Posts Tagged ‘Allstate’

April 2000 archives, part 2


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 1999 archives, part 2


December 31, 1999-January 2, 2000 — New safety rule likely to increase death toll. “The National Transportation Safety Board — acting out the Clinton Administration’s desire to inject children into every political issue — declared 1999 the ‘Year of Child Passenger Safety'”. The Federal Aviation Administration accordingly reversed its longstanding policy and decided to prohibit children under the age of two from riding in their parents’ laps (a practice that saved parents the price of a ticket). Instead they’ll have to be placed in separate child restraint seats. But the cost of the additional tickets will induce many families to drive rather than fly, and an earlier FAA study found that “while mandatory child restraints might prevent five fatalities over the next 10 years, an estimated 82 children and adults would perish on the nation’s roads as families sought cheaper transportation alternatives.” (“The cost of toddler restraints” (editorial), Detroit News, Dec. 23; Jacob Sullum, “Little Restraint” (syndicated column), Reason Online, Dec. 22)

December 31, 1999-January 2, 2000 — NYC subtenants from hell. Susan Teeman’s gruesome ordeal in the New York City housing courts began when she gave her subtenants Stuart and Susan Levy one month’s notice that she needed to reclaim from them her $550-a-month, one-bedroom apartment on E. 76th St. That was back in 1985. It took eleven years of litigation to get them out, followed by a few more years’ worth of tag-on court proceedings, during which time they engaged in tactics that judges labeled “outrageous,” “abject nonsense,” “vexatious” and “reprehensible”. Don’t read this one unless you want to get upset (Dareh Gregorian and Erika Martinez, “Subtenants from Hell Gave Her a New Lease on Strife”, New York Post, Dec. 30)

December 31, 1999-January 2, 2000 — More assertions of link liability. In a suit filed in California Superior Court in Santa Clara County, lawyers for the DVD Copy Control Association are seeking a restraining order against some 72 programmers and websites, attempting to block dissemination of software that allows consumers to de-encrypt the digital movie format for purposes of copying. The suit targets not only websites which make the software available on their servers for download, but also popular discussion sites such as Slashdot and Usenet archive Deja which have allowed the posting of web addresses where the software may be found. “If linking to data is ever ruled a liable offense, then the Web is effectively worthless. I think the courts will recognize this,” said Rob Malda, one of the founders of Slashdot. On Wednesday Judge William J. Elfving denied the request for a temporary restraining order; a hearing on the request for a permanent order is scheduled for January 14. (Slashdot reporting and discussion; Chris Oakes, “Case Hinges on Reverse Hack”, Wired News, Dec. 28 and “DVD Round One Goes To Hackers”, Dec. 29; Mike Musgrove, “Suit Targets DVD-Copying Software”, Washington Post, Dec. 29, link now dead).

December 31, 1999-January 2, 2000 — “Love contracts” spreading to U.K. An unnamed British company is following the lead of some U.S. firms by drawing up “love contracts” for employees to sign if they become romantically involved with co-workers, to protect the company from later charges of sexual harassment (see Dec. 3 commentary). The BBC says there’s a question “whether such contracts will rile employees by killing off what many see as a harmless facet of office life”. (“Beware of the ‘love contract'”, BBC News, Dec. 30).

December 31, 1999-January 2, 2000 — Free expression, with truth in advertising thrown in? A federal judge ruled on Tuesday that Roseville, Minn. personal-injury attorney Todd Young has a constitutional right to fly the pirate flag, the Jolly Roger, outside his office to advertise his practice. Town officials had objected to the flag as a banner prohibited by its advertising-sign ordinance. Municipal attorney Joel Jamnik said the town was not planning an appeal but would instead attempt to reword its ordinance more carefully to remedy what the judge saw as impermissible vagueness. “These are essential rights,” said Young. (John Welsh, “Avast, ye swabs! Jolly Roger to fly freely in Roseville”, St. Paul Pioneer Press, Dec. 29)

December 29-30 — Class action toy story. Toys-R-Us, Mattel, Hasbro, and other toy companies agreed this year to settle antitrust charges brought by private class action lawyers and the attorneys general of 44 states, which accused them of having conspired to allow only a limited selection from the manufacturers’ toy lines to be sold in warehouse discount stores (for example, toys destined for those stores were often grouped in “combination packs” for customers willing to buy several at a time). The terms of the settlement included $3.25 million for the private lawyers, $1.8 million to be recycled into the budgets of the state AGs, $335,000 for the National Association of Attorneys General, and $12.8 million to be distributed among the states for children’s programs. In addition, the companies agreed to furnish toys from their inventory with a nominal value of tens of millions of dollars to be distributed to poor kids at Christmas, an agreement that gave the state attorneys general the perfect occasion for issuing self-congratulatory press releases (samples: Calif. (link now dead), N.Y., Texas, Tenn., Idaho, Iowa). “At Christmastime in 1998, 1999 and 2000,” notes Forbes‘s Dan Seligman, “the attorney general of just about every state gets to play Santa Claus, and has a chance to dwell publicly on the wonderfulness of attorneys general who bring toys to the kids.” Meanwhile, actual customers who bought toys during the period get $0.00 — it would be impractical to identify them, explains the settlement notice — and some even suspect those customers will foot the bill in the end as companies pass on the cost of such litigation in higher prices. (Dan Seligman, “Mutant Ninja Lawsuits”, Forbes, Oct. 18).

December 29-30 — Down repressed-memory lane I: costly fender-bender. A jury in Milford, Connecticut has ordered George B. Daniels to pay Andrea Karlsen more than a half million dollars over a low-speed auto collision that, Karlsen’s attorney argued, caused her post-traumatic stress disorder by bringing back memories of childhood abuse. Daniels, himself a sitting judge in New York who has been nominated to the federal bench by President Clinton, acknowledged that the mishap on the Boston Post Road in Orange, Ct. on Dec. 29, 1991 had been his fault. “But he testified that the accident was so minor that neither an ambulance nor a tow truck was needed afterward”. Plaintiff’s attorney Loren Costantini, however, sought more than $6 million in damages, arguing that the incident had “triggered post-traumatic stress disorder in Karlsen and memories of childhood abuses so severe that she became ill — both mentally and physically — and unable to work as a flight attendant.” Ms. Karlsen, a former model and Playboy bunny, became distraught after the verdict, “screaming and crying in disappointment that she was not awarded more money”, and yelling at defense attorney John Costa, “You’re a murderer. He tried to kill me.” (Heather O’Neill, “$523k awarded for fender bender”, Connecticut Post, Nov. 6; “Judge must pay accident victim $500,000”, AP/Norwalk, Ct. Hour, Nov. 7 (not online); Thomas Scheffey, “All in her head”, Connecticut Law Tribune, Nov. 16).

December 29-30 — Down repressed-memory lane II: distracted when she signed. A Canadian judge has granted a woman’s request to nullify a 1990 separation agreement with her ex-husband which she had signed under mental duress; the duress was occasioned, she said, by reemergent memories of childhood sexual abuse. Accepting the woman’s claim of incapacitation, Mr. Justice Donald Taliano found that she was “so overcome by mental illness that she was incapable of dealing with even the simplest of life’s demands, let alone the complexities of a separation agreement” and ordered her ex-husband to repay her $180,000 (Canadian), although his earning capacity is limited since he is retired and in the early stages of Alzheimer’s disease. (Donovan Vincent, “Man ordered by court to repay ex-wife $180,000”, Toronto Star, Sept. 7, not online)

December 29-30 — Just like the Bourbons. Ah, those editorial-writers at the New York Times, who for so long have learned nothing and forgotten nothing. “It has become fashionable to depict the proliferation of lawyers and lawsuits as something negative — both symptom and cause of a self-indulgent ‘culture of rights'”, rumbles the paper’s Dec. 24 editorial. “This fashion may pass… At the moment, though, Congress and the current Supreme Court seem determined to exploit this misconception in mischievous ways…” There in a nutshell you have the Times‘s editorial philosophy on the litigation issue: sure, Americans may be dragging each other through the misery of courtroom battles in “proliferating” ways, but it’s a “misconception” to view that as “something negative”. (“The Expanding Reach of Civil Rights”, Dec. 24, not online)

December 29-30 — Spreading to Australia? “Children exposed to their parents’ smoking may soon begin suing them”, predicts a prominent Australian lawyer. Note, however, the real financial target: “Children would be reluctant to bring such claims, he conceded, but not if the parents’ home and contents insurers were the opponents.” Indeed, it’s not hard to imagine some parents conniving at suits against themselves as a way of scooping cash for their offspring out of their homeowners’ policies. Attorney Eugene Arocca also predicts Australia may follow the lead of some U.S. courts which count smoking as a factor against parents in child custody battles. (Darwin Farrant, “Children may sue smoking parents”, The Age (Melbourne), Dec. 27 (via Junk Science)). (more on smoking and custody: SmartDivorce.com, TOTSE, ASH) (& see Jun. 3-4, 2002).

December 27-28 — “Year’s Weirdest News”. News of the Weird columnist Chuck Shepherd includes two litigation stories in his ten-oddest list this year. (“A Look At…The Year’s Weirdest News”, Washington Post, Dec. 26). Under the heading “Now That’s a Return on Investment”: “A jury in Birmingham, Ala., ruled in favor of Barbara Carlisle and her parents in their lawsuit against two companies that overcharged them $1,224 for two satellite TV dishes, awarding the threesome $581 million. After cries of ‘jackpot justice,’ the judge slashed the award to a mere $300 million.” (quoting Associated Press, May 11, Aug. 27) And: “A judge in Tampa denied tobacco-litigation lawyer Henry Valenzuela his $20 million share (out of $200 million in legal fees from the state’s 1997 settlement with cigarette companies) because he was late in paying his $2,500 share of a litigation expense”. (Larry Dougherty, “Lawyer won’t get tobacco money”, St. Petersburg Times, July 27). The $200 million refers to the fee obtained by the former law firm of Yerrid, Knopik & Valenzuela; collectively, law firms were awarded $3.4 billion for representing the state of Florida.

December 27-28 — Zero tolerance roundup. Scott Hogenson, writing at Conservative News, recalls the time a sixth-grade classmate in his small Minnesota town stabbed him in the hand with a pencil. “I probably deserved it. Perhaps I teased her one too many times”. Both parties have since grown into happy, productive adults; how lucky they are that it happened thirty years ago, at a time when the consequences for her did not include a serious police record, expulsion, etc. (Scott Hogenson, “Assault With a Deadly Pencil”, Conservative News, Dec. 10.) In Windsor, Ont., the Children’s Aid Society promptly launched an investigation after an 11-year-old girl turned in a story for her 6th grade class about a fictional family with a violent father. “This accusation was just thrown at me,” said the girl’s mother, Laura Scalia, who is single, describing the visit of an official who showed up at her door. “No effort was made to substantiate who I or my daughter are….It seems so easy for them to screw someone’s life up.” (Don Lajoie, “11-year-old’s school essay sparks children’s aid probe”, Windsor Star/National Post, Dec. 17).

The Christian Science Monitor says a zero tolerance policy may work best if it “allows principals some leeway to define what ‘zero’ is”, which might seem to retreat from the original concept, no? (Peter Grier and Gail Russell Chaddock, “Schools get tough as threats continue”, Nov. 5.) And we recently stumbled across a site entitled “Zero Tolerance = Zero Common Sense = Zero Justice“, which hasn’t been updated much lately but has scores of links and clips from the period 1996-98 documenting the trouble kids were getting into when found in the possession of lunchbox bread knives, water pistols, cough drops, and so on. (H. Churchyard site).

December 27-28 — “Bug lawyers” prosper. The Montgomery, Ala. law firm of Crosslin, Slaten & O’Connor has found a happy niche representing exterminating companies. (Its website: www.buglaw.com.) Several of its attorneys have themselves become certified pest control operators, and the firm has its own plane, which it dubs Bug One, to reach clients quickly. “Reflecting the general trend toward litigiousness, pest control operators are being sued more.” (Richenya A. Shepherd, “‘Bug Lawyers’ Invade the South”, National Law Journal, Dec. 13).

December 27-28 — You shoulda flunked me! Derek Boult, a former student at Murrietta Valley High School near Riverside, California, has sued the school and his football coach, saying he was improperly given passing grades and promotions as part of a policy of according favorable treatment to student athletes. The lawsuit, which also names the school’s former football coach, charges that overly lenient grading deprived Boult of the right to an education as provided by the state constitution. Eventually Boult proved unable to keep up the requisite minimum 1.5 grade point average, had to switch to a remedial school and was unable to graduate with his class. His attorney, Anthony D. Weber, of Palm Desert, charges that the school should have given him failing grades at an earlier point and taken him off the team. “He deserved to have bad grades,” he said. “He didn’t deserve to play football.” (Daniel G. Jennings, “Athlete Sues School for Letting Him Pass”, San Francisco Daily Journal, Oct. 25 — not online)

December 27-28 — “Few Settlement Dollars Used for Tobacco Control”. The year’s most durable shock-the-naive story: states are spending only a minor share of their enormous tobacco-settlement booty on causes dear to anti-smoking activists, such as those billboards and TV ads that hector smokers and vilify cigarette executives. “Of the 23 states that have decided how to spend their money, the majority appear to view the dollars primarily as a hefty new revenue source to be spent on whatever the state needs.” How many serious observers imagined it would be otherwise? In Rhode Island, putatively in the vanguard of children’s-health activism as the first state to sue lead paint makers, “teen smoking has increased from 21% in 1993 to 34% in 1999,” if the numbers from a state Health Department survey are to be believed. (Alissa Rubin, “Few Settlement Dollars Used for Tobacco Control”, Los Angeles Times, Dec. 25).

December 27-28 — 150,000 pages served on Overlawyered.com. Thanks for your support!

December 23-26 — Christmas lawyer humor. A selection culled from around the web:

Xmas stocking“Merry Christmas from the Legal Department” (Yuletide wishes consisting entirely of disclaimers):

Though we, the “Greetor,” wish you well
In our Holiday Entreaty,
We limit all your claims, Dear Friend
(Hereinafter called the “Greetee”).

We wish you dreams of Sugar Plums
And dancing Christmas Lights,
But if these Fancies come to Naught
You have no Vested Rights… ” (more)

— LaughNet; attributed to Edward G. McManus.


Xmas stocking“What hath a lawyer to do with Christmas? For Christmas is a joyous festival of loving and giving, in a dark, cold time of year; when we forget ourselves in all kinds of silliness as we try to forget our troubles, a time of wild abandon learnt from our pagan ancestors, and at bottom hath no logick to it. Whereas your lawyer is a crabb’d and serious fellow, who hath studied his eyes out reading the Law and aspires to be old and blind before his time, and knows no more of wild abandon than a fence-post; a sober black-coated mole of a man, who’s always teaching us to be ungenerous, and always writing mean-spirited documents that turn square corners and won’t give a poor fellow an inch; who wouldn’t give away one of his old scintillas without he gets a proper quid pro quo for’t. He wouldn’t know jollity if it bit him, and never, never can forget himself; and if a handsome wench should catch him ‘neath the mistletoe would cavil and demur and plead in bar ’till he’s made her sign a solemn oath that she won’t sue him for sexual harassment….” (more)

— “Joys of the season for divorce lawyers” by Virginia attorney Richard Crouch. Notwithstanding the puckish tone of the above, the piece goes on to offer serious and sensible advice on how to avoid letting holiday strains turn someone you love into a potential client of the divorce biz.


Xmas stocking“The night before Christmas” (attorney’s version): “Whereas, on an occasion immediately preceding the Nativity festival, throughout a certain dwelling unit, quiet descended, in which could be heard no disturbance, not even the sound emitted by a diminutive rodent related to, and in form resembling, a rat;…” (link now dead) (HumourNet, Dec. 6, 1995, from NEA Journal, Dec. 1960)

“A lawyer’s Christmas” (same idea): “…Hosiery was meticulously suspended from the forward edge of the woodburning caloric apparatus… ” (more) (TnT Web Design site)


Xmas stocking“Restructuring at the North Pole” “As you know, the eight maids-a-milking concept has been under heavy scrutiny by the Equal Employment Opportunity Commission. A male/female balance in the workforce is being sought….The four calling birds will be replaced by an automated voice mail system with a call waiting option. An analysis is underway to determine who the birds have been calling, how often and how long they talked….The two turtle doves’… romance during working hours could not be condoned. The positions are therefore eliminated….Regarding the lawsuit filed by the attorney’s association seeking expansion to include the legal profession (‘thirteen lawyers-a-suing’) action is pending.” (more) (author not known, Don Tolin webpage)

December 23-26 — “Trial lawyers on trial”. Trevor Armbrister’s outstanding new Reader’s Digest article scrutinizing the plaintiff’s bar is now online at the Digest website. It’s got drop-your-jaw numbers on campaign contributions, hard-hitting coverage of the tobacco-fee scandal and the Florida and Maryland laws retroactively expanding tobacco liability, a concise summary of the Norplant and breast-implant outrages, new and pithy quotes from such keen observers as John Langbein, Stuart Taylor, Jr. and Marc Arkin, a few words from the editor of this site on the need for a loser-pays rule, and much, much more. Don’t even think of missing this one (Trevor Armbrister, “Trial lawyers on trial”, Reader’s Digest, Jan. 2000).

December 23-26 —“Fen-Phen Settlement Might Be Off”. Not for the first time, lawyers rely on the Mississippi courts to get unusually favorable results that they hope to roll out nationwide. This Associated Press article also quotes this site’s editor (who’s clearly on a roll today) (Paul Payne, AP/Excite, Dec. 22, link now dead)

December 23-26 —“In race to sue Microsoft, some trip”. In the legal siege of Redmond, “the race to sue — and stake a claim in this hoped-for gold rush — is producing some memorable legal bloopers,” reports David Segal of the Washington Post. “Lawyers behind one suit filed in a California state court, for instance, seemed momentarily confused about Microsoft’s core business. The complaint drafted by San Diego’s Krause & Kalfayan suggests at one point that the software maker is actually competing in the generic drug market. ‘These arrangements have enabled Microsoft Corporation to exclude other developers of Intel-compatible PC operating systems from obtaining the supply of such generic drugs’ active pharmaceutical ingredient (“API”),’ the complaint states on Page 2.” Partner James C. Krause sheepishly admits that the firm copied out the pleadings from an earlier class action and forgot to change the relevant verbiage. And it wasn’t the only law firm caught up that way: the suit filed by the law firm of Shelby & Cartee in Birmingham, Ala. describes’ Microsoft’s principal business as being “within the State of Texas” and asserts its right to represent customers injured by past purchases of Windows 2000 (which hasn’t gone on sale yet) and customers of “‘MacIntosh Computer Company’ (it meant Apple Computer Inc.)”

Waite, Schneider, Bayless & Chesley, the Cincinnati firm of famed master-of-disaster Stanley Chesley, charged that Microsoft’s actions “prevent[ed] development of a Windows 95 version of Netscape Navigator”, but one was introduced years ago; a lawyer with the firm explains that by “prevent” he meant “delay”. “It seems like all of these cases were written under the influence of an active pharmaceutical ingredient,” Microsoft spokesman Mark Murray told the Post. “The only people who are going to benefit from these cases are lawyers.” (David Segal, “In race to sue Microsoft, some trip”, Washington Post, Dec. 21 — full story)

December 23-26 — Jovanovic conviction overturned. A New York appeals court has overturned the kidnapping and sex abuse conviction of Columbia University graduate student Oliver Jovanovic. (“New York appeals court throws out conviction of ‘Cybersex’ defendant”, AP/CNN, Dec. 22). This site briefly commented at the end of July on the unfairness of Jovanovic’s trial, at which the judge, applying New York’s “rape shield” statute, forbade the defendant’s lawyers to introduce as evidence emails from the accuser which cast doubt on her story; for more details, see coverage in the New York Post, by Post columnist Steve Dunleavy, and by Brian and Elisabeth Carnell for the Women’s Freedom Network. Jovanovic has served 20 months of a 15-year sentence. Update: all remaining charges dropped against Jovanovic on Nov. 1, 2001 (see Jan. 9-10, 2002)

December 23-26 — New subpage on Overlawyered.com: legal ethics in crisis. Okay, we admit that if we pulled together everything on this site raising questions of legal ethics we’d have a subpage too big to use. So we’ve just gathered here links and commentaries on a range of topics that includes witness-coaching, ethical billing practices, civility, conflicts of interest, champerty and the role of contingent fees, “pay for play”, discipline of errant lawyers by the bar, client protection, judicial ethics, and other matters likely to come up in a course on professional responsibility.

December 22 — A question of t-shirt velocity. On December 7 we summarized the “flying t-shirt” suit filed by Stewart Gregory of Cincinnati against NBC’s “Tonight Show” and host Jay Leno, alleging he was “battered” and “forcefully struck” when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. The next day the AP ran a short item on the case, which added a new detail or two (earlier reports had Gregory alleging that he was hit in the face, the new one says eye) and quoted the 56-year-old plaintiff: “It’s not frivolous when you get hit with a hard object traveling 800 feet per second.” (“‘Tonight’ Audience Member Sues”, AP/Washington Post, Dec. 8). Reader Bob Kanyok from St. Louis writes: “800 feet per second is 545 miles per hour, the speed of a jetliner. A ‘hard object’ the size of a t-shirt at 800 feet per second would have done a lot more than injure his eye, it would have torn his head off. Odd how no one else has picked up on this. Are all the reporters out there innumerate?”

December 22 — Popular continuing-legal-education course: “How to Hammer Allstate”. Seminars with that title have been playing to overflow crowds of trial lawyers around the country. The big insurance company has angered plaintiff’s attorneys by taking a hard line in defending claims filed against its auto policyholders, especially where vehicle damage is minimal and the claim is of soft-tissue injury. “There’s a sense of righteous indignation,” says Robert I. Reardon Jr., who organized one such seminar for the Connecticut Trial Lawyers Association which drew 320 lawyers. Allstate lawyer William Vainisi agrees that the company has been mounting a tough defense effort but says it is directed against “inflated demands and built-up medicals”. (Mark Ballard, “Hot CLE Class: Hammering Allstate”, National Law Journal, Dec. 10). The company has also infuriated attorneys in recent years by contacting persons who have been involved in crashes with its policyholders and urging them to consider settling the claim without a lawyer, a step that its opponents charge violates rules against the unauthorized practice of law. (Danielle Rodier, “Allstate Sheds UPL Claim, Still Faces Consumer Protection Suit”, Legal Intelligencer, April 14; ArkTLA; W.V. bar (link now dead); Phila. Trial Lawyers Assn.; NYSTLA; Conn.; Insure.com). More: Apr. 18, 2000.

December 22 — Pay us for this service. Dr. Xavier J. Caro was stunned recently when lawyers for his wife Cora, from whom he is seeking a divorce, demanded $550,000 from him as a “community loan” as a prepayment of costs for her forthcoming criminal defense. Cora Caro is in the Ventura County, Calif. jail on charges that she murdered three of the couple’s four sons, ages 5, 8 and 11, on Nov. 22 before turning the gun on herself (she survived). The demand letter from Agoura Hills attorney Rand E. Pinsky “lists $600,000 to $800,000 as the equity value of the couple’s Presilla Road home as well as investments and properties they own”, according to the L.A. Times. “The normal procedure in a criminal matter is that defense costs are prepaid,” Pinsky said. Dr. Caro has countersued his wife. “Doctor Files Wrongful Death Suit Against Wife”, L.A. Times, Dec. 16).

December 22 — Tobacco fee fight looms in Mass. Massachusetts Attorney General Thomas F. Reilly is vowing to fight “with every resource we have” to prevent the Boston law firm of Brown Rudnick Freed & Gesmer from collecting roughly $500 million, which the firm says is its share of a $2 billion contingent fee owed by the state over 25 years to five firms that represented it in the tobacco-Medicaid litigation. Reilly says the Brown firm has already been awarded $178 million for the representation: “At some point, enough is enough.” (Frank Phillips, “Reilly to fight claim of lawyers”, Boston Globe, Dec. 20).

December 21 — Accessible websites no snap. It’s hard to think of a better way to slow the growth of the Net than to menace web providers with exposure to liability for mounting or running ordinary, garden-variety websites or online services. Yet under prevailing interpretations of the Americans with Disabilities Act, both large and small e-tailers, online publishers, and applications providers may be open to damage suits on the grounds that their offerings are not accessible (as the term goes) to disabled users. Last month the National Federation of the Blind filed a lawsuit against America Online, charging that it has not moved with sufficient vigor to make its services fully available to sightless users (“Lawsuit: AOL Ignores Blind”, Reuters/Wired.com, Nov. 5, link now dead). AOL is a big business, of course, but there’s no reason to think that accessibility obligations under the ADA do not extend all the way down to many “mom-and-pop” ISPs, applications providers, online magazines and journals, e-stores, and so forth.

What exactly, does it mean for a site or service to be accessible? Disability advocates have declared many commonly encountered features in web design to be unacceptable barriers to one or another group of users. Among them are displays that depend on color to convey information, common methods of employing tables and graphics to assist in page layout, navigational designs that respond to mouse but not keyboard commands, and streaming audio when not accompanied by text translation. (Adam Clayton Powell III, “Is Your Site Accessible?”, Reason, July 1999; W3C, Web Accessibility Initiative). Web operators who ignore the advice of experts in this field must be seen as setting themselves up at some point for potential costly lawsuits. Yet the alternative of giving top priority to ADA compliance is hardly attractive either, since it might involve tearing down existing nonconforming webpages pending future redesign, refusing to employ developers who haven’t gone through special courses aimed at helping unlearn common page-construction habits, and abandoning decentralized publishing models in which many different employees, group members or customers are permitted to erect free-form content on a site. Almost incidentally, another effect would be to involve publishers of all shapes and sizes — First Amendment or no — in ongoing, intimate negotiations with government agencies and private pressure groups over questions of what they will and will not be allowed to publish.

But not to worry, say many disabled advocates — “Bobby” will save the day! Available at the Center for Applied Special Technology site, “Bobby” is a free program with sponsorship from leading businesses that will review any website and automatically diagnose where it needs to be fixed to provide handicap accessibility. Sounds easy enough, right? To be sure, the wave of favorable publicity We are not Bobby approvedabout Bobby this summer revealed the embarrassing fact that many of the federal government’s own major websites, including the White House site itself, were not Bobby-compliant — this even though the U.S. Justice Department was rattling its sword to call private companies’ attention to the issue of high-tech accessibility. (To see the ways in which this site falls short on Bobby, click here; to see how badly the White House still flunks, here).

Given that pretty much everyone’s website seems to be out of compliance, ADA or no ADA, it was with much interest that we noticed the splashy, full-page ads recently announcing the launch of a major new website, evidently with substantial financial backing behind it, that would be specifically geared to the needs of disabled users. The site, called WeMedia, is affiliated with We magazine and aims to create an online community of disabled users for purposes of both service and advocacy. Finally, a chance to see how the experts themselves deal with the accessibility problem! You can therefore imagine how crestfallen we were to find the following notice blazoned on the site’s front page: “Currently, We Media’s site is not 100% ‘Bobby’ compliant. However, we are working very hard over the next few weeks to make sure that it becomes so.” [Update: a check on 2/7/00 finds that WeMedia now displays a Bobby approval button.]

December 21 — “Lawyers stealing less, clients say.” Now there’s a jolly, upbeat headline for you! “For the first time in its 16-year history”, the fund that reimburses victimized clients when Empire State attorneys commit theft or fraud is experiencing a sharp drop in payouts, according to the New York Law Journal. Officials say they believe the drop in client-cheating is genuine and credit, in part, two major reforms: banks are now directed to notify the client-protection fund when lawyers bounce checks from their escrow account, and insurance companies that pay to settle personal-injury claims are now directed to notify the claimants themselves about the payments rather than rely on their lawyers to tell them. (John Caher, “Lawyers stealing less, clients say”, New York Law Journal, Nov. 19).

December 21 — Oops! Didn’t mean nothing by that, ma’am. At D. McRae Elementary School in Fort Worth, Tex., counselor Seth Shaw got in trouble, according to his account, after he said “Hello, good looking” to a female newcomer he encountered in the office. She turned out to be an outside consultant there to conduct a training workshop on sexual harassment. Officials asked Shaw, a nine-year veteran, to resign over the incident, but school trustees settled for a 20-day unpaid suspension. (Martha Deller, “Fort Worth school counselor assessed 20-day unpaid suspension”, Fort Worth Star-Telegram, Dec. 17).

December 20 — Pack your toothbrush, son. Five years ago young law clerk Richard Poff decided to blow the whistle on questionable practices he’d seen firsthand at his employer, the influential Birmingham, Ala. plaintiff’s firm of Roden, Hayes & Carter. The firm, he said, had been paying hospital and police employees for leads in injury cases, and charging gambling and golf junkets, Royal Caribbean cruises and liquor store bills against client accounts. What happened next? All three name partners drew bar suspensions and pled to misdemeanors after arguing, in part, that the expense-charging had not affected clients’ eventual take from their cases.

So was Poff given a hero’s thanks by a local legal profession grateful for his help in cleaning itself up? Not exactly: he became virtually unemployable, was hit with a still-pending $1 million default judgment for libeling his old boss, got thrown in Birmingham jail for three days, and was ordered sent for psychiatric examination. “It seemed as though every judge in town was warning him to pack a toothbrush.” For a while, a judge even ordered the state’s press not to report on the proceedings. The state’s Supreme Court has yet to rule in the affair, but the lesson’s been made crystal clear for anyone who might be tempted to emulate Poff: don’t try to fight the legal fraternity. (Michael Goldhaber, “Crazy in Alabama”, National Law Journal, Dec. 15).

December 20 — Cute names for laws: enough, already. One example of the triumph of sentiment over dispassion in contemporary law is the naming of new criminal statutes after the victims they’re meant to avenge. Thus we got the “Megan’s Law” sex offender registries, followed more recently in New York by “Buster’s Law”, a felony animal abuse statute named after a murdered cat. We’re not alone in our dislike for this practice: Albany lawyer Terence Kindlon says you shouldn’t “give cute names to law…Can you see the words ‘Buster’s Law’ coming out of the mouth of Oliver Wendell Holmes?” Currently defending a Rensselaer Polytechnic student who faces a possible two-year jail sentence for breaking his dog’s leg during what he says was an attempt at discipline, Kindlon believes the law’s headline-friendly nomenclature is presenting him with an uphill battle. “It is sort of a celebrity law, it is a law with a built-in press agent.” (Joel Stashenko, “Attorney questions practice of naming laws after victims”, AP/Schenectady Gazette, Dec. 19)

December 20 — Those Bronx juries. “In civil cases, they are extraordinarily generous. ‘Let’s face it: the Bronx civil jury is the greatest tool of wealth redistribution since the Red Army,’ said attorney Ron Kuby, who won a $43 million civil judgment against subway gunman Bernie Goetz from six Bronxites.” (“Bronx juries: all things to all people”, AP/Newsday, Dec. 18).

December 20 — Stroller-parking: then and now. Last Tuesday a Manhattan jury rejected a Danish woman’s claim “that New York City police officers had falsely arrested her outside an East Village restaurant after she left her baby daughter in a stroller on the sidewalk to go inside for a drink”. It did, however, award Anette Sorensen $6,400 in compensatory damages for the cops’ failure to inform her that she had the right to summon help from the Danish consulate, plus $60,000 in punitive damages — an outcome that, perhaps oddly, both sides in the case appear to view as vindication for the police. In today’s New York Times, Sven Larson writes a letter from Hvidovre, Denmark, to dispute Sorensen’s claim that she was only following the practice in her home country: “While many [in Denmark] leave carriages outside shops for a couple of minutes, no one parks a baby outside a restaurant after 6 p.m. for as much as an hour.” The difference, he says, is that in Copenhagen “the police would have asked her kindly to bring the carriage inside and nothing more would have happened”. (Benjamin Weiser, “Damages but No False Arrest in Stroller Case”, New York Times, Dec. 15; letter, Dec. 20). By coincidence, we happened to be visiting James Lileks’s Institute of Official Cheer, an online archive of vintage ad images, and found this 1950 A&P grocery store ad from Life treating it as a selling point for the market that so many mothers left their baby prams out front.

December 20 — News flash: Bill Clinton endorses loser-pays! He now thinks parties charged with wrongdoing should be able to collect for the burdensome cost of their legal defense, if they’ve prevailed in the end. Whoops, scratch that…turns out Bill wants his legal fees covered re the independent counsel investigation, but everyone else who gets dragged into court and eventually prevails can just go fish. (Charles Babington, “Clinton May Ask U.S. to Pay Legal Fees”, Washington Post, Dec. 18)

December 20 — Welcome Robot Wisdom readers. We got a mention yesterday on Jorn Barger’s weblog, one of the earliest, most eclectic and most widely followed examples of the genre.

December 17-19 — Splitsville, N.Y. Cover story in last week’s New York on the city’s big-league divorce biz arrives at a consensus view of the broad legal trends (“equitable distribution” keeps getting messier and more expensive, “lawyers have to play constant catch-up as new, intangible assets are added to the marital-property pot”, judges have vast discretion so it’s hard to predict what they’ll do), celebrity tactics (on the oft-used gambit of threatening to send dirt to the tabloids, the “bullet of embarrassment only has cash value when it’s in the chamber”), the cushy, cash-vacuuming role of minor players (asset evaluators and guardians of children’s interests, appointed by the court and paid out of the marital estate, can “make a fortune”, agrees the city’s top judge) and social strain (guest at East Side dinner party bursts into tears on finding she’s been seated beside lawyer who’d represented her husband, but it wasn’t easy to re-seat him: “At a table for ten,” he explains, “I’d done five divorces”).

Bitter clients? No trouble finding those: “Being the best divorce lawyer in New York is like being the best devil in Hell,” says publisher Judith Regan, whose own split has cost more than $1 million over seven years. “It means you’re avaricious, conniving, and vicious….Divorce law is not about justice or fairness or protecting anyone’s rights or what’s best for a child; it is big business.” “The first thing they get is a net-worth statement,” says another unhappy customer, plastic surgeon Ronald Linder. “Then they make sure they get your total net worth.” Lawyers counter that unreasonable clients often spurn settlement and insist on fighting every issue, though attorney William Beslow notes that “there’s a built-in incentive to keep litigation going by either purposely misadvising clients or telling them what they want to hear, which solidifies the relationship but ensures conflict”.

Attorney Raoul Felder, as is his wont, dispenses extreme quote. Of charges that threats of publicity constitute extortion: “Isn’t every lawsuit a form of legal extortion? The law is constructed that way. Pay me or go to court.” According to New York, a “low point” in Felder’s career came when he “[p]ublicly declared Robin Givens wanted nothing from Mike Tyson one day after privately demanding an $8 million settlement.” “On one level, it’s sleazy,” he says. “On another, I’m not robbing supermarkets.” (Michael Gross, “Trouble in Splitsville”, New York, Dec. 13).

December 17-19 — Truth in recruitment? An Essex County, N.J. jury yesterday awarded more than $10 million to former New York Giant football player Philip McConkey on the grounds that he had been lied to when he was recruited for a management job at an insurance brokerage which was in talks to sell itself to a larger company. McConkey said he would never have taken a job at Alexander & Alexander in May 1996 had he realized the firm would be bought in December of that year by insurance company Aon Corp. The job offered base pay and benefits of $352,000 a year, with a chance of commissions of $3 million to $5 million a year. The following March he was fired from the job, he said. Frank G. Zarb, chairman of A&A at the time, testified that when he interviewed McConkey he’d already engaged in preliminary talks with Aon, but considered A&A’s management as the side that would come out on top if the two companies were combined.

The company also pointed to McConkey’s employment contract, which it said demonstrated that he was an “at-will” employee who could be dismissed for any reason. In vain: the jury voted the former wide receiver and Navy helicopter pilot $3 million for lost income, $2 million for emotional distress, and $5 million in punitive damages. Zarb himself, however, “was dismissed as a defendant before the trial started”; he is now chairman of the National Association of Securities Dealers, which runs the NASDAQ stock market. The case may represent a breakthrough for employment plaintiff’s attorneys who have for years been pushing “recruitment fraud” theories of recovery. (Jeffrey Gold, “Jury Finds NASD Chairman Lied”, AP/Excite, Dec. 16)

December 17-19 — Transit shutdown. A jury has awarded $50 million to Shareif Hall, who lost a foot in an escalator accident on the Philadelphia subway system, and $1 million to his mother, Daneen. Robert T. Wooten, a board member of the Southeastern Pennsylvania Transportation Authority (SEPTA), called the jury verdict a “very, very serious financial blow” to the finances of the transit agency, and predicted service cuts and fare increases if the award or any substantial fraction of it is upheld on appeal.

According to the boy’s lawyer, Thomas Kline, the jury was angered when memos emerged from the transit agency that stated that the escalators were in poor and deteriorating condition. State law limits personal-injury awards against public entities, but Kline successfully recharacterized the claim as in part one of deprivation of the boy’s civil rights; $25 million of the jury’s award was to compensate the boy for that purpose, and therefore is not subject to the limit. (“Boy awarded $50 million in Pennsylvania escalator accident”, AP/CNN, Dec. 15, link now dead; Claudia N. Ginanni, “Documents Uncovered Mid-Trial Fuel $51 Million Injury Verdict v. SEPTA”, PaLawNet, Dec. 15 (subscription))

Update: After the verdict, 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 Jan. 29-30 commentary).

December 17-19 — “New Mexico county is ordered to use non-English-speaking jurors”. A judge ruled this fall “that potential jurors in Dona Ana County cannot be eliminated simply because they do not speak English”. Now officials are wrestling with questions like: should each juror get his own translator? How will the presence of translators in the jury room influence deliberations? What if a juror facing a language barrier asks to be excused from sitting on a case? Court-paid translators can expect to get a workout, given that all the testimony, documents and exhibits, lawyers’ arguments and judges’ instructions in cases will commonly be in English. And Spanish is not the only language that must be accommodated; one prospective juror spoke a particular Indian dialect the translation of which would have required the services of a specialty translator at $180 an hour, had the juror not been excused for health reasons. (AP/FindLaw, Dec. 13)

December 17-19 — Most unsettling thing we’ve heard about Canada in a while. We knew political correctness held great sway in the public life of our northern neighbor, but didn’t realize the following: “Canada’s most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is ‘likely to expose a person or group of persons to hatred or contempt’ because of ‘race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.’ Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful.” (Steven Pearlstein, “In Canada, Free Speech Has Its Restrictions: Government Limits Discourse That Some May Find Offensive”, Washington Post, Dec. 12)

December 16 — Got milk? Get sued. Physicians Committee for Responsible Medicine, a veggie-oriented group of litigious bent that claims 5,000 physician supporters, last figured in these columns on Sept. 25 when it urged the federal government to file a tobacco-style lawsuit against “Big Meat”. Now comes word that PCRM expects Massachusetts state senator Dianne Wilkerson to join it in a lawsuit it has organized charging that the federal government is being racist by distributing milk to schoolchildren. The reasoning? Black children are more likely than white children to display lactose intolerance, a condition that prevents them from digesting one of the major nutrients in milk. Wilkerson was also concerned to learn that a large cereal manufacturer was sending free cereal to the Boston schools, thus encouraging more milk consumption. “I want us to become health-food conscious, lactose-free public schools,” Wilkerson told the Boston Globe. “There are other options, like calcium-fortified juice.” (“Got milk? Minority schoolchildren do, and maybe they shouldn’t”, AP/Boston Globe, Dec. 13, link now dead (via Lucianne.com))

December 16 — GM verdict roundup. Marion Blakey, who used to run the National Highway Traffic Safety Administration, finds it remarkable that verdicts like this summer’s Anderson v. General Motors (see our July 10, August 27 commentaries) allow lawyers to shift legal responsibility for accidents away from drunk drivers to automakers with their deeper pockets, at the eventual expense of car buyers. (“Drunken drivers make mockery of justice”, Detroit News, Dec. 9). The Los Angeles jury’s initial award of $4.9 billion, since reduced by the judge to a putatively more reasonable $1.2 billion, “surpasses the combined gross domestic product of Afghanistan and Albania”, writes op-ed contributor Jim Lafferty (“Two astronomical lawsuit awards may be start of dangerous trend”, San Diego Union-Tribune, Nov. 14). The Federalist Society has mounted a series of panel discussions around the country on the lessons of the Anderson case, and has posted transcripts of the proceedings on its website. And on Monday the Christian Science Monitor ran an op-ed point-counterpoint about the case between R. David Pittle, technical director of the remorselessly pro-litigation Consumers Union, and classic-car auctioneer Mitch Silver. (R. David Pittle, “Fix car design before lawsuit“, and Mitch Silver, “Create wise policy, not crash-proof cars“, Dec. 13). Update Aug. 3, 2003: case settled on undisclosed terms.

December 16 — Gotta regulate ’em all. Quebec Language Minister Louise Beaudoin has threatened legal action against the makers of Pokémon trading cards for allowing them to be sold in the province without French-language packaging or instruction. Ms. Beaudoin said a French version of the popular cards is sold in France itself, Belgium and Switzerland, but is not available in la belle province despite local laws mandating use of the language: “I don’t understand and I can’t accept it … we hope this ultimatum will result in our law being respected.” The cards’ manufacturer, Wizards of the Coast of Renton, Wash., says rights to sell the Japanese-origin cards are divvied up geographically, and that it has North America; it completed an English-language translation first, and now has finished work on a French version which it expects to have on sale in Quebec by February. (Sean Gordon, “Quebec minister demands French version of Pokemon”, National Post (reprinted from Montreal Gazette), Dec. 10) (earlier Pokémon coverage: Oct. 13, Oct. 1-3).

August 1999 archives, part 2


August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”

However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).

August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.

August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.'” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.

August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.

August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).

Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.

August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).

August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).

August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).

August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)

August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:

* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)

* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).

* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).

August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (“.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (“Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).

Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (“Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.

While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com‘s July 10 commentary as a resource in its Full Coverage feature on the case.

August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).

Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).

August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).

August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (“Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).

August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.

August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.

August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknowledged Police Commissioner Paul Evans. Why not just end the embarrassment by dropping the suit? (Boston Globe, Aug. 17; link now dead)

August 25 — Calif. state bar improperly spent dues on politicking. The Pacific Legal Foundation had brought suit on behalf of 40 members of the bar in the Golden State. In the 1990 case of Keller v. State Bar, the U.S. Supreme Court unanimously ruled that state bars with compulsory membership must offer a refund to members of moneys spent on politicking to which they object. The California bar proceeded to announce that of the $450.00 dues it charged in 1989, a bare $3.00 was spent on ideological and political activities, a figure it arrived at by designating much of its Washington and Sacramento legislative effort as merely one of “advising” lawmakers which bills to pass. We don’t think so, rules Sacramento County superior court judge Morrison England Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).

August 25 — Lawyers grabbing too much of Swiss bank settlement, charge Holocaust survivors. Yes, it’s one of the sadder headlines of 1999, and no, it’s not one of the more surprising to many who’ve followed the issue. “Gizella Weisshaus, one of the first to sue the banks, said she no longer wanted to be associated with the lawsuit because it would leave too little money for survivors.” (AP: Washington Post, CNN (links now dead)).

August 25 — “Employee lawsuits increasing”. Survey of 353 companies by Society for Human Resource Management and law firm of Jackson Lewis finds slightly more than half have faced employment-related lawsuits, with nine of ten suits coming from former employees. “Another 37 percent of the companies responding to the survey were sued by a current employee, while 8 percent were sued by unsuccessful candidates for employment.” Partner George Wilkins of Cincinnati’s Dinsmore & Shohl says labor and employment is the fastest growing area at his firm. (John Eckberg, Cincinnati Enquirer, August 22; SHRM June 27 press release)

August 24 — The dream verdict. On July 12, three days after a Los Angeles jury voted $5 billion against GM in the Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in a case where several members of Juan Romo’s family had been killed in a rollover accident in their Ford Bronco. Ford’s motion for a new trial, filed last week, sheds light on how such cases are tried in today’s American courtroom.

Plaintiff’s counsel had railed against the “giant,” “wealthy” Ford with its “lawyers back east in Dearborn.” (“I talked about this case was about…corporate greed and arrogance…It’s also about this. It’s about Mrs. Romo’s purse….She didn’t have furniture for crying out loud, and she’s giving money to the church and she’s putting it [in her purse] to provide for the education of her children.” Damages? “You’ve got to say a number that gets on the front page of every newspaper in the country.”

How to deal with the inconvenient circumstance that the Bronco design more than exceeded the standards set by the National Highway Traffic Safety Administration? Keep hammering away at the idea that federal standard-setting (presumably in contrast to jury persuasion) is a “political” process (“that political report called the Federal Register”; “NHTSA has…political appointees”; “You got a reading from a Federal Register as it goes out to the politicians.”)

California law allows affidavits to be taken from jurors after a verdict. According to Ford’s motion, these affidavits revealed that one of the jurors acknowledged she had prejudged the case and told fellow jurors they did not have to follow legal instructions because the case allowed them to “save the babies”. Of one attorney, she said he “really was trying to do something good, and that what he said should be considered as evidence.” And, several jurors testified, the same juror told them at great length about a gruesomely detailed dream she’d had — which she described, not without mystical overtones, as an “omen” — in which a Bronco repeatedly rolled over and killed all the jurors’ children, while the company’s line-up of attorneys and witnesses — armed with guns, no less — “stood by taunting the jurors by chanting ‘Where’s the proof, where’s the proof?’”

The juror affidavits also suggested that the panel was strongly influenced by crash exposés that had aired on “60 Minutes” and similar programs, attacking other Ford models that trial lawyers were suing over, which a second juror saw as proving that Ford had acted in bad faith in such cases. One of these shows, watched by more than one juror, was aired by CBS on May 19, only weeks before the verdict, and included material prejudicial to Ford that the court had excluded from evidence in the Romo case. The apparent influence of the TV coverage helps explain why trial lawyers have gone to such extraordinary lengths over the years, behind the scenes, to shape the coverage on such shows.

After the trial, Ford says, while it was in the process of interviewing jurors to gather affidavits in connection with this new trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to send the jurors a free gift, consisting of his own book inveighing against big business (“The Civil War on Consumer Rights“), which happened to feature a whole chapter devoted to attacking none other than the Ford Motor Company. Included was a note and personal inscription to the jurors: “for all us who care.” Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).

August 24 — Beyond the hired-gun syndrome. Good op-ed in Sunday’s (8/22) Washington Post by David L. Faigman of Hastings College of the Law discussing the Court Appointed Scientific Experts project of the American Association for the Advancement of Science (AAAS). Faigman’s book “Legal Alchemy: The Use and Misuse of Science in the Law” will be published in October by W.H. Freeman & Co.

August 23 — Fertilizer manufacturers not liable for World Trade Center bombing. The Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit by the Port Authority of New York and New Jersey, which had demanded that manufacturers be made to pay damages for the 1993 terrorist bombing of the twin Manhattan towers on the grounds that the misuse of their wares to make fertilizer-and-fuel-oil bombs was “objectively foreseeable”. The appeals court found the lower court had correctly ruled that the manufacturers’ conduct could never be the “proximate cause” of the bombing: “The terrorists’ actions were superseding and intervening events breaking the chain of causation,” writes Judge Jane Roth. If applied consistently, such logic could be helpful to other manufacturers sued over criminal misuse of their products, such as gun makers. Also rejected was a theory that the fertilizer companies were negligent for not having instituted “know-your-customer” controls on buyers of their product — again, an issue that finds its parallel in the gun litigation. (Legal Intelligencer, Aug. 19) A press communiqué (link now dead) from the clearly bewildered government of Norway describes how two of that country’s leading industrial companies became defendants in the World Trade Center litigation, referring to “the Americans’ so-called product liability law”.

August 23 — You may already not be a winner. A Canadian court has turned away prisoner Allen Crawshaw’s lawsuit asking $10,000 of Corrections Canada for failing to mail his entry last year to the Reader’s Digest sweepstakes, which had a first prize of $1.4 million. Prison officials conceded they should have mailed the entry but denied that the loss of a chance of winning should entitle him to damages: “Did you ever see the odds of those?” said spokesman Dennis Finlay. Crawshaw, a former shop steward for the United Food and Commercial Workers at a British Columbia food plant, was convicted in 1994 of killing his boss after being angered by a one-day suspension over heated comments he’d made criticizing management; Crawshaw was “known [locally] as a peace activist”. (National Post, Aug. 11)

August 23 — Political Site of the Day. We’re pleased to announce that Overlawyered.com is today’s Political Site of the Day, an award service that has been picking daily sites for more than four years, practically as long as there’s been an Internet. A stroll through PSoD’s library of past sites is a good way to appreciate the spectacular diversity of the Net: within the space of two weeks we ran into the home sites of the Serbian/Yugoslavian royal family, PostalWatch (a watchdog group on behalf of those regulated by the Postal Service), How To Win a High School Election (“It doesn’t matter whether you’re popular or not…”), and Libertarian Rock, which will send you free stickers to protest curfew laws.

August 23 — “Beating up on ‘deadbeat dads’.” “Those who decry judicial tyranny and family destruction should pay more attention to family courts, for they are the arm of the state that routinely reaches farthest into the private lives of individuals and families,” notes Howard University political scientist Stephen Baskerville in an American Spectator article sharply correcting the usual let’s-lynch-’em view of “deadbeat dads”. The night after Bobby Sherrill came home from spending five months as an Iraqi hostage, the Washington Times reported, the sheriff was there to arrest him for not paying child support during his captivity. A Texas janitor wrongfully convicted of murder and then exonerated after ten years on death row was presented on release with a $50,000 bill for child support he didn’t pay while in prison.

Officials push through ever-more-punitive regulations against delinquent pops, then hop over to for-profit private collection firms, hired by their former agencies, that grow fat on the resulting business. It’s hard to go along with Baskerville in dubbing the deadbeat-dads problem a mere “myth”, but hard not to join him in worrying about “mass incarcerations without trial, charge, or counsel; an apparat that has systematized the invasion of private homes and the confiscation of children to a bureaucratic routine; [and] political leaders [who use] their public office as a platform to vilify private citizens who have been convicted of nothing and who have no opportunity to reply” (full story).

August 21-22 — The Marie Antoinette school of public relations. The June issue of George featured a lavish photo spread (“Puff Daddies”) of six lawyers who “have raked in more than $5 billion for their firms from tobacco litigation“. The backdrops weren’t the usual stuffy law libraries, either. They included the racing boat, conspicuously labeled “Gunsmoke”, of Pascagoula’s Richard Scruggs, brother-in-law of Senate majority leader Trent Lott (more than $1 billion in fees for representing Mississippi and other states); the twenty-horse equestrian estate of Charleston’s Joseph Rice (somewhere between $1 billion and $10 billion); the private putting green on the Pensacola estate of Fred Levin ($325 million); a foundation endowed by politically ambitious Michael Ciresi of Minnesota ($440 million; “some of the fees are excessive”, he cheerfully agrees); and the opulent bathtub where South Florida’s Robert Montgomery ($678 million), posed, fully clothed, under what the Palm Beach Post called “English artist David Jagger’s painting of a naked woman”. (Montgomery describes as “outrageous” Florida’s move to accept an $11.3 billion settlement without forking over a full one-quarter of it to lawyers as agreed). An ostensibly less material note was struck by Seattle’s Steve Berman (roughly $2 billion), who previously made it big filing shareholder class actions, and who says, “I got the notion in the ’60s that you can protest by growing your hair long or you can get trained in the methods of the establishment and use their own tools to beat them. There’s nothing better than beating them at their own game.”

Addressing an Americans for Tax Reform audience earlier this summer, Wall Street Journal editorialist John Fund said he marveled at the willingness of the legal tycoons to rub their critics’ noses in their taxpayer-leveraged success by cooperating in such displays. “Even the robber barons in the Nineteenth Century knew better than to do it that way. Is it that they don’t have anyone giving them p.r. advice? Or do they just think at this point they’re invulnerable?”

August 21-22 — Weekend reading. Pixels to take to the cabin or island:

* Next on the identity-politics agenda: “Partly due to the flurry of judicial and legislative activity pursuant to the Americans With Disabilities Act of 1990, disability studies, once an arcane field of literary theory, has begun to attract attention from both the media and the academy,” reports Norah Vincent in the August 18 Salon. Brown University professor Carol Poore asserts that “disability is actually preferable to ability in that able-bodiedness ‘is the precondition for being a tool of the ruling class.'” Some in the disabilities movement “maintain that, even if they were presented with a cure for their disabilities, they wouldn’t take it” (full story).

* Overlawyered.com‘s editor devotes his latest Reason column to the legal background of the Supreme Court’s Davis v. Monroe decision in May, the one that allowed schools and universities to be sued for not remedying “student-on-student” harassment. No federal law in fact creates a right to sue over sexual harassment in education; it’s an “implied private right of action”, which means basically that the courts get to make it up as they go along. (“Title IX’s Invisible Ink“, August/September).

* From the north comes word that the Canadian Broadcasting Standards Council has declined to take action against Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of the “Bugs Bunny and Tweety” show, alleging that the wascally wabbit had uttered remarks demeaning to women (National Post, Fox News/Reuters, Boston Globe (links now dead))

August 20 — The long march through the courtrooms. From Counterpunch.org, the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair: “Hardly had she [Hillary Rodham] raised her foot to step over the threshold of radicalism than she turned back. She declined to go with the SNCC [Student Non-Violent Coordinating Committee], turned down an offer to work with Saul Alinsky as a community organizer in Chicago. Anderson quotes her political science prof at Wellesley, Alan Schecter, as saying that by the late 1960s his pupil had decided that the best radical strategy was to ‘”use the legal system” as an agent of change.’ She wasn’t alone in that calculation. The long march of the left through the courtrooms was under way: the world would become a better place, courtesy of courtroom briefs, complaints and class action suits.

“And so what we have seen, across the last three decades, is the left vanishing into the quicksands of regulation. All society’s problems could be fixed by a statute, a rule, a waiver, a program. Much of the antiwar left vanished into the consumer movement, the environmental movement and legal fixitry. The mass movement died and litigation — often successful — flourished amid the ruins” (“The First Lady Syndrome”, August 11 — full story)

August 20 — “Three insurers sued for $100 million”. $300 million, actually, since a Prince George’s County, Maryland court is being asked to mulct Allstate, GEICO and State Farm nine digits’ worth apiece for the offense of applying managed-care-style guidelines to limit policyholders’ personal medical claims after auto mishaps. This AP story commits a few of the usual journalistic sins: 1) it signals no awareness that the dollar demands in such cases can be arbitrarily picked for shock/news value, our legal system putting no price tag on exaggeration; 2) it ignores the probable role of the lawyers as parties-in-interest (though it does report that many of the individual policyholders’ claims are for less than $100); 3) it finesses the purely circular process by which anyone deems such filings newsworthy (the seven named customers would normally have had trouble getting even back-page local coverage, but instead scored big national headlines. Why? Because their lawyers asserted a right to speak for a large class of policyholders nationwide. Why would a court accord these particular lawyers that right? Well, they did get all this national publicity…) Best detail: “All of the plaintiffs have maintained their coverage with the companies despite the disputes.” Mad enough to sue, in other words, but not mad enough to switch companies (Yahoo/AP; link now dead).

August 20 — New Overlawyered.com pages: tobacco tycoons, litigation in the workplace. Two more newsworthy topics get their own subpages, bringing the number of topical pages to eight. Seven weeks old, this site has now served more than 15,000 pages, with our traffic rate nearly doubling this month from last. Thanks!

August 19 — Plus extra damages for having argued with us. In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (“the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy (link now dead).

August 19 — Click here to sue! Seattle-based Bendich, Stobaugh and Strong, P.C. specializes in employee class actions arguing that temp, freelance and independent-contractor employees were really “misclassified” and deserve retroactive raises and benefits, no matter what the two sides may have thought they were bargaining for at the time. Taking advantage of the Web, the firm makes it really easy to join its suits against Microsoft (see also Jan. 11, 2000 commentary), Arco, King County (Seattle) and Los Angeles County.

August 19 — NAACP’s “ludicrous” anti-gun suit. Ninety percent of murders of blacks are committed by other blacks, David Horowitz observes, but now litigation offers a handy way to blame the toll on distant white-owned gunmakers, advancing “a fantasy in which African-Americans are no longer responsible for anything negative they do, even to themselves”. (Salon, August 16 — full column).

August 19 — Another scare starts to fizzle. “For three years now, organizations ranging from environmental groups to Consumer Reports have been proclaiming the existence of a deadly wave of endocrine disrupters that cause cancer, infertility, and personality abnormalities,” writes Gregg Easterbrook in the August 30 New Republic. Now the National Academy of Sciences has studied the issue of environmental residues of these synthetic hormones and found much less than meets the eye in the scare reports. (full article). Score another one for skeptics Mike Fumento and Ron Bailey, as well as for the New York Times‘s much-hatcheted Gina Kolata, whose refusal to hype the endocrine-disrupter scare was a chief count in the campaign against her typified by Mark Dowie’s article in the July 6, 1998 Nation.

August 18 — Undislodgeable educators. Tenure laws make it hard in many states to remove even a badly underperforming teacher from the classroom, but hopes for reform rose when Bob Chase became president of the National Education Association with an agenda that included “peer review” methods like those pioneered by NEA’s Columbus, Ohio affiliate. “The goal of peer review is to help people succeed,” Chase has said. “But it could also speed up the process of dismissing a teacher who is not successful….We know that it sometimes takes five or six years to get rid of a teacher, and that is too long.”

But can peer review work if it’s just an overlay onto, rather than a substitute for, the laggard teacher’s right to challenge a dismissal by every current legal means? That question is posed by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus schools whom administrators often observed reading the paper in class with his feet up on the desk while students snoozed. Two years of intensively applied peer review, followed by 16 days of hearings, led to the conclusion that Featherstone should be given a “negative release”, and he was suspended without pay. Duration of the process up to that point: three years, and it turned out things were just getting started. Featherstone was soon off to federal court to charge that the dismissal was racially discriminatory, and it’s taken four more years for a judge to dismiss that case — not on the merits, but on the grounds that Featherstone failed to take the procedural steps needed to preserve his rights to sue. (If he had, presumably, the case might still be in progress). The case gets written up in this week’s communiqué (week of August 16) from Mike Antonucci’s invaluable Education Intelligence Agency; subscriptions are free, and highly recommended to anyone with an interest in how schools work.

August 18 — Ohio case fallout. In a blistering editorial (no longer online), the Columbus Dispatch calls the state high court’s striking down of tort reform (see item for August 17, below) “an act of arrogance and an affront to the doctrine of separation of powers”. Meanwhile, furious business groups vow to make the next set of judicial elections a referendum on the court’s activism. Though with a nominal Republican majority, “the current seven-member tribunal has gained a reputation as a ‘plaintiffs’ court.’ Two Republican justices, Andrew Douglas and Paul E. Pfeifer, have become frequent swing voters with decisions endearing them to labor unions and trial lawyers.” (Joe Hallett, Columbus Dispatch, Aug. 17).

August 18 — “Dieters still want fen-phen”. The hazards of the drug are frightening; so are those of obesity, and Cincinnati Enquirer reporter Susan Vela found many local residents wishing the system still permitted them a choice. “It calmed the monster in my body,” said one woman who was able to get down to 136 on fen-phen but has gone up to 210 without it. “Who do I sue to get it back on the market? I’m suffering without it.” (Aug. 16; full story). An August 14 Washington Post editorial calls the recent Texas $23 million award against the drug’s manufacturer “a terrible signal, almost guaranteed to bring thousands more plaintiffs to court on flimsy evidence”.

August 17 — Ohio high court says forget tort reform; should unionists be cheering? By a one-vote margin, the Ohio Supreme Court basically notifies the state’s lawmakers that it won’t tolerate any attempts by them to say how the state’s liability law should operate. “Ohio legislators might as well shut up shop and go home,” said Linda Woggon of the Ohio Chamber of Commerce. The decision is the 90th in which a state court has invalidated efforts to curb litigation, according to sources at the American Tort Reform Association, which keeps the dismal count. (Columbus Dispatch (link now dead), Cleveland Plain Dealer, Cincinnati Enquirer coverage). Overlawyered.com intended to give the Ohio constitution a look-through to see whether it in fact contained a provision prohibiting legislatures from legislating, but found that as of this morning the state’s engine for searching the Ohio constitution was broken and returning error messages, which seemed kind of appropriate, actually.

The statute had been challenged not only by the Ohio Academy of Trial Lawyers (which argued its members would lose business) but also by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus Dispatch, said “anyone who has been harmed or injured” deserves “their day in court and…a fair decision from a jury”. That’s kind of ironic, since unions themselves long ago procured for themselves a series of tort reforms far more favorable than anything being asked for by the business community, insulating them from the risk of unbounded jury awards at the hands of complainants who’ve been (say) roughed up by union pickets. In California, for example, state law already pointedly says that citizens’ “right to be free from any violence, or intimidation by threat of violence” does not apply in a context of “otherwise lawful labor picketing” (gee, thanks, guys!) and AB 1268 (Kuehl), now moving toward enactment in the labor/trial-lawyer-friendly state legislature, would curtail unions’ civil liability yet further, curbing the application of exemplary (punitive) damages and vicarious liability even if acts of violence are committed by unionists for the organization’s benefit.

So here’s the net effect: it’s just dandy and highly constitutional for legislators to immunize unions from the danger of adverse jury verdicts for acts of deliberate violence, but it suddenly becomes an unconstitutional invasion of jury prerogatives when they try to set any limits at all on the award of “noneconomic” damages, for categories like pain and suffering and emotional distress, in cases where businesses are charged with responsibility for accidental injuries. What do you think Mr. Burga of the Ohio AFL-CIO would say if someone “harmed or injured” crossing a picket line in Akron or Youngstown decided to claim a constitutional right to “their day in court and…a fair decision from a jury”? Would he still insist that legislatures have no constitutional power to limit liability?

August 17 — New Overlawyered.com page: The case for loser-pays. Despite continuing strong Main Street interest in the loser-pays idea, there’s been precious little in the way of Web resources on it, so we’ve made it the subject of the sixth and latest in our series of topical links pages. It’s the most basic, the most indispensable, and the most overdue of all legal reforms; if we can bring it even a little closer to enactment, our time will have been well spent.

August 17 — Correction. In the August 6 item, “Courts actually begin to define harassment“, summarizing a recent Chicago Tribune report on the ripple effects of last year’s Oncale decision, we erroneously reported that the Tribune article did not mention the Oncale Court’s unanimity. In fact, it did mention it. Our apologies.

August 16 — Think I’m too litigious? I’ll sue! (I). In Bakersfield, Calif., the developer of the Fairway Oaks community won’t sell new houses to attorneys because it considers them too likely to get into disputes. Attorney Timothy Liebaert said he was “shocked” and “very mad” to be turned away on the basis of such a generalization, so — how better to disprove it? — he’s suing them. However, occupation is not among the list of categories covered by California housing discrimination laws, and a Kern County judge proceeded to rule that there are legitimate business reasons for a developer to prefer non-lawyer customers. Fairway’s sponsors had previously sold to two attorneys among 500 home buyers and had gotten into a protracted dispute with one, though it had not gone to litigation. Liebaert has filed an appeal and plans to keep the case going on new theories, such as a claim that a developer, if it wants to pursue a policy of not selling to lawyers, is legally obliged to announce that policy in its ads. (Reuters/Fox News; Los Angeles Times, July 25)

In 1986 it was reported that two medical groups practicing obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients attorney Amanda Williams, who had filed what the doctors considered meritless malpractice suits against some of their number, or her law clerk Sheryl Jolly. Williams said she found the policy “offensive” but said “they no doubt take it personally when I file a suit on behalf of a client”.

August 16 — Think I’m too litigious? I’ll sue! (II). Remind us to stay on the good side of attorney Michael Bidart of Claremont, Calif.’s Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January when he convinced a San Bernardino County jury to vote $120.5 million against Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant that he argued might have saved the life of patient David Goodrich. Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the efforts of “a skillful ambulance-chasing lawyer”. And Bidart responded to this dastardly insult by…suing Huber last month for defamation in Los Angeles Superior Court. Legal correspondent Reynolds Holding comments in the San Francisco Chronicle (August 8) that Bidart is “apparently more adept at dishing publicity than taking it”.

August 16 — To restore individual responsibility, bring back contract principles. In this recent Policy Analysis from the Cato Institute, Professor Michael Krauss of George Mason U. School of Law says one major reason liability law has fallen into disrepute is that courts have supplanted contract with tort principles; it doesn’t matter whether you foresaw a risk and agreed to bear it, they’ll let you sue anyway. Formerly, the law sought to secure parties’ rights to shape their own relationships, the role of tort law being to secure persons against unconsensual invasion. Now reliable law has given way to “a general social insurance scheme”, particularly in areas like product liability and medical malpractice, with lamentable consequences: “our rights have been given increasingly less respect by government”. (Full paper)