- Bill Moyers calls his lawyers. [Adler @ Volokh]
- Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
- Did the PSLRA help shareholders? [Point of Law]
- 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
- Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
- “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
- More on global warming lawsuits. [Point of Law]
- Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
- Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
- Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
- Who’s your least favorite Supreme Court justice? [Above the Law]
- More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
- “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
- A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]
On his popular HBO show, comedian Sacha Baron Cohen portrays various outrageous characters among them “Borat”, supposedly a TV personality from the (real) former Soviet republic of Kazakhstan. Now “Kazakhstan’s Foreign Ministry is threatening to sue him for portraying the central Asian state in a ‘derogatory way.'” (Buck Wolf, “Kazakhstan Not Laughing at ‘Ali G'”, ABCNews, Nov. 15).
June 28-30 — Lawyer’s 44-hour workday. “Cook County State’s Attorney Dick Devine is investigating charges a lawyer routinely billed the state’s child welfare agency for more than 24 hours’ work a day on uncontested adoptions.
“According to records obtained by Cook County Public Guardian Patrick Murphy, Joyce Britton had a busy week in April 2001: On Monday, April 9, she worked 34 hours. On Tuesday, she worked 44 hours. On Wednesday it was 29; 33 on Thursday, 25 on Friday, 42 on Saturday. … Britton billed the agency $862,000 for fiscal years 2000 and 2001. The second-most-active attorney handling uncontested adoptions billed $285,000.” (Abdon M. Pallasch, “Did adoption lawyer really work 44 hours in one day?”, Chicago Sun-Times, Jun. 25). (DURABLE LINK)
June 28-30 — Tobacco settlement funds go to tobacco promotion. An investigation by the Charlotte Observer finds that of the $59 million that the state of North Carolina has spent so far in proceeds from the tobacco settlement, nearly three-quarters — “about $43 million — has gone toward production and marketing of N.C. tobacco”. (Liz Chandler, “N.C. spends settlement on tobacco, not health”, Charlotte Observer, Jun. 23) (via Andrew Sullivan — scroll to third item). (DURABLE LINK)
June 28-30 — Ambulance driver who stopped for donuts loses suit. Sad news for the hero of our Nov. 2-4 item: “A federal judge has dismissed a lawsuit filed by a former ambulance driver who claimed he was wrongfully fired after stopping for doughnuts while transporting a patient to a hospital.” Larry Wesley “stopped for doughnuts in July 2000 while he was taking an injured youth to Ben Taub Hospital” and was fired after the boy’s mother complained. U.S. District Judge Lee Rosenthal “ruled that Wesley’s claims that other employees received lesser sanctions were not supported by the record, and he also failed to show that he was treated more harshly than other drivers.” (“Judge dismisses lawsuit filed by ambulance worker fired for doughnut stop”, AP/KRTK Houston, Jun. 27). (DURABLE LINK)
June 28-30 — More on gambling as next-tobacco. The Newark Star-Ledger‘s take; quotes our editor (Judy DeHaven and Kate Coscarelli, “Gaming Industry Could Be Next Target of a Big Tobacco-Type Lawsuit”, Newhouse News Service, Jun. 24)(see May 20-21). (DURABLE LINK)
June 27 — Pledge marathon. Even Justice William Brennan seemed to recognize that it tends to damage the good name of religious unbelief to associate it in the public mind with theories of hair-trigger unconstitutionality which encourage running to court over the most minute details of official ceremony. See Eugene Volokh (multiple posts); “One Nation Under Blank” (editorial), Washington Post, Jun. 27; Megan McArdle (and reader comments); Walter Dellinger, “Logically Speaking, the 9th Circuit Doesn’t Exist”, Slate, Jun. 27; David G. Savage, “9th Circuit just following form”, L.A. Times/ Houston Chronicle, Jun. 26. Update: also see columns by Steve Chapman, “Coming to terms with our Constitution”, Chicago Tribune, Jun. 30; Jonathan Foreman, “The real pledge problem”, New York Post, Jul. 1. (DURABLE LINK)
June 26-27 — “Win Big! Lie in Front of a Train”. Per a case summary in a recent New York Law Journal, “A State Supreme Court jury in Manhattan had awarded $14.1 million to a woman who was hit by an E train. The accident occurred on May 3, 2000, in a subway tunnel just north of the 34th Street station on the Eighth Avenue line. … What was she doing in that strange place to begin with? It seems the woman, then 36, had entered the tunnel and lain down on the tracks. The police concluded later that she was trying to kill herself. She denied it, though she also said she could not remember how she had ended up there.” No wonder the Bloomberg administration is pushing municipal tort reform (Clyde Haberman, New York Times, Jun. 25)(see also Oct. 23, 2001, Dec. 17, 2001). (DURABLE LINK)
June 26-27 — Asbestos: saving the Crown jewels? “In a decision that is sure to grab the attention of the asbestos personal injury bar, a Philadelphia Common Pleas judge has dismissed Crown Cork & Seal as a defendant in 376 pending asbestos cases. Judge Allan J. Tereshko found that Philadelphia- based consumer packaging company Crown Cork & Seal qualifies for relief under a new Pennsylvania law that limits the successor liability of asbestos defendants whose liability results only from merging or acquiring companies that produced asbestos products. Under the law, the company must be incorporated in Pennsylvania prior to May 2001 and must show that its liabilities in asbestos lawsuits have equaled or exceeded the ‘fair market value’ of the company whose acquisition resulted in the successor liability.” (Shannon P. Duffy, “Pennsylvania Court Upholds Law Limiting Asbestos Liability”, The Legal Intelligencer, Jun. 13)(see Jun. 27, 2001). (DURABLE LINK)
June 26-27 — “Ex-Teach’s Suit: Kids Abused Me”. Sued if you do, sued if you don’t dept.: trial is set to start today in Brooklyn “in a ground-breaking lawsuit filed by a former special education teacher who charges he was harassed by students. … Vincent Peries, who is from Sri Lanka, says students at Francis Lewis High School in Queens mimicked his accent, tossed paper balls at him,” and made fun of his ethnic background. “School officials don’t deny Peries was harassed — but argue that they can’t discipline special ed students for slurring a teacher. ‘This is because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,’ city lawyer Lisa Grumet wrote in court papers. Special ed students can be suspended only for incidents involving physical violence, drugs or a dangerous weapon, according to Board of Education regulations.” (John Marzulli, New York Daily News, Jun. 25)(& welcome Joanne Jacobs readers) (& update Jul. 24; city settles with him for 50K). (DURABLE LINK)
June 26-27 — “‘Vexatious litigant’ vows he’ll keep coming back”. Portrait of a Texas frequent litigant who’s filed more than twenty lawsuits over the past two years, against a list of defendants that includes more than a dozen judges and assorted other officials. Among factors working in his favor, aside from our general lack of a loser-pays rule: “pauper status” rules providing for the waiver of filing fees, and a lack of cross-checking that might allow the clerk in one county to learn that Mr. O’Dell is under a court order handed down in another county to petition for approval before filing any more suits in the state. (Lisa Sandburg, San Antonio Express-News, Jun. 24). (DURABLE LINK)
June 24-25 — Reparations roundup. Someone should start a weblog devoted to reparations links, it’d be easy to fill:
* In the fall of 2000, ABC’s “20/20” and New York Times reporter Barry Meier distinguished themselves by collaborating on a devastating exposé of “personal injury lawyer Edward D. Fagan, [who] recreated himself four years ago as [a] media-savvy figure behind huge lawsuits on behalf of Nazi victims” as the Times‘s abstract puts it. The investigation (to quote ABC) “found serious questions being raised about this so-called savior, now accused of ignoring and neglecting some of the very clients he had promised to help”. ABC interviewed well-known legal ethicist Stephen Gillers, who spoke in startlingly blunt terms of his opinion of Fagan’s client-handling record (“I think it’s despicable”; “This is client abuse, in my view, and it should not be allowed to continue”.) As for Fagan’s allegedly pivotal role in developing the WWII claims, “‘We essentially worked around him,’ says New York University law professor Burt Neuborne. ‘I mean, he was, he was there, but, but he played, if I tell you zero, I mean zero role in developing the legal theory, in presenting the legal theory, and in participating as a lawyer,’ says Neuborne.” (Brian Ross, “A Case of Self-Promotion?”, ABCNews.com, Sept. 8, 2000; Connie Chung, Sam Donaldson and others, “The Survivors” (transcript), ABCNews “20/20”, Sept. 8, 2000; Barry Meier, “An Avenger’s Path: Lawyer in Holocaust Case Faces Litany of Complaints”, New York Times, Sept. 8, 2000 (abstract leads to fee-based archive); Barry Meier, “Judge Warns Lawyer to Pay Past Penalties”, Sept. 13, 2000 (same)).
But credulity springs eternal — at least in those portions of the press not industrious enough to do a Google search or two to check out the background of a lawyer re-emerging into the headlines. Last week, Fagan was all over the papers announcing that he was going to file reparations suits against Western corporations on behalf of victims of the late apartheid regime in South Africa. Britain’s Observer swallowed his pitch whole, bannering its article “Lawyer who championed those who suffered in the Holocaust fights for South Africa’s oppressed” and calling Fagan the “American lawyer who won compensation for Holocaust victims”. We’re sure that would come as news to Prof. Neuborne. (Terry Bell, “Apartheid victims sue Western banks and firms for billions”, The Observer, Jun. 16).
* On New York’s Niagara Frontier: “Thousands of Grand Islanders were thankful and relieved Friday after a federal judge ruled that the Seneca Indians do not own the land beneath their homes, businesses and public buildings”. U.S. District Judge Richard C. Arcara ruled that not only did the Seneca tribe relinquish any legal claim they might have had to the relevant tracts of New York state way back in 1764, but “there is no archaeological evidence that the Senecas ever actually set foot on the Niagara Islands.” But landowners on the island are nowhere near achieving clear title to the properties they once thought they owned, since the Senecas vow to appeal. (Dan Herbeck and T.J. Pignataro, “Sigh of relief”, Buffalo News, Jun. 22).
Meanwhile, litigation by other tribes continues to wreak havoc across a wide swath of New York State (see Nov. 3-5, 2000 and links from there). Last fall another such case ended with a federal judge’s ruling in favor of the Cayuga tribe, which 200 years ago sold the 64,000-acre tract to the state in violation of the U.S. Trade and Intercourse Act. The verdict was $36.9 million to which the judge added $211 million in interest for a grand total of $247.9 million, considerably below the $2 billion that the tribe’s lawyers had been asking for, a request that had reflected the tendency of a sum starting off long enough ago to grow to the sky through the miracle of compound interest. (Margaret Cronin Fisk, “200-Year-Old Land Dispute Nets $247.9 Million”, National Law Journal, Oct. 17). See also John Caher, “New York State May Be Solely Liable for Indian Land Claims”, New York Law Journal, Apr. 2 (suit by Oneidas “demand ‘ejectment’ of the City of Syracuse”). Update Jun. 29, 2005: Second Circuit panel throws out Cayugas’ suit and damage award as inconsistent with recent Supreme Court decision in City of Sherrill.
* Ah, the healing and emollient qualities of the reparations movement, which holds out the promise of putting racial frictions finally behind us: “A new Mobile Register – University of South Alabama survey shows that while 67 percent of black Alabamians favor the federal government making cash payments to slave descendants, only 5 percent of white Alabamians agree. Among the supporters is J.L. Chestnut, a black Selma lawyer who is part of a national legal team preparing to file reparations litigation. … ‘In five years of polling in Alabama, I have never seen an issue that was so racially polarizing,’ Nicholls [Keith Nicholls, the University of South Alabama political science professor who oversaw the survey] said. He added that the mere mention of reparations and an official U.S. government apology for slavery — another issue addressed in the poll — caused many white respondents to get so angry that they had trouble completing the interview.” (Sam Hodges, “Register-USA poll: slavery payments a divisive question”, Mobile Register, Jun. 23). (DURABLE LINK)
June 21-23 — “Trolling for litigation on eBay”. Via Ernie the Attorney: “Someone bought a packaged cheese stick that supposedly had a human hair. They want to sue, and have posted the following description of the item bid for on Ebay: ‘You are bidding on the opportunity to represent us in a civil proceeding. Naturally, our discovery of this apparently tainted product has traumatized us, and we may never be able to truly enjoy cheese (or other dairy products, or other processed foods, or other food for that matter) ever again. We reserve the right to review winner’s qualifications upon auction end. Winner must be a licensed attorney.” Before you ask, no, we don’t know whether the person who posted the auction is serious or not, though our guess is that they’re not. Update 20:45 EDT Friday: it looks as if the eBay authorities have removed the auction. It was discussed by users on eBay Forums (Jun. 21). (DURABLE LINK)
June 21-23 — Tobacco fees: a judge gets interested. Here’s one to watch closely: a Manhattan judge may finally be getting ready to delve into some of the ethical questions raised by the 1998 tobacco settlement, or at least the $25 billion portion of it that covers New York state. The judge “has asked the New York attorney general’s office and several law firms to justify $625 million in attorney fees awarded” as part of New York’s settlement with the tobacco industry (see May 11, 2001). “Citing unspecified ethical concerns, Supreme Court Justice Charles E. Ramos ordered state lawyers and attorneys from six firms that represented the state to explain why the fees should not be set aside. One ground for vacating the fees, the judge said, could be that the arbitrators who awarded them may have ‘manifestly disregarded well established ethical and public policies.’ Ramos suggested that the court had the power to not only ask a new panel of arbitrators to determine reasonable fees, but to vacate the entire $25 billion settlement, approved by another judge in 1998, if such action was warranted. He also said the issue could be referred to the Departmental Committee on Discipline and require the outside firms to produce time sheets detailing their roles in the litigation.” (Tom Perrotta, “New York Judge Cites Ethics Concern Over Tobacco Case Fees”, New York Law Journal, Jun. 20). (DURABLE LINK)
June 21-23 — 11th Circuit reinstates “Millionaire” lawsuit. “A federal appeals court has reinstated a lawsuit alleging that ABC discriminates against disabled people trying to become contestants on ‘Who Wants to be a Millionaire.’ The 11th U.S. Circuit Court of Appeals decided that the lawsuit contained a valid claim that the show’s qualifying system, which uses touch-tone phones, violates the Americans with Disabilities Act.” (see Nov. 7, 2000; Brian Bandell, “Lawsuit Reinstated Against ABC Show”, AP/New York Post, Jun. 19; Susan R. Miller, “Disabled Floridians Get Shot at ABC’s ‘Millionaire'”, Miami Daily Business Review, Jun. 21). (DURABLE LINK)
June 21-23 — Welcome Grouse.net.au readers. We’re picked as link of the day on this Australian site for June 21. Also for Jun. 21, we’re Mr. Quick’s “Link of the Day”. Among blogs sending us visitors lately: Tres Producers, Flyover Country, Aaron Haspel’s God of the Machine, Hollywood Investigator, Bob Owen of the Twin Cities, Ross Nordeen, Ravenwolf, Jon Garthwaite’s TownHall C-Log, Junkyard Blog, Now You Listen to Me Little Missy, and many others, as well as the links page of premier Cathblogger Amy Welborn. (DURABLE LINK)
October 10-11 — “U.S. to Fully Compensate Victims’ Kin”. In a step virtually unprecedented in a government-run program, the new Sept. 11 fund will assign a dollar value to, and compensate at taxpayer expense, the emotional pain and suffering experienced by survivors (David G. Savage, Los Angeles Times, Oct. 5). Wealthier victims’ families could be the ones who mostly opt out of the federal plan and into private litigation, because of the proviso by which payments from the federal fund will be reduced to reflect amounts families can recover from insurance and other contractual sources, which will often amount to a large offset in the case of high-paid execs (Harriet Ryan, “Victims’ families face choices in collecting compensation”, CourtTV.com, Sept. 28). With damages for airlines limited to their insurance, “the hunt is on for additional defendants with deep pockets. Lawyers say these could include wealthy supporters of terrorism; private baggage-screening firms hired by airlines; contractors that may have improperly screened service personnel allowed on planes; and the operators of the airports where the hijackers boarded.” (Martin Kasindorf, “Families seeking compensation face a choice”, USA Today, Oct. 2) And see if you can spot the implicit assumption in this headline: Seth Stern, “Who pays the damages for Sept. 11?”, Christian Science Monitor, Sept. 27.
October 10-11 — “Never far from school halls: the lawsuit”. “Schools have always been fertile ground for lawsuits over religious observance and free speech. But educators say the volume of suits is on the rise, forcing them to siphon time and money away from learning.” (Seth Stern, Christian Science Monitor, Oct. 9).
October 10-11 — “Man Thought He Was Dead, Sues Airline”. Scott Bender of Philadelphia was snoozing when the U.S. Airways flight from North Carolina landed at the Birmingham, Alabama airport and the crew left him there in the little plane until he woke up. It was really dark, says his lawyer, and Bender “didn’t know if he was alive or dead” — it turned out the former. Now he wants money for the fright and other harms. (Chanda Temple, Birmingham News, Oct. 4).
October 9 — Employee’s right to jubilate over Sept. 11 attack. Kenneth Bredemeier, “On the Job” columnist for the Washington Post, yesterday ran the following remarkable communication from one of his readers, which we take the liberty of quoting at length since it deserves to be read word for word:
“On the day of the World Trade Center and Pentagon disasters, a Muslim woman at work jumped for joy in the cafeteria saying, ‘Yes, yes, yes,’ upon hearing the news.“Apparently nothing was said to her at the time of her ‘celebration.’ Her supervisor consulted the HR manager for advice. He suggested a group meeting to explain that this is a very sensitive time for everyone and that it is probably best to not discuss the disasters at all. He also said to not single out anyone or specifically mention her actions.
“When I heard about it, I wanted to know why she is still at work. I was told to not say anything. Is that right? I have no intention of starting a riot, but I feel this incident should not be ignored. What, if anything, can I do?”
Don’t say anything to her; hold a group meeting; tell other workers to stop talking about the attacks. Could this be just one supremely craven HR manager, at one sensitivity-addled company? No, it gets worse. Bredemeier then consults an expert named Laurie Anderson, a “Chicago clinical psychologist and organizational consultant”. Her advice? As “uncalled for [!] as the impromptu celebration might have been, corporations ‘can’t fire someone for violating something that was never spelled out.’ She said the employee who was upset by her co-worker’s joy at the attacks ought to go to management and say that she wants ‘to be a part of the ongoing conversation about our policies.'” And Anderson adds: “It’s horrifying, but there’s no law against being insensitive.”
But of course Anderson gets it exactly, 180-degrees wrong on that last point. There is a federal law against being insensitive in ways that make co-workers feel disliked or disparaged because of their ethnic or national affiliation — it’s called the “hostile environment” branch of harassment law, and lawyers have deployed it repeatedly to win big bucks for workers who have testified that they were upset by hearing slighting comments aimed at their ethnic or national group. If an employer in this country learns that one of its workers has burst into applause in the cafeteria at learning of, say, a massacre or assassination aimed at a protected ethnic minority, then its failure to discipline that worker would create something approximating a dream case if and when a member of that minority chooses to sue the company charging hostile environment. (Nor will it get the company off the hook, in explaining its failure to discipline, to plead that it had not previously warned its workers specifically not to jubilate in such circumstances.)
The difference between the two fact patterns? So far as we can tell, it’s mostly that “American” doesn’t operationally count as a protected ethnicity under federal law. And so we arrive at a supposed right to jubilate, among Americans, over the deaths of Americans without having to worry about the risk of dismissal or even harsh words or shunning. Could anything be crazier? (Kenneth Bredemeier, “At Some Companies, An All-Too-Rapid Response to Attacks”, Washington Post, Oct. 8).
Addendum: no more than urban legend? Reader John Kingston of Carle Place, N.Y., in a letter to Washington Post columnist Bredemeier which he cc’s to us, writes:
Your column on workplace reaction to September 11 may have come closest to actually identifying the jubilant Muslims, a story sweeping the country that has all the earmarks of an urban myth. It appears the person who wrote you the note at least claims to have actually seen the jubilant worker. Every other reference to the jubilant workers has several key omissions: the name of the workplace where it happened (as in your case); the name of the jubilant person (OK, understandable); or an actual first-person account (which you sort of have, but do not actually identify the first-person). Yet these stories of the celebrating Muslims have come from all over the country, and none of them have been proven.Please do your readers a service in a future column. Put the name of this correspondent in print. And if the correspondent does not want to be put in print, please call him up and grill him on the facts of the case. Because quite frankly, this story sounds like a pile of baloney, and I was shocked to see it repeated and given credence, without what I would consider significant attribution, in a fine paper like yours.
Adds reader Kingston: “And to make it worse, Overlawyered.com repeats it as well. OK, its point was regarding what a workplace could do if it actually had a publicly jubilant Muslim. But my guess is that nobody actually did. This story, Mr. Olson, sounds like a close cousin of junk science.” (DURABLE LINK) [And see Letters, Oct. 22]
October 9 — “Plaintiff’s lawyers going on defense”. In at least two major areas of mass tort litigation now under way, plaintiff’s lawyers well known from asbestos and tobacco work have crossed the aisle to work for defendant businesses: Sulzer Orthopedics Inc. has hired Mississippi’s Richard Scruggs to represent it in hip joint cases, and Bridgestone Firestone has hired Texas’s Wayne Reaud to settle tire cases. “Already this year, Reaud has negotiated 117 settlements for Firestone in Texas, including 22 cases involving deaths.” (Mark Curriden, Dallas Morning News/Austin American-Statesman, Sept. 4, Googlecached) On Reaud and Firestone, see also Michael Freedman, “The Informer: It Takes One to Know One”, Forbes, Sept. 17. (DURABLE LINK)
October 8 — Why we fight, #2. Reason #1 is of course what happened on Sept. 11; but how strangely constricted would be our war aims if they did not also by this point include the final overthrow of the Taliban. (Sam Handlin, “Justice takes on a different meaning in Afghanistan”, CourtTV.com, Sept. 28; Jan Goodwin, “The first victims: the Taliban have been terrorizing women for years”, New York Daily News, Oct. 4; Vincent Laforet, “At Kabul’s door, an army of addicts”, New York Times, Oct. 7 (reg) (arms chopped off by the Taliban for smoking opium in an Afghan school, Mooruddin Aki now begs on a street in Quetta, Pakistan, where passersby stuff bills into his mouth)).
Among pieces we’ve liked recently: Peter Ferrara, “What is an American?” (National Review Online, Sept. 25). And what’s the opposite of Osama bin Laden? Here’s one answer: “The men and women of the space program, and their legions of scientific antecedents, spent countless hours acquiring the knowledge and developing the moral values that led to the moon landing. Not many years later, Osama bin Laden and his fellow terrorists also spent many hours of planning, sitting not in laboratories and libraries, but in tents and caves, with one goal: not to create, but to annihilate human creations. The scientists measured their success by how much they could produce. The terrorists measure their success by how much they can destroy.” (Michael Berliner, “Terrorists vs. America”, Ayn Rand Institute, Oct. 5) (via InstaPundit).
October 8 — “Hama to sue bridge owners over her daughter’s fall”. When Kaya, a 17-month-old with Down’s syndrome, fell from her mother’s arms and off the Capilano Suspension Bridge in Vancouver, she miraculously escaped with only scratches, tree boughs breaking her fall. But her mother, Nadia Hama, is suing the bridge operator anyway; her lawyer says she was traumatized by the aftermath of the incident which included a police investigation and press coverage that “was largely very negative”. (Andy Ivens, “Hama to sue bridge owners over her daughter’s fall”, The Province (Vancouver), Sept. 25).
October 5-7 — Feds’ Lanning v. SEPTA turnabout. The U.S. Justice Department has unexpectedly dropped its support of a long-running lawsuit which sought, in the name of female applicants, to weaken the physical fitness standards used in hiring by the Philadelphia transit police. The Department did not cite the Sept. 11 attacks in explaining its abrupt shift, but its spokesman Don Nelson explained the new stand as follows: “Our position is that we believe it is critical to public safety for police and firefighters to have the ability to run and climb up and down stairs under the most extraordinary circumstances”. In earlier rounds of litigation the feds had sided with plaintiffs lawyers from the Public Interest Law Center of Philadelphia, whose chief counsel calls the new turnabout “a slap in the face of women” and a breach of what he said was a promise made by Attorney General John Ashcroft not to retreat on any civil rights issue. (Joseph A. Slobodzian, “U.S. backs away from suit against SEPTA test”, Philadelphia Inquirer, Oct. 2) (see Sept. 15, 1999). Maybe someone at the Department has been listening to our commentaries of Sept. 13 and other dates. Update Oct. 25-27, 2002: Third Circuit panel rules for SEPTA.
October 5-7 — Civil liberties roundup. What Alexander Hamilton (who used to hang out a lot in New York’s financial district) would want us to remember (Andrew Ferguson, “Strange Bedfellows in This War”, Bloomberg.com, Oct. 2). The left-right civil liberties coalition that has urged scrutiny of the counter-terrorism bill doesn’t agree within itself on much more than platitudes, argues James DeLong of the Competitive Enterprise Institute (“Liberty and Order”, National Review Online, Oct. 2). And London’s invaluable Spectator points out some of the very real costs of national identity cards, whose use would probably not have done much to hinder last month’s suicide attacks, the ringleaders of which were mostly traveling under their own names with valid ID (“Fighting for Freedom” (editorial), Sept. 29).
October 5-7 — “Attorney Ordered to Pay Fees for ‘Rambo’ Tactics”. “Clifford Van Syoc, a solo practitioner in Cherry Hill, N.J., is known for his zealotry in pursuing plaintiffs’ employment-discrimination claims. But now a federal judge, comparing Van Syoc to Rambo, says he’s gone over the line. The judge excoriated him for unreasonably pushing a meritless reverse-bias claim and assessed Van Syoc personally for $59,216 in fees and expenses.” (Tim O’Brien, New Jersey Law Journal, Sept. 6).
October 5-7 — Utah lawmakers: don’t smoke in your car. Legislators in that state have “approved in concept” the idea of legally banning parents from smoking in cars in the presence of their kids, but some among them are reluctant to put their names on such a measure as sponsors given its appearance of extreme meddlesomeness in what was once considered private life (James Thalman, “Lawmakers may up ante for smoking around kids”, Deseret News, Sept. 15).
October 3-4 — Anti-bias law not a suicide pact. “Earlier this summer, U.S. officials told airlines that conducting extra checks on passengers of Arab origin was a violation of the passengers’ civil rights. Also, Transportation Secretary Norman Mineta ordered a federal investigation into complaints by Arab-Americans that they were being unfairly targeted by security screenings.” (Catherine Donaldson Evans, “Terror Probe Changes Face of Racial Profiling Debate”, FoxNews.com, Oct. 1; Stuart Taylor Jr., “The Case for Using Racial Profiling at Airports”, National Journal/The Atlantic, Sept. 25). But of Arab Americans in metropolitan Detroit, “61 percent said such extra questioning or inspections are justified, according to a poll conducted last week by the Detroit Free Press and EPIC/MRA. Twenty-eight percent disagreed; 11 percent were undecided.” (Dennis Niemiec and Shawn Windsor, “Arab Americans expect scrutiny, feel sting of bias”, Detroit Free Press, Oct. 1). “Federal regulations give commercial captains the right to remove anyone from a flight without reason.” (Jonathan Osborne, “Passenger ejections seen as profiling”, Austin American-Statesman, Sept. 29).
In reaction to the horrors of World War II, the federal constitution of Germany curbs what might be termed religious profiling in law enforcement, and authorities in Hamburg, where preparations for last month’s attack were apparently made, acknowledge that their monitoring of extremist Islamic activity has been sharply limited as a result: “police are severely restricted in probing groups defined by faith”. (Carol J. Williams, “German Hunt for Terrorists Haunted by Past”, Los Angeles Times, Oct. 1). Detailed passenger profiling is essential to the much-admired security record of the Israeli airline El Al (Vivienne Walt, “Unfriendly skies are no match for El Al”, USA Today, Oct. 2). Updates: see Nov. 2-4, Nov. 9-11.
October 3-4 — “Follow the money … but don’t hold your breath”. Shutting down sham ‘charities’ and terrorist-owned businesses can’t hurt the war effort,” and it’s also worth investigating the possibility that persons with foreknowledge of the attack might have engaged in options speculation before and since Sept. 11, which would leave a relatively robust paper trail. Don’t expect much, however, from more generalized efforts to prevent terrorist supporters from moving less-than-enormous sums around the globe; there are too many ways around such rules, which are also highly onerous to the non-terrorist economy (James Higgins, Weekly Standard, Oct. 8; Michael Lynch, “Following the Money”, Reason.com, Oct. 4).
October 3-4 — Fear of losing welfare benefits deemed coercive. “A Nova Scotia woman who confessed to cheating the welfare system out of more than $70,000, can’t have her admission used against her in court because she gave it only out of fear that her benefits would be cut off.” Judge Peter Ross of Nova Scotia Provincial Court conceded that Brenda Young’s case was a “particularly glaring instance of welfare fraud”, but “said her fear of impoverishment meant her confession was effectively coerced by the state, an action which violated her constitutional right not to incriminate herself.” Young is no longer on the welfare rolls, however. (Richard Foot, “Judge: confession by welfare cheat cannot be used”, National Post, Sept. 29).
October 3-4 — Victory (again) in Connecticut. “A unanimous state Supreme Court Monday threw out Bridgeport’s lawsuit against dozens of gun manufacturers and retailers, saying the city’s claims of injury to its citizenry, budget and reputation are too specious and indirect to litigate.” (Lynne Tuohy, “Court Disarms Gun Lawsuit, Hartford Courant, Oct. 2) (see Dec. 11-12, 1999)
October 3-4 — “Proposed Law Would Consider Alcohol As Date-Rape Drug”. Liquor may be something that prospective sexual assault victims consume voluntarily and knowingly, while substances such as Rohypnol get sprung on them unawares; but backers of the bill introduced into the Wisconsin legislature by Rep. Terese Berceau (D-Madison) say that shouldn’t make a difference in regarding both substances alike as date-rape drugs. (WISC-TV/Channel 3000/Yahoo, Sept. 27).
October 1-2 — “Litigation threatens to snarl recovery”. “[S]ome lawyers are already gearing up for what could be the most complicated web of litigation in American history. Lawyers across the country are looking for ways around the victims’ fund established as part of a $15 billion government bailout of the airline industry in the wake of the attacks.” During the (still-continuing) litigation over the previous bombing of the World Trade Center in 1993, plaintiff’s lawyers suing the Port Authority insisted that it turn over as part of “discovery” its internal reports on terrorist threats and security, even though “Port Authority lawyers at the time argued that providing the reports would leave security information open to terrorists for another attack.” (Kate Shatzkin, Baltimore Sun, Sept. 30).
MORE: Signe Wilkinson cartoon, “Unleashing Our Most Feared Weapon Against Afghanistan” (guess who), Philadelphia Daily News/Slate (“Get Image” for Sept. 27); Alan Fisk, “Calculation of Losses, Liability to Be Major Insurance Issues in Wake of Terrorism”, National Law Journal, Sept. 28; Michael Freedman and Robert Lenzner, “Lawyers Won’t Sue, But For How Long?” Forbes.com, Sept. 19.
October 1-2 — Ralph Nader is heard from. Addressing students at the University of Minnesota, the prominent litigation advocate — always willing to impute the most evil of motives to his adversaries at home — “asked audience members to consider why U.S. foreign policy is creating enemies. ‘We have to begin putting ourselves in the shoes of the innocent, brutalized people in the Third World and ask ourselves, why do they dislike our foreign policy?'” Maybe if we referred to the Trade Center murderers as “Terrorism Inc.” he’d mistake them for a legitimate business and start turning up the rhetorical heat (Jessica Thompson, “Nader calls for ‘permanent patriotism’ in Northrop speech”, Minnesota Daily, Sept. 26). (DURABLE LINK)
October 1-2 — Chemical-plant vulnerabilities: read all about them. A “provision of the 1990 amendments to the Clean Air Act requir[ed] that thousands of industrial facilities develop risk management plans (RMPs) and submit them to the Environmental Protection Agency (EPA).” One part of the required analysis “documents the potential impacts of a catastrophic accidental chemical release assuming the ‘worst case scenario.” The [analysis] includes the number of potential fatalities that an accidental release could cause to the surrounding community. The law then demands that EPA make this information available to the public.” When an initial plan was floated to publish such reports on the Internet, “security experts — the FBI, CIA, the International Association of Fire Chiefs and various other groups — raised alarm.” The plan was soon shelved, but “public interest groups” vowed to make the information broadly anyway in defiance of the warnings, and a current public availability scheme involving drop-in “reading rooms” appears highly vulnerable to exploitation by advance scouts for terrorist operations, who need only present an identification card, something the Sept. 11 terrorists had little trouble obtaining (Angela Logomasini, “Innocent no more”, Competitive Enterprise Institute/Washington Times, Sept. 27). (DURABLE LINK)
October 1-2 — “Polls say blacks tend to favor checks”. “African-Americans, whose treatment by the criminal justice system gave rise to the phrase ‘racial profiling,’ are more likely than other racial groups to favor profiling and stringent airport security checks for Arabs and Arab-Americans in the wake of this month’s terrorist attacks, two separate polls indicate.
“The findings by the Gallup Organization and Zogby International were met with varying degrees of disappointment and disbelief by black activists and intellectuals, who struggled with explanations.” (Ann Scales, Boston Globe, Sept. 30) (see Sept. 19-20).
October 1-2 — Propulsid verdict: “Robbery on Highway 61”. A jury in Claiborne County, Mississippi deliberated just over two hours before voting $100 million in compensatory damages to 10 plaintiffs in the first suit to reach trial against a Johnson & Johnson subsidiary over alleged side effects of the anti-heartburn medication Propulsid. “Defense attorney Robert Johnson III of Natchez said in closing arguments Friday that no evidence was presented in the four-week trial that showed Propulsid caused any of the plaintiffs’ health problems. He said the plaintiffs’ own doctors said there was no evidence the drug was to blame. … Stop Lawsuit Abuse in Mississippi executive director Chip Reno called the decision ‘unbelievable.’ ‘This was highway robbery on Highway 61,” Reno said. ‘Our system is broke.'” (Jimmie E. Gates, “$100M verdict: Propulsid at fault”, Jackson Clarion-Ledger, Sept. 29). Judge Lamar Pickard later ruled out punitive damages. (Deborah Bulkeley, “Judge Bars Drug Trial Punitive Damages”, AP/Yahoo, Sept. 29). Update May 15, 2004: Miss. Supreme Court vacates verdict and orders individual trials, after earlier reduction of award by trial judge.
October 19-21 — Lawyer-vetted war? According to Sy Hersh, American gunners had Taliban chief Mullah Omar in their sights, but declined to finish him off per the advice of an army lawyer that there was too much risk of collateral damage to civilians: “‘My JAG’ — Judge Advocate General, a legal officer –‘doesn’t like this, so we’re not going to fire,'” said the commandant. Defense Secretary Rumsfeld is said to have been “kicking a lot of glass and breaking doors” in fury over the decision, and the editorialists at the New York Post aren’t happy about it either (Seymour Hersh, The New Yorker, Oct. 22; “Lawyers for Bin Laden” (editorial), New York Post, Oct. 17). But Inigo Thomas of Slate thinks the system of civilian control of the military probably worked as intended: “Spinning Seymour Hersh”, Oct. 17; also see Clarence Page, “The U.S. frowns on assassinations, except …”, Chicago Tribune, Oct. 17. [See letter to the editor, Oct. 22]
October 19-21 — U.K. may ban anti-religious speech. A bill proposed by the Home Secretary would outlaw “incitement to religious hatred”. Comedian Rowan Atkinson (Mr. Bean) warns that literary and satirical writing is likely to be chilled as a result — watch out, Monty Python’s Life of Brian, criticized as anti-Christian. Also in potential danger: a sketch on Not The Nine O’Clock News depicting Muslim worshippers simultaneously bowing to the ground with the voiceover: “And the search goes on for the Ayatollah Khomeini’s contact lens.” (The Times, Oct. 17) (& see Bjoern Staerk, Oct. 17). Update Dec. 21-23: provision dropped before passage of bill.
October 19-21 — It’s the clients’ money. A panel of the Fifth Circuit strikes down one of those schemes so popular among organized lawyerdom which grabs the interest earned on clients’ trust accounts to subsidize poverty law. (Janet Elliott, “Panel strikes down legal services fund “, Houston Chronicle, Oct. 17; “U.S. Court Voids Texas Approach to Legal Aid”, AP/New York Times, Oct. 18 (reg)).
October 19-21 — Our own terrorist-funding problem. P.J. O’Rourke, in an interview with Clive James excerpted in the Daily Telegraph:
“There is a person in America who is known as a three-drink Republican — I don’t mean my Republican party: the Irish Republican Army — and the Noraid can comes along and in goes a fiver and ‘that’s for the boys back in wherever’. Yes, America has a lot to answer for.
“We turned a blind eye to the funding coming out of the USA. We did it because the Boston Catholics were a very important part of the Democratic coalition and they were also a very important part of the Reagan Republicans and neither wished to offend them. They had a lot of clout in Congress and we let them go and it was shameful, absolutely shameful.” (“‘I believe the terrorists wanted a nuclear attack on Baghdad'”, Oct. 7).
MORE: Jonathan Duffy, “Rich friends in New York”, BBC, Sept. 26; “America pressed over UK terrorism”, BBC, Oct. 10; “‘Sinn Fein support wanes in US'”, BBC, Aug. 17; “How the Real IRA was born”, Guardian, March 5; “Omagh relatives consider picket”, BBC, Aug. 8, 2000; “‘Split’ on thwarting Real IRA”, BBC, Oct. 20, 2000 (Americans helped fund 1998 Omagh bombing which killed 29); Sean Boyne, “The Real IRA: after Omagh, what now?”, Jane’s, Aug. 24, 1998).
October 17-18 — NYC trial lawyers’ post-9/11 complaints. It seems Gotham’s personal injury practitioners have all sorts of gripes concerning their conditions of practice these days. To begin with, juries don’t sympathize as much with their clients’ woes with the image of much vaster hardships still fresh in their minds. Courts are handing out lots of delays and adjournments to defendants, especially to those whose legal offices were destroyed (like the Port Authority’s) or evacuated (like the city’s). Some weaker insurance companies may be going broke. “Another plaintiffs’ lawyer suggested that given the current ‘high public esteem’ for police officers and firefighters, ‘cases against them are going to be particularly difficult.” Attorney Martin Edelman of Edelman & Edelman exhorts his colleagues, however, to “be brave”. (Daniel Wise and Tom Perrotta, “Plaintiffs’ Lawyers Feel Post-Attack Pinch”, New York Law Journal, Oct. 16).
Edelman is especially dismissive of opponents’ excuses for delay: “Defense lawyers are milking this to a fare-thee-well — one attorney said that his staff could not work because the air smells bad.” As it happens, this week’s New York Observer quotes well-known downtown plaintiff’s attorney Harvey Weitz as describing conditions in his Woolworth Building office as “intolerable”, explaining that the place “just plain stinks”, even with the windows closed. (Petra Bartosiewicz and James Verini, with Blair Golson, “Reeling and Dealing”, New York Observer, Oct. 15). The New York Law Journal authors, who quote Weitz on a different point, perhaps should introduce him to Edelman so they can compare notes on whether the acrid smells that waft from the attack site do or do not render nearby offices intolerable. (DURABLE LINK)
MORE: Also quoted in the NYLJ piece is extremely successful NYC plaintiff’s lawyer Robert Conason of Gair, Gair, Conason, Steigman & Mackauf. Could anyone clear up for us once and for all whether he’s related to left-wing columnist Joe Conason?
October 17-18 — “Hate speech” law invoked against anti-American diatribe. Hey, it wasn’t supposed to work this way! Section 319(1) of Canada’s Criminal Code makes it unlawful to incite public hatred of an “identifiable group”, such as a nationality, in a way that “is likely to lead to a breach of the peace.” Now University of British Columbia prof Sunera Thobani is facing possible investigation under the law over a vicious tirade she delivered against the United States at a conference which (ironically or not) was subsidized by the Canadian government and presided over by Hedy Fry, a well-known Ottawa official. Columnist Wendy McElroy of FoxNews.com sorts it all out (“Free Speech Protects All Speech”, Oct. 16).
October 17-18 — Court’s chutzpah-award nominee. Not only did San Francisco attorney Sherman Kassof not succeed in defending the $215,000 in fees he thought he had coming from the settlement of a class action against Wells Fargo, but a California appeals court, in a 32-page opinion, said his fee request might deserve a “chutzpah award.” “‘To award an attorney a premium for duplicative work that was neither difficult nor particularly productive, involved little or no risk, may well have delayed settlement, and seems to have been primarily designed to line counsel’s pockets would reward behavior which it is in the public interest (and as well the special interest of the legal profession) to strongly discourage,’ Presiding Justice J. Anthony Kline wrote.” (Mike McKee, “Fee Appeal Backfires on Class Lawyer”, The Recorder, Oct. 5).
October 16 — Counterterrorism bill footnote. During consideration of the bill, reports Declan McCullagh at Wired News, civil libertarians raised concerns about possible leeway for forum selection by prosecutors seeking wiretap orders. “Since the Patriot Act gives courts the power to order wiretapping anywhere in the U.S., Rep. Maxine Waters (D-California) said she was worried that ‘it would encourage the government to engage in forum searching. If the court that issues the warrant is far from the defendant, it becomes difficult for the person to contest it.'” Plausible enough, right? And by the same logic, civil defendants deserve protection against the filing of, say, class actions in forums selected by lawyers for their inconvenience to the defense — right again? That thud you hear is Rep. Waters keeling over rather than admit any such thing. Just as Trix are for kids, everyone knows due process protections are for criminal, not civil defendants (“Patriot Bill Moves Along”, Oct. 4).
October 16 — Status of judicial nominations. The Office of Legal Policy of the U.S. Department of Justice has put up an informative page on the status of judicial nominations. As Glenn Reynolds points out at his fledgling but already indispensable InstaPundit weblog, “The ready availability of this information on the Web represents a net loss of power for the Senate.”
October 16 — Latest lose-on-substance, win-on-retaliation case. A federal court in San Antonio threw out Raymond Morantes’s original claim of discrimination against his employer, the Federal Aviation Administration, but a jury decided that agency managers had wrongly passed over Morantes for promotion because they were annoyed at his having sued them, so he’s getting half a mil. (“Man Gets $500,000 for Retaliation by FAA”, AP/FoxNews.com, Oct. 6).
October 15 — “Company Tried to Capitalize on Sept. 11”. A Cincinnati company named Providence Inc. has been sending out portfolios to Sept. 11 victim families with “$50 to $200 in cash, prepaid calling cards and the names of four law firms with ‘extensive experience in major airline and other similar mass disasters.'” The company advances money to plaintiffs in anticipation of lawsuit settlements; because it employs no lawyers, it can skirt a 1996 federal law “that forbids lawyers from approaching the families of air crash victims for 45 days after an accident.” The outfit, which routinely drops mail to victims after other disasters as well, “says none of the law firms named on its list knew that their names were being distributed … three law firms threatened to sue to block Providence from using their names”. (Jonathan D. Glater and Diana B. Henriques, New York Times, Oct. 13 (reg)). And despite the go-slow approach to litigation proposed by the leadership of the Association of Trial Lawyers of America, some plaintiff’s lawyers are raring to go with Sept. 11 suits, among them New York City’s Aaron Broder, who has bought the fine-print ad space at the bottom of the New York Times‘s front page to solicit clients. “‘They’re all going to be socked real hard,'” [Broder] said yesterday of the airlines and other American businesses and government agencies, adding that he disapproved of other lawyers discouraging suits. ‘Right now, everybody’s so patriotic they’ve forgotten about the fact that there are defendants and wrongdoers here,'” he said.” None of that excessive patriotism for him! (William Glaberson, “Legal Community Is Divided by the Prospect of Lawsuits for Attack Victims”, New York Times, Oct. 10 (reg)).
October 15 — “Mother of all copyright battles”. Now they’re really in trouble: Osama bin Laden’s Mideast followers have gotten American intellectual property lawyers steamed at them following their unwitting use of an image of “Bert” from PBS’s Sesame Street: “you don’t get much more ‘interconnected’ with Western culture than getting your a– sued off.” (Mark Steyn, “Culture Shock”, Daily Telegraph, Oct. 13; Don Kaplan, “Osama’s ‘Muppet’ State”, New York Post, Oct. 11). On the other hand, maybe Binny could beat a criminal rap before a court here given the sort of American legal talent his ample fortune could buy (James S. Robbins, “Bring on the Dream Team!”, National Review Online, Oct. 9).
October 15 — Disclaimer rage? “Lawyers are destroying the usability of American products. … Work comes to a standstill while we look for the button to vanish the tiny box with the even tinier type.” It was bad enough in PC software, but now automotive and aeronautic GPS (global positioning satellite) map programs require operators of moving vehicles to click past screens of fine print before they can read maps, adding crucial seconds of distraction: “in their fanatic pursuit of zero liability, they’ve set up the ideal conditions to actually kill people.” However, not all disclaimers have to be a drag, as one maker of household products has shown: “The Good Grips people obviously put a lot of work, not only into constructing a fun-to-read page, but in talking conservative corporate attorneys into allowing such a page.” (Nielsen Norman Group, “Good Lawyers, Bad Products”, Asktog, August).
October 12-14 — “Suits Still Pending from 1993 Trade Center Blast”. So sad: eight years after the incident, “[t]he legal fallout from the 1993 truck bomb that rocked the World Trade Center hasn’t even gone to trial. Plaintiffs’ lawyers claim that the Port Authority knew the towers were an attractive terrorist target and that a truck bomb was the most likely weapon.” Included in the claims against the Port Authority: a business-interruption claim from Cantor Fitzgerald over having to shut down its WTC offices back then. (Bob Van Voris, National Law Journal, Oct. 3).
October 12-14 — “Philadelphia judicial elections still linked to cash”. “Despite a scathing state grand jury report this spring on Philadelphia’s system of electing judges, little has changed, a review of campaign reports for the 2001 primary suggests.
“Candidates for the legal system’s most sensitive offices still shelled out millions of dollars in ‘street money’ to ward leaders, consultants, and freelance vote-producers for primary-day help in hopes of landing a seat on the bench.
“About $500,000 was spent in ways that required no accounting to the public.” (Clea Benson, Philadelphia Inquirer, Oct. 7).
October 31 — Quote of the day. Or maybe the year: “If we sue each other, the terrorists win. We need to be united.” — Personal injury and class action lawyer Elizabeth Cabraser, regarding potential Sept. 11 lawsuits. (Quoted in Gail Diane Cox, “Voir Dire”, National Law Journal, Oct. 8, not online)
October 31 — The deportation sieve. “For starters, there is the case of Gazi Ibrahim Abu Mezer and Lafi Khalil, the two Palestinians who were arrested in July 1997 in a Brooklyn, N.Y., apartment right before they planned to blow up a subway station. Because both men were in this country illegally, the inspector general at the Justice Department issued a report relating solely to their immigration status. I won’t bore you with the whole thing, but it contains such sentences as: ‘After Mezer’s third detention in January 1997, the INS had begun formal deportation proceedings against him, but Mezer had been freed on bond, while the deportation proceedings were pending…’ Yes, ladies and gentlemen, that is how deportation works: If you are due for a hearing that may kick you out of this country, you very often are on your honor to show up for the hearing that makes it official. Shockingly, many do not. (And they sometimes just out and out lie: Mezer got out of his hearing by phoning his attorney and telling her that he was in Canada.” (Tish Durkin, “Let’s Not Bypass the Obvious in Our Quest for the Profound”, National Journal, Sept. 29). The magazine National Journal, a treasure trove of policy journalism and the home base of such columnists as Stuart Taylor, Jr. and Jonathan Rauch, is normally available to online subscribers only, but has temporarily lifted password procedures during the partial Capitol Hill shutdown to offer full web access to the public.
October 31 — Santa Claus sexist? “Shops are stocking ‘Mother Christmas’ outfits to avoid being taken to court over sex discrimination. Woolworths says it’s stocking the outfits in 800 stores to avoid problems with European gender legislation.” A spokeswoman for the European Union, however, describes as “total bunkum” the idea that selling “Father Christmas” (St. Nicholas) costumes alone might subject retailers to complaint under regulations against products reinforcing gender stereotypes. (“Shops stock Mother Christmas outfits to avoid accusations of sexism”, Ananova, Oct. 26).
October 30 — Bioterrorism preparedness. A bioterrorist incident could flood hospitals in one locality with thousands of persons in need of medical care, but an official with the American Hospital Association says that the group’s member hospitals “could be hindered in their response by federal laws, says Tom Nickels, the association’s senior vice president for federal relations. Antidumping statutes, which prohibit hospitals from transferring patients to other facilities unless the patients have been evaluated and stabilized, could undermine plans to direct patients with specific exposures to specified treatment centers. Patient-privacy regulations that will go into effect soon could complicate surveillance programs to detect an outbreak early and to notify relatives of the status of victims of an attack, he says.” (Ron Winslow, “U.S. Hospitals May Need $10 Billion to Be Prepared for Bioterror Attack,” Wall Street Journal, Oct. 29) (online subscribers only) (via NCPA Policy Digest).
October 30 — University official vs. web anonymity. “A lawyer for the authors of an anonymous Web site criticizing the University of Louisiana-Monroe is seeking to block a federal magistrate’s order to reveal his clients’ identities. … Richard Baxter, the university’s vice president for external affairs, wants the names of those behind the site Truth at ULM so he can file a defamation lawsuit. U.S. Magistrate James Kirk also ordered Homestead Technologies Inc. to provide computer logs of all people who have posted, published or provided any content to the site. The Internet site has called the university administration incompetent and accused top officials of lying.” (“Lawyer fights order to reveal identities of university critics”, AP/Freedom Forum, Oct. 24).
October 30 — “Crying wolf”. “In the approximately four and a half years since [Ontario] made record-keeping of violent crime mandatory,” writes the National Post‘s Christie Blatchford, 2,233 of 39,223 complaints of sexual assault have been shown to have been knowingly false. That amounts to more than one false accusation per day in Canada’s largest province; British Columbia reports similar rates as a share of population. The number is a “bare minimum”, since authorities have “adopted strict definitions of what comprises a false allegation.” “Unfounded complaints, where police determine there was no crime but also that the victim did not intend to mislead investigators, are not tracked at all.”
Why would someone lodge a false allegation? Reasons vary from the wish to avoid admitting to consensual sex to a craving for attention to post-breakup revenge to mental illness. Some charges begin on impulse, then spiral out of control since authorities are obliged to set an investigative process in motion. One serial “allegator” filed charges against numerous men, including a dark-skinned stranger who luckily was able to prove he was out of the country at the time; another of her targets, a veteran Ontario police officer, though eventually winning vindication, “was left in ruins, with legal bills, his long and respected career in tatters, and deserted by even life-long colleagues. … ‘There are two principles at work in the system right now,’ [his lawyer, Bill] Bain told the Post. ‘That children don’t lie, and that women are victims.'” Following pressure on the legal system by feminist and rape-crisis activists, Bain says, “police became afraid of not laying charges even in dubious cases, demurring that ‘the courts will decide,’ while Crown attorneys [prosecutors] grew ‘loathe to exercise their discretion and to live in fear of screwing up a sexual assault trial.'” And, importantly, complainants seldom face criminal penalties themselves even for knowingly filing false charges. (Christie Blatchford, “Crying wolf”, National Post, Sept. 8).
October 29 — U.S. Muslims told: don’t talk to law enforcement. Three of the Sept. 11 hijackers, Nawaf Alhazmi, Khalid Al-Midhar and Hani Hanjoor, lived in San Diego and had many contacts among persons active in a mosque in suburban La Mesa; others mingled with Muslim communities in Arizona and elsewhere in the U.S. However, if one American attorney has his way, law enforcement may not get the kind of free and spontaneous cooperation they might like from U.S. Muslims who may have information relating to the three’s activities in this country. Attorney Randall Hamud has left slips of paper for La Mesa mosque-goers which “instruct the reader, in both English and Arabic, that ‘in case of law enforcement questioning you,’ respond as follows: ‘I exercise my right to remain silent according to the 5th Amendment. I exercise my right to have my attorney, Randy Hamud, present.” (Maureen Tkacik and Rick Wartzman, “Muslim Lawyer Terms FBI Probe Discriminatory”, Wall Street Journal, Oct. 15 (online subscribers only); Ben Fox, “Three held in California as material witnesses to terror attack”, AP/Nando, Sept. 25; Kelly Thornton, “3 local men to be kept in jail indefinitely”, San Diego Union-Tribune, Sept. 26). Press coverage has depicted some other Muslim activists as discouraging their co-believers from cooperating with inquiries from the FBI and other agencies.
Persons charged with crimes in this country, of course, are entitled to have a lawyer and to not be convicted on the basis of self-incrimination, but it is a rather big jump from there to the premise that free and spontaneous cooperation by the residents of this country with police inquiries is in itself something to be discouraged. And it would seem odd to tell innocent people to invoke the Fifth Amendment privilege against self-incrimination, since they wouldn’t seem to come under that privilege — or are we missing something?
MORE: Four terror suspects apprehended under highly suspicious circumstances after the attacks have stonewalled police inquiries since then, to the deep frustration of investigators (Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma”, Washington Post, Oct. 21; John Leo, “Muslims must shoulder responsibilities as citizens”, TownHall/syndicated, Sept. 25). (DURABLE LINK)
October 29 — A belt too far. The survivors of Lori Mason-Larez, who plunged more than 100 feet to her death from a ride at Knott’s Berry Farm in Orange County, Calif., are suing the amusement park and the ride’s manufacturer, Intamin Ltd., but Sandor Kernacs, president of Intamin, said the 292-pound woman was “too large to be belted in properly around her waist”. “If the company did try to limit riders according to weight or waist size, Kernacs said, advocates for the obese would be quick to challenge the restrictions. ‘Basically we cannot discriminate against anybody,’ he said.” (Michelle Dearmond, “Manufacturer says woman was too big for Knott’s ride safety restraint”, San Diego Union-Tribune, Oct. 23) (see also Aug. 31, 1999). (DURABLE LINK)
October 29 — Australian roundup. On Australian TV this summer, viewers heard about the “dentist and bartender” theories of how lawyers behave, which will be familiar to longtime followers of this site (“Law Matters with Susanna Lobez”, ABC (Australian Broadcasting Corporation)-TV, July 30; Walter Olson, “Lawyers, Gums, and Rummies”, Reason, July 1999). And we never got around to thanking Richard Ackland of the Sydney Morning Herald for this very kind reference a while back: “You only have to read of developments abroad in this area, which are religiously tracked by the marvellous online journal overlawyered.com, to see all the interesting new twists and plays that are possible in a properly evolved legal system.” (“Lawyers now free to sue the pants off everyone”, Feb. 16).
MORE: Justice Thomas of the high court of Queensland recently wrote: “The generous application of [negligence] rules is producing a litigious society and has already spawned an aggressive legal industry. I am concerned that the common law is being developed to a stage that already inflicts too great a cost upon the community both economic and social. In a compensation-conscious community citizens look for others to blame. The incentive to recover from injury is reduced. Self-reliance becomes a scarce commodity. These are destructive social forces. Also much community energy is wasted in divisive and non-productive work. A further consequence is the raising of costs of compulsory third party, employer’s liability, public risk and professional indemnity insurance premiums. These costs are foisted upon sectors of the public and in the end upon the public at large. I would prefer that these problems be rectified by the development of a more affordable common law system, but in recent times its development has been all in one direction - more liability and more damages.” (Thomas, J., in Lisle v Brice & Anor, QCA 271 Queensland Court of Appeal, July 20 — opinion in PDF format). (DURABLE LINK)
October 26-28 — “Lawyers see trouble over victims’ fund”. After last month’s attacks, Congress rushed to enact the Victim Compensation Fund. But many trial lawyers are now advising victim families to avoid the fund and prepare for all-out litigation of the sort the legislation was supposed to forestall. Meanwhile, some expect claims to roll in from such potentially large and open-ended categories of victim as “people who say they suffered respiratory distress from the dust cloud kicked up by the collapse of the World Trade Center” and “workers in nearby buildings so emotionally debilitated that they can no longer work in a high-rise”. The Association of Trial Lawyers of America “helped shape the law” and its president Leo Boyle now says that aggregate cost to the taxpayers is not a legitimate factor to take into account in deciding how much the fund should pay claimants (”That is not a relevant consideration”); individual families may ask for tens of millions because they lost high-earning executives. (Ralph Ranalli, Boston Globe, Oct. 22). If cases proceed to litigation, many lawyers concede that it will be difficult to prove the “foreseeability” of the outrages, as needed to prove negligence (Tom McGhee, “Lawyers: Federal plan may not stem WTC suits”, Denver Post, Oct. 16). Some observers also believe it will be difficult to prove that it was negligent not to order the immediate evacuation of the second tower after the first was attacked, not only because of a lack of foreseeability of the second attack, but because authorities could reasonably believe that a mass exodus from building two would interfere with the obviously critical evacuation of building one and expose evacuees to danger from falling debris if they emerged on the street. (Phil Hirschkorn, “Lawsuits likely after WTC attacks”, CNN, Oct. 10).
October 26-28 — Abusive workplace language: banned, or federally protected? A question we’ve raised before: why is it that the National Labor Relations Board extends the formal protection of federal law to “abusive language, vulgar expletives, and racial epithets”, requiring employers to refrain from treating them as grounds for discipline, on the claim that they are “part and parcel of the vigorous exchange that often accompanies labor relations'”, while at the same time federal harassment law exposes employers to stiff financial penalties for allowing those same things? An NLRB decision last year in a case called Adtranz raises the question anew. Writing for a federal appeals court, Judge David Sentelle called the discrepancy “preposterous”. (Michael Barone, “The Evolution of Labor Law”, Oct. 11).
October 26-28 — Cartoonist’s suit over practical joke. We have never derived much pleasure or instruction from the work of the cartoonist Ted Rall, and now we also know that we never, ever, want to play a stupid practical joke on him like the one that has enmeshed a man named Danny Hellman in a long-running suit at his hands. “I don’t know if any of you have ever been on the receiving end of a lawsuit; those of you who have understand what an emotionally devastating situation it is,” writes Mr. Hellman. “We have gone through months of anxiety riding this out-of-control roller coaster; only the vengeful individual at the controls knows when it will end.” DannyHellman.com (via InstaPundit: Oct. 21, Oct. 20, Oct. 15) (see letter to the editor, Nov. 29).
October 24-25 — Suit blames drugmaker for Columbine. “Families of five Columbine High School shooting victims are suing the maker of an anti-depressant that one of the student gunmen was taking when he opened fire. A therapeutic amount of the drug Luvox was found in Eric Harris’ system after he died, the Jefferson County coroner’s office has said. Solvay Pharmaceuticals Inc. makes the drug to treat obsessive-compulsive disorder and depression.” (“Columbine victims’ families sue maker of anti-depressant”, AP/CNN, Oct. 21; Allison Sherry, “Drug firm sued over Columbine”, Denver Post, Oct. 21).
October 24-25 — Don’t try rating our judges, or else. Even by Philadelphia standards, it’s an unusually bare-knuckled tactic: three Democratic politicos, U.S. Reps. Robert Brady and Chaka Fattah and Pennsylvania State Sen. Christine Tartaglione, have sued a business-oriented advocacy group named Pennsylvania Law Watch, whom the plaintiffs claim are unlawfully trying to influence next month’s statewide judicial elections by distributing ratings of judges as pro- or anti-business. “Imagine,” writes one of our readers. “Someone other than lawyers rating judges. This must be stopped immediately!” Brady et al want a freeze on Law Watch’s assets, the right to go through its books, an injunction against its activities, and more. (Jeff Blumenthal, “Philly Politicians File Suit to Stop Pa. Law Watch From ‘Influencing Election'”, Legal Intelligencer, Oct. 22).
According to the Philadelphia Daily News, “State Sen. Vincent Fumo prompted some controversy last month when he told the Philadelphia Chamber of Commerce that anyone who helped [Republican judge/candidate Michael] Eakin by donating to Pennsylvania Law Watch ‘should expect to be arrested,’ according to a witness at the chamber meeting, who also said Fumo mentioned Richard Sprague as a member of a team of attorneys ready for action.” (Chris Brennan, “Dems sue non-profit group, calling it a PAC”, Philadelphia Daily News, Oct. 23). For more on what is considered perfectly acceptable campaigning when done on behalf of the city’s Democratic machine, see our Oct. 12 entry (millions of dollars in “street money” handed out to elect judges, including at least $500,000 not subject to any public accounting). Update: case already settled, with Law Watch agreeing with Pennsylvania Democrats that it would not “it would not attempt to influence the statewide judicial elections through advertising, ‘push polling’ or any other kind of communication with the public” (Jeff Blumenthal, “TV Ads Against Ford Elliott Barred”, Legal Intelligencer, Oct. 23 — with discussion of related case against a second group).
October 24-25 — Guarding the spires. “I feel that if a war came to threaten this, I would like to throw myself into space, over the city, and protect these buildings with my body.” — said of the Manhattan skyline by a character in Ayn Rand’s novel of New York architecture, The Fountainhead, 1943 (via David Kelley, “The Assault on Civilization”, Objectivist Center, Sept. 13).
October 23 — Guest commentary #1. Jay Nordlinger, National Review Online, on the idea of “trying” Al Qaeda: “The American love of the courts — bordering on religious worship — is pretty much comical in this instance, which is an instance of obvious and necessary war. Clarence Darrow, Atticus Finch, and Perry Mason simply have nothing to do with it, fellas. The attacks on our embassies, the attacks on the U.S.S. Cole, the attacks of 9/11? War, war, war, and to be treated as such, properly. That’s why the phrase ‘bring them to justice’ is an alarming one. No, bring them to defeat.” (“Impromptus”, Oct. 19). A contrary view: Molly Ivins, “There has to be a better way”, syndicated/Sacramento Bee, Oct. 11 (bring World Court case against bin Laden).
October 23 — Guest commentary #2. Andrew Sullivan, Sunday Times (London): “So far, this hasn’t happened in America. But the country is on a knife-edge. Americans aren’t like Brits. They have a long history of requiring almost risk-free living, which is why this is the land of the trial lawyer and the damages suit. A country that came up with a tort for the accidental spilling of hot coffee will no doubt have some difficulty acclimatizing to a world where the deliberate spilling of anthrax spores is a real and present danger.” (“Fear in the air as concern rises over biochemical attacks”, Oct. 14). Actually, we wouldn’t say it was “Americans” generally who demand that life be almost risk-free, so much as one sector of our opinion — but point taken.
October 23 — Hit after laying on RR tracks; sues railroad. “A homeless woman is suing Santa Fe Southern Railway over a 1998 accident in which a train in Santa Fe severed her feet as she was lying on the tracks at a crossing.” Dionne Fresch says the railway and its conductor and brakeman should have seen her and slowed or stopped in time; a police report found that the train was going at about 8 mph and that the engineer had honked before the crossing, as required. Railway general manager Bob Sarr called the lawsuit “disgusting” and said the “accident was not the railroad’s fault. He said Fresch was lying under a brown blanket and was indistinguishable from debris when the train hit her.” (“In brief: Woman sues over railroad accident”, Santa Fe New Mexican, Oct. 18) (& see Jun. 26-27, 2002). (DURABLE LINK)
October 22 — Lawsuit fears slow bioterror vaccines. “[T]he biotechnology industry plans to tell Congress that financial incentives and liability protection for companies would go a long way toward meeting increased demands for vaccines and medicines to treat bioterrorism agents” such as smallpox and anthrax. Many companies are eager to participate in emergency production plans, says Stephan Lawson of the Biotechnology Industry Organization, but are awaiting legislative assurances that it will not be self-defeating as a business decision to do so. “The issue of liability is particularly big since vaccine makers have a long history of being sued by patients.” (Marilyn Chase and Jill Carroll, “Trial Planned to Stretch Smallpox-Vaccine Supply”, Wall Street Journal, Oct. 15 (online subscribers only); Julie Appleby, “U.S. requesting 300M smallpox vaccines”, USA Today, Oct. 18). See also Scott Gottlieb, “Ammo for the War on Germs”, WSJ/ OpinionJournal.com, Oct. 19 (FDA obstacles); Michelle Malkin, “Who hates the drug industry now?”, syndicated/Jewish World Review, Oct. 17).
October 22 — Channeling Chomsky. Ralph Nader, the world’s most prominent litigation advocate, has long kept many of his views about foreign policy under discreet wraps but now hops from campus to campus to denounce U.S. policy ascribing our current woes to our government’s not siding with the “workers and peasants” around the globe. Matt Welch, who puts out a fine “warblog” (recent coinage: war + weblog), covered Nader’s campaign and even voted for him for president but now writes of his disillusionment: “I have discovered, in reading way too much Noam Chomsky lately, that whole phrases of Nader’s admittedly limited foreign policy utterings on the stump were cut and pasted directly from Chomsky”. (MattWelch.com, Oct. 7; Oct. 11; Sept. 20). More: Ronald Radosh, “Nader and the New ‘Peace’ Movement”, FrontPage, Oct. 18.
October 22 — Batch of reader letters. Latest batch (we still haven’t fully caught up with our backlog) deals with how employers react to workers who jubilate at terrorist acts, legal vetting of anti-Taliban strikes, disabled rights and the bar exam, a proposal for a class action over law firms’ incremental billing, and whether doctors should avoid taking on attorneys as patients.
May 10 — “Barbecue group sued over contest”. Jim Woodsmall of Jumpin’ Jim’s BBQ in Johnston, Ia., has sued the Kansas City Barbeque Society, charging that his business has suffered because the society has failed to award his barbecue recipe the stellar ratings he feels it deserved. The enthusiast group fails to follow impartial and uniform rules in its cook-offs, Woodsmall claims, which he thinks amounts to fraud and negligence. (Lindsey A. Henry, Des Moines Register, May 8).
May 10 — Fortune on Lemelson patents. We’ve run a couple of items on the amazing Jerome Lemelson patent operation (see Jan. 19, 2001 and August 28, 1999) and now Fortune weighs in with the best overview we’ve seen. Lemelson, who died in 1997, filed patents for hundreds of ideas and industrial processes which he said he had invented, and which underlay such familiar modern technologies as VCRs, fax machines, bar-code scanners, camcorders and automated warehouses. A mechanical genius? Well, at least a genius in figuring out the angles that could be worked with American patent law: by filing vague patents and then arranging to delay their issuance while amending their claims to adjust to later technological developments, Lemelson steered them into the path of unfolding technology, eventually securing bonanzas for his tireless litigation machine. Foreign-owned companies folded first because they were afraid of American juries, which helped give Lemelson the war chest needed to break the resistance of most of the big U.S.-based industries as well. $1.5 billion in royalties later, his estate continues to sue some 400 companies, with many more likely to be added in years to come. (Nicholas Varchaver, “The Patent King”, May 14).
May 10 — Prospect of $3 gas. One reason refinery disruptions lead to big spikes in the price of gasoline at the pump: environmental rules end up mandating a different blend of gas for each state, hampering efforts to ship supplies to where they’re most needed. (Ron Scherer, “50 reasons gasoline isn’t cheaper”, Christian Science Monitor, May 4; Ben Lieberman (Competitive Enterprise Institute), “Skyrocketing Ga$: What the Feds Can Do”, New York Post, April 23, reprinted at CEI site).
May 10 — Welcome Norwegian readers. We get discussed, and several of our recent news items summarized, on the “humor” section of Norway’s Spray Internet service (Bjørn Tore Øren, “For mange advokater”, May 8). Among other non-U.S. links which have brought us visitors: Australia’s legal-beat webzine, Justinian (“A journal with glamour — yet no friends”; more); Baker & Ballantyne, in the U.K.; the Virtual Law Library pages on media law compiled by Rosemary Pattenden at the University of East Anglia; and Sweden’s libertarian- leaning Contra.nu (“Har advokatkåren i USA för stort inflytande?” they ask of us)(more).
May 9 — Oklahoma forensics scandal. After serving fifteen years in prison on a 1986 rape conviction, Jeffrey Pierce was released Monday after new DNA evidence refuted testimony against him by a forensic specialist whose work is the subject of a growing furor. “From 1980 to 1993, Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City police laboratory scientist, often helping prosecutors win convictions by identifying suspects with hair, blood or carpet fibers taken from crime scenes.” Although peers, courts and professional organizations repeatedly questioned the competence and ethical integrity of her work, prosecutors asked few questions, perhaps because she was getting them a steady stream of positive IDs and jury verdicts in their favor. Now Oklahoma Gov. Frank Keating has ordered an investigation of felony cases on which Gilchrist worked after an FBI report “found she had misidentified evidence or given improper courtroom testimony in at least five of eight cases the agency reviewed.” (Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry”, New York Times, May 8; “Inquiry Focuses on Scientist Used by Prosecutors”, May 2)(reg)
May 9 — Not about the money. Foreign policy making on a contingency fee: “When attorneys agreed to champion the causes of American victims of terrorism in the Middle East, it wasn’t supposed to be about the money.” We’ve heard that one before, haven’t we? “But the prospect of multimillion-dollar fees in what once seemed to be long-shot litigation against Iran has left lawyers fighting over fees in federal court in Washington, D.C. High principles of international law and justice aren’t at stake. It’s simply a matter of who gets paid.” (Jonathan Groner, “Anti-Terrorism Verdicts Spur Big Fee Fights”, Legal Times, April 18).
May 9 — Update: cookie lawsuit crumbles. Half-baked all along, and now dunked: a federal court in March dismissed a would-be class action lawsuit against web ad agency DoubleClick over its placing of “cookies” on web users’ hard drives. Other such suits remain pending (see also Feb. 2, 2000); this one was brought by Milberg Weiss’s Melvyn Weiss and by Bernstein, Litowitz (Michael A. Riccardi, “DoubleClick Can Keep Hand in Cookie Jar, Federal Judge Rules”, New York Law Journal, March 30).
May 8 — “Lawyers to Get $4.7 Million in Suit Against Iomega”. “Lawyers in a class action suit alleging defects in portable computer Zip disk drives will get the only cash payout, up to $4.7 million, in a proposed settlement with manufacturer Iomega Corp., according to the company’s Web site.” Rebates of between $5 and $40 will be offered to past customers who buy new Iomega products, while Milberg Weiss and three other law firms expect to split their fees in crisp greenbacks, not coupons, if a Delaware judge approves the settlement in June. (Yahoo/Reuters, April 12) (Rinaldi class action settlement notice, Iomega website).
May 8 — A definition (via Sony’s Morita and IBM’s Opel). “Litigious (li-TIJ-uhs) adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits; 3. Inclined to disputes and arguments. [From Middle English, from Latin litigiosus from litigium, dispute.]
“‘My friend John Opel of IBM wrote an article a few years ago titled ‘Our Litigious Society,’ so I knew I was not alone in my view that lawyers and litigation have become severe handicaps to business, and sometimes worse.” — Sony co-founder Akio Morita (Wordsmith.org “A Word a Day” service, scroll to Jan. 26).
May 8 — “Halt cohabiting or no bail, judge tells defendants”. “A federal judge in Charlotte is using a 19th-century N.C. law banning fornication and adultery, telling defendants they won’t be freed on bond until they agree to get married, move out of the house or have their partner leave. U.S. Magistrate Judge Carl Horn won’t release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805.” (Eric Frazier and Gary L. Wright, Charlotte Observer, April 4) (see also May 18, 2000).
May 7 — Says cat attacked his dog; wants $1.5 million. “A San Marcos man has filed a $1.5 million claim against the city because a cat who lives in the Escondido Public Library allegedly attacked his dog.” Richard Espinosa says he was visiting the library on November 16 with his assistance dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library Cat because it’s allowed to live in the building, attacked the dog inflicting scratches and punctures. As for Espinosa, wouldn’t you know, he “was emotionally traumatized and suffers from flashbacks, terror, nightmares and other problems.” Four lawyers declined to take his case and he finally filed it himself. “The cat was apparently uninjured.” (Jonathan Heller, “Escondido gets $1.5 million claim; library cat allegedly assaulted dog”, San Diego Union-Tribune, May 4) (see letter to the editor from Espinosa, June 13).
May 7 — Judge throws out hog farm suit. As was reported a few months ago, a number of environmental groups aim to take a lesson from the tobacco affair by using mass lawsuit campaigns to pursue various goals which they haven’t been able to secure through the legislative and electoral process. To do this they’ve teamed up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots of publicity in December with one of its first projects, suing Smithfield Farms for billions over the nuisance posed by large-scale hog farming, a project apparently masterminded by Florida trial lawyer Mike Papantonio (tobacco, asbestos, fen-phen) and with suits against chicken and livestock operations promised in later phases of the effort (see Dec. 7, 2000). Far less publicity has been accorded to Judge Donald W. Stephens’s ruling in March which threw out the first two lawsuits as having failed to state a legal claim against the large hog packer and raiser. (Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still on board with his headline-ready name to front for the lawyers in the press, but he doesn’t seem to have gone out of his way to call attention to the adverse ruling (“North Carolina judge dismisses lawsuits against hog producer”, AP/MSNBC, March 30; Scott Kilman, “Environmental groups target factory-style hog farm facilities”, Wall Street Journal/MSNBC, undated; Smithfield press release, March 29).
MORE: National Public Radio, “Living on Earth” with Steve Curwood and reporter Leda Hartman, week of Feb. 16; Water Keeper Alliance (Kennedy’s group), hog campaign homepage with list of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz, Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann, Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston; F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston; Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.), Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton (Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham, N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare “Conoco Could Face $500 Million Lawsuit Over Bayou Water Pollution Problems”, Solid Waste Digest: Southern Edition, March 2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).
May 7 — Website accessibility law hits the U.K. “Scottish companies were warned yesterday that they could face prosecution if their websites are not accessible to the disabled. Poorly-designed websites are often incompatible with Braille software.” (more) (yet more) (Pauline McInnes, “Firms warned on websites access”, The Scotsman, April 19).
May 4-6 — By reader acclaim: “Vegetarian sues McDonald’s over meaty fries”. Seattle attorney Harish Bharti wants hundreds of millions of dollars from the burger chain for its acknowledged policy of adding small amounts of beef flavoring to its french fries, which he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters, May 3). Notable detail that hasn’t made it into American accounts of the case we’ve seen, but does appear in the Times of India: “When he is not practising law in Seattle, Bharti says he teaches at Gerry Spence’s exclusive College for Trial Lawyers in Wyoming”. Does this mean you can be a predator without being a carnivore? (“US Hindus take on McDonald’s over French fries”, Times of India, May 3) (see also Aug. 30, 1999).
May 4-6 — Mississippi’s forum-shopping capital. The little town of Fayette, Miss., reports the National Law Journal, is “ground zero for the largest legal attack on the pharmaceutical industry” in memory. Tens of thousands of plaintiffs are suing in the Fayette courthouse over claimed side effects from such drugs as fen-phen, Rezulin, and Propulsid, not because they’re local residents (most aren’t) but because the state’s unusually lax courtroom rules allow lawyers to bring them in from elsewhere to profit from the town’s unique brand of justice. The townspeople, nearly half of whom are below the poverty level and only half of whom graduated from high school, “have shown that they are willing to render huge compensatory and punitive damages awards”. Among other big-dollar outcomes, Houston plaintiff’s lawyer Mike Gallagher of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours…” There’s just one judge in Fayette County to hear civil cases, Judge Lamar Pickard, whose handling of trials is bitterly complained of by out-of-town defendants. As for appeal, that route became less promising for defendants last November when plaintiff’s lawyers solidified their hold on the Mississippi Supreme Court by knocking off moderate incumbent Chief Justice Lenore Prather.
Lots of good details here, including how the Bankston Drug Store, on Main Street in Fayette since 1902, has the bad fortune to get named in nearly every suit because that tactic allows the lawyers to keep the case from being removed to federal court. Plaintiff’s lawyer Gallagher, who also played a prominent role in the breast implant affair, says criticism of the county’s jurors as easily played on by lawyers “‘sounds racist’, since the jury pool is predominantly black”. He also brushes off defendants’ complaints about forum-shopping with all the wit and sensibility at his command: “They want to tell me where I can sue them for the damage they caused? They can kiss my a**.” (Mark Ballard, “Mississippi becomes a mecca for tort suits”, National Law Journal, April 30).
May 4-6 — Agenda item for Ashcroft. Attorney General Ashcroft could make a real difference for beleaguered upstate New York communities by backing off the Justice Department’s Reno-era policy of avid support for revival of centuries-dormant Indian land claims, which went so far as to include the brutalist tactic of naming as defendants individual landowners whose family titles had lain undisturbed since the early days of the Republic (see Oct. 27, 1999, Feb. 1, 2000) (John Woods, “Long-Running Indian Land Claims in New York May Hinge on Ashcroft’s Stance”, New York Law Journal, April 16).
May 3 — “Family of shooting victim sue owners of Jewish day-care center”. If the gunman doesn’t succeed in wiping out your institution, maybe the lawyers will: “The parents of a boy who was shot by a white supremacist at a Jewish day-care center have filed a lawsuit claiming the center’s owners failed to provide the necessary security to prevent hate crime attacks.” Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May 1).
May 3 — Update: mills of legal discipline. They grind slow, that’s for sure, but does that mean they grind exceeding fine? A disciplinary panel has ended its investigation of New Hampshire chief justice David Brock, letting him off with an admonishment, in the protracted controversy over the conduct (see April 5 and Oct. 11, 2000) which also led to his impeachment and acquittal in the state senate; Brock’s lawyer had threatened to sue the disciplinary panel if it continued its probe, and a dissenting committee member called that lawsuit-threat “intended to intimidate” (“Threat of lawsuit ended Brock case”, Nashua Telegraph, April 23; Dan Tuohy, “Finding bolsters call for reform”, Foster’s Daily Democrat, April 26). A hearing committee of the District of Columbia Board on Professional Responsibility has recommended that Mark Hager be suspended for three years over the episode [see Feb. 23, 2000] in which he and attorney John Traficonte “began negotiations with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay himself and Hager $225,000 in exchange for which they would abandon their representation, agree to hold the agreement and fee secret from the public and their clients, and promise not to sue Warner-Lambert in the future. Traficonte and Hager accepted the offer without first obtaining the approval of any class member.” The disciplinary committee “found that Hager’s conduct was shockingly outrageous, and that his status as a law professor was a factor in aggravation.” We’ve seen no indication that anyone in the administration of American University’s law school, where Hager continues to teach, has expressed the smallest misgivings about the example that students are supposed to take from his conduct (Denise Ryan, law.com D.C., Board on Professional Responsibility No. 31-98, In re Hager, issued Nov. 30, 2000). (Update Jul. 19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan tort lawyer and politician Geoffrey Fieger faces charges before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges (“Fieger Under Fire For Alleged Swearing Fit”, MSNBC, April 17).
May 3 — “Valley doctors caught in ‘lawsuit war zone'”. A report from the Texas Board of Medical Examiners finds medical malpractice cases approximately tripled in 1999 in Texas’s McAllen-Brownsville region compared with the previous year. Among short-cuts lawyers are accused of employing: suing doctors without an authorization from the client, and hiring as their medical expert a family doctor who charges $500 an hour and has reviewed 700 cases for lawyers, second-guessing the work of such specialists as cardiovascular surgeons, but has not herself (according to an opposing lawyer) had hospital privileges since 1997. (James Pinkerton, Houston Chronicle, March 2 — via Houston CALA). State representative Juan Hinojosa has introduced a bill that would allow doctors and hospitals to countersue lawyers and clients who file suits with reckless disregard as to whether reasonable grounds exist for their action. (“Doctors seek new remedy to fight frivolous lawsuits”, CALA Houston, undated).
May 2 — Suing the coach. “A teenager, who felt she was destined for greatness as a softball player, has filed a $700,000 lawsuit against her former coach, alleging his ‘incorrect’ teaching style ruined her chances for an athletic scholarship. Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her personal pitching coach, Roy Jenderko, of Warminster, not only taught her an illegal style of pitching but also used ‘favorite players’ which resulted in demoralizing the teen. ” (Dave Sommers, “Legal Pitch”, The Trentonian, May 1).
May 2 — Trustbusters sans frontieres. Truly awful idea that surfaced in the press a while back: a bipartisan group of senators led by Sen. Arlen Specter (R-Pa.) say they’re trying to pressure the Bush administration to file an antitrust suit against the Organization of Petroleum Exporting Countries, accusing it of restricting the output of oil in order to raise prices to consumers in countries like ours — which is, of course, OPEC’s reason for existence. “Most antitrust and foreign policy experts interviewed say they cannot imagine a scenario in which such legal action would succeed, or that any president would risk his foreign policy goals for such a lawsuit”, reports the National Law Journal. But even the gesture of inviting unelected judges and unpredictable juries to punish sovereign foreign powers would increase the chances of our landing in a series of confrontations and international incidents that would be at best imperfectly manageable by the nation’s executive branch and diplomatic corps (which cannot, for example, necessarily offer to reverse or suspend court decisions as a bargaining chip).
The United States’s relations with OPEC countries, it will be recalled, have on occasion embroiled us in actual shooting wars, which are bad enough when entered after deliberation on the initiative of those to whom such decisions are entrusted in our system of separation of powers, and would be all the less supportable if brought on us by the doings of some rambunctious judge or indignant jury. Wouldn’t it be simpler for Sen. Specter to just introduce a bill providing that the courts of the United States get to run the world from now on? (Matthew Morrissey, “Senators to Press for Suing OPEC Over Pricing”, National Law Journal, March 1).
May 1 — Columnist-fest. Scourings from our bookmark file:
* Mark Steyn on the Indian residential-school lawsuits that may soon bankrupt leading Canadian churches (see Aug. 23, 2000): (“I’ll give you ‘cultural genocide'”, National Post, April 9). Bonus: Steyn on protectionism, globalization and Quebec City (“Don’t fence me in”, April 19).
* Federalists under fire: there’s a press campaign under way to demonize the Federalist Society, the national organization for libertarian and conservative lawyers and law students. The Society has done a whole lot to advance national understanding of litigation abuses and overuse of the courts — could that be one reason it’s made so many powerful enemies? (Thomas Bray, “Life in the Vast Lane”, OpinionJournal.com, April 17; Marci Hamilton, “Opening Up the Law Schools: Why The Federalist Society Is Invaluable To Robust Debate”, FindLaw Writ, April 25; William Murchison, “In Defense of the Federalist Society”, Dallas Morning News, April 25).
* A Bush misstep: the White House has named drug-war advocate and Weekly Standard contributor John P. Walters as head of the Office of National Drug Control Policy. “Walters, almost alone among those who have spent serious professional time on drug abuse in America, harbors no misgivings over the fact that we’ve been crowding our prisons almost to the bursting point with nonviolent drug offenders.” (William Raspberry, “A Draco of Drugs”, Washington Post, April 30) (Lindesmith Center).
* “Overreaching IP legal teams kick the firm they supposedly represent”: Seth Shulman of Technology Review on the “patented peanut butter sandwich” case (see Jan. 30). (“Owning the Future: PB&J Patent Punch-up”, May). Also: California judge William W. Bedsworth (“Food Fight!”, The Recorder, March 16).
May 18-20 — “Couple sues for doggie damages”. Claiming that their 4-year-old golden retriever Boomer was hurt by an “invisible fence” electronic collar device, Andrew and Alyce Pacher, of Vandalia, Ohio, want to name the dog itself as a plaintiff in the suit. “It’s my opinion that it’s clear dogs cannot sue under Ohio law,” says the fence company’s lawyer. But the Pachers’ attorney, Paul Leonard, a former lieutenant governor and ex-mayor of Dayton, says that’s exactly what he hopes to change: he’s “hoping to upgrade the legal status of dogs in Ohio.” (“Damages for Injuries Caused by Invisible Fence Sought for Dog”, AP/FoxNews.com, May 11).
May 18-20 — “Fortune Magazine Ranks ATLA 5th Most Powerful Lobby”. The business magazine finds that plaintiff’s lawyers have more clout in Washington than the U.S. Chamber of Commerce or the AFL-CIO; more than Hollywood or the doctors or the realtors or the teachers or the bankers. (Fortune, May 28; ATLA jubilates over its rise from 6th to 5th, May 15).
May 18-20 — Batch of reader letters. Our biggest sack of correspondence yet includes a note from a reader wondering if some open-minded attorney would like to help draft a loser-pays initiative for the ballot in Washington state; more about carbonless paper allergies, the effects of swallowing 9mm bullets, the Granicy trial in California, and “consumer columns” that promote lawyers’ services; a link between ergonomics and gun control controversies; and a reader’s dissent on the case of the boy ticketed for jaywalking after being hit by a truck.
May 17 — “Crash lawyers like Boeing move”. Attorneys who sue after midair mishaps are pleased that Boeing is planning to relocate its headquarters to Chicago. They say the courts of Cook County, Ill., hand out much higher verdicts than those of Seattle, the aircraft maker’s former hometown. Some lawyers in fact predict that domestic crashes, at least when the plane is Boeing-made, are apt to be sued in Cook County from now on regardless of where the flight originated or went down; under the liberal rules of forum-shopping that prevail in American courts, most big airlines may be susceptible to venue in the Windy City since they do at least some business there. (Blake Morrison, “Crash lawyers like Boeing move”, USA Today, May 16).
May 17 — Like a hole in the head. As if the nine private law schools in the state of Massachusetts weren’t enough, proponents now want to establish a public one by having the state take over the struggling Southern New England School of Law at North Dartmouth, near New Bedford. (Denise Magnell, “Crash Course”, Boston Law Tribune, May 1).
May 17 — Lessons of shrub-case jailing. The months-long contempt-of-court jailing of John Thoburn of Fairfax County, Va. for refusing to erect enough trees and shrubs around his golf driving range is a good example of the excesses of bureaucratic legalism, says Washington Post columnist Marc Fisher (“In Fairfax shrub fight, Both Sides Dig In Stubbornly”, April 26). Some of the county’s elected supervisors voice few misgivings about the widely publicized showdown, saying their constituents want them to be tougher in cracking down on zoning violations. (Peter Whoriskey and Michael D. Shear, “Fairfax Zoning Case Draws World Attention”, Washington Post, April 21) (freejohnthoburn.com).
May 16 — No baloney. “A suspected drug dealer who was served a bullet-and-bologna sandwich wants a side of lettuce — about $5 million worth. ” Louis Olivo says he was given an officially prepared lunch during a break in a Brooklyn Supreme Court hearing last week, and felt something “crunchy” which turned out to be a bullet. Surgery (not syrup of ipecac?) is expected to remove the 9mm bullet from Olivo’s stomach; his lawyer wants $5 million (Christopher Francescani, “$5M Lawsuit Over Bulletin in Bologna”, New York Post, May 15) (& letter to the editor, May 18)
May 16 — “Who’s afraid of principled judges?” More questions should be raised about a retreat held at Farmington, Pa. earlier this month in which 42 Democratic Senators were lectured on the need to apply ideological litmus tests to judicial nominees, writes Denver Post columnist Al Knight. (May 13). “Liberals rightly decried efforts a decade ago to turn membership in the American Civil Liberties Union into a disqualification for high office; current efforts to do the same thing to the Federalist Society are equally wrong. … In fact, they are the only group, liberal or conservative, that regularly sponsors debates throughout the nation’s law schools on important public-policy issues.” (Howard Shelansky, “Who’s Afraid of the Federalist Society?”, Wall Street Journal, May 15).
May 16 — Drawing pictures of weapons. In Oldsmar, Fla., an eleven-year-old “was taken from his elementary school in handcuffs after his classmates turned him in for drawing pictures of weapons.” (Ed Quioco and Julie Church, “Student removed from class because of drawings”, St. Petersburg Times, May 11; “Pinellas fifth grader cuffed, sent home after classmates turn him in for drawing weapons”, AP/Fort Lauderdale Sun-Sentinel, May 11). In Sunderland, England, police raided Roland Hopper’s 11th birthday party and arrested him as he cut the cake after he was seen playing with the new pellet gun his mother had bought him (“Armed Police Raid 11th Birthday”, Newcastle Journal, April 10). And the website ztnightmares.com, which developed out of a controversy at Lewis-Palmer High School in Monument, Colo., “publicizes the downside or evils of zero tolerance school discipline policies” and has a noteworthy list of outside links as well as horror stories.
May 15 — “Judges or priests?”. Why have judicial nomination fights taken on the intensity and bitterness once associated with religious disputes? “The only places left in this country that could be described as temples — for that is how we treat them — are the courts. … They are temples because the judges who sit in them now constitute a priesthood, an oracular class … we have abdicated to them our personal responsibility and, in many cases, even what used to be the smallest judgment call a citizen had to make for himself.” (Tunku Varadarajan, WSJ OpinionJournal.com, May 11).
May 15 — Techies fear Calif. anti-confidentiality bill. Trial lawyers have been pushing hard for the enactment of legislation granting them wide leeway to disseminate to anyone they please much of the confidential business information they dig up by compulsory process in lawsuits. (At present, judges are free to issue “protective orders” which restrain such dissemination.) Proponents say lawyers will use this new power to publicize serious safety hazards that now remain unaired; critics predict they will use it to stir up more lawsuits and for general leverage against defendants who have been found guilty of no wrong but who don’t want the inner details of their business to fall into the hands of competitors or others. A lawyer-backed bill had been hurtling toward enactment in California following the Firestone debacle, but now a counterforce has emerged in the person of high-tech execs who say the proposal “could expose confidential company information, stifle innovation and encourage frivolous litigation. … TechNet CEO Rick White called the bills ‘the most significant threat to California’s technology companies since Prop. 211.’ White was referring to the 1996 initiative that would have made company directors and high-ranking executives personally vulnerable to shareholder lawsuits.” (Scott Harris, “Old Foes Squabble Over Secrecy Bills”, Industry Standard/Law.com, May 10).
May 15 — Canadian court: divorce settlements never final. The Ontario Court of Appeal has ruled that courts may revisit and overturn former divorce settlements if a “material change of circumstances” has taken place since the original deal. “Tens of thousands of people who believed they had agreed to a ‘final’ divorce settlement could face more financial demands … Family law lawyers predict a surge of legal attacks on separation agreements and marriage contracts as a result of the ruling.” (Cristin Schmitz, “Divorce deals never final: court”, Southam News/National Post, April 28).
May 14 — Write a very clear will. Or else your estate could wind up being fought over endlessly in court like that of musician Jerry Garcia (Kevin Livingston, “Garcia Estate Fight Keeps On Truckin'”, The Recorder, April 25; Steve Silverman, “Online Fans Sing Blues About Garcia Estate Wrangling”, Wired News, Dec. 16, 1996; Don Knapp, “Garcia vs. Garcia in battle for Grateful wealth”, CNN, Dec. 14, 1996). Or actor James Mason (A Star is Born, North by Northwest) (“He would have been horrified by all this. … he hated litigation”) (Caroline Davies, “James Mason’s ashes finally laid to rest”, Daily Telegraph (London), Nov. 25, 2000). Or timber heir H.J. Lutcher Stark of Orange, Texas, who died in 1965 and whose estate, with that of his wives, has spawned several rounds of litigation which look as far back for their subject matter as 1939 and are still in progress (William P. Barrett, “How Lawyers Get Rich”, Forbes, April 2 (reg)).
May 14 — City gun suits: “extortion parading as law”. To curb the use of officially sponsored litigation as a regulatory bludgeon, as in the gun suits, the Cato Institute’s Robert Levy recommends “a ‘government pays’ rule for legal fees when a governmental unit is the losing plaintiff in a civil case”. (Robert A. Levy, “Pistol Whipped: Baseless Lawsuits, Foolish Laws”, Cato Policy Analysis #400 (executive summary links to full paper — PDF))
May 14 — Update: “Messiah” prisoner’s lawsuit dismissed. In a 22-page opinion, federal district judge David M. Lawson has dismissed the lawsuit filed by a Michigan prisoner claiming recognition as the Messiah (see April 30). The opinion contains much to reward the curious reader, such as the list on page 5 of the inmate’s demands (including “5 million breeding pairs of bison” and “25,000 mature breeding pairs of every creature that exists in the State of Michigan,” and the passage on page 18 citing as precedent for dismissal similar previous cases such as Grier v. Reagan (E.D. Pa. Apr. 1, 1986), “finding that plaintiff’s claim she was God of the Universe fantastic and delusional and dismissing as frivolous complaint which sought items ranging from a size sixteen mink coat and diamond jewelry to a three bedroom home in the suburbs and a catered party at the Spectrum in Philadelphia”). (opinion dated April 26 (PDF), Michigan Bar Association site) (DURABLE LINK)
May 11-13 — Welcome Aardvark Daily readers (NZ). “New Zealand’s leading source of Net-Industry news and commentary since 1995” just referred us a whole bunch of antipodal visitors by featuring this website in its “Lighten Up” section. It says we offer “an aggregation of quirky and oddball legal actions which go to prove that the USA has far too many lawyers for its own good”. (Aardvark.co.nz). For NZ-related items on this site, check out July 26, Sept. 8 and Oct. 31, 2000, as well as “Look for the Kiwi Label”, Reason, July 2000, by our editor.
May 11-13 — New York tobacco fees. “An arbitration panel has awarded $625 million in attorneys’ fees to the six firms that were hired by New York state to sue the tobacco industry, say sources close to the arbitration report.” The well-connected city law firm of Schneider, Kleinick, Weitz, Damashek & Shoot (which last year was reported to be renting office space to New York Assembly Speaker Sheldon Silver; see May 1, 2000) will receive $98.4 million. Three firms that took a major national role in the tobacco heist will share $343.8 million from the New York booty, to add to their rich haul from other states; they are Ness Motley, Richard Scruggs’ Mississippi firm, and Seattle’s Hagens & Berman. (Daniel Wise, “Six Firms Split $625 Million in Fees for New York’s Share of Big Tobacco Case,” New York Law Journal, April 24). Update Jun. 21-23, 2002: judge to review ethical questions raised by fee award.
May 11-13 — “Judges behaving badly”. The National Law Journal‘s fourth annual roundup of judicial injudiciousness includes vignettes of jurists pursuing personal vendettas, earning outside income in highly irregular ways, jailing people without findings of guilt, and getting in all sorts of trouble on matters of sex. Then there’s twice-elected Judge Ellis Willard of Sharkey County, Mississippi, who allegedly “fabricated evidence such as docket pages, arrest warrants, faxes [and] officers’ releases.” That was why he got in trouble, not just because he was fond of holding court in his Beaudron Pawn Shop and Tire Center, “a tire warehouse flanked by service bays on one side and a store that holds the judge’s collection of Coca-Cola memorabilia.” (Gail Diane Cox, National Law Journal, April 30).
May 11-13 — Update: Compaq beats glitch suit. In 1999, after Toshiba ponied up more than a billion dollars to settle a class action charging that its laptops had a glitch in their floppy drives, lawyers filed follow-on claims against other laptop makers whose machines they said displayed the same problem. But Compaq refused to settle, and now Beaumont, Tex. federal judge Thad Heartfield has felt constrained to dismiss the suit against it on the grounds that plaintiff’s lawyer Wayne Reaud had failed to show that any user suffered the requisite $5,000 in damages. (Daniel Fisher, “Billion-Dollar Bluff”, Forbes, April 16 (now requires registration)).
May 31 — Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.
Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.
May 31 — “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).
May 31 — Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (“Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).
May 30 — Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).
May 30 — Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s [“creative destruction”] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).
May 30 — Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.
May 29 — Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (“Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).
May 29 — States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert'”, National Law Journal, May 25).
May 29 — Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).
May 28 — Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:
* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament'” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).
* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).
* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).
May 25-27 — “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ‘self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).
May 25-27 — Columnist-fest. More reasons to go on reading newspapers:
* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (“Stray Dogs As a Litigant’s Best Friend”, April 13).
* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (“Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (“Sickening policy on medical marijuana”, May 17).
* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).
May 25-27 — “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).
May 24 — “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).
May 24 — Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).
May 24 — Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (“Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).
May 23 — “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.
However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.'” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)
May 23 — “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)
MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times‘s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (“‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (“The Times v. Moyers” (editorial), April 16). (DURABLE LINK)
May 22 — From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (“Woman sues stage hypnotist over ‘abuse memories'”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.
May 22 — Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).
Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?'”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).
May 22 — Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).
May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)
May 21 — “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)
May 21 — “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)
MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.
October 31 — Foster care abuses: taxpayers to owe billions? Injury lawyers plan a major push to develop damage lawsuits against government on behalf of children harmed under foster care, the New York Times reports. Florida tobacco-fee magnate Robert Montgomery (see Apr. 12) and other movers and shakers are encouraged by “court rulings that make government agencies easier to sue and sizable jury awards in foster care cases”. A lawyer with the National Center for Youth Law, part of the network of legal services groups that philanthropic foundations, organized lawyerdom, and taxpayers have all had occasion to support generously over the years, is cited saying that “groups like his had become more open to alliances with personal injury lawyers”. Suits often allege that different placement choices or more vigorous intervention by social workers might have prevented beatings, neglect or molestation of youngsters in foster care. States fear taking the cases to trial: “They’re very difficult cases to defend in front of juries because juries often have the benefit of 20-20 hindsight,” says a lawyer for the state of Washington, where “government payouts in civil cases in general have quadrupled in six years”. “Some officials, including Kathleen A. Kearney, the secretary of the Florida Department of Children and Families, say such litigation unfairly detracts from continuing efforts to improve child welfare, diverting resources that legislatures, not courts, should control.” (Nina Bernstein, “Foster-Child Advocates Gain Allies in Injury Lawyers”, New York Times, Oct. 27) (reg). See also Aug. 23-24 (billions demanded in lawsuits over Canadian residential schools).
October 31 — Tales from the tow zone. “A Dallas-area jury has ordered Chrysler Corp. and a local dealership to pay $83.5 million to a Texas couple who charged that the defendants misled them on the towing capacity of the Dodge Ram pickup truck they bought.” The couple did not suffer physical injury from the towing-force deficit, but argued that because the vehicle turned out not to be strong enough to pull horse trailers, they lost their equine transport business and the husband subsequently suffered depression. Nearly all of the award, $82.5 million, was in punitive damages; Texas’s limits on that category of damages, much deplored by trial lawyers, make it likely that the actual payout to the couple will not exceed $2.4 million, assuming they prevail in Chrysler’s planned appeal. (Margaret Cronin Fisk, “Jury Tags Chrysler for $83 Million”, National Law Journal, Oct. 5).
October 31 — Fat tax proposed in New Zealand. The proposal, floated by public health activists down under in the country’s Medical Journal, got a cool reception from the Kiwi health minister as well as from people in the farming and meat businesses. The idea was hailed as worth considering, however, by a medical adviser to the country’s Heart Foundation. It would apply a saturated-fat tax to such food items as butter, cheese, meat and milk, the “full-cream” variety in particular (Al Gore isn’t the only one campaigning against the “top one percent”). (Martin Johnston, “Fat-tax plan to reduce disease”, New Zealand Herald, Oct. 30).
October 30 — Netscape “Best of ‘What’s Cool'”. Last month Overlawyered.com was one of the picks on Netscape’s popular “Cool Sitings of the Day”, and this weekend we were featured in its “Best of ‘What’s Cool'”, with another flood of newcomers resulting.
October 30 — Ohio high court races. Buckeye State voters next week will decide on the hotly contested re-election bid of Democratic state supreme court justice Alice Robie Resnick, a key member of the court’s 4-3 liberal majority; also seeking re-election is Republican Deborah Cook, who has voted on the opposite side from Resnick in several controversial cases. Bone of contention number one is last year’s decision in which Resnick and three other justices relied on a strained reading of the state constitution to strike down the liability reforms passed by that state’s legislature (see Aug. 17 and Aug. 18, 1999), a move highly welcome to the Ohio Academy of Trial Lawyers, which has supported Resnick’s re-election. Also at issue are a series of other Ohio Supreme Court decisions that have outraged the state’s business community, including a line of cases holding that commercial auto insurance policies by which companies cover their employees’ work-related driving can be made to pay for accidents suffered by the employees and their families in their own cars on their own time. (Scott-Pontzer v. Liberty Mutual (Ohio PIA); Charles T. McConville, “The Ohio Supreme Court, Your Business and Its Insurance”, Ohio Matters (Ohio Chamber of Commerce), Nov./Dec. ’99; Ohio Chamber of Commerce Court 2000 page). In some ways the hard-fought Ohio contest is the mirror image of the one in Michigan, where trial lawyers and labor unions have mounted a major effort to knock off conservative justices Clifford Taylor, Robert Young and Stephen Markman in next week’s vote (see Aug. 25-27, May 9, Jan. 31).
MORE: editorials, Cincinnati Post, Sept. 30, and Cleveland Plain Dealer, Oct. 29; Spencer Hunt, “Business, GOP work to boot Resnick”, Cincinnati Enquirer, June 25; William Glaberson, “A Spirited Campaign for Ohio Court Puts Judges on New Terrain”, New York Times, July 7 (reg); websites of Justice Alice Robie Resnick (incumbent) and challenger Terrence O’Donnell, Justice Deborah Cook (incumbent) and challenger Tim Black. The Ohio Chamber of Commerce has come under fire for supporting a group that has run hardball advertising against Resnick: Lee Leonard, “Sideswiping political ads ought to be ruled out of bounds”, Columbus Dispatch, Oct. 23; Randy Ludlow, “Resnick attack is ugly”, Cincinnati Post, Oct. 21 (DURABLE LINK).
October 30 — Cornfield maze as zoning violation. Zoning authorities in Snydersville, Pa. have sent a violation notice to father and son farmers Jake and Stuart Klingel. Their offense? Carving a maze through their cornfield and opening it to the public. (“Going in Circles?”, AP/Fox News, Oct. 6).
October 30 — $20 million for insolvency trustee? “Former Securities & Exchange Commission chairman Richard Breeden, 50, could make more than $20 million as the court-appointed trustee of Syracuse’s fraudulent, failed Bennett Funding Group. While a judge has the final say, Breeden could get a statutory 3% of what he recovers for creditors, less $642,000 in annual salary and expenses, and less a one-time $250,000 bonus. To investors facing an 82% haircut, he snaps, ‘I’m worth every penny of it.'” (Dorothy Pomerantz, “The Informer: Make That Breeden Funding”, Forbes, Sept. 4).
October 27-29 — “Lawyer take all”. Just as lawyers used to be barred from taking contingency stakes in their clients’ lawsuits lest they be tempted to push overly aggressive positions on their behalf, so they used to be discouraged from taking equity stakes in businesses they advised, lest they be tempted to assist in regulatory evasion or sharp financial practices. “In time, the dollar signs got bigger than the ethical misgivings.” Now, following major windfalls obtained by California tech lawyers who took holdings in clients’ stock, big law firms on the East Coast are rushing to emulate the practice. (Chana Schoenberger, Forbes, Oct. 16).
October 27-29 —“Yankees Must Step Up to Plate in Civil Rights Action”. A judge has ordered to trial a case filed against the New York Yankees by a black woman who says she was told she could not enter the stadium restaurant wearing only a tank top, although once inside she noticed white women dressed in that manner. “The club’s dress code, which is printed outside the entrance to the club and on the back of the admission pass, prohibits the wearing of ‘tank tops . . . thongs or any other abbreviated attire.'” Lawyers for the Yankees said the plaintiff, V. Whitney Joseph, was let into the restaurant after she went back to her car and put on a t-shirt, and said the brief inconvenience should not be enough to support a federal lawsuit, but a judge said Joseph should be allowed to reach a jury with her claim that the dress code had been inconsistently applied. (Michael A. Riccardi, New York Law Journal, Oct. 20).
October 27-29 — Judge rules against Tattered Cover. Fears about free expression notwithstanding, a Denver judge has ruled that the city’s famed Tattered Cover book store can be forced to turn over customer purchase records to narcotics police seeking to identify the owner of two books on drug manufacturing found at the scene of an illegal methamphetamine laboratory (see April 28). (Susan Greene, “Judge: Cops can seize bookstore records”, Denver Post, Oct. 21).
October 27-29 — Patients’ Bill of Wrongs. “The ground is thus set for an uneasy alliance between the physicians who staff HMOs and MCOs and health care consumer organizations. Both, for different reasons, would like to neuter the managed care organizations by removing from their management teams the power to control physician practice. Yet by so doing, they do more than remove excessive intervention. They necessarily compromise, perhaps fatally, the critical cost containment functions that these organizations must supply if they are to survive at all. . . . In the short run, physicians will love the creation of a system that promises a restoration of their autonomy and insulates them from the costs of their mistakes after they settle their case out cheaply. . . . But in truth a rather different agenda is at work here, which becomes evident from looking at the one exclusion to the proposed Patients Bill of Rights. It seems not to apply to the United States Government in its role as the provider of health care services through Medicare or Medicaid. The proposals therefore are designed to cripple the private programs which compete in the political arena with government-supplied health care.” (Richard Epstein (University of Chicago Law School), “Managed Care Liability”, Manhattan Institute Civil Justice Memo #39, Sept.)
October 26 — Lab mice paperwork. “In a couple of years, medical progress could come to a screeching halt when it slams up against new regulations to be written by the Agriculture Department. The regs will extend the Animal Welfare Act to the millions of mice, rats, and birds used in lab experiments. When that happens, researchers will have to file papers for each individual critter. By the time they get through with the paperwork they might have just enough time to turn out the lights before going home.
“This all results from a settlement the Department made with the Alternatives Research and Development Foundation (an arm of the Anti-Vivisection Society) and Kristine Gausz, a psychology student at (really) Beaver College. Ms. Gausz said in an affidavit that the sight of rats being ‘subject to deplorable living conditions’ was ‘an assault on her senses’ that left her ‘personally, aesthetically, emotionally, and profoundly disturbed.’… Perhaps the next thing medical researchers should try to find is a cure for the common lawsuit.” (“Leash lawsuit” (editorial), Richmond Times-Dispatch, Oct. 23).
October 26 — Drunk-driving standards nationalized. Dealing a blow to principles of local control as well as rural hospitality, the federal government will arm-twist all states into adopting 0.08 blood alcohol standards by 2004 under legislation just signed by President Clinton as part of a transportation bill. “The .08 percent limit is clearly only a way station on the road to making life miserable for social drinkers. MADD’s [Mothers Against Drunk Driving’s] Web site now calls for lowering the BAC limit to .05 percent,” writes Providence Journal columnist Froma Harrop (“Phonies for .08 – Harassment of social drinkers”, Oct. 8; “Clinton signs bill to lower drunken driving standards”, AP/Dallas Morning News, Oct. 23).
October 26 — New unfairness for old. Don’t assume voters or politicians are anti-gay just because they harbor doubts about setting up sexual orientation as a new category in job bias law, as would happen under the proposed Employment Non-Discrimination Act (ENDA). “Why does the term ‘special rights’ have such political potency? Because by now most people have had personal experience with the way employment discrimination laws operate. Members of protected classes are not equal, they’re super-equal, enjoying extra job security and other job-related privileges not afforded the average worker.” Quotes our editor (Robyn Blumner, “Laws Aimed at Correcting Discrimination Have Created New Types of Unfairness”, Tribune Media/Salt Lake Tribune, Oct. 20). See also Nigel Ashford, “Equal Rights, Not Gay Rights“, reprinted at Independent Gay Forum.
October 25 — “Power lawyers may sue for reparations”. More details about the plans of Willie Gary and other lawyers to file lawsuits demanding trillions of dollars in black reparations (see Letters, Oct. 19). Planned are “a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery’s aftermath.” Participants “met last month in Washington at Transafrica, a lobbying group that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed.” Participants include Richard Scruggs, Johnnie Cochran, Jr., Harvard Law’s Charles Ogletree, author Randall Robinson, “Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; … and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year.” Sweet “also plans to sue history book publishers that give blacks short shrift,” which suggests that he himself may give the First Amendment short shrift. “We are a nation of litigators. That’s what we do. We go to court,” said Harper’s editor Jack Hitt. (Amy Martinez, Palm Beach Post, Oct. 23).
October 25 — “Laptop lawsuit: Toshiba, feds settle”. Piling on the $1 billion-plus class action settlement, the U.S. government is now extracting money from Toshiba over its flawed laptops. Still in very short supply: evidence that the glitch caused data loss in any real-world situations (Reuters/ZDNet, Oct. 13, with reader discussion).
October 25 — South Carolina tobacco fees: how to farm money. Lawyers who represented the state of South Carolina in the Medicaid-recoupment litigation will get a whopping $82.5 million; it wasn’t easy to argue that the mostly pro-tobacco Palmetto State had been instrumental in nailing the cigarette industry, but the lawyers found a golden rationale for large fees in their having been assigned to speak up for the interests of tobacco farmers like those in South Carolina. Since lawyers representing late-to-sue North Carolina, Kentucky and Tennessee (see May 2) are also reportedly making the we-represented-farmers argument in their own fee quest, the tobacco caper may go down in history as the most richly compensated instance ever of farmer “representation” — with no need for any control of the attorneys by actual farmers, of course. The secretive arbitration panel voted along its now-familiar two-to-one lines, with dissenter Charles Renfrew charging that the award was a windfall and “grossly excessive”, but as usual being outvoted by the other two panel members. (“Panel says $82.5 million lawyers’ fees are fair”, AP/CNN.com, Oct. 24).
October 24 — Turn of the screw. Revealing article in Philadelphia Inquirer magazine tells the story in detail of how lawyers whipped up mass litigation against companies that make screws used for bone-setting in spinal and other orthopedic surgery, alleging that the devices caused all manner of dreadful injuries. As so often the mass client recruiting got under way in earnest after a scary and misleading report on network TV, this time on ABC’s “20/20”, attacked the product as unsafe. Since most orthopedic surgeons continued to favor the screws’ use, lawyers turned for assistance to a Texas dermatologist who had gone to prison and lost his medical license in the 1980s for illegal distribution of prescription drugs, and who after release had set up shop as a go-between for lawyers who needed medical experts. After this physician “attended an organizational meeting with plaintiffs’ lawyers in Philadelphia, about 20 lawyers with bone screw cases enlisted his services,” and he proceeded to locate for them a Florida orthopedic surgeon who then cranked out about 550 opinions for the lawyers’ use — without actually examining the patients on whose behalf they were suing. “Invariably, [he] concluded, with scant explanation, that bone screws caused injury.” Eventually, Judge Louis Bechtle barred all 550 of the Florida doctor’s reports after one of the doctor’s employees testified that she’d been ordered to destroy tapes of telephone calls in which the Texas dermatologist/expert recruiter had dictated the language of the medical reports he expected the doctor to submit.
According to other sworn depositions, plaintiffs who rejected lawyers’ entreaties to sue were surprised to learn that cases had been filed in their names anyway; this happened, for example, to patients from California, Pennsylvania and Minnesota who did not blame the screws for their health problems. “There were no consequences for the lawyers who filed those suits.” Most of the story is told through the eyes of the best-known defendant in the cases, a company named Sofamor Danek, which chose to fight rather than pay; eventually it enjoyed outstanding success in repelling the suits, losing only one of 3,200 cases it faced, that one currently on appeal. But its vindication has come at a steep cost: $75 million in legal expenses, and who knows what unquantifiable costs. No wonder one of its competitors, AcroMed, gave up and agreed to pay $100 million to resolve 5,000 of the actions. (L. Stuart Ditzen, “The bone screw files”, Inquirer magazine (Philadelphia Inquirer), Aug. 27; David F. Fardon, M.D., “President’s Message”, North American Spine Society, Jan. 1997; “Third Circuit Denies Request for Mandamus Relief in Pedicle Screw Suits”, NASS, Jan. 1998).
MORE: The Health Research Group of Ralph Nader’s Public Citizen established a clearinghouse for plaintiff’s lawyers suing screw manufacturers, among other clearinghouses it runs for plaintiff’s lawyers, and whose goals include that of “generat[ing] media attention for the pertinent issue”. Among support groups for those who believe themselves victimized by the devices is Pedicle Screw’d. The North American Spine Society, a professional organization, was named as a defendant in many lawsuits because of its educational seminars on the use of screws, which lawyers charged were really a conspiracy to promote the devices.
October 24 — Monitor vote fraud, get sued for “intimidation”. Although ballot box irregularities, 109-percent precinct turnouts and other indicators of vote fraud continue as a very definite problem around the country, “anyone who combats vote fraud comes in for abuse. The Justice Department has become expert at raising cries of ‘voter intimidation’ at any attempt to monitor polling places. Last week Justice dispatched investigators to Fort Worth, Texas, merely because a political activist there distributed leaflets alleging Democrats were casting absentee ballots on behalf of shut-in voters. When the Miami Herald won a Pulitzer Prize for its reporting on the fraud in that city’s mayoral election, the Pulitzer jury noted it had been subject to ‘a public campaign accusing the paper of ethnic bias and attempted intimidation.’ Local officials who’ve tried to purge voter rolls of felons and noncitizens have been hit with nuisance lawsuits alleging civil-rights abuse.” (John Fund, “Political Diary: Phantom Voters”, Opinion Journal (WSJ), Oct. 23).
October 23 — Election roundup. “If you’re a swing voter, vacillating between Bush and Gore, here’s one compelling reason to vote for the former: tort reform,” writes New York Press editor Russ Smith in his “Mugger” column. He cites the recent hot-pickle case (see Oct. 10) and says the “simple solution” is loser-pays (“Gore’s Next Move?”, Oct. 16 (see item #2). “If trial lawyers had a dashboard saint, it would be Ralph Nader“, but this time around they’re not giving him money, lest they take votes away from their favorite: despite Gore’s selection of a running mate with strong legal reform credentials, “trial lawyers are so anxious to see the vice president elected, I doubt very seriously if [Lieberman] will make one bit of difference,” says ATLA president Fred Baron. (Bob Van Voris, “The Politics of the Practical”, Corporate Counsel/Law.com, Oct. 19). Governor Bush’s proposal to protect educators against needless lawsuits wins applause from New York Post columnist Arnold Ahlert (“Dubya Stood Up To Parents, Too”, Oct. 20). If Vice President Gore in his current demagoguish attack-mode were handed a big bill for his child’s orthodontia, he might start railing against “Big Dentistry”: “In the end, Gore’s cartoonish view of big business does a disservice both to him and to the American people. He knows life is more complicated than he’s letting on,” write Steven Syre and Charles Stein of the Boston Globe (“Gore proves big on bashing big business”, Sept. 28). And in West Virginia, where asbestos trial lawyer Jim Humphreys had previously been thought a prohibitive favorite for a U.S. House seat after spending an eye-popping $5 million on his campaign, Republican candidate Shelley Moore Capito, daughter of a former governor, is putting up a surprisingly strong race and might pull off an upset in what’s shaping up as an unusually strong year for the GOP in the mountain state (Matthew Rees, “Will West Virginia Go Republican?”, Weekly Standard, Oct. 23, not online).
October 23 — Wheelchair marathon suit. After getting sued last year, the New York Road Runners Club, which organizes the New York City Marathon, agreed to establish a separate division of the race for entrants in wheelchairs, and award trophies to the winners. That wasn’t enough to keep it from being sued again, this time by six disabled entrants who complained that the club violated the Americans With Disabilities Act “by moving the marathon start time for 60 disabled people not in wheelchairs from 8 a.m. to 8:40 a.m.”, a less convenient time for some entrants since it might require them to finish after dark. The man coordinating the wheelchair side of the 26.5 mile event, which will be held November 5, called the new lawsuit “unbelievable” and “truly frivolous.” (“Lawyer Criticizes ‘Disabled’ Suit”, AP/FindLaw, Oct. 19).
October 23 — No breast cancer link. A major federal study recently helped lay to final rest fears of an association between silicone breast implants and breast cancer, yet the federal agency in charge seems to have gone out of its way not to publicize the reassuring results. (Denise Dowling, “Covering up the breast”, Salon.com, Oct. 9). See also Nov. 29; Stuart Bondurant et al, “Safety of Silicone Breast Implants”, Institute of Medicine, 1999; “Off the Lawyers’ Reservation” (profile of Kathleen Anneken), The American Enterprise, Sept./Oct. 1998).
October 20-22 — Product liability criminalized? Green presidential candidate Ralph Nader has called for criminal prosecutions in the Firestone case, where failed tires have been blamed for more than 100 highway deaths. “A Harvard-Brookings Institution study estimates that the downsizing of vehicles caused by fuel economy standards results annually in 2,200 to 3,900 deaths,” notes a Detroit News editorial. “Consumer advocates like Mr. Nader support these fuel efficiency standards and want them increased, which could kill more people. The question becomes: Should certain consumer advocates be accused of criminal neglect?” (“How Many Deaths Are Truly Criminal?”, Detroit News, Oct. 14). Cartoonist Henry Payne, of the same paper, has a similar take on the matter of federal mandating of airbags, which turned out to harm numerous children: Oct. 12 (via Junk Science).
The U.S. Congress has rushed to act before its adjournment on a new federal law criminalizing some product safety matters, but the Federalist Society Criminal Law & Procedure Group earlier this month sponsored a discussion on Capitol Hill which took a dim view of the idea. “Most criminal statutes punish only where there is evidence beyond a reasonable doubt that a prohibited act was performed with mens rea, the guilty mind. … the proposed legislation is broad in its importation into penal law of the state of mind and knowledge standards of civil products liability law,” argued George Terwilliger (White & Case). Michael Krauss (George Mason U.) pointed out that the increased use of criminal charges in aviation accidents is now seriously hampering investigations after crashes given participants’ reluctance to cooperate and right to invoke the Fifth Amendment against having to testify in cases of criminal (as opposed to civil) jeopardy (see Sept. 6). Legislation to stiffen criminal penalties in product cases has passed both Houses this month, though its terms do not go as far as some of the earlier proposals. (“U.S. House Passes Tire Legislation”, Reuters/FindLaw, Oct. 11). See also Bob Van Voris, “Tire Deaths: Criminal Acts?”, National Law Journal, Sept. 11.
October 20-22 — CueCat’s legal claws. The CueCat is a new little gadget that works on the principle of a personal barcode scanner; its maker has sent it out free to subscribers of Forbes and Wired, Radio Shack catalogue customers, and others, for the purpose of making advertising more interactive (you scan a barcode on the ad, and a related webpage comes up in your browser). Realizing that a working personal barcode scanner would have many uses other than ad-linking, Linux programmers promptly reverse engineered the device and published code which makes the CueCat usable for other scanning tasks, such as keeping inventories. CueCat’s maker, a company called Digital Convergence, objects to the reverse engineering and has also made legal rumblings hinting that in its view ordinary consumers may not have a right to use the device for purposes other than the intended one — even though the general rule is that if someone sends you an item through the mails for free, you’re at liberty to use it as you wish. (Neil McAllister, “The Clause of the CueCat Legal Language Could Shut Down Hardware Tinkerers”, SFGate, Oct. 11).
October 20-22 — Sweepstakes, for sure. Last month class action lawyers extracted a $33 million settlement from American Family Publishers, plus $8 million in legal fees, over allegedly deceptive practices in its magazine-selling sweepstakes. “Refunds will be distributed among the more than 143,000 people who filed claims. The refunds will be allocated in proportion to the claimants’ purchases in excess of $40 per year or ‘their total purchases influenced by the belief that a purchase was either necessary to win or enhanced their chances of winning,'” though it is not explained how it will be possible to verify claimants’ self-reports of having been influenced by such beliefs. Among the plaintiff’s-side law firms expected to split the fees are the Belleville, Ill. firm of Steven Katz (see Nov. 4, 1999) and San Francisco’s Lieff, Cabraser. Time Inc., a defendant in the action and the owner of sweepstakes firm Magazine Associates, will be footing the bill; American Family Enterprises is in Chapter 11 bankruptcy. (Mary P. Gallagher, “Sweepstakes Class Action Settles for $33M, and $8M in Legal Fees”, New Jersey Law Journal, Sept. 19).
October 20-22 — ABA as liberal lobby. Boston Globe columnist Jennifer Braceras says it’s past time to end the American Bar Association’s gatekeeper status in accrediting law schools: “the ABA is not a trade association dedicated to preserving the integrity of the legal profession [but] a political lobbying group that represents the interests of a small, but powerful, liberal elite.” (“Call the ABA what it is: a liberal lobbying group”, Oct. 19).
August 10 — Coffee-spill suits meet ADA. In Vallejo, California, a woman is suing McDonald’s, “saying she suffered second-degree burns when a handicapped employee at a drive-thru window dropped a large cup of hot coffee in her lap. …The suit said that the handicapped employee couldn’t grip the cardboard tray and was instead trying to balance it on top of her hands and forearms when she dumped the coffee on Aug. 25, 1999,” scalding Karen Muth, whose lawyer, Dan Ryan, told a local newspaper that she’s entitled to between $400,000 and $500,000. “We recognize that there’s an Americans with Disabilities Act, but that doesn’t give them the right to sacrifice the safety of their customers,” he said. (“Woman sues McDonald’s over spilled coffee”, AP/SFGate, Aug. 7). And British solicitors have organized 26 spill complainants into a group suit against the same chain over the overly piping nature of its beverages: “Hot coffee, hot tea and hot water are at the centre of this case. We are alleging that they are too hot,” said Malcolm Johnson of Steel and Shamash, a London law firm. (“McDonald’s faces British hot drink lawsuit”, Reuters/FindLaw, Aug. 2) (more on hot beverage suits: July 18; “Firing Squad”, Reason, May 1999 (scroll halfway down in piece); and resulting letters exchange, Aug./Sept. 1999 (scroll to last items), April 4).
August 10 — “Imperfect laws add to danger of perfect storms”. “In an ill-advised attempt to prevent overfishing in the [Gulf of Mexico], the government reduced the red snapper season to a very short nine-day opening” — a “snapper derby”. Unfortunately, menacing weather came up during that brief nine-day window, and snappermen were left with a choice of which risk to run, physical or economic. Most went to sea, “and at least two boats encountered life-threatening conditions. One boat was lost in raging seas off Louisiana.” Alaska suffered a series of avoidable accidents and fatalities under a similar “halibut derby” until it switched to a better system: the sort of individual transferable quotas often recommended by economists (Peter Emerson and Felix Cox, Dallas Morning News, July 25).
August 10 — “Justice, not plunder”. We thought we were hard-liners on the topic of excessive lawyers’ fees, but Washington Post columnist Robert Samuelson goes us one better by proposing a maximum limit of $1 million or $2 million a year as the most anyone could earn from lawyering in a year. It might sound less outlandish if we went back to the old idea of lawyers as “officers of the court” — i.e., a species of civil servants, even if more fancily dressed. (July 27).
August 10 — Welcome readers (especially Daves). Among the diverse sites we’ve noticed linking to us are: Dave Dufour’s site, from Elkhart, Indiana; gasdetection.com, website of “Interscan Corporation, manufacturer of toxic gas detection systems”, which names us “Mike’s Cool Site of the Week”; Bonehead of the Day Award (citing us for material, not naming us as the awardee!); Miss Liberty Film & TV World, Jon Osborne’s newsletter reporting on film and television events of libertarian interest; Dave’s Corner, published by a different Dave from the one above; Peter Brimelow’s vdare.org, with a line-up of authors critical of immigration and multiculturalism; Big Eye — Alternate News Center, assembling many anti-establishment links; Hittman Chronicle, by yet a third Dave, Dave Hitt, whose July number takes a caustic view of the recent Florida tobacco verdict; Adirondacks2000.com (we’re their current “Featured Internet Site”); and Wrisley.com, “An Electronic Magazine for Thinkers” out of South Carolina.
August 8-9 — Senator Lieberman: a sampler. “Miracles happen,” said the Senator on learning that he was going to be the Democratic pick for VP. (Ron Fournier, “Gore Picks Sen. Lieberman for VP”, Washington Post, Aug. 7). As far as legal reform goes, we’d have to agree — for him to be on the same ticket with Al Gore counts as nothing short of a miracle:
“In vetoing this bipartisan product liability reform, the President went against his own White House Conference on Small Business and members of his own party. … Connecticut Democrat Sen. Joseph Lieberman said, ‘the President is dead wrong about this bill.’ And no less a journalistic authority than the Washington Post called the President’s decision to veto the bill, ‘a terrible one.'” (Rep. Dave Hobson (R-Ohio) newsletter, May 3, 1996)
“In complaining about trial lawyers’ influence on the liability bill, Sen. Joseph Lieberman, D-Conn., told the Wall Street Journal: ‘This is a remarkable story of a small group of people who are deeply invested in the status quo who have worked the system very effectively and have had a disproportionate effect.'” (Dallas Morning News, March 28, 1996, available on Nexis, but not online)
“Mr. President, in my view, you can add the civil justice system to the list of fundamental institutions in our country that are broken and in need of repair. … Ultimately it is the consumers who suffer most from the status quo. …
“I did not always support a national or Federal approach to product liability reform or tort reform generally … What changed my mind was listening to people in Connecticut. …
“I would say that our current medical malpractice system is a stealth contributor to the high cost of health care. … There is a well regarded consulting firm called Lewin-VHI. They have stated that hospital charges for defensive medicine were as high as $25 billion in 1991. That is an enormous figure. Basically what they are saying is that as much as $25 billion of the costs — this is not paid by strangers out there, this is paid by each of us in our health insurance premiums — is the result not of medical necessity but because of defensive practice occasioned by the existing medical malpractice legal system.” (Lieberman floor statement, April 27, 1995, reprinted by Health Care Liability Alliance).
When the Senate (temporarily) voted by a one-vote margin to curb the gargantuan fees obtained by trial lawyers for representing states in the tobacco-Medicaid litigation, a step later blocked by opponents, Lieberman was one of four Democrats to buck the party’s trial lawyer supporters by voting yes (Action on Smoking and Health, June 17, 1998, citing New York Times and C-SPAN).
With Sen. Spence Abraham (R-Mich.), Lieberman introduced the proposed Small Business Liability Reform Act of 1999, which would limit the exposure of small businesses to punitive damages and joint liability for non-economic damages in most cases, limit the application of joint and several liability to small businesses, and make it harder to add wholesalers and retailers to lawsuits against manufacturers. The bill has had trouble attracting support from other Democrats, however (World Floor Covering Association website).
With Senator Mitch McConnell (R-Ky.) and Rep. Dick Armey (R-Tex.), Lieberman introduced the Auto Choice Reform Act, bitterly opposed by trial lawyers, which would encourage car owners to opt out from the “pain and suffering” lottery in exchange for lower rates. “According to Joseph Lieberman, a co-sponsor, ‘our auto insurance and compensation laws violate the cardinal rule I think those of us in the business legislating have a duty to follow: to draft our laws to encourage people to minimize their disputes, and to encourage those who do have disputes to resolve them as efficiently, as economically, and as quickly as possible.'” — Bionomics Institute, “Driving Them Crazy”, August 15, 1997, citing Congressional Record, April 22, 1997. Sen. Daniel Patrick Moynihan (D-N.Y.) also supports the idea (Dan Miller, “Auto Choice: Relief for Businesses & Consumers”, Joint Economic Committee).
“Jim Kennedy, press aide for Lieberman, indicated that Nader, a lawyer, is watching out for the interests of his profession. ‘What he’s left out is the trial lawyers’ lobby which is bankrolling the opposition. They have the most to lose and they are the ones making money out of the system,’ he said.” (quoted in States News Service, May 3, 1995, after Ralph Nader attacked the Senator for sponsoring liability reform; available on Nexis, but not online).
Addendum: Although a strong supporter of gun control in general, Lieberman joined Republicans and a minority of Democrats on a 1992 procedural vote in support of preventing the District of Columbia from using liability lawsuits as a means toward that end. (S. 3076, vote #152, July 27, 1992) (DURABLE LINK)
August 8-9 — Break in Florida tobacco-Medicaid fee case? Harvard professor Alan Dershowitz says he’s determined to press suit against the Florida lawyers who extracted $3.4 billion in legal fees in the state’s tobacco-Medicaid settlement, saying they promised him 1 percent, or $ 34 million (see July 17). Dershowitz says he’s acting as “a pro bono who intends to give most of the money to charities.” “Where does he get his numbers? They’re preposterous. He has an ego the size of a mountain,” said an attorney for the lawyer-defendants. “Suing me is a serious mistake,” said Pensacola lawyer Robert Kerrigan, of Dershowitz’s action; we’d call that tone intimidating, under the circumstances. “These guys have chutzpah,” Dershowitz said. “I don’t care how rich these guys are or how many judges’ campaigns [Robert] Montgomery contributes to, I’m fighting back.” And: “Now the public can finally see the inside of the cigarette lawyers industry.” We can’t wait, since the record-breaking Florida fee haul has been shrouded in much secrecy up to now (see April 12) (Cindy Krischer Goodman, “Harvard prof suing lawyers over tobacco settlement”, Miami Herald, Aug. 2).
August 4-7 — Republican convention finale. No mention of legal reform in W’s acceptance speech, but the topic did make its way into the earlier remarks from the podium by Jan Bullock, widow of Democratic Lt. Gov. Bob Bullock (gopconvention.com).
August 4-7 — Now that’s bread. A San Francisco jury has awarded $121 million in punitive damages, atop $11 million in compensatory damages, to 21 black workers at an Interstate Bakeries plant (see July 10). Among the charges were hostile work environment, being subjected to racial slurs, and lack of promotions; one worker testified that he hadn’t been allowed to take Martin Luther King Day off although white workers had been allowed time off to watch the San Francisco Giants play. The company is known for making Wonder bread and Hostess snack cakes. (“‘Wonder Bread’ Workers Get $121 Million in Lawsuit “, Reuters/Yahoo, Aug. 3; “Jury Awards Workers in Bread Case”, AP/FindLaw, July 31) Update: judge reduces award by $97 million (see Oct. 10).
August 4-7 — Update: Hirschfeld convicted, sentenced. Eccentric New York City real estate developer, politician and public figure Abe Hirschfeld has been sentenced to one to three years in prison after being convicted on charges of trying to have his business partner killed. Hirschfeld still faces separate retrial on tax fraud charges, following a jury deadlock after which a mistrial was declared; in that case, Hirschfeld created a sensation by handing each juror a check for $2,500, a step apparently not in violation of any court rule at that time (see Sept. 13, Sept. 17, 1999). The judge in the murder-for-hire case, however, explicitly barred Hirschfeld from bestowing any gratuities on jurors after the case’s conclusion. (Samuel Maull, “Real estate mogul gets sentence of 1 to 3 years”, Phila. Inquirer, Aug. 2; same, Phila. Daily News.)
August 4-7 — “Ease up on kids”. Salt Lake Tribune criticizes school safety hysteria and the resort to suspension or expulsion for behavior that once would have merited a trip to the principal’s office. “Utah’s Legislature passed a law this year requiring that secondary education students be expelled for a year if they bring even a fake weapon to school, and it allows no review process through which real threats can be separated from pranks.” (editorial, July 28)
August 4-7 — Losers should pay. Environmental groups’ use of the courts to seek delays in large-scale development projects — which can inflict huge financial losses through the costs of delay even if the challenges eventually fail on the merits — points up the case for loser-pays principles, including bonding where appropriate, as in a recent Northern California case, argues columnist and Hoover Institution scholar Thomas Sowell. “Of all the ways of making decisions, one of the most ridiculous is putting decisions in the hands of third parties who pay no price for being wrong.” (“Costs and Decisions”, TownHall.com, Aug. 2).
August 4-7 — Take that, .hk and .tw. A Chinese law firm, suing on behalf of a dissatisfied consumer, has hauled Japanese-owned cameramaker Canon into court because some of its subsidiaries’ promotional material, including CD packaging and a website, list Hong Kong and Taiwan as separate “countries” in which it does business. Although Taiwanese have lived for more than fifty years under a government different from that of mainland China, Beijing’s official posture is still that the island is part of one China. Canon (Hong Kong) has apologized in newspaper ads, but the Chongqing Hezong Law Firm says its explanation is unconvincing. (“Canon (under) fire: China sues over Web site’s calling Hong Kong, Taiwan countries”, China Online, Aug. 1)
August 3 — Jury orders “Big Chocolate” to pay $135 billion to obese consumers. Lawyers charged Hershey’s with knowingly adding nuts to lure helpless chocoholic buyers. Keep repeating to yourself: it’s just a parody. … it’s just a parody (for now). … it’s just a parody. The Onion, August 2 (via Arts & Letters Daily). Plus: recently launched legal spoof site, ScaldingCoffee.com, profiles not-quite-true courtroom controversies such as the one over “Tapster”, the new system that allows Internet sharing of dance step patterns, much to the economic detriment of Arthur Murray franchisees (July) (latest).
August 3 — Wednesday’s GOP and legal reform. How many distinct references to litigation reform have come up in the Republican convention proceedings? We counted four on Wednesday evening (all favorable): they came in speeches by California small business owner Hector Barreto, dotcom exec Christina Jones, and, of course, vice presidential nominee Dick Cheney, who praised Gov. George W. Bush for his success in passing legal reform (“Today the legal system [in Texas] serves all the people, not just the trial lawyers.”) Then there was the comment made by the representative of the state of Washington when its turn came in the roll call: in a pointed reference to the Microsoft case, she said the Evergreen State was in favor of “innovation, not litigation”. If you spotted other references, let us know.
August 3 — CSE event in Philly. Citizens for a Sound Economy, which has been calling attention on the campaign trail to legal-system excesses, will be holding an event in Philadelphia today featuring its giant-fish mascot “Sharkman,” a “Who Wants to be a Trial Lawyer Billionaire” contest and more. The purpose is to honor lawmakers and other officials from Alabama, Illinois, Texas, and Florida who’ve stood up to the litigation lobby in their states. Specifics: Thurs. Aug. 3, 2-5 p.m., Maui Entertainment Complex, Pier 53 N. Delaware Ave., Phila. (CSE website). See you there? Adds the CSE website: “On Sunday, Senator [John] McCain [R-Ariz.] invited Sharkman and CSE staff to attend a reception with all of Senator McCain’s national delegates. Senator McCain grew fond of Sharkman during the primaries, often inviting him on stage in New Hampshire and South Carolina.”
August 3 — And what were the damages? An unemployed 56-year-old Los Angeles machinist named Cornell Zachary says he was the victim of a phone-number mixup in which the British pop group Duran Duran mistakenly posted his phone number on the Internet “as the one to call for T-shirts, souvenirs and tickets.” He then was kept running to the phone day and night by a vast number of wrong-number calls from fans of the group. And what were the damages, you ask — since without damages a lawsuit isn’t much of a lawsuit? Well, Zachary’s lawsuit, filed last week, claims he suffered ‘life-threatening high blood pressure episodes,’ nerve damage, sleep disturbance, and permanent health problems … ‘They had me to the point where my doctor told me I could have a stroke.'” Notwithstanding that dire medical advisory, he didn’t ask the phone company to change his number: “I don’t think that I have to change my number,”‘ he explained. “I didn’t make the mistake. I had had the number already over a year.” His suit also asks punitive and exemplary damages and attorneys’ fees. (Sarah Tippit, “L.A. Man Sues Duran Duran for Posting Number on Web”, Yahoo/Reuters, Aug. 1).
August 2 — Tinkerbell trademark tussle. On Friday in federal court in Scranton, Penn., a company called New Tinkerbell Inc. of New York sued the Walt Disney Company for trademark infringement of the registered trademark “Tinkerbell”, of which it says it and its affiliates are the exclusive lawful owners and licensees. The gossamer-winged character, whose continued existence is made possible only by observers’ willingness to suspend their rational disbelief in her (which already gives her a lot in common with many phenomena of the legal system) dates back to J. M. Barrie’s children’s classic Peter Pan, which has now fallen out of copyright and into the public domain, but the New York company says that it obtained the rights to use her name in commerce in 1952, a year before Disney released its hugely popular movie Peter Pan. There followed a line of “Tinkerbell-emblazoned products for children,” including shampoos, glitter, hair bands, “scrunchies,” umbrellas, sunglasses, pencil kits, and many more; for a while, the complaint alleges, Disney itself bought and resold New Tinkerbell items in its stores, but then decided it wanted to enter the field itself, and has since used on its products such marks as “Tinkerbell, Tinker Bell, Tink, or a proxy for a female fairy.” The suit accuses Disney of unlawful use of “a female fairy character in interstate commerce”. (Roger Parloff, “Fairy Serious Business: Disney Accused of Misappropriating Tinkerbell”, Inside.com, July 31)
August 2 — Judge rebukes EPA enforcement tactics. “In a harsh rebuke to the federal Environmental Protection Agency‘s pursuit of criminal polluters, a judge has ruled the government unnecessarily harassed a Northbridge mill owner and pursued a case against him even though it didn’t have any credible evidence.” Following up on a tip from a former employee of the mill, which makes wire mesh used for lobster traps, a “virtual ‘SWAT team’ consisting of 21 EPA law enforcement officers and agents, many of whom were armed, stormed the [mill] facility to conduct pH samplings. They vigorously interrogated and videotaped employees, causing them great distress,'” wrote federal judge Nathaniel Gorton. Moreover, EPA in obtaining a search warrant apparently concealed evidence from its own testing indicating that the plant’s wastewater emissions may not have breached federal standards. “The case marks the first time in the region that a judge has ruled in favor of an application of the Hyde Amendment, a three-year-old federal law that allows an exonerated defendant to seek legal fees from the government if the criminal prosecution was ‘frivolous, in bad faith or vexatious.'” (David Armstrong, “US judge rules EPA harassed mill owner”, Boston Globe, Aug. 1).
August 2 — Clinton before trial lawyers: a footnote. Press reports had been contradictory about whether or not prospective disbaree Bill Clinton in his Sunday speech became the first sitting president ever to address the Association of Trial Lawyers of America (see July 31, Aug. 1). Molly McDonough of American Lawyer Media appears to clear up the discrepancy: the only other president to visit the organization was Lyndon Johnson in 1964, but he spoke to ATLA’s board of directors, which leaves Clinton as the first to appear before the organization’s general membership (“Clinton Addresses Trial Lawyers at Annual Bash”, Aug. 1).
August 2 — “Mugging victim ‘stupid,’ judge says”. A judge in Winnipeg, Canada, has caused an outcry by acquitting an alleged mugger and then lambasting the complainant for openly carrying money in a dangerous neighborhood. “‘What I am satisfied is that we have a very stupid civilian, who admits that he was stupid,’ said [Judge Charles] Rubin, who interrupted the Crown’s closing submission Tuesday to deliver his verdict. ‘If you walk around jingling money in your hand . . . it’s like walking in the wolf enclosure at the city zoo with a pound of ground beef in your hand. And it’s almost the same type of predators you’re going to find out there.'” The judge also advised the complainant to walk in future in the middle of the street for safety, rather than on the sidewalk. (Mike McIntyre, Winnipeg Free Press, July 20).
August 1 — Clinton’s trial-lawyer speech, cont’d. In his partisan-fangs-bared speech Sunday to the Association of Trial Lawyers of America, the president brought up the topic of vacant seats on the Fourth Circuit U.S. Court of Appeals, and accused Republican senators of deliberately not confirming black judicial nominees he’s proposed to that court simply because those nominees are black — which is to say, accused them of engaging in racism. (Neil A. Lewis, “President Criticizes G.O.P. for Delaying Judicial Votes”, New York Times, July 31). As Smarter Times points out (July 31), yesterday’s New York Times reported these rather incendiary charges and yet omitted to include any sort of response to them from Republican senators or anyone else, simply allowing Clinton to make them uncontradicted. For those interested in the issue on other than a demagogic basis, Ramesh Ponnuru at National Review Online wrote a piece July 17 adducing a sufficiency of non-racist reasons why senators might be leaving the seats vacant (other coverage in USA Today, New York Post).
However, the Times partially redeems itself by some original reporting on the exact nature of the differences between Democratic candidate Al Gore and Green Party candidate Ralph Nader. It reported that Nader, “who has been closely allied with trial lawyers on the issue of civil litigation rules, said Mr. Gore was allowing the president to take the heat of associating with the lawyers while he was reaping the benefits. ‘He’s just slinking around taking money like crazy from these guys, and at the same time he’s not really standing up for the civil justice system,'” said Ralph, who himself has steered a different course from Gore at least as to the latter course of conduct, since he’s known for his vocal defense of virtually every trial lawyer depredation yet invented.
As AP reports: “Common Cause, a non-partisan group that advocates campaign finance reform, calculates that trial lawyers gave $2.7 million to Democrats in 1999. That is about 1,000 times more than trial lawyers donated to Republicans last year, and twice the amount donated in the same period during the last election cycle.” (Anne Gearan, “GOP keeping minority judges off bench, Clinton says”, AP/Bergen County (N.J.) Record, July 31). However, you would be wrong if you imagine that Common Cause, as “a non-partisan group that advocates campaign finance reform”, might see cause for concern that those donations might not entirely further the public interest. After all, Common Cause recently named as its president Scott Harshbarger, former Democratic attorney general of Massachusetts, who in that office worked closely with trial lawyers and in fact bestowed on them a tobacco representation agreement which brought them an unprecedented fee bonanza. And now Mr. Harshbarger, newly speaking for Common Cause and quoted in the Times piece, ardently defends the particular special interest he has reason to know best, saying massive trial lawyer donations are no more than an appropriate way of leveling the playing field given that those whom the lawyers sue — which includes pretty much every other group in the economy — also donate a lot to politicians. In the new Common Cause universe, it seems, some special-interest influences on politicians are a lot more objectionable than others.
August 1 — “Lawsuits to fit any occasion”. According to the L.A. Times, a 43-year-old local attorney has been involved in 82 lawsuits on his own behalf since 1982. Robe rt W. Hirsh “sued the single mother he hired to stain the woodwork in his Hancock Park Tudor-style home, claiming she left some streaks on the wood. He sued his stockbroker for not getting him into Microsoft stock.” He sued a dissatisfied client to demand his fee, and then, when an arbitration panel instead awarded the client $25,000 against him, sued the lawyers who had represented him in the arbitration. “Hirsh even sued the synagogue where he was married, claiming that the religious elders had botched the catering of his wedding by, among other things, serving his guests cold vegetables and not giving his family all the leftovers. ‘Either he has the worst luck in the world, or he likes to sue,'” said Loyola law prof Laurie Levenson. Many of the suits have succeeded in bringing him settlements, but Hirsh (who also disputes the number of cases in which his critics say he has been involved) now faces a proceeding under California’s rarely used court rules against vexatious litigants, which could curb his activities in future. (“Davan Maharaj, “Lawsuits to Fit Any Occasion”. Los Angeles Times, July 29).
August 1 — Movie caption trial begins. Trial set to begin this week in a closely watched lawsuit in which Portland, Oregon, deaf activists have charged movie theater proprietors with violating the Americans with Disabilities Act because they haven’t installed elaborate captioning systems throughout the theaters (Kendra Mayfield, “Films Look to Captioned Audience”, Wired News, July 28). Meanwhile, the recording industry is concerned that a system installed to help the hearing-impaired at live concerts has become a prime vehicle for bootleggers to obtain concert tapes of unusually high quality for pirate sale; the ADA requires arenas to offer the assistive listening devices (Larry McShane, “Bootleggers Use Hear Aid to Record”, Yahoo/AP, July 30). And given the ADA’s many unintended consequences, outrageous results and manifest failures, Chicago Tribune columnist Steve Chapman wonders why tenth-anniversary press coverage of the act’s passage took such an overwhelmingly celebratory tone; his column quotes our editor (“The Other Side of the Disabled Rights Law”, July 30).
August 18-20 — Why the bad guys can’t stand John Stossel. The ABC News correspondent is the one TV reporter who again and again has exposed and ridiculed in devastating style the abuses of litigation and misconduct of lawyers, the excesses of scare-environmentalism, and countless instances of over- and mis-government (his hourlong special “The Trouble With Lawyers” a couple of years back is just one of many highlights; Stossel’s website at ABC). You can bet he’s made a long list of enemies in the course of doing this, and now, after a flub by his staff in a report on organic foods (for which he apologized last Friday on camera) there’s a well-organized campaign under way to take his journalistic scalp. That would reduce from one to zero the number of prominent contrarian TV voices on many of these issues, leaving in place, of course, the large amount of vigorous advocacy journalism from the point of view opposite to his. A recent New York Times roundup on the controversy quotes our editor (Jim Rutenberg and Felicity Barringer, “Apology Highlights ABC Reporter’s Contrarian Image”, Aug. 14); if you wonder what sorts of grossly misleading stories the network newsmagazines have run over the years without anyone’s feeling obliged to apologize for them, check out our article “It Didn’t Start With NBC Dateline“.
Now the Competitive Enterprise Institute has launched a website project devoted to documenting and exposing the campaign to get John fired, and to collecting letters, petition signatures, and other signs of support so that ABC will know how big a fan base he has rooting for him. (SaveJohnStossel.org, temporarily hosted at counterprotest.net/stossel).
August 18-20 — “Caffeine added to sodas aims to addict — study”. Because most consumers in a small study could not tell by taste whether a soda had caffeine in it or not, some researchers at Johns Hopkins arrived at the conclusion that the substance appears in sodas for the sole purpose of “addicting” consumers. (Most of the biggest mass-market sodas offer a choice of caffeinated and non-caffeinated versions; typically the latter is considerably less popular with consumers, who are presumably helpless to choose between the products, enslaved as they are by their addiction.) “The study appeared in Archives of Family Medicine, which is published by the American Medical Association”. (“Pop made to hook drinkers”, Reuters/Detroit News, Aug. 15; “Cola makers rip study on caffeine addiction”, AP/Spokane Spokesman-Review, Aug. 15). Advocates who have participated in the demonization of the tobacco industry and other businesses have frequently denied that the food industry is next on the list. It’s certainly on some folks’ list, however. Last year Yale University researcher Kelly Brownell said: “I have called the food environment in the United States toxic … The food companies and their advertisers are, in fact, luring our children into deadly behavioral patterns … Sooner or later, the food companies will be considered in the same way we regard the tobacco industry.” (“Regulation by Litigation: The New Wave of Government-Sponsored Litigation”, sponsored by Manhattan Institute, Chamber of Commerce of the U.S., and Federalist Society, June 22, 1999, conference proceedings)
August 18-20 — Weekend reading: Macaulay’s bicentenary. Your editor being a longtime admirer of the great classical liberal Thomas Babington Macaulay, his latest Reason column is devoted to appreciating the Whig historian’s written legacy on the 200th anniversary of his birth (Walter Olson, “Confessions of a Macaulay Fan”, Reason, August/September). An outfit called Electric Book is generous enough to webpost downloadable versions of many of his essays, free for individual use (zip files of PDF documents).
August 18-20 — Snakes’ rights not always paramount. Notwithstanding endangered species law, New York environmental authorities have decided not to press charges against 72-year-old Phillip Wheaton for killing a protected rattlesnake that had bitten him. Wheaton had just stepped from his car on a rural road in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton proceeded to hit the snake with his cane, injuring it; it was taken to a veterinary hospital where it later died. “I had a fight with that snake and I won,” Wheaton said later. “I didn’t cause no fight with that rattlesnake but he caused it with me.” (“Slain serpent”, AP/Fox News, Aug. 16). Last year (Oct. 12) we reported on a court’s ruling, also in New York, that a private landowner was obliged to host rattlers on its property; it ordered the tearing down of a “snake-proof” fence that had prevented the venomous creatures from approaching an area where humans were at work.
August 16-17 —Fortune on Lerach. Don’t miss this long but grippingly reported account of the rise, prosperity and current woes of the world’s most widely feared plaintiff’s securities lawyer, Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable material new to us (Peter Elkind, “The King of Pain Is Hurting”, Fortune, Sept. 4). Earlier this summer the same magazine published a colorfully detailed account of infighting among the troop of plaintiff’s lawyers angling to bring down the HMO industry (John Helyar, “They’re Ba-a-ack!”, Fortune, June 26).
August 16-17 — Okay to make lemonade. In Eustis, Fla., the city government has backed down from an inspector’s attempt to close down the lemonade stand that nine-year-old Rachel Caine runs across the street from her home. (Stephanie Erickson, “Eustis officials back down from order to make girl, 9, close lemonade stand”, Orlando Sentinel/Ft. Lauderdale Sun-Sentinel, Aug. 9). And in Longmont, Colo., 11-year-old “Soda Girl” Caitlin Rezac is back in business with her fizzy-refreshment stand after a run-in with the Boulder County health department, which had busted her for operating without a hand sink and $110 license; a local business donated the sink (search Denver Post archives on “Caitlin Rezac” (excerpts free, fee for full story); letter to the editor from county official Ann Walters, Boulder Daily Camera, Aug. 12 (scroll) (via Liberzine)).
August 16-17 — Olympics website’s accessibility complaint. The United States isn’t the only place where controversy is simmering over websites that “exclude” blind and other disabled users (by not adopting design and syntax that cater to them). At a recent hearing of the Human Rights and Equal Opportunity Commission in Australia, organizers of the Sydney Olympics defended themselves against charges that they hadn’t made their website usable by the vision-impaired. (Rachel Lebihan, “Olympics web site riddled with blind spots”, ZDNet, Aug. 9). America Online has reached a provisional settlement of the complaint filed against it by the National Federation of the Blind (see Nov. 5); the online service pledges to alter its software to bring it into fuller compatibility with screen reader technology and says it will train its employees to be sensitive to disabled users’ needs, in exchange for which NFB agrees to postpone suing for a year (Oscar S. Cisneros, “AOL Settles Accessibility Suit”, Wired News, July 28). Also: a clip we missed earlier on Congress’s February hearing on this topic: “Do Web Sites Violate the Americans with Disabilities Act?”, TechLawJournal, Feb. 10.
August 16-17 — “City gun suit shot down on appeal”. An appeals court has unanimously upheld a lower court’s dismissal of the city of Cincinnati’s lawsuit against the gun industry, likening that suit “to the ‘absurdity’ of suing the makers of matches because of losses from arson.” Prominent tort attorney Stanley Chesley (see June 1, March 30), representing the city, says he will appeal to the Ohio Supreme Court, which, ominously for the gunmakers, is currently controlled by a majority of justices well disposed to trial-lawyer arguments (see May 8, 2000; Aug. 17 and Aug. 18, 1999). (Dan Horn, Cincinnati Enquirer, Aug. 12; “Cincinnati can’t sue gunmakers for damages, court rules”, Reuters/FindLaw; text of decision (Cincinnati v. Beretta; retrievable Word document, not website).
August 16-17 — Web-copyright update: “Dialectizer” back up, “MS-Monopoly” down. The “Dialectizer“, a website that will translate another page of your choice into a variety of stagey dialects including Redneck, Cockney, Elmer Fudd and Pig Latin, is back up and running; we reported May 18 that the site had closed itself down for fear of being sued by businesses that might view such automated translation of their websites’ contents to be an infringement on their copyright. However, the “MS-Monopoly” parody site, which adapted elements from the popular board game Monopoly to comment on the Microsoft case (see Dec. 3) has been pulled down at the behest of lawyers for toymaker Hasbro, which puts out the real game: “MS-Monopoly.com ‘Cease and Desist’ed by Hasbro Lawyers“. In Forbes, Virginia Postrel says big companies are being shortsighted when they sic lawyers on fan sites that happen to use copyrighted material; News Corp.’s Fox properties, for example, have issued rumbling letters to online enthusiasts of cult shows such as The X-Files and Buffy the Vampire Slayer. (“The Shortsighted Site Busters”, Forbes/Reason Online, July 24).
August 15 — Plastic surgeons must weigh patients’ state of mind, court says. By a 3-2 margin, a New York court has allowed a claim to proceed against a cosmetic surgeon for conducting liposuction and abdominoplasty procedures on a patient while “fail[ing] to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw,” which meant that her consent to the procedures might not really count as informed. The patient made at least fifty visits to the doctor’s office. (Michael A. Riccardi, “Doctor Must Weigh Patient’s Mental State”, New York Law Journal, June 29; Renee Kaplan, “What Should Plastic Surgeons Do When Crazy Patients Demand Work?”, New York Observer, July 31). (Update June 11, 2001: she loses in New York’s highest court). The American Life League, an anti-abortion group, plans to take a leaf from its counterparts on the left and launch a systematic litigation campaign based on malpractice, consumer protection and other theories to shut down abortion clinics, while a conservative writer suggests approaching sympathetic state attorneys general and getting them to file a tobacco-style megasuit against abortion providers (Julia Duin, “Pro-life advocates aim to hit clinics in the pocketbook”, Washington Times, Aug. 10; Chuck Morse, “Big Tobacco and the Abortion Industry”, EtherZone, June 12). In Erie, Pennsylvania, a judge has declared a mistrial in a medical malpractice trial after a juror fainted during the trial and the defendant physicians revived him; the judge thought it necessary, lest this act of kindness be thought to have improperly prejudiced the proceedings, to restart the whole ordeal from scratch (“Doctors accused of malpractice aid juror who fainted”, AP/CNN, Aug. 11). And Overlawyered.com‘s page on law and medicine has been selected as a resource by the MedExplorer medical search site.
August 15 — The Veep that got away. It’s been widely reported that the other finalist in the process by which Al Gore picked his running mate was youthful Sen. John Edwards of North Carolina, who’d have been an equally noteworthy pick from litigation reformers’ perspective but for opposite reasons: after briefly representing record companies Edwards “moved to Raleigh, N.C., in 1981 and became a plaintiffs’ lawyer. That made him a millionaire. His fortune has been estimated at $20 million to $50 million.” Edwards proceeded to sink an estimated $10 million from his own pocket into his first and only political campaign, knocking off incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw Edwards as telegenic, a skillful speaker and from an important state, but worried that his past could backfire among voters unhappy with trial lawyers for “doing things like suing doctors and winning big verdicts, which then drive up health care costs — and Edwards has been an incredibly successful one of that breed.'” (Michael Kramer, “Aides: Al Leaning Toward Edwards”, New York Daily News, Aug. 6).
August 15 — “Teams liable for fans’ safety”. A Colorado court of appeals has ruled that “sports teams must protect fans from known dangers — such as flying hockey pucks — unless lawmakers specifically exempt the teams from such liability.” Diane Smith, a lawyer for the now-defunct Denver DareDevils roller hockey team, said fans sit in the more hazardous area near the goal because they want the best view and “if you are going to sit where the action is, there are risks that go along with that”; appeal to the state’s high court is planned (Howard Pankratz, Denver Post, Aug. 4).
August 14 — Bush-Lieberman vs. Gore-Nader? Our editor contributes a guest column today (pinch-hitting for the vacationing Holman Jenkins) for Opinion Journal, the Wall Street Journal editorial page’s new online venture. The column discusses the strong record Sen. Joe Lieberman has compiled on litigation reform, the dilemma this poses for Vice President Gore, the wrath it calls down on his head from fellow Connecticut resident Ralph Nader, and the reasons why America is unusual in treating the pro-litigation position as “progressive” when it isn’t deemed to be such in much of the rest of the world (“Not All Liberals Love Lawsuits”, Aug. 14).
August 14 — “Disney must pay $240 million in sports park lawsuit”. A jury in Orlando “ruled Friday that the Walt Disney Co. stole the idea for a sports theme park from a former baseball umpire and his architect partner and must pay $240 million in damages,” a sum that the judge has discretion to increase because the jury found Disney acted with malice. “The notion that we had to steal the idea from the plaintiffs, an idea as old as ancient Greece, is preposterous,” said Disney general counsel Lou Meisinger, who said “the plaintiffs lawyers had tried to frame the case as ‘little people against big business’ and attempted to ‘inflame their prejudice.’ Plaintiffs’ lawyer Willie Gary”, well known for his work on the Loewen and Coke cases, “called Disney’s reaction ‘sour grapes.’ ‘We beat ’em and quite frankly we’ll beat ’em again if we need to,’ Gary said. ‘They’re crying like little babies.'” Another member of the team of plaintiff’s attorneys was Johnnie Cochran of O.J. Simpson case fame (CNN, Aug. 11; Beth Piskora, “Ump and architect sue Disney for $1.5 B”, New York Post, Aug. 10; “The Mouse Stole Idea”, Aug. 12; Yahoo Full Coverage).
August 14 — “Airbag chemical on trial”. Because of the airbag in her $30,000 Mercedes, Edith Krauss and her husband walked away from a 1997 crash that otherwise might have killed them. But Krauss is suing the luxury automaker anyway: she “contends that she has been plagued by throat ailments since the crash and they stem from her inhaling sodium azide, the chemical that allows for the forceful deployment of airbags.” The company says the concentration of the chemical in an airbag is too low to cause harm. Trial began last week in Elizabeth, N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug. 8).
August 14 — Embarrassing Lawsuit Hall of Fame. Among recent lawsuits with details so embarrassing it’s a wonder anyone would file them: a Barberton, Ohio woman is suing an acquaintance in small claims court, saying he reneged on a promise to let her pay in sexual favors for part of the sale price for a truck (Stephanie Warsmith, “An unusual ‘contract’ is in court”, Akron Beacon Journal, Aug. 10); the Massachusetts Commission Against Discrimination has recommended dismissal of a complaint by an employee of the town of Plymouth, who had charged that a town official inflicted a hostile working environment on her by (among other things) subjecting her to flatulence, the commission reasoning that the passing of gas is not sexual in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed a very intimate injury committed to his person after he got on stage at a club and allowed an exotic dancer to sit on his chest (Glen McGregor, “Man sues hospital over testicle removal”, Ottawa Citizen/National Post, Aug. 8; more exotic dancer litigation: July 26, May 23 (also from Canada), Jan. 28).
August 11-13 — Litigation reform: the Texas experience. Citizens for a Sound Economy releases a report evaluating the results of the 1995 package of litigation reforms enacted in Texas under Gov. George W. Bush (more about package, from Governor’s office). Prepared by the Perryman Group of Waco, Tex., the report estimates that the reforms contributed significantly to reducing prices, raising personal incomes and stimulating economic development in the Lone Star State, with resulting benefits to the average Texas household of $1,078 a year. (“The Impact of Judicial Reforms on Economic Activity in Texas”, Aug. 9; executive summary links to PDF document).
Earlier, Texas insurance commissioner Jose Montemayor estimated that insurance buyers in the state would save a cumulative $2.9 billion by 2000 through mandated rate reductions linked to the lawsuit reforms: “Tort reform has been a tremendous success.” (“Commissioner says tort reform saves Texans $2.9 billion”, AP/Abilene Reporter-News, Oct. 2, 1999). Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, “Tort Reform Savings on Insurance Overstated”, Dallas Morning News, Dec. 21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable lengths to publicize their case since then (see Richard A. Oppel Jr. and Jim Yardley, “Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch”, New York Times, March 26, 2000, excerpted at Democratic National Committee site; now 404 Not Found, but GoogleCache has preserved a version). For a riposte from the reform side, see Tom Beaty, “Legal reform has brought benefits to business”, Houston Business Journal, Feb. 21, 2000.
And see: Constance Parten, “Texas Holds Its Own in Insurance Rates”, Insurance Journal, June 26, 2000 (reform package wasn’t expected to bring major savings in auto insurance, as opposed to commercial and medical lines, but did so anyway); Lone Star Report, Aug. 27, 1999 (scroll halfway down for item); and Texans for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston, has posted a variety of materials on the controversy at its website, including a summary of reforms; Jon Opelt, “$3 Billion Hardly Chump Change“; and Cora Sue Mach, “Governor Bushwhacked over Lawsuit Savings“. (DURABLE LINK)
August 11-13 — “Ohio cracks down on keggers”. Under a new Ohio law, people who want to give parties for which they’ll buy five or more kegs of beer must register the location of the party in advance, wait five days to take possession of the kegs, and “allow liquor agents and police to enter the property to enforce state liquor laws, a requirement that bothers the American Civil Liberties Union and others.” Several states have or are considering similar laws. “Maryland has required keg registration since 1994 to allow the containers to be traced to the buyer and the seller, both of whom are held accountable if minors are caught drinking the alcohol.” (Liz Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).
August 11-13 — Stay away, I’ve got a court order. Last year Maryland passed a new law allowing residents to apply for a civil restraining order to keep away people who they say have frightened or harassed them, a type of protection long available in matrimonial cases. Now the law is being used more than proponents expected, and not just by unmarried paramours and other intimates but as a way to settle — or escalate — spats among schoolmates, neighbors, co-workers and virtual strangers. (Donna St. George, “Residents Seeking ‘Peace’ Invade Md. Courts”, Washington Post, Aug. 7).
August 11-13 — “Not even thinking about” fees. With appeals and other legal maneuvering expected to last quite a while after a Miami jury’s $145 billion punitive damage award against tobacco companies, Knight-Ridder asked plaintiff’s attorney Stanley Rosenblatt about fees he might reap from the action. “It’s so far down the road that we’re not even thinking about it,” he claimed. (Uh-huh.) “Generally lawyers’ fees in class-action suits are about 25 to 30 percent of the award or settlement,” the news service reports, though it speculates that trial judge Robert Kaye might approve a smaller fee award than that, perhaps a mere $1 billion. Rounded off in the overall context, that would count as almost nothing, right? (“Smokers’ lawyers could get $1B — or zilch”, Knight Ridder/Norwalk (Ct.) Hour, July 26, not online). Plus: commentary by the Cato Institute’s Robert Levy (“Litigation Lunacy in Florida”, Cato Daily, July 31).
August 31 — Update: Alabama campaign-tactics case. A judge has sentenced prominent Alabama trial lawyer Garve Ivey to 30 days in jail after a jury convicted him on misdemeanor charges arising out of a smear campaign against the state’s Lieutenant Governor, Steve Windom (see Sept. 1 and Aug. 26, 1999). Shortly before the 1998 election, with Windom running a hard-fought race against a trial lawyer-backed opponent, a former prostitute and heroin addict named Melissa Myers Bush stepped forward with a lawsuit dramatically charging that Windom had raped and beat her seven years earlier when she worked for an escort service. Ivey, who was serving at the time as an official of the state trial lawyers association, paid to have 300 copies made of a videotape of Bush describing her charges, “which were distributed to news outlets across the state”. But as questions arose, Bush soon recanted and said she’d been paid to tell her story and that it was false. According to later testimony at trial, Bush accepted $2,700 from Birmingham businessman Scott Nordness, money that was later reimbursed by Ivey. Nordness was granted immunity by prosecutors seeking his testimony and charges were filed against Ivey and a private investigator who’d worked with him, Wes Chappell.
On June 22 a Mobile County jury acquitted Chappell of the charges and rendered a split decision in Ivey’s case, acquitting him on the felony count of bribing Bush to give false testimony while convicting him on two misdemeanor counts of witness tampering and criminal defamation. According to AP, the witness tampering charge arose from Ivey’s having gotten Nordness to sign a sworn statement after Bush’s lawsuit which, in prosecutors’ view, seemed to suggest that no money had changed hands in the case. Windom says he feels vindicated after two years and expects an apology from the state trial lawyers’ group, which he says tried to dodge the appearance of involvement in the smear efforts when trial testimony indicated the contrary. “The evidence clearly showed that there was a great deal of involvement at every stage. They need to come clean with the public and with their own members,” he said. (The AP coverage does not include a response from the trial lawyers’ group.) Ivey’s lawyers plan an appeal; still pending as well are civil suits that Ivey and Windom have filed against each other over the affair. Update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
SOURCES: “Ivey sentenced to 30 days in jail on witness tampering”, AP, August 9, not online, available on NEXIS; Garry Mitchell, “Chappell cleared, Ivey found guilty in Windom trial”, AP/Decatur Daily, June 23; Garry Mitchell, “Windom wants apology from trial lawyers”, AP state and regional wire, June 23, not online, available on NEXIS; Gary McElroy, “Former call girl testifies”, Mobile Register, June 16; “Chuck’s Page” (page by Chuck Harrison, a witness called in the case; scroll down halfway to “Just Desserts”).
August 31 — “Diva awarded $11M for broken dream”. Last week a Little Rock, Ark. jury awarded aspiring opera singer Kristin Maddox, now 23, $11 million “for injuries she suffered when an American Airlines jet went off a runway last year while landing in a thunderstorm”. Maddox was studying opera in hopes of becoming a star but says damage to her voice box and hands in the crash ruined her professional chances. Her lawyer, “Bob Bodoin, told jurors that no amount of money would make up for her pain and the loss of a career that could have rivaled opera stars Beverly Sills or Luciano Pavarotti’s”. However, a university voice teacher who evaluated one of Maddox’s pre-crash performances on video said she had a voice that, while “lovely”, was also too light to fill an auditorium in the Sills or Pavarotti manner. (AP/Philadelphia Daily News, Aug. 25; discussion on Professional Pilots Rumour Network boards).
August 31 — “Breaking the Litigation Habit”. The business-oriented Committee for Economic Development released a report in April which “calls our litigation system ‘too intrusive, too slow, and too expensive.’ The current system does not adequately or fairly compensate people for injuries; it imposes costs that threaten to impair economic innovation; and it undermines the trust and civility among our citizens that are essential to a well-functioning, democratic society.” The report goes on to endorse “Early Offers” and “Auto Choice” reforms, both aimed at providing rapid compensation for injuries without litigation (introductory page links to executive summary and full report in PDF format).
August 29-30 — Back-to-school roundup: granola bars out, Ritalin in. The Fallingbrook Community Elementary School, in an Ottawa suburb, has “banned all snacks except fruits and vegetables in an attempt to protect children with allergies”. Children in K-4 “have been asked not to bring cheese and crackers, dips, yogurt, candy bars or homemade muffins for snacks” for fear of triggering reactions in other kids with peanut, dairy, egg or other allergies. Fallingbrook parent Theresa Holowach would like to send cereal bars or homemade muffins with her eight-year-old son and kindergartner-to-be daughter but was willing to settle for rice cakes, cheese and crackers; her requests, however, “were refused on the grounds that the school would be legally liable if actions were not taken to limit the risks for children with serious allergies. ‘To me the school is going to have serious liabilities if my child chokes on a carrot because you’ve forced me to give her raw fruit and vegetables,’ said Ms. Holowach”. (Gina Gillespie, “School bans all snacks except fruit, vegetables”, Ottawa Citizen/National Post, Aug. 26).
Meanwhile, both the New York Law Journal and USA Today say there are other cases, besides the recently reported one near Albany, N.Y. (see July 26), in which schools are resorting to legal action to compel unwilling parents to dose their children with Ritalin, the controversial psychiatric drug. (John Caher, “New York Ritalin Case Puts Parents, Courts on Collision Course”,New York Law Journal, Aug. 18; Karen Thomas, “Parents pressured to put kids on Ritalin”, USA Today, Aug. 8). The Christian Science Monitor also reports on a different kind of legal pitfall that may await the non-medicating parent: in 1995 the Wisconsin Supreme Court upheld a $170,000 jury verdict against parents whose fourth-grade special-ed student attacked his teacher after they took him off medication that had reduced his aggressive behavior. (Katherine Biele, “When students get hostile, teachers go to court”, Christian Science Monitor, Aug. 22). However, the Wisconsin court stressed in that case that it was not imposing on parents a duty to keep the child on medication, but rather a lesser duty to warn the school if they decided to discontinue the drug (summary on Spedlaw.com website of Nieuwendorp v American Family Ins Co., 22 IDELR 551 (1995)).
The Monitor reports that educators are taking kids themselves to court over an ever-wider range of misconduct, especially defamation (see Sept. 28, Nov. 15). Most students are deemed “judgment-proof” but state laws specify a limited measure of parental financial responsibility for kids’ misbehavior, usually limited to such sums as $1,000 or $2,500, which can however escalate to unlimited amounts if the parents are deemed negligent, as in the Wisconsin case. And in Rhode Island, to update an earlier story (see April 19), two years of wrangling over whether Westerly High School sophomore Robert Parker was out of line to wear a rock band T-shirt displaying the numerals 666 have ended, with the school facing a cumulative bill for the dispute of $60,000. (American Civil Liberties Union/AP, July 6).
August 29-30 — Denny’s bias charges: let’s go to the videotape. Another day, another discrimination suit demanding money from the Denny’s restaurant chain on charges of racially based denial of service. But it so happened that a security video camera was running during the alleged Cutler Ridge, Fla. incident, and the story told by its tape was so at odds with the story the complainants were telling that their lawyer, Ellis Rubin of Miami, felt obliged to withdrew from the case for fear of facing sanctions if he continued. “In 1994, Denny’s settled a $46 million class action with hundreds of black customers who had alleged that they were refused service at the chain’s restaurants”; despite the diversity training it’s instituted since then it still faces many new public-accommodations suits, but its management vows to fight those that it considers opportunistic. (David E. Rovella, “Denny’s Serves Up a Winning Video”, National Law Journal, Aug. 24) (see also Sept. 29).
August 29-30 — Welcome Yahoo Internet Life readers. Last Friday’s installment of “Ask the Surf Guru” carried this nice accolade: “*** Special to Gwendolyn: Like Cassandra said in Mighty Aphrodite, “I see disaster. I see catastrophe. Worse, I see lawyers.” But better is seeing Walter Olson’s daily odes to odious lawyering at Overlawyered.com, where he chronicles how attorneys clog the drain of American life with lawsuits that redefine the word ‘frivolous.'” Thanks! (ZDNet/Yahoo Internet Life, Aug. 24 — final item).
August 29-30 — “Lawyers want millions as cut of Holocaust settlement”. “On April 12, 1997, Arthur Bailey, one of the dozens of lawyers who helped negotiate a $1.25 billion settlement finalized last month between Swiss banks and Holocaust survivors, bought a copy of the book ‘Nazi Gold’ by Tom Bower and spent 8.6 hours reviewing it. Cost to plaintiffs: $2,365, or $275 an hour.” Lengthy telephone conversations between lawyers and a half-hour interview granted by a lawyer to the Washington Post are among other outlays of lawyers’ time for which reimbursement is being sought in the $13.5 million fee request, which Elan Steinberg, executive director of the World Jewish Congress, described as “outrageous”: “We said from the beginning that the lawyers should be acting pro bono,” i.e., without compensation. (Steve Chambers, Newhouse News Service/Cleveland Plain Dealer, Aug. 15).
August 29-30 — Imagine if she’d had a photo of a gun too. Police in Davidson, North Carolina “are defending an officer’s decision to search a woman’s car for drugs after spotting a photo of a marijuana plant on the cover of a newspaper in her car.” The driver, when stopped at 1 a.m., had a copy of an alternative weekly in her car with a cover story on police use of helicopters against marijuana growers, and consented to the search request, police said. A journalism professor says carrying such material could not possibly be probable cause for a car search. Nothing unlawful was found in the vehicle. (“Police say photo of marijuana plant sufficient cause for drug search”, AP/Raleigh News & Observer, Aug. 25) (via Progressive Review).
August 28 — “Man killed in gas explosion told to clean up rubble”. “One day after a Brooklyn couple died in a gas explosion at their home, city officials fired off a letter to the dead husband insisting that he was responsible for immediately cleaning up the rubble.” On July 11 a massive blast leveled the home of Leonard Walit, 72, and his 66-year-old wife Harriet, who were buried under the rubble of the four-story brownstone with a third victim. “The responsibility to [repair or demolish the premises] is yours, and because of the severity of the condition, the work must begin immediately,” declared the form letter from building commissioner Tarek Zeid, which warned the deceased couple that if they delayed the city would perform the necessary work and bill them for the expenses. Critics say the city should have known better given that the blast made big headlines, and a spokesman for the Buildings Department has apologized. (AP/Yahoo, Aug. 26).
August 28 — Campaign consultants for judges. At $15,000 a pop it gets expensive fast to hire professional campaign help, but elected Florida judges increasingly feel they have to shell out for two, three or four of the hotshot local consultants — especially since if they don’t put them on retainer, they might just find themselves facing a challenger who has. It’s another reason reformers are hoping to move to an appointive system. (Tony Doris, “Full-Court Press”, Miami Daily Business Review, Aug. 23).
August 28 — “Relatives find ‘proof’ they own New York”. “Descendants of an 18th-century privateer are hoping that a copy of an ancient lease discovered in an attic in South Wales may finally prove that they are the rightful owners of the world’s most valuable piece of real estate,” reports London’s Sunday Times. “For 120 years the descendants of Robert Edwards have been trying to establish their rights to 77 acres of Manhattan on which now stand Wall Street, the New York Stock Exchange, [lower] Broadway and the World Trade Center.” And who’s to say they won’t succeed, given the enthusiasm shown by American courts for hearing Indian land suits (see Feb. 1), liability claims arising from the sale of products in the first years of the Twentieth Century, and perhaps, before long, slavery reparation cases as well? (Simon de Bruxelles, Sunday Times (London), Aug. 22).
August 25-27 — Mich. high court: tough on working (arsonist) families. As the nasty race for the Michigan Supreme Court heats up (see May 15, May 9, Jan. 31), opponents have rolled out television ads assailing three Republican justices as “antifamily” and biased toward business, on the strength of 43 decisions they’ve rendered that supposedly fit that pattern. However, when the Detroit Free Press‘s Dawson Bell looked into the details, he discovered that among the rulings being flayed as “antifamily” is one from last year denying insurance coverage to “a pair of convicted arsonists who burned down a row of buildings”. A look at the rest of the cited court decisions likewise “indicates that the content provided in the ads borders on the bogus.” For example, in six cases the ad-makers counted government defendants in lawsuits — that is to say, the taxpayers — as “corporations”; they omitted a half dozen cases that obviously didn’t fit their pattern, while including “at least seven cases in which an individual won, or a corporation wasn’t a party;” and they included fourteen cases in which the court’s Democrats agreed with the outcome. Where’s the state Democratic Party getting the money for its big ad buy trashing the GOP judges? It’s hard to know for sure, but trial lawyers are said to have privately pledged millions to defeat the trio at the polls (see May 9). (Dawson Bell, “Party politics enters high court race”, Detroit Free Press, Aug. 3; Kathy Barks Hoffman, “Chamber runs ads to counter Democrats’ attacks on justices”, AP/Detroit News, Aug. 17; Charlie Cain, “High court race will be nasty, pricey”, Detroit News, June 23). Opponents of the three justices have mounted not one but two websites: AgainstMichiganFamilies.com and The Justice Caucus. But in fact “Michigan’s Supreme Court may be the nation’s best example of a court committed to interpreting the law — not manufacturing it,” contends National Review Online contributor Peter Leeson (“Michigan’s Supreme Court Is Supreme”, Aug. 22). That makes it a notable contrast with the high court in neighboring Ohio, where a narrow majority of justices last year (see Aug. 18, 1999) used activist reasoning to strike down legislated liability limits, and are now being heavily backed by trial lawyers in their re-election bids (Thomas Bray, “A Nation of Laws, or of Judges?”, Opinion Journal, Aug. 17).
August 25-27 — “Albuquerque can seize homes hosting teen drinking”. Under a bill approved by the city council of New Mexico’s largest city, you can now look forward to losing your house if the neighbors complain about repeated gatherings of tippling teens while you’re away. (Kate Nash, Albuquerque Tribune/Nando Times, Aug. 23).
August 25-27 — “How do you fit 12 people in a 1983 Honda?” Brazen, well-organized car-crash fraud rings thrive in the Big Apple, according to a series of New York Post exposés this summer. Other states are well ahead of New York in enacting legislation aimed at curbing fraud; meanwhile, the “Pataki administration is in court trying to overturn a decision in which the trial lawyers and medical profession successfully sued to have the state’s existing no-fault regulations thrown out.” June 25 (related story); June 26; June 27; July 16 (related story); August 6). Last year New York City recouped $1 million following the racketeering and fraud convictions of attorney Morris Eisen, a one-time major filer of injury claims who prosecutors say introduced fraudulent evidence in at least 18 cases, including three against the city (press release from office of Comptroller Alan Hevesi, May 18, 1999).
August 25-27 — Retroactive crash liability. Following years of lobbying by trial lawyers, Congress passed and President Clinton signed in April a new law retroactively raising the amounts payable in lawsuits to relatives of those killed in three air crashes over international waters, including the loss of TWA Flight 800. The little-publicized passage, “nestled on page 71 of a 137-page budget bill … carries an effective date of July 16, 1996” — almost four years before its signing. It abolishes old limitations on lawsuits set by the historic Death on the High Seas Act so as to expand the sums recoverable for “non-pecuniary” losses, such as the “care, comfort and companionship” of the deceased. The result is to ensure substantially higher payouts in litigation over the TWA crash, for which that airline and Boeing are being sued, as well as the Atlantic downings of Swissair Flight 111 and EgyptAir Flight 990. Sen. Slade Gorton (R-Wash.), who represents Boeing’s home state, had argued to no avail that it was unfair to expand the companies’ obligation retroactively. (Frank J. Murray, “Retroactive move allows big awards in TWA crash”, Washington Times, Aug. 24).
August 23-24 — Class actions: are we all litigants yet? If you’re a member of American Airlines’ frequent-flier plan, you may have received by now a class action settlement notice in which the airline agrees to make legal amends for the atrocity of having raised from 20,000 to 25,000 miles the point level needed to claim a free coach round-trip. After slogging through the legal jargon, St. Petersburg Times columnist Susan Taylor Martin finds that the “most that ‘class members’ in my category can expect is this: a 5,000-mile discount on a frequent-flier award or a certificate for $75 off on a ticket costing at least $220. Wow. But let’s read on. In return for negotiating this settlement, the lawyers representing me and other plaintiffs will apply for fees ‘not to exceed $25 million.’ No wonder we’re such a lawsuit-happy nation.”. She asks her newsroom colleagues if they’ve been represented in class actions, and they inundate her with responses. Then she goes on to cite this website, quote a number of comments from our editor, discuss proposed reforms that would redirect nationwide class suits to federal courts, and finally take up the much-recurring question: what’s the best way to discourage further legal excesses of this sort, to fill out and return the claims form, or toss it in the waste basket? (Susan Taylor Martin, “Is anyone not involved in a class-action lawsuit?”, St. Petersburg Times, Aug. 20). Also see Sarah Haertl, “Bill Limits Class-Action Fees for Attorneys”, Office.com, June 19.
August 23-24 — Funds that don’t protect. “Client protection funds” are supposed to reimburse persons who fall victim to thievery by their lawyers, but a National Law Journal investigation finds the funds “poorly endowed, stingy about payouts and virtually a secret, even to many lawyers, whose bar dues help finance them”. Many victims get just pennies on the dollar, or nothing at all: “cheated clients are getting twice betrayed by the legal professionals who should be protecting them”. (“Wronged Clients Face an Empty Promise in Some States”, Aug. 21).
August 23-24 — Fateful carpool. The consent of one’s spouse is no excuse for violating a restraining order obtained by her earlier, as Blaine Jeschonek has learned to his sorrow in Bedford, Pennsylvania. When Jeschonek, 44, arrived in court accompanied by his estranged wife Beth, Judge Thomas Ling promptly ordered him arrested and charged with criminal contempt for violating a court order forbidding him to have contact with her. “The Jeschoneks had traveled together to court to ask Ling to dismiss the restraining order. ‘I will not tolerate these orders being violated in my presence, under my nose, in my own courtroom,’ Ling said.” (“Pennsylvania man carpools to court and faces contempt”, AP/CNN, Aug. 14).
August 23-24 — Bankrupting Canadian churches? A remarkable legal story is unfolding in Canada, where down through the 1960s the country’s major churches, under an arrangement with the national government, administered residential schools for youths from Indian tribes. A significant share (perhaps 20 percent) of all school-age Indians attended these schools, thus being separated from native communities for much of their childhood. As ideas of multiculturalism made headway, the schools with their premise of assimilation to English culture came to be regarded as an embarrassing legacy, though at the time they had enjoyed the support of most Indian bands. In recent years adults who attended the schools in their youth have filed legal actions against the school proprietors, originally in small numbers over claims of past physical and sexual abuse, but more recently in much larger numbers, more than 7,000, with the predominant alleged injury among new cases being “cultural deprivation” years or decades earlier. Claimant recruitment by attorneys has played a major role in the expansion of the dispute; one lawyer alone, Tony Merchant of Regina, Saskatchewan, has assembled no fewer than 4,300 former school residents from across Western Canada to press claims. Although very few cases have yet reached court, early rulings suggest that the litigation may inflict money transfers and legal costs so large as to bankrupt or financially cripple some or all of the church defendants: the Anglican Church of Canada, United Church of Christ, Presbyterian Church of Canada and Roman Catholic Church of Canada (David Frum, “The dissolution of Canadian churches”, National Post, Aug. 19; “Tending the flock”, editorial, Aug. 16; Richard Foot, “Deputy PM to meet Church leader over bankruptcy crisis”, Aug. 16; Ian Hunter, “Paying for past injustice is unjust”, July 20; “Sins of the fathers”, editorial, July 17; Ferdy Baglo, “Canada’s Anglican Church Considers Possibility of Financial Ruin“, Christianity Today). (DURABLE LINK)
MORE RESOURCES: Law Commission of Canada; Anglican Church of Canada (main page; apology; in Oji-Cree syllabics (pdf)); United Church of Canada (FAQ, news); Turtle Island Native Network (resources, news); Diane Rowe for White Oppenheimer & Baker (plaintiff’s law firm); Jane O’Hara and Patricia Treble, “Abuse of Trust”, Maclean’s, June 26; “Residential Schools: An Essential Component of Genocide” (University of Victoria); Jay Charland, “St. Paul diocese part of $195M suit”, Western Catholic Reporter; Patrick Donnelly, “Scapegoating the Indian Residential Schools”, Alberta Report, Jan. 26, 1998, reprinted at Catholic Educator Resource Center.
August 23-24 — Welcome screenwriters. It’s hard to beat what goes on in courtrooms for sheer drama, which may be one reason at least two sites catering to professional screenwriters link to Overlawyered.com. CreateYourScreenplay.com gives us a nice encomium on its “Research” page (scroll down to “O”) and we also figure on the “Miscellaneous” links page of DailyScript.com.
August 21-22 — Tobacco- and gun-suit reading. National Journal columnist Stuart Taylor, Jr. pens a powerful critique of the tobacco litigation (“Tobacco Lawsuits: Taxing The Victims To Enrich Their Lawyers”, Aug. 1; quotes our editor). The American Tort Reform Foundation has published a review of the state tobacco suits, with particular attention to the questionable interrelationships between private for-profit lawyers and state attorneys general; the authors are well-known Wall Street Journal editorialist John Fund and Martin Morse Wooster (“The Dangers of Regulation Through Litigation: The Alliance of Plaintiffs’ Lawyers and State Governments,” March 30, available through ATRF). Prof. Michael Krauss, of George Mason University School of Law, has written an analysis for the Independent Institute exploring the manifold legal weaknesses of the recoupment actions filed by states and cities against both firearms and tobacco makers (“Fire and Smoke”, orderable through II). And we’ve now posted online our editor’s op-ed from last month on the Florida jury’s $145 billion punitive damage award in Engle v. R.J. Reynolds (Walter Olson, “‘The Runaway Jury’ is No Myth”, Wall Street Journal, July 18).
August 21-22 — A thin-wall problem. A suburban Chicago attorney with Tourette’s Syndrome, the neurological condition that causes its sufferers to experience tics often in the form of uncontrollable utterances or gestures, is going to collect upwards of $300,000 in settlement of a lawsuit against the condominium association of which he and his wife were members. Jeffrey Marthon, 54, agreed in exchange to move out and to drop his suit contending that the association had violated fair-housing laws by attempting to evict him; the association had filed a legal action complaining of the noise from his involuntary hooting and foot-stomping. “Several neighbors said in affidavits that they were losing sleep because of noises coming from Marthon’s third-floor condo,” and engineers said it was impossible to install soundproofing to mitigate the problem. (Dan Rozek, “Man with Tourette’s cuts deal vs. condo”, Chicago Sun-Times, Aug. 18).
August 21-22 — Fit to practice? The California Supreme Court, reversing a lower panel, has unanimously ruled against granting a law license to convicted felon Eben Gossage, a scion of an affluent San Francisco family who says he’s turned his life around and is fit to become an attorney notwithstanding an extensive record of past trouble with the law, most notably a manslaughter conviction for having brutally killed his own sister (Kevin Livingston, “Convicted Killer Denied California Bar Card”, The Recorder/CalLaw, August 16). At a June hearing, Justice Joyce Kennard “made it clear she was bothered by Gossage omitting 13 of his convictions on his Bar application.” (“How Long Is Long Enough?”, June 7). Several prominent Bay Area politicians had appeared as witnesses for Gossage, among them state senate president John Burton; after the one nonlawyer member of the lower disciplinary panel dissented from the panel’s decision that Gossage should be allowed to practice law, Burton introduced and helped secure passage of a bill which abolished that nonlawyer’s seat on the panel, sending, in the view of commentator George Kraw, an unsubtle message — “Don’t antagonize important legislators” (“Friends in High Places”, July 31; Mike McKee, “Court Sounds Leery of Bar Court Shuffle”, May 4; Mike McKee, “State Bar Court Braces for Upheaval”, June 29, reprinted at Kerr & Wagstaffe LLP site). Meanwhile, at least two lawyers implicated in California’s famous “Alliance” scandal are trying to regain their licenses to practice; the “Alliance”, a covert joint venture between plaintiffs’ and defense lawyers to manufacture and prolong legal claims for which the insurers would be obliged to employ legal counsel, bilked large insurance companies out of hundreds of millions of dollars in the 1980s (Mike McKee, “Scoundrel — or Scapegoat?”, The Recorder/CalLaw, June 13; more about Alliance (Kardos CPA site)).
August 21-22 — Watch those fwds. Last month “Dow Chemical, the No. 2 U.S. chemical company, fired about 50 workers and suspended another 200 for up to four weeks without pay, for sending or storing pornographic or violent e-mail messages. ” The “range of material” involved includes “stuff that would be in a swimsuit edition” as well as more offensive material, the company says; in a fit of mercy, it did not discipline workers who merely received such material as email and did not forward it to others. Under widely accepted interpretations of harassment law, companies that fail to take action against circulation of ribaldry in the workplace face possible liability for allowing a “hostile working environment”. (“Dow Scrubs 50 for Eyeing Porn”, Reuters/Wired News, Jul. 28). Workers who imagine that their email is private, readily deleted, and secure don’t seem to realize the current state of the law and the technology, says a risk-consulting division of law firm Littler Mendelson (Chris Oakes, “Seven Deadly Email Thoughts”, Wired News, Aug. 8). Nor are “anonymous” postings to bulletin boards really anonymous once the legal actors — including private lawyers — launch their subpoenas (Carl S. Kaplan, “In Fight Over Anonymity, John Doe Starts Slugging”, New York Times, June 2; Michael J. McCarthy, “Can Your PC Be Subpoenaed?”, ZDNet, May 24; Lauren Gard, “Yahoo Hit With Novel Privacy Suit”, The Recorder/CalLaw, May 15).
June 30-July 2 — “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).
Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”
June 30-July 2 — Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (“Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.
June 30-July 2 — “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).
June 30-July 2 — “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?
“The student also asserted that ‘societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).
Postscript: Scott Shuger in Slate “Today’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.
June 29 — Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)
Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (“pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).
June 29 — “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, ‘Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,'” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).
June 29 — “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”
June 28 — Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))
June 28 — Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.'” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.
June 28 — Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (“New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).
June 28 — From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:
“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …
“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”
June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (“Rights and Wrongs”, July 3). (DURABLE LINK)
June 27 — Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment'”, Norwalk Hour, June 16, not online).
June 27 — Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).
June 27 — AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (“No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (“Florida judge approves class-action lawsuit against America Online”, CNN, June 25).
June 26 — Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.
In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).
June 26 — “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal‘s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (“TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).
June 26 — Updates. Catching up on further developments in several stories previously covered in this space:
* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (“Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (“When Tables Turn, Knives Come Out”, June 17) (reg).
* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).
* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489”, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.
* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).
June 22-25 — Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).
June 22-25 — More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (“Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).
June 22-25 — Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (“high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)
June 21 — And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).
June 21 — Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).
June 21 — …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).
June 21 — Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (“Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).