening to kill opposing counsel during trial break), March 13, 2000; “Relax, you’re being taken care of” (Barish advances injury client’s rent and expenses), Dec. 14, 1999. 

Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27, 2000. 

Secrets of class action defense” (assisting cooperative opponent to draft complaint), Feb. 25, 2000. 

Watchdogs could use watching” (fee-splitting in Florida securities cases), Jan. 20, 2000. 

The costs of disclosure” (lawyer reveals misconduct by client, judge), Jan. 19, 2000; “Pack your toothbrush, son” (Ala. law-firm whistleblower), Dec. 20, 1999. 

Popular CLE course: ‘How to Hammer Allstate’” (insurer charged with unauthorized practice of law), Dec. 22, 1999 (update, April 18, 2000). 

Splitsville, N.Y.” (New York mag on divorce), Dec. 17-19, 1999. 

Victory in Florida” (plaintiffs deliberately run up gunmakers’ costs for leverage), Dec. 14, 1999. 

Weekend reading: evergreens” (St. Petersburg Times Pulitzer series on probate law), Dec. 3-5, 1999; “From the evergreen file: L.A. probate horror” (estate of art collector Fred Weisman), Nov. 20-21; “Weekend reading: evergreens” (Denver probate nightmare), Oct. 23-24, 1999. 

Class action fee control: it’s not just a good idea, it’s the law“, Nov. 30, 1999; “Class action coupon-clippers“, Nov. 15; “$49 million legal fee okayed in case where clients got nothing“, Sept. 28, 1999. 

Accommodating theft“, Nov. 11, 1999. 

Who loves trusts-and-estates lawyers?“, Nov. 8, 1999. 

Criticizing lawyers proves hazardous“, Nov. 4, 1999 (update, Nov. 30); “No spotlight on me, thanks” (Houston’s John O’Quinn), Aug. 4, 1999. 

State of legal ethics” (lawyers take out glossy ad to stir up will-contest litigation), Oct. 5-6, 1999. 

Weekend reading: evergreens” (lawyer-abetted accident fraud), Sept. 25-26, 1999; “Wages of wrongdoing” (Staten Island lawyers convicted), Sept. 8, 1999. 

Join our new Verdict Rewards program” (checks for jurors), Sept. 13, 1999 (updates, Sept. 17-19, 1999 and Aug. 4-7, 2000). 

Cook County law bills a secret“, Sept. 11-12, 1999. 

My lawyer is an impostor“, Sept. 3, 1999. 

ABA thinks it can discourage ‘pay-for-play’“, Aug. 11, 1999 (& Aug. 14-15 update). 

Like calling the Orkin man to talk about bugs” (ABA convention), Aug. 10, 1999; “Weekend reading” (ABA choice of speakers), Aug. 28-29, 1999. 

No need for speed“, Aug. 3, 1999. 

Weekend reading” (at execution sale, law firm buys up client’s right to sue it for malpractice), July 31-Aug. 1, 1999. 

Honey, you’ve got mail” (solicitations from divorce lawyers arrive before unsuspecting spouses know they’re being divorced), July 15, 1999.


Articles by Overlawyered.com editor Walter Olson:

Thanks for the memories” (coaching of witnesses), June 1998 (& subsequent letters exchange with William Hodes) 

Tobacco Analysts Meet the Plaintiff’s Lawyers” (abuse of pretrial discovery), Wall Street Journal, August 30, 1995. 

Juries on Trial“, review of The Jury by Stephen J. Adler and We the Jury by Jeffrey Abramson, Reason, February 1995. 

Sue City: The Case Against the Contingency Fee“, excerpt from The Litigation Explosion, Policy Review, Winter 1991 [in two parts] [part one] [part two

Dentists, Bartenders, and Lawyer Unpopularity“, Manhattan Institute Civil Justice Memo #37, April 1999. 

Lawyers with Stethoscopes: Clients Beware“, Manhattan Institute Civil Justice Memo #26, June 1996. 

Taming the Litigators: Why Not More Disclosure?“, Manhattan Institute Civil Justice Memo #24, February 1996.


Codes of ethics:

ABA Center for Professional Responsibility
Overview — Rules of Lawyer Conduct
U.S. Judges Code of Conduct
California Rules of Professional Conduct
D.C. Rules of Professional Conduct

Some online articles of interest:

James McCauley, “The Ethics of Making Legal Services Affordable…” (Virginia bar; discusses unauthorized practice, pro se litigation) 

Rep. Chris Cox, Testimony on tobacco settlement (1997)

Lawrence Schonbrun, “Class Actions: The New Ethical Frontier” (Manhattan Institute, 1996)

December 2002 archives, parts 1-2


December 20-22 — Advance notice for The Rule of Lawyers. Our author’s new book still won’t reach most stores for a few weeks, but it’s garnering early notice in some prominent places. More than a month back Amity Shlaes of London’s Financial Times gave it a mention in a column profiling hyperactive New York Attorney General Eliot Spitzer (Amity Shlaes, “Local enforcer who has changed national laws”, Financial Times/Jewish World Review, Oct. 31). Last month it got discussed in the New York Times arts section (Daphne Eviatar, “Is Litigation a Blight, or Built In?”, New York Times, Nov. 23, second page). Wall Street Journal editorialist John Fund, recounting highlights of the career of Sen. Trent Lott for the paper’s online OpinionJournal.com, quotes the book’s discussion of how the lawyers suing the tobacco industry tried to exploit Lott’s family connection to attorney Dickie Scruggs (“A Tale of Two Bubbas”, OpinionJournal.com, Dec. 19).

Deserving special notice is Roger Parloff’s piece in The American Lawyer and other Law.com publications (“Authors Throw the Book at Lawyers”, Dec. 12), which calls the book “a focused, healthy, provocative, enjoyable read. … that rare book that, should it ever burrow its way into the opposing camp’s conversational pipelines, could really gum up the works.” Among other blushworthy excerpts: “Olson’s wry, amusing, libertarian take on the increasingly preposterous role that mass tort lawyers have assumed in our society — and in the funding of the Democratic Party — may not only spur many Democrats to reshuffle their standard talking points on those issues, but may even afford them some guilty, cant-piercing pleasures along the way. Speaking as a Democrat, I’d say the burgeoning scandal of the mass tort bar is our Enron.” (DURABLE LINK)

December 20-22 — Trial lawyers vs. thimerosal. Glenn Reynolds at InstaPundit (Dec. 19, three posts: # 1, 2, 3) has the latest on the flap over new federal curbs on lawsuits that claim damage to children’s health from thimerosal, a mercury-containing compound long used to preserve vaccines. According to the Centers for Disease Control (“Thimerosal & Vaccines“), citing Food and Drug Administration research, “There is no evidence to suggest that thimerosal in vaccines causes any health problems in children and adults beyond local hypersensitivity reactions (like redness and swelling at the injection site.)” This has not kept trial lawyers from urging parents of autistic children to view the compound as responsible for their children’s plight: Derek Lowe checked out law firms’ websites and found lurid examples (Dec. various dates — scroll down for more good posts). “Dr. Manhattan” has much more on the controversy (Dec. 18) and see also MedPundit (Dec. 5). For more on the recent legislative move to ensure that claims against thimerosal are incorporated into the general federal vaccine compensation scheme, see Margaret Cronin Fisk, “Suits Over Mercury-Containing Vaccines May Be Down for the Count”, National Law Journal, Nov. 27; “The Truth About Thimerosal” (editorial), Wall Street Journal, Dec. 5. (DURABLE LINK)

December 20-22 — Putting fraud proceeds to use. John Deokaran, a former insurance manager from Hammond, La., has pleaded guilty to taking more than $530,000 from Allstate Insurance by routing checks for imaginary claims to fictitious plumbing contracting companies that he controlled. Deokaran must make restitution or face prison time. “Among other things, Deokaran spent some of the money to pay for law school,” said Louisiana Attorney General Richard Ieyoub. (“AG Ieyoub: Hammond Man Must Pay Back Fake Claims Money Laundering Sentence Stipulates Full Restitution”, Office of AG Ieyoub, Aug. 20). (DURABLE LINK)

December 18-19 — The right not to be looked at? “The Chicago Cubs are suing the owners of rooftop businesses that overlook Wrigley Field and sell tickets to watch games, saying the establishments are stealing from the team.” (“Cubs sue owners of rooftop businesses near Wrigley”, AP/Indianapolis Star, Dec. 17). Update May 9, 2004: dispute settled with payments from rooftop business owners to team. (DURABLE LINK)

December 18-19 — “Asbestos fraud”. Extremely scathing column on the case of asbestos litigation, in which “the thirst for profits has led a small group of trial lawyers to erode the rights of legitimate victims while driving dozens of companies into bankruptcy and — worst of all — corrupting the court system. If Congress does not fix this problem, shame on it.” (Robert J. Samuelson, Washington Post, Nov. 20). (DURABLE LINK)

December 18-19 — British free-speech case. Robin Page, a columnist for the London Daily Telegraph, “has been arrested on suspicion of stirring up racial hatred after making a speech at a pro-hunting rally,” according to that paper. How had he done that? “Mr Page … told his audience that Londoners had the right to run their own events, such as the Brixton carnival and gay pride marches, which celebrated black and gay culture. Why therefore, he asked, should country people not have the right to do what they liked in the countryside[?]” Page, who was released on bail, “denied having made any comment that could be construed as racist during the address. … Gloucestershire police confirmed that they had arrested Mr Page on suspicion of violating Section 18 (1) of the Public Order Act, referring to stirring up racial hatred.” (Daily Telegraph, Nov. 20) (via WSJ Best of the Web) (DURABLE LINK)

December 18-19 — Mass disasters belong in federal court. Most mass litigation resulting from transportation accidents or other single-site disasters which result in the deaths of 75 or more people will henceforth have to be filed in federal court, according to the provisions of a bill quietly enacted by Congress this fall with the support of the Bush administration. The bill is favored by defendants in part because it restricts the ability of plaintiff’s lawyers to shop around for state court venues that are hostile to defendants or that afford “home cooking”. (Julie Kay, “Disaster Plan”, Miami Daily Business Review, Nov. 21). (DURABLE LINK)

December 16-17 — By reader acclaim: “Ex-jurors file $6 billion suit against ’60 Minutes'”. “Two former Jefferson County, Mississippi, jurors have filed a $6 billion lawsuit against CBS’ ’60 Minutes’ and a newspaper owner over comments about the size of jury awards in the county. Anthony Berry and Johnny Anderson said the news program defamed them in a segment that called the county a haven for ‘jackpot justice.’ Berry was among jurors who made a $150 million verdict in an asbestos case, and Anderson sat on a jury that awarded a $150 million judgment in a diet drug case. Wyatt Emmerich, who owns Emmerich Newspapers Inc., is also being sued: “In the program, Emmerich described those on Jefferson County juries as disenfranchised residents who want to stick it to Yankee companies”. Emmerich called his inclusion in the suit an attack on free speech. (AP/CNN, Dec. 10; Jerry Mitchell, “TV show on Miss. justice stirs suit”, Jackson Clarion Ledger, Dec. 10). Update Mar. 6, 2005: federal appeals court affirms dismissal of suit. (DURABLE LINK)

December 16-17 — “Bogus Claims Discovered in Fen-Phen Class Action”. “In a strongly worded opinion that questioned the ethics of two law firms and two doctors, the federal judge who is overseeing the $3.75 billion fen-phen diet drug class action settlement has found that dozens of claims of heart-valve damage were ‘medically unreasonable’ and that the doctors and lawyers responsible for the bogus claims must now be watched more closely. U.S. District Judge Harvey Bartle III said he was forced to issue an injunction because the settlement funds were set aside for ‘rightful claimants who suffered from fen-phen and not as a pot of gold for lawyers, physicians and non-qualifying claimants.'” Two New York law firms — Napoli Kaiser Bern & Associates and Hariton & D’Angelo — had submitted claims for their clients which included an unusually high rate of claimed serious heart valve abnormalities. Judge Bartle wrote that the practice of an expert employed by the Napoli and Hariton firms “resembled a mass production operation that would have been the envy of Henry Ford”. (Shannon P. Duffy, The Legal Intelligencer, Nov. 19)(see Sept. 27 and links from there). (DURABLE LINK)

December 16-17 — Ninth Circuit panel sniffs collusion in bias settlement fees. “The 9th U.S. Circuit Court of Appeals upended a multimillion-dollar race discrimination settlement Tuesday, citing suspicions that the attorney fees were the product of collusion. The split three-judge panel described the injunctive relief won in the case against Boeing Co. as ‘relatively weak,’ and said it and the $7 million in damages didn’t appear to justify more than $4 million in fees and a broad release of liability.” The case, purportedly on behalf of 15,000 black Boeing employees, had resulted in the company’s promise to institute changes in employment practices. However, Judge Marsha Berzon called such curative measures an “inexact and easily manipulable value,” and said they should not be viewed as creating a common fund for purposes of fee calculation. “Harrell, Desper, Connell, Hunter & Gautschi, the Seattle-based firm representing the class, had supplied many declarations, including one from the Rev. Jesse Jackson, supporting the terms of the settlement.” (Jason Hoppin, “9th Circuit Scraps Race Bias Settlement, Cites Attorney Fees”, The Recorder, Nov. 27). (DURABLE LINK)

December 13-15 — Back from hiatus. Our editor’s hiatus to handle personal business met with the happiest possible outcome, but as a result he’s facing new family responsibilities that will keep posting slow at best. Better some posting than none at all, at least, right? (DURABLE LINK)

December 13-15 — Using his own name a legal risk. The Atlanta Journal-Constitution‘s Bill Wyman shares his name with a somewhat well-known musician who played bass with the Rolling Stones. He was nonetheless unprepared when he received a letter from the musician’s lawyer suggesting that he might be violating the other guy’s rights by … well, by going on using his own name (Bill Wyman, “Will the real Bill Wyman please tune up?”, Atlanta Journal-Constitution, Nov. 14). (DURABLE LINK)

December 13-15 — Florida school shooting: the deep pockets did it. A Palm Beach County, Fla. jury has declared that a school board, an owner from whom a gun was stolen and the gun’s distributor should be liable for the classroom shooting of Lake Worth teacher Barry Grunow by 16-year-old student Nathaniel Brazill. “The jury didn’t find any liability for Brazill, who pulled the trigger. Brazill stole the unloaded gun and bullets from a cookie tin stashed away in a dresser drawer of family friend Elmore McCray.” (“Gun Company Must Pay Teacher’s Widow”, WPLG, Nov. 15). “Attorney Bob Montgomery, known for successfully spearheading the state’s efforts to sue Big Tobacco for $11.3 billion, said he hoped the gun case would achieve the same crippling results against the gun industry.” (“Gun distributor must pay in teacher’s death”, AP/Redding (Calif.) Record Searchlight, Nov. 15). Update Feb. 4-5: judge throws out case (DURABLE LINK)

December 13-15 — Law’s attraction for the bully. “[A] lot of hyper-glandular people are attracted to the legal profession because it looks like the perfect job for bullying other people. Plus, it pays well. Of course, the apologists for this sort of bad lawyering (mostly like-minded and acting lawyers) … argue that all that I am carping about is what is known as ‘zealous advocacy’ — which is next to godliness in the pantheon of ethical requirements. Of course, there is no ‘ethical requirement’ that justifies what some lawyers do in terms of name-calling, rules-flouting and frivolous motion-filing. It is simply a conceit that these lawyers rely on to transform their vices into supposed virtues.” (Jim McCormack, “Deconstructing Opposing Counsel”, Texas Lawyer, Oct. 25). (DURABLE LINK)

December 13-15 — Gotham’s trial lawyer-legislators. If it’s unusually hard for New Yorkers to obtain any legislative relief from their state’s lawsuit culture, our editor observes in an op-ed, maybe one reason is that numerous lawmakers are themselves trial lawyers, including Assembly Speaker Sheldon Silver of Manhattan (who previously practiced with controversial tobacco-beneficiary law firm Schneider Kleinick, and recently joined controversial asbestos/product liability law firm Weitz & Luxenberg) along with New York City Council members Michael E. McMahon and Domenic M. Recchia. (Walter Olson, “Legal Payola”, New York Post, Nov. 21, reprinted at Manhattan Institute site). (DURABLE LINK)

May 2000 archives, part 3


May 31 — From our mail sack: ADA enforcement vignettes. Reader Roger Clegg of the Center for Equal Opportunity tells us that every month or so he visits the Department of Justice to pore over the new batch of publicly released enforcement letters from the department’s Civil Rights Division. Although the letters are made available by the Department in such a way that parties in the disputes are not individually identifiable, they do provide insight into current enforcement priorities and trends. A few highlights that Roger passes on from letters issued by DoJ regarding the enforcement of the Americans with Disabilities Act:

“The Civil Rights Division’s Disability Rights Section has in the last month or so sent a lot of letters to doctors’ offices on behalf of hearing-impaired patients complaining that the doctors don’t have interpreters (a couple of the offices didn’t understand why the doctor and patient couldn’t just write notes to each other) [see also Sept. 29-Oct. 1].

* “A dance studio got a DOJ letter when it refused to continue giving lessons to a student who was prompting complaints from other students’ parents because accommodating her took up so much class time.

“Other interesting issues prompting DOJ letters:

* “A cruise ship that refused to let a blind person on board for a trip unless he had a medical note stating he could safely travel alone;

* “An HIV-positive student who demanded an air-conditioned classroom;

* “A blind person who wasn’t allowed into a doctor’s office because in the past other patients had had an allergic reaction to his guide dog; and

* “A truly tragic case — a man with a ‘manual disability’ who could not pull the trigger on a gun.”

May 31 — Jumped ahead, by court order. A Delaware court has found that Christiana Care Health Services breached its contract with Ahmad Bali, MD, when it demoted him from third-year to second-year resident. Rather than simply allot monetary damages to Dr. Bali for the trouble and expense of having been held back needlessly at the second-year stage, the court took the more unusual step of ordering the hospital to accord him fourth-year residency status as if he’d completed the third-year program. The result is to put him in the same place he’d be if not for the hospital’s earlier breach, which is certainly one kind of fairness for which the law sometimes strives. But what if third-year residency isn’t simply a re-run of second-year, but involves the acquisition of distinctive skills? (Miles J. Zaremski, “Delaware court reinstates terminated resident”, American Medical News, March 20).

May 31 — Columnist-fest. More opinions worth considering:

* Paul Campos weighs in on the “pink-skirt” case, in which a transgendered employee of a Boulder, Colo. bagel shop is suing because its owner wouldn’t let him wear that girlish item of apparel on the job (“The strange land of identity politics”, Rocky Mountain News, May 16; Matt Sebastian, “Bagel shop wouldn’t let him wear pink dress [sic], so he sues”, Scripps Howard News Service, May 11).

* Big American companies whose German operations were seized by the Nazi regime and run with forced labor are now coming under legal pressure to pay “reparations”. “If we Jews care about justice and retribution, we should not take this money,” argues Sam Schulman of Jewish World Review. “It is tainted — tainted with innocence. And taking money from the innocent blurs the line between innocence and guilt.” (“Some Reparations Money is Better Left on the Table”, Jewish World Review, May 18). An earlier Schulman column examines the drift of the campaigns against the Swiss and the Austrians away from the aim of individualized justice for expropriated families and toward the expiation of inherited national guilt by way of large transfer payments. (“David Irving’s Mirror for the Jews”, May 2).

* Rachelle Cohen of the Boston Herald can’t help wondering: does Massachusetts really need to spend tax money setting up a state-sponsored law school? (“Must taxpayers pay to create more lawyers?”, May 24).

May 30 — You were negligent to hire me. “A former Escondido school district administrator who resigned two years ago after revelations of a 1963 rape-related conviction won a $255,000 jury verdict yesterday against Superintendent Nicolas Retana and the district.” Thirty-four years previously, at age 17, William Zamora had been convicted in New Mexico of assault with intent to rape, serving two years in prison and later being pardoned by the governor. When he applied for an $88,000/year administrative job in 1997 with the district near San Diego, he failed to disclose his long-ago conviction on his employment application, later saying he thought the pardon had wiped his record clean. But an FBI fingerprint check turned it up, and Zamora resigned at once: a California law passed the previous year forbade school districts to hire persons with felony sex convictions. He then proceeded to sue the district and supervisor, contending that if they “had done their jobs properly… they would have waited until the crime check came back before hiring him,” and charging that his privacy had been invaded when Retana conversed with an Albuquerque school board member about the conviction. Last week a jury awarded him $15,000 on the negligent hiring claim and $240,000 on the invasion of privacy claim. “Superior Court Judge Lisa Guy-Schall kept jurors from hearing the details of Zamora’s conviction, in which he pleaded guilty. She said she didn’t want to preside over a mini-trial of events that happened 37 years ago.” (Onell R. Soto, “Ex-administrator wins $255,000 verdict against Escondido schools chief, district”, San Diego Union-Tribune, May 24; and earlier Union-Tribune coverage, May 17, May 21, 1999; May 20, 1999).

May 30 — Illegal to talk about drugs? The so-called Methamphetamine Anti-Proliferation Act, which has been moving rapidly through Congress with relatively little public outcry, would make it a felony punishable by ten years in prison “to teach or demonstrate to any person the manufacture of a controlled substance, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of a controlled substance,” knowing or intending that a recipient will use the information in violation of the law. The aim is to shut down the publishing of books, magazines and websites that furnish information on drug manufacture or use, such as High Times magazine and Lycaeum.org. The prohibition on “distribut[ing]” such information “to any person, by any means” could make it unlawful even to post a weblink to offshore sites of this nature. Another provision of the bill would make it a crime to “directly or indirectly advertise for sale” drugs or drug paraphernalia — and whatever the peculiar phrase “indirectly advertise” may mean in practice, it’s probably not good news for the First Amendment. A Washington Post editorial calls the provisions “overly broad” and “so vague as to threaten legitimate speech”: “The mere dissemination of information, especially without specific intent to further crime, seems within the bounds of free speech protections.”

SOURCES: “The Anti-Meth Bill” (editorial), Washington Post, May 26; Amy Worden, “House Bill Would Ban Drug Instructions”, APBNews, May 10; Declan McCullagh, “Bill criminalizes drug links”, Wired News, May 9; Jake Halpern, “Intentional Foul”, The New Republic, April 10; “Senate panel considers ban on Internet drug recipes”, AP/Freedom Forum, July 29, 1999; Debbi Gardiner and Declan McCullagh, “Reefer Madness Hits Congress”, Wired News, Aug. 6, 1999; J. T. Tuccille, “Shall make no law”, About.com Civil Liberties, Aug. 15, 1999; Phillip Taylor, “Marijuana activists denounce proposed ban of drug recipes”, Freedom Forum, Jan. 6.

May 30 — Won’t pay for set repairs. Orkin, the pest control company, is declining to compensate two consumers who’ve requested that it pay for fixing their TV sets after they attacked unusually convincing simulations of cockroaches that ran across the screen in its ads. The company says a Tampa, Fla., woman tried to kill the insect by throwing a motorcycle helmet at her set, while another man damaged his set by throwing a shoe at it. (“‘I felt really stupid’: Orkin cockroach commmercial has some viewers fooled “, AP/Seattle Post-Intelligencer, April 6).

May 30 — Welcome San Jose Mercury News visitors. At Silicon Valley’s hometown paper, columnist John Murrell (“Minister of Information”) proposes this among sites “for your weekend Web wandering pleasure … your darkest visions of out-of-control litigiousness will be confirmed”. (May 26 entry). The weblog at uJoda.com (“From My Desktop”), where you can pick up Macintosh icons and graphics, reports that its author “found a great site called overlawyered.com, though not eye candy, it is rich in content” (May 6 entry). The pro-Second Amendment Fulton Armory featured us as their site of the week a couple of weeks ago, and we’ve also been linked recently by the Australian Public Law page maintained by the law faculty at the Northern Territory University, down under (“Not much to do with public law but we couldn’t help ourselves,” they explain re including us); by the Smith Center for Private Enterprise, a free-market think tank at Cal State, Hayward; by ClaimsPages.com, which offers a vast array of insurance-oriented links; and by the website of attorney Jule R. Herbert, Jr. of Alabama’s Gulf Coast, among many others.

May 26-29 — “Dame Edna’s Gladioli Toss Lands in Court”. “Dame Edna Everage”, the character created by Australian comedian Barry Humphries (website, B’way show), makes a custom of ending her show by flinging gladioli to the crowd, but now a man has hired a Melbourne law firm to undertake legal action, saying a stem of one of the large flowers struck him in the eye. 49-year-old singing teacher Gary May is “seeking unspecified damages for pain and suffering, loss of income and medical expenses.” (Reuters/Excite, May 25, lnk now dead). Last year (see Dec. 7) NBC’s “Tonight Show with Jay Leno” was sued by an audience member who says he was injured by one of the free t-shirts propelled into the crowd.

May 26-29 — “Skydivers don’t sue”. Lively Usenet discussion last month and this among skydiving enthusiasts (rec.skydiving) over recent lawsuits in the sport. In one, Canadian skydiving acrobat Gerry Dyck is suing teammate Robert Laidlaw over a 1991 accident during an eight-man stunt jump near Calgary in which Dyck was knocked unconscious and severely hurt on landing. (Jeffrey Jones, “Canadian skydiver sues teammate for mid-air crash”, San Jose Mercury News, April 24, no longer online). The other followed the death of James E. Martin, Jr., a Hemet, Calif. dentist and veteran of more than 5,000 jumps who perished when a line snagged on his parachute, his fifth time out on that gear. Now his widow’s suing the gear maker, Fliteline Systems of Lake Elsinore, Calif.; vice president Mick Cottle of Fliteline, the first defendant named in the suit, says Martin was a “close friend”. “Few lawsuits over sky diving deaths ever reach judgment,” reports the Riverside Press-Enterprise. And “most makers of sky-diving gear do not carry liability insurance, which reduces the likelihood of plaintiffs gaining a settlement.” About 32 sky-diving deaths occur annually in the U.S., of which about five lead to lawsuits, according to one frequent expert witness in the field; he estimates that plaintiffs have won only 1 or 2 percent of cases he’s seen, though it’s unclear whether he’s including settlements in that estimate. (Guy McCarthy, “Lawsuit blames gear in sky diver’s death”, Riverside Press-Enterprise, May 8, link now dead; Remarq saved thread; Deja.com archive, recent search on “lawsuit” — hundreds of posts in all)

May 26-29 — Insurers fret over online privacy suits. The wave of lawsuits against Yahoo!, DoubleClick and others for privacy sins has insurance companies “concerned they will have to pay for potentially massive torts they didn’t anticipate” in liability policies they’ve written for the dot-com sector. “‘If it’s not the next really big issue, it’s one of the next big issues where we can expect a lot of litigation,’ said Thomas R. Cornwell, VP of the technology insurance group” for insurer Chubb. “Plaintiff’s attorneys are honing their skills and preparing for a boom in such lawsuits,” reports the magazine Business Insurance in its May 22 lead story. “‘Just as the Internet itself is a growth area, Internet law is being recognized as a growth area within the legal profession,’ said David Sobel, general counsel for the Electronic Privacy Information Center in Washington. The nonprofit organization supports plaintiff lawsuits on Internet privacy.” “My guess is that now that the blood is in the water there will be a lot of plaintiffs’ attorneys sniffing it up,” said one lawyer who’s sued Yahoo. (Roberto Ceniceros, “Internet privacy liability growing”, Business Insurance, May 22, fee-based archives). Expect the cost of securing liability insurance for an Internet launch to rise accordingly.

May 26-29 — Suits by household pets? “Somewhere out there — maybe in a Boston zoo or a Fresno research lab — a Bonzo or Fido is biding his time, deceptively peeling a banana or playing dead, quietly getting ready to sue his master,” writes Claire Cooper of the Sacramento Bee. As animal-rights courses proliferate at law schools, activists are quietly looking for test cases in which to assert the singular new notion of standing for nonhuman creatures — with themselves as the designated legal representatives, needless to say. (“Pets suing their masters? Stay tuned, advocates say”, May 13). In March the Seattle Times profiled the Great Apes Legal Project, which views the non-human primate kingdom as plausible rights-bearing clients. This provoked a letter from reader David Storm of Everett, who said the article was “very interesting, but the goal doesn’t go far enough. In addition, we should declare the apes to be lawyers, which would simultaneously improve our legal system.” (Alex Tizon, “Cadre of lawyers working to win rights for apes”, Seattle Times, March 19; letters, March 21). See also Roger Bryant Banks, “Animal Dogma”, SpinTech (online), May 12, on the question: if Chimp v. Zoo is a good case, why not also Chimp v. Chimp, following incidents of violence or harassment?

May 26-29 — EPA’s high courtroom loss rate. Most federal agencies win most of the time when their regulatory decisionmaking is challenged in federal court, but the Environmental Protection Agency in recent years has been a glaring exception, losing a large share of the cases it has defended, including high-profile battles over electric car mandates, gasoline reformulation, and Clean Water Act permit-granting, among many others. Why does it fare so badly? Jonathan Adler of the Competitive Enterprise Institute thinks one reason is that agency policymakers adopt extreme legal positions, partly due to unclear authorizing statutes, partly due to zealousness among political appointees at the top. “Environmental Performance at the Bench: The EPA’s Record in Federal Court”, Reason Public Policy Institute, Policy Study #269; “EPA in Need of Adult Supervision”, CEI Update, March 1; Adler’s home page. Ben Lieberman, also of CEI, calls attention to one of the more unusual confrontations the EPA has gotten into of late: its crackdown on coal-burning utilities has led it into a showdown with the government-owned Tennessee Valley Authority, which means it’s the feds versus the feds. (“EPA’s tug at TVA’s power”, May 19, no longer online).

May 26-29 — Ready to handle your legal needs. Stephen Glass, who resigned in disgrace from The New Republic just over two years ago after being caught making up stories, is graduating this month from Georgetown Law School. The Pop View has posted this summary of the episode for anyone who’s forgotten (via Romenesko’s Media News).

May 25 — Conference on excessive legal fees. In Washington today from 10 to 4 Eastern, the Manhattan Institute, Federalist Society, Hudson Institute and Chamber of Commerce of the U.S. team up to host a conference on ideas for “protecting unsophisticated consumers, class action members, and taxpayers/citizens” from overreaching legal fees (schedule and confirmed speakers at Federalist Society site; live broadcast at U.S. Chamber site requires RealPlayer).

May 25 — Thomas the Tank Engine, derailed. “Children’s online privacy”: the sort of sweetness-and-light notion practically no one’s willing to criticize in principle. Yet regulation is regulation, and seldom lacking in real-world bite. Declan McCullagh at Wired News reports that the popular children’s TV show Thomas the Tank Engine has had to discontinue sending regular email bulletins to legions of young fans because obtaining parental consent individually would be too cumbersome. The show’s website cites the Children’s Online Privacy Protection Act, which took effect last month. Other online publishers are also unilaterally cutting off subscribers under the age of 12, to their distress. (“COPPA Lets Steam Out of Thomas”, May 13; Lynn Burke, “Kid’s Privacy an Act, or Action?”, April 20).

May 25 — “Taking cash into custody”. Local law enforcement agencies systematically dodge the constraints of state forfeiture law to help themselves to proceeds after seizing cash and property in traffic stops and drug busts, according to this Kansas City Star investigation. And though Congress’s enactment of federal-level forfeiture law reform was much trumpeted earlier this year (see April 13, Jan. 31), it’s likely to leave many of the abuses unchecked. (Karen Dillon, Kansas City Star, series May 19-20).

May 25 — What the French think of American harassment law. Pretty much what you’d expect: “Fifteen years after the first harassment trials, puritanism in the office is total,” marvels the New York correspondent of a French paper named Liaisons Sociales. “A suggestive calendar in a man’s locker? Prohibited. Below-the-belt jokes? Totally excluded. Comments about physique? Illegal. The result is that behavior in the workplace has been profoundly changed. The doors of offices are always open. The secretaries are always present during tete-a-tete meetings, in case they need to be witnesses in litigation.” A few feminist French lawyers would like to emulate the American way of doing things but lament that in their country litigation is frowned on, damages are set at a token level, and, as one complains, “current French law makes no mention of things like improper jokes”. (Vivienne Walt, “Curbing Workplace Sexism Evolving Slowly in France,” New York Times, May 24 (reg)). Plus: chief exec of leading British fashion chain canned after inappropriate conduct (Fraser Nelson and Tim Fraser, “Pat on the bottom costs boss £1m job” Sunday Times (London), May 10).

May 25 — His wayward clients. In March, in 275 pages of court filings, Allstate, Geico and other insurers filed a lawsuit charging what they called “the most extensive fraud upon the New York no-fault system that has ever been uncovered,” suing 47 doctors, chiropractors and businessmen all told. But the complaint did not name as a defendant a lawyer who’s given legal advice or assistance to just about every one of those 47 defendants; he’s a former chairman of the State Bar Association’s health committee who rents office space in a politically connected law firm. Among his specialties is to assist chiropractors and others in getting around a New York rule that no one can own a medical practice other than a licensed doctor. The complaint says a Milford, Conn. physician who holds a license to practice medicine in New York had served as the front guy for no fewer than 29 medical practices in the state. (Glenn Thrush, “Black Belt Lawyer Robert B orsody Evades $57 Million Fraud Lawsuit”, New York Observer, March 20).

May 24 — Musical chairs disapproved. “The traditional children’s party game of musical chairs has been accused of breeding violence,” reports the BBC. A booklet produced under the auspices of the British education ministry by a group called the Forum on Children and Violence argues that the diversion rewards the “strongest and fastest” children and suggests that nursery schools consider an alternative game such as “musical statues”. The education spokeswoman for the opposition Tories, Theresa May, called the advice “political correctness gone mad”. (“Musical chairs ‘too violent'”, BBC News, May 23).

May 24 — After the great power-line panic. Eleven years ago reporter Paul Brodeur penned a series of articles for The New Yorker charging that electric power-line fields were causing childhood cancers and other ailments, later published as a book entitled Currents of Death. Trial lawyers promptly went on the warpath, and the resulting binge of scare publicity terrified countless parents. Hundreds of millions in litigation costs later, the suits have mostly fizzled. But have any lessons been learned? Forbes reprints an excerpt from Robert L. Park’s much-discussed new book, “Voodoo Science” (Oxford U. Press). (“Voodoo Science and the Power-Line Panic”, May 15). Among groups that stoked the panic were Trial Lawyers for Public Justice: see, e.g., “Names in the News: Kilovolt Cancer”, Multinational Monitor, March 1992 (second item, quoting TLPJ’s Michael Koskoff).

May 24 — Smudged plumage. The Baltimore Orioles, owned by trial lawyer zillionaire/political kingmaker Peter Angelos, say that in order not to threaten the “goodwill” arising from their exhibition performance against the Cuban national team last year (see Dec. 9, Oct. 19 commentaries), they’ll refuse to hire any baseball player who defects from Cuba. Roger Clegg of the Center for Equal Opportunity calls this stand “morally indefensible — telling those fleeing a totalitarian regime that they are unwelcome and unemployable” — and wonders how well it accords with the federal laws banning employment discrimination on the basis of national origin and lawful-immigrant status. Maybe the team could beat such charges by arguing that it has nothing against Cuban émigrés based on their national origin as such — it might hire them, after all, if they were loyal Castroites playing with Fidel’s approval. (“Peter Angelos in foul territory”, National Review Online, May 18; “Orioles Avoid Cuban Players Who Have Defected”, Reuters/Yahoo, May 17, link now dead).

May 24 — ADA & the web: sounding the alarm. “It’s simply a matter of (Internet) time before pitched battles over accommodations in the virtual world rival their physical counterparts,” writes MIT’s Michael Schrage (“Brave New Work: E-Commodating the Disabled in the Workplace”, Fortune, May 15; quotes our editor). The National Federation of the Blind’s recent lawsuit against AOL is “a 500-pound gorilla that party-goers can’t ignore,” according to a metaphor-happy lawyer with Morrison & Foerster. “…If the court rules that AOL is a public accommodation, it could require anyone engaging in e-commerce to make their Web site …accessible to people with disabilities.” (Ritchenya A. Shepherd, “Net Rights for the Disabled?”, National Law Journal, Nov. 15, 1999). “In a few years, if regulatory history is repeated, any Web site that doesn’t provide government-sanctioned equal access for the handicapped could be declared illegal,” warns an Internet Week columnist (Bill Frezza, “The ADA Stalks The Internet: Is Your Web Page Illegal?”, Feb. 28). Coming soon, we hope: a few highlights from the mail we’ve been inundated with on this topic, much of which we haven’t even had a chance to answer yet (thanks for your patience, correspondents!).

May 24 — Bargain price on The Excuse Factory. Usually we urge you to buy books through our online bookstore, but right now Laissez Faire Books is offering an unbeatable discount on our editor’s book about law and what it’s doing to the American workplace, The Excuse Factory, just $12.25 while they last (hardcover, too). And it makes a good occasion to check out the rest of the LFB catalogue. (Order direct from them.)

May 23 — Steering the evidence. The FBI is probing charges of evidence- and witness-tampering in a liability case that led a San Antonio judge last week to impose sanctions on plaintiff’s attorneys Robert Kugle, Andrew Toscano and Robert “Trey” Wilson. Bridgett and Juan Fabila had sued DaimlerChrysler, demanding $2 billion, over a 1996 accident in Mexico which killed several family members in their Dodge Neon. Their lawyers alleged that the car’s steering column decoupler was defective. But someone anonymously sent DaimlerChrysler evidence of misconduct by its adversaries, and eventually the carmaker succeeded in laying before 224th District Judge David Peeples evidence of the following:

* The steering decoupler was broken by the time the carmaker was allowed to see it, but photographs taken shortly after the accident showed it intact. The plaintiff’s lawyers denied for two years having any knowledge of such photos, and then, when they came to light, moved unilaterally to drop the suit, then argued (unsuccessfully) that the judge had no authority to impose sanctions on them because his jurisdiction ended with the suit. Close inspection of the steering decoupler revealed the minute scrapings of wrench marks and other signs of deliberate tampering.

* One of the attorneys’ investigators “tried to bribe two Mexican highway patrol officers in an attempt to change their testimony and threatened the family of a Red Cross official who said Fabila told him the accident had occurred because her husband fell asleep behind the wheel.”

* The “investigator who took the first set of photographs claim[ed] Wilson told him in March that his firm was ‘running a bluff, but we had our hand called.'” The lawyers said later that their real demand was for $75 million, of which they would get 40 percent as their share, according to the San Antonio paper’s Rick Casey.

Senior partner Robert Kugle of the Kugle Law Firm counter-accused the car company of itself bribing witnesses and tampering with evidence, while Wilson and investigator Stephen Garza “both asserted their Fifth Amendment right not to testify”. After an inquiry, Judge Peeples dismissed the Fabila family’s suit with prejudice, ordered attorneys Kugle, Toscano and Wilson to pay $920,000 in legal expenses that DaimlerChrysler had incurred — it’s not quite impossible for a defendant to recover its legal costs in an American courtroom — and said he planned to report his findings to the state bar and to county prosecutors for possible action. The FBI has seized the vehicle pursuant to further investigation, according to Casey. Kugle continues to declare his innocence of wrongdoing and says he intends to appeal; the other two attorneys were not available to reporters for comment. Ken Glucksman, associate general counsel of DaimlerChrysler, said the case was “the most flagrant example of misconduct I’ve seen in more than 20 years as a lawyer” and said he hoped the attorneys were disbarred. Update: final ruling by judge sets stage for appeal (June 26). Further update (Mar. 17, 2003).

SOURCES: Adolfo Pesquera, “Sanctions issued in tampering case”, San Antonio Express-News, May 18; San Antonio Express-News coverage by Rick Casey, various dates; “Judge Dismisses $2 Bln Suit vs. Daimler”, Reuters/FindLaw, May 18; “DaimlerChrysler wins $920,489 in fines against three Texas attorneys”, AP/Detroit Free Press, May 18; Dina ElBoghdady, “DaimlerChrysler fights baseless suits”, Detroit News, May 19; “Lawyers who sued DC fined”, Detroit Free Press, May 19, link now dead.

May 23 — “Toronto Torch” age-bias suit. Shirley Zegil, 52, has filed a complaint with the Ontario Human Rights Commission, saying she was improperly discharged by a Brantford strip club because of her age. “They told me I was too old and fat,” said Zegil, who has been disrobing for audiences for more than two decades and performs under the nicknames “The Contessa” and “Toronto Torch”. But she still has plenty of loyal fans among older clubgoers: “A girl is never too old to strip,” she says. (Dale Brazao, “Stripper, 52, a winner in my court of appeal”, Toronto Star, May 22, no longer online).

May 23 — Favorite bookmark. Edward E. Potter is president of the Employment Policy Foundation, which plays a prominent role in debates on workplace issues in the nation’s capital. Yesterday the Cincinnati Enquirer asked him to list his favorite bookmarks, and this site made it onto the short list. Thanks! (“Weighing future of work force” (interview), May 22).

May 23 — “Lawyers’ tobacco-suit fees invite revolt”. Arbitrators’ award of $265 million to Ohio tobacco lawyers was the final straw for editors of USA Today, which came out editorially yesterday in favor of limiting attorneys’ tobacco swag. Fee hauls have mounted to $10.4 billion, including $3.4 billion for lawyers representing Florida, $3.3 billion (Texas), $1.4 billion (Mississippi), and $575 million (Louisiana), the latter of which works out, according to a dissenting arbitrator, to $6,700 an hour. The paper calls the “mega-paydays” a “sorry legacy” of the tobacco deal and notes that lawyers “who represented many states are being paid repeatedly for piggyback efforts.” (May 22).

May 23 — “Harvard reenacts Jesus trial”. Among dramatis personae in simulated trial of founder of Christianity: divinity prof Harvey Cox as Pontius Pilate and, as defense lawyer for the man of Galilee, none other than Alan Dershowitz, who “said the role fulfilled a lifelong dream. ‘Jesus is the one client I’ve always wished I could have represented,’ said the law professor whose clients have included O.J. Simpson, Claus von Bulow and Leona Helmsley”. Arguing that crucifixion was too severe a penalty for defying Roman authorities, Dershowitz “came up with a novel substitute punishment. ‘I think it would be appropriate to tie him in litigation and appeals for years,” he said. ‘That way he would spend his life with lawyers, whom he hated.'” (Richard Higgins, Boston Globe/Omaha World Herald, May 13).

May 22 — Texas tobacco fees. “Every three months, like clockwork, another $25 million arrives for the five Texas tobacco lawyers.” The five are fighting tooth and nail to avoid being put under oath by Texas Attorney General John Cornyn, a Republican, about how they came by that money, specifically, “longtime allegations that his predecessor, Dan Morales, solicited large sums of money from lawyers he considered hiring” for the state’s tobacco case. (Wayne Slater, “Trial lawyers give heavily to Democrats”, Dallas Morning News, May 14; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27; Susan Borreson, “Motions Flying Again Over Tobacco Lawyers’ Fees”, Texas Lawyer, July 26, 1999; “Lawyers Challenge AG’s Subpoenas”, Nov. 17, 1999).

So far, according to the Dallas Morning News report, the five have taken in more than $400 million of the billions they expect eventually from the tobacco settlement, and have recycled a goodly chunk of that change into political donations — more than $2.2 million in unrestricted soft money to the Democrats already in this election cycle, with further sums expected. Walter Umphrey, along with members of his Beaumont firm, “has put at least $350,000 into Democratic coffers. ‘The only hope of the Democratic Party is that the trial lawyers nationwide dig down deep and the labor unions do the same thing,’ he said. In addition to Mr. Umphrey and his firm, John Eddie Williams and members of his Houston firm have given $720,000; Harold Nix of Daingerfield, $420,000; Wayne Reaud of Beaumont, $250,000; and John O’Quinn of Houston, $100,000.”

May 22 — Not child’s father, must pay anyway. “Told by his girlfriend that she was pregnant, Bill Neal of Glasgow Village presumed he was the father and agreed to pay child support.” Eight years and $8,000 in payments later, Neal was curious why the child didn’t take after his looks, arranged for a DNA test to be done, and discovered the boy was someone else’s. So far the courts have ruled that he has to keep paying anyway because he didn’t contest the matter earlier. The legal system is big on finality on the matter of paternity, as men have learned to their misfortune in similar cases lately in Ohio, Texas and Pennsylvania. (Tim Bryant, “Man must pay support even though he is not boy’s father”, St. Louis Post-Dispatch, May 17, no longer online). Plus: John Tierney on “throwaway dads” (“An Imbalance in the Battle Over Custody”, New York Times, April 29 (requires registration)).

May 22 — “Jury Awards Apparent Record $220,000 for Broken Finger”. It happened in Atlanta after 41-year-old dental hygienist Linda K. Powers took a spin on the dance floor with Mike D. Lastufka but came to grief when Lastufka “tried a shag-style spin move”; her thumb wound up broken and she sued him. The previously reported Georgia record for a broken finger or thumb was $20,000 to a tennis instructor hurt in an auto accident. (Trisha Renaud, Fulton County Daily Report, Jan. 28).

May 22 — Annals of zero tolerance. In Canton, Ohio, a six-year-old boy has been suspended from school for sexual harassment after he jumped from the tub where he was being given a bath and waved out the window to a school bus that was picking up his sister (Lori Monsewicz, “Boy, 6, jumps from tub into sex harassment trouble”, Canton Repository, May 11). In the latest “finger-gun” incident, the principal of a Boston elementary school visited a class of second-graders to admonish several of them for making the thumb-as-trigger gesture during a supervised play-acting session; the youngsters were not subjected to discipline, however. (Ed Hayward, “School gives hands-on lesson after kids pull ‘finger guns'”, Boston Herald, March 28). And the American Bar Association Journal — who says its views don’t coincide with ours occasionally? — points out that “a child is three times more likely to be struck by lightning than to be killed violently at school” and recounts many noteworthy cases: “A second-grader who accidentally grabbed her mother’s lunch bag containing a steak knife was disciplined despite turning the bag over to her teacher as soon as she realized her mistake. A middle-schooler who shared her asthma inhaler on the school bus with a classmate experiencing a wheezing attack was suspended for drug trafficking.” “Kids are not going to respect teachers and administrators who cannot appreciate the difference between a plastic knife and a switchblade,” says Virginia lawyer Diane Fener. (Margaret Graham Tebo, “Zero tolerance, zero sense”, ABA Journal, April).