In Reason, Ronald Bailey fact-checks the New York Times on the purported environmental catastrophe near Buffalo that touched off a hundred copycat toxic-tort episodes as well as the federal Superfund program (Mar. 24).
Administrators of upstate New York cities are complaining that the cost of litigation saps their budgets: Rochester paid out $443,000 in 2002, while Buffalo writes between $700,000 and $900,000 worth of settlement checks a year. But maybe they should count their blessings: “Last year, despite its massive deficit, New York City paid out $525 million.” (Rick Armon, “More citizens taking governments to court”, Rochester Democrat & Chronicle, Jul. 28). The figures represent a municipal budgetary burden of about $2 for each of Rochester’s 219,000 residents, perhaps closer to $3 if some share of the $253,000 in outlays for surrounding Monroe County is ascribed to the city. The comparable figure for New York City (in which city and county government are merged) is $65 per resident or $260 for a family of four.
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)
December 10 — “Halliburton Shares Plunge on Verdict”. The market clipped $3.8 billion off the giant oil field service company’s share valuation after Peter Angelos got a $30 million jury award against it. “The ruling is the fourth significant asbestos ruling against Halliburton since late October, according to Merrill Lynch … Over the last 25 years, Halliburton has settled 194,000 asbestos claims, the company said. The average payment was about $200, according to Allen Brooks, executive director at CIBC World Markets. As of Sept. 30, the company faced 146,000 open asbestos claims and 182,000 more from a former subsidiary called Harbison-Walker.” (David Koenig, AP/Yahoo, Dec. 7; Neela Banerjee, “Halliburton Battered as Asbestos Verdict Stirs Deep Anxieties”, New York Times, Dec. 8). Federal-Mogul, the big auto parts maker, became the latest large bankruptcy to result from asbestos litigation with a filing two months ago (Joe Miller, “Asbestos suits hurt Fed-Mogul”, Detroit News, Oct. 2).
“In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. …What made jaws drop was that the plaintiffs weren’t even sick–their X-rays just showed they stood an increased chance of getting sick. ‘Most of these guys have not missed a day of work in their lives,’ their lawyer said. … To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!'” (“Looking for some million-dollar lungs”, U.S. News, Dec. 17).
Some say asbestos defendants should try to avoid angering juries by paying claims without a fight, but an attorney for power plant maker Babcock & Wilcox said an uncritical approach to claims had proved too expensive for his now-bankrupt client: “In the past, you literally filled out a form in five minutes that stated the claimant had a note from the doctor saying he was coughing and had other symptoms and showed that he worked at the site. It took five to 10 minutes to fill out the form that would routinely lead to checks for thousands of dollars.” (Terry Brennan, “Firms Wary of Challenging Asbestos Claims”, The Deal, Nov. 13). And battling continues in a case (see Feb. 12-13) in which B&W and other asbestos defendants have attempted to turn the tables on leading plaintiff’s firms, arguing that they have violated racketeering laws by coaching clients’ testimony and by threatening retaliation against companies that seek a legislative solution to the litigation morass. (Mark Hamblett, “Asbestos Companies Bring RICO Suit Against Plaintiffs’ Firms”, New York Law Journal, Sept. 6). This spring defendant law firms won a court order prohibiting the plaintiff companies from questioning their former, as well as their current, employees without counsel being present — i.e., even if the former employees are eager to spill the beans they will not be allowed to do so except in the presence of someone representing their former employer. That certainly should put a chill on whistleblowing (Mark Hamblett, “Employees of Law Firms Charged With Racketeering Shielded From Interviews Without Counsel”, New York Law Journal, April 11).
Plus: Dallas alt-weekly Observer, which had run some of the best journalism on the Baron & Budd client-coaching asbestos scandal, returned with a terrific follow-up in March which we’ve unconscionably delayed in linking (Thomas Korosec, “Homefryin’ with Fred Baron”, Dallas Observer, March 29). (DURABLE LINK)
December 10 — Steve Chapman on military tribunals. “President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement. ” (Chicago Tribune/ TownHall, Dec. 6).
December 10 — Love contracts. Some lawyers continue to advise employers to get co-workers who are in amorous relationships to sign legal documents affirming that the liaison is indeed voluntary, and that they will not harass each other if it ends. A 1998 survey by the Society for Human Resource Management “found that while 88 percent of the companies that discourage workplace romances do so out of fear of sexual harassment claims, just 4 percent of such relationships resulted in claims that led to litigation.” We don’t know where that “just” comes from — a 4 percent risk of getting the employer dragged into court sounds pretty serious to us. (Torri Minton, “Caught in the pact — Couples involved in office dalliances required to sign ‘love contract'”, San Francisco Chronicle, Dec. 2). (DURABLE LINK)
December 10 — “Saudi Arabia finally gets tough on terrorism!” “We are fighting a holy war to eradicate the source of the biggest corruption on earth,” says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he’s talking about … tobacco companies, who he’s suing in a legal action in Riyadh. (Frank Gardner, “Saudi hospital fights tobacco ‘terrorists'”, BBC, Dec. 4, via Untold Millions weblog, Dec. 5) (see Nov. 16, 2000 — we’re not sure what became of that earlier action, but suspect that it didn’t fare well, since the action’s now moving to Riyadh). (DURABLE LINK)
December 7-9 — Counterterrorism agents, on their own. Gabriel Schoenfeld, writing in Commentary: “Last year, at the behest of Congress, the National Commission on Terrorism, a body of leading experts, issued findings” on U.S. vulnerability to terrorist attack. Among other problems it warned of: the nation lacks adequate counterterrorist efforts, including intelligence monitoring of terrorist groups. “According to the commission, the guidelines governing the recruitment of ‘unsavory’ sources, introduced by the Clinton administration in 1995, had created a climate within the CIA that was ‘overly risk-averse’ and that contributed ‘to a marked decline in agency morale unparalleled since the 1970s.’ That is bad enough; but the morale problem had sources beyond the restrictive guidelines. Again according to the commission, some CIA officers and FBI special agents were being ‘sued individually’ by terrorist suspects for actions taken in the course of their officially sanctioned duties. Instead of representing them in such suits, the government was letting the agents fend for themselves; those who chose to stay on the job were being forced to purchase personal-liability insurance to cover their legal bills.
“Did the commission call for an end to this preposterous state of affairs, whereby accused terrorists have been able to turn the tables on their pursuers and bring them to court? Not at all. It asked only that the government provide ‘full reimbursement of the costs of personal-liability insurance.'” (“Could September 11 Have Been Averted?”, Commentary, December (scroll to near end)).
December 7-9 — Overlawyered schools roundup. A judge has thrown out Desiree Radford’s suit claiming that it was unlawful for the city of Buffalo to lay off teachers in her son’s district without first conducting an environmental impact statement (“Judge Dismisses Mother’s Case To Stop Buffalo Teacher Layoffs”, WGRZ.com, undated). In Ohio, the case of Fairview High School junior Aaron Petitt, “who claimed he was denied freedom of speech and due process when he received a 10-day suspension for hanging posters of airplanes bombing Afghanistan on his student locker,” is ending with a denouement summed up in the Cleveland paper’s headline: “District settles case with student; he gets $2,000, lawyers $21,000”. Aaron’s lawyers are charging local taxpayers $300 an hour for their services. (Sarah Treffinger, Cleveland Plain Dealer, Dec. 1). Schools in Canada’s largest city will probably wind up in court because of an effort to raise standards: “A Toronto parent group concerned about Ontario’s tough new school curriculum will encourage parents to take legal action against the government if their children are suffering under the revamped standards.” (Lee-Anne Goodman, “Toronto parent group encourages legal action”, Canadian Press/Toronto Sun, Dec. 2). And attorney Susanna Dokupil comments on the don’t- read- grades- aloud- in- class case currently before the U.S. Supreme Court. (“Hey, Congress, Leave Us Kids Alone”, The American Enterprise, Nov. 29) (see Nov. 28). (DURABLE LINK)
December 7-9 — “Hell’s litigious angels”. John Leo’s annual who’s-a-victim roundup leads off with the touchy motorcyclists who want protected-group status in discrimination law: “America’s next official victim group may be roaring your way on their Harley-Davidsons.” (U.S. News, Dec. 10; Chris Weinkopf, “Born To Be Mild”, FrontPage, Nov. 28; see Nov. 19-20). The Boston Globe‘s Jeff Jacoby thinks this would be a good time to take a stand on behalf of the principle of freedom of association: “Bikers Demand Their ‘Civil Rights'”, Nov. 29, via Center-Right).
December 7-9 — Chrysler dodges a $250 million dart. Blessed with a favorable appellate circuit (the Fourth) and high-powered counsel (Ted Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn & Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina punitive award overturned. “The court also reversed and remanded for retrial the jury’s finding of liability and its award of [$12.5 million] compensatory damages, finding that Chrysler should have been able to introduce evidence that a child who was ejected from a Chrysler minivan was not wearing a seat belt.” (“Chrysler Escapes $250 Million in Punitives”, National Law Journal, Nov. 1). San Francisco Chronicle legal columnist Reynolds Holding says the disparate fate of punitive damages on appeal in different cases — $5 billion against ExxonMobil held excessive in the Valdez spill case, $25 million upheld against Philip Morris in a case brought by an individual smoker– suggests that critics of punitive awards may have a point about their arbitrariness: would anyone have been especially surprised had the outcome been reversed and the tobacco maker rather than Exxon had gotten its award reduced? (“Scales of justice out of whack”, Nov. 25). And if you still thought plaintiffs in our legal system bore the burden of proving their legal case, get with it: “The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection.” (Charles Toutant, “New Jersey Shifts Burden of Proof in Auto Design Cases”, New Jersey Law Journal, Sept. 11).
December 5-6 — Cosseted to distraction. New Jersey has made itself “the darling of child-safety advocates” by becoming the first state to adopt a National Highway Traffic Safety Administration recommendation that children in cars be required to ride in booster seats until they weigh 80 pounds or reach their eighth birthday. But even some conscientious parents say the new law goes too far: older kids rebel at being forced back into “baby” seating, carpools break up as adult co-workers shun the nannyized vehicles, besides which the devices cost good money. (Kaitlin Gurney, “Tough N.J. safety-seat law poses dilemmas”, Philadelphia Inquirer, Nov. 30). And the Washington Times reports a presumably unintended consequence of those red-light cameras that revenue-hungry municipalities have installed to generate citations: “Some D.C. police officers say they are slowing their response to emergencies because photo-radar cameras are ticketing them for speeding … They said they and other officers have been forced to pay the fines, and are now on edge about speeding to a crime scene and running red lights in emergencies.” (Brian DeBose, “Cops get speeding tickets from cameras”, Nov. 29).
December 5-6 — “Victims of Day-Trader Rampage Say Industry Itself to Blame”. Two years ago financially ruined day trader Mark Barton walked into two office buildings in the Buckhead section of Atlanta and massacred nine persons. Now lawyers, “arguing that Georgia tort law should evolve with the times,” are hoping to put the day-trading segment of the securities industry on trial, saying that the volatile and risky nature of its business made such a crime foreseeable. (Trisha Renaud, Fulton County Daily Report, Nov. 30). Update Jan. 9-10, 2002: judge dismisses suit against building owners and managers, but lets it go forward against two day-trading firms. (see further updateDec. 19, 2003)
December 5-6 — “EU considers plans to outlaw racism”. Free speech for me, but not for thee: “Racism and xenophobia would become serious crimes in Britain for the first time, carrying a prison sentence of two years or more, under new proposals put forward by Brussels … [the ban includes] a wide range of activities that sometimes fall into the sphere of protected political speech, such as ‘public insults’ of minority groups, ‘public condoning of war crimes’, and ‘public dissemination of tracts, pictures, or other material containing expressions of racism of xenophobia’ — including material posted on far-Right internet websites.” The “plans, drafted by the European Commission, define racism and xenophobia as aversion to individuals based on ‘race, colour, descent, religion or belief, national or ethnic origin'”. (Ambrose Evans-Pritchard, Daily Telegraph, Nov. 29). In The American Prospect, Wendy Kaminer discusses the suit filed in August against America Online for allegedly allowing participants in its chat rooms to engage in “hate speech” against Muslims: “Virtual Offensiveness”, Nov. 19 (see Sept. 3).
December 5-6 — Attorney can sue for being called “fixer”. A federal judge has ruled that Pennsylvania attorney Richard Sprague can proceed with his defamation lawsuit against the American Bar Association and its magazine, the ABA Journal, which had called him a “fixer”. Although writers often employ that term to describe the sort of political wheeler-dealer who uses connections in a perfectly lawful way to resolve people’s problems, the judge found the term might also evoke an impression that Sprague improperly “fixed” cases. (Shannon P. Duffy, “Lawyer’s Defamation Claim Against ABA Found Valid”, The Legal Intelligencer, Nov. 19). Update Nov. 30, 2003: case settles for undisclosed sum and half-page apology.
December 5-6 — Resources: terrorism and the law. Some useful jumping-off points for research and reading: Jurist; FindLaw; Federalist Society briefing papers; Brookings; New Yorker.
December 4 — There’ll always be a California. It’s a state of mind, really:
* In a notice letter sent to Nestlé, Tootsie Roll Industries Inc., Godiva and numerous other confectioners including local favorites Ghirardelli and See’s, attorney Roger Carrick of Los Angeles’s Carrick Law Group has charged the companies with violating the state’s Proposition 65 right-to-know law by failing to post warning labels on chocolate advising consumers that it contains toxic substances such as lead and cadmium. Michele Corash, a Morrison & Foerster lawyer defending Hershey and Mars in the controversy, says the Food and Drug Administration has called chocolate harmless: “What Mr. Carrick is complaining about is tiny amounts of trace minerals that are present in virtually all foods. They are in the soil, and foods that are grown in soil absorb them.” Carrick says it hasn’t been proven that all the lead and cadmium content are from natural sources, but even trial- lawyer- friendly California AG Bill Lockyer has weighed in on the side of the candy makers. (John Rosmer, “Chocolate: It’s Fattening, but Is It Toxic?”, San Francisco Daily Journal, Oct. 29, not online; Dan Evans, “Death by chocolate?”, San Francisco Examiner, Nov. 26). And Forbes explains how Prop 65 has made it possible for bounty-hunting lawyers to do very well: “Visit any doctor or dentist in California. If you don’t see signs warning you that the physician is using potentially harmful chemicals as defined by the state’s Proposition 65 (e.g., mercury fillings), haul him into court and demand $2,500 for each day he didn’t post the warnings. You get 25% of the loot, the state 75%”. (Dorothy Pomerantz, “Toxic Avengers”, Forbes, Oct. 15).
* You may have thought your home belonged to you, but some disabled-rights activists have other plans for it: “In what would be the first such rules in the nation, Santa Monica officials are considering a proposal to require that all privately built new homes and those undergoing major remodeling have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible bathroom.” (Bob Pool, “Wheelchair Access as a Must for Residences”, L.A. Times, Dec. 2).
* “Richard Espinosa, whose assistance dog allegedly was attacked by the [Escondido] Public Library’s pet cat last year, filed a lawsuit against the city yesterday seeking $1.5 million in damages.” (see May 7 and (letter from Espinosa) June 13) (& see Apr. 15, 2002) (John Behrman, “$1.5 Million Suit Filed in Library Cat Case”, San Diego Union Tribune, Nov. 28).
December 4 — An ill wind. Among those prospering in the wake of the Sept. 11 attacks: employment lawyers, whose phones may ring nonstop in a time of mass layoffs. (“Layoff Lessons”, Corporate Counsel, Nov. 21). Garry Mathiason of the management-side firm Littler Mendelson says that in addition to that, his firm “has three key advantages: sex, drugs and violence” — all sources of legal risk for employers. (Krysten Crawford, “Littler’s Labors”, The Recorder, Nov. 20).
December 4 — Headline of the day. “Sept. 11 Laws Raise Fears of Tort Reform” — Bob Van Voris, National Law Journal, Nov. 27. Love that “fears”. The NLJ does know its audience, doesn’t it?
December 3 — Can’t do anything but legislate. Some constituents are furious at Pennsylvania state representative Jane Baker, a Republican, after learning that her lawyers have filed papers in a car-accident case portraying her as “virtually unemployable” aside from her lawmaking job. “In a televised debate last fall, Baker assured viewers that, both physically and mentally, she was up to the task of representing them in Harrisburg. Asked directly if she could read and comprehend well, she replied, ‘I’m fine.’ She went on to say that a physical injury to her left arm ‘appears to be permanent, but otherwise … I’m ready to go to work’ in Harrisburg.
“Legal papers Baker filed last month paint a dramatically different portrait. If not re-elected, Baker claimed Oct. 19 in legal papers tied to her case, she will be ‘virtually unemployable’ because of her condition, which includes physical and ‘multiple cognitive defects’ that include problems remembering and recollecting what she has read.'” Baker’s suit is demanding $7.5 million in damages from Judith V. Fulmer, “a former friend who pleaded guilty to drunken driving and leaving the scene of an accident” after police say her vehicle struck Baker as she walked along a country road. (Mario Cattabiani, “Baker’s lawsuit puzzles some”, Allentown Morning Call, Nov. 4).
December 3 — “Terrorists push plots from jail”. It’s practically a tradition for American inmates to continue running criminal enterprises from their cells, but the stakes have gotten higher: investigators now realize that Mideast terrorists locked up in American prisons have repeatedly managed to communicate with outside followers to approve and even help plan further murderous attacks. The Bush administration on Oct. 31 announced a new practice of listening in on conversations between detainees and their attorneys when it determines there is “reasonable suspicion” that such communications are related to future terrorist acts; Attorney General John Ashcroft says that there are only 13 persons in custody — at the moment — for whom it would like to use such power. The detainees and their attorneys are to be advised of the monitoring, and a “privilege team” is supposed to screen the resulting information so that it does not reach the eyes of prosecutors or regular investigators. American Bar Association president Robert A. Hirshon says such monitoring is constitutional only if a judge approves it in advance under a probable-cause standard, and Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice as “unacceptable” in its current form. (Cam Simpson, Chicago Tribune, Nov. 19; Pete Yost, “Ashcroft Defends Monitoring of Inmate-Attorney Conversations”, AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, “Monitoring Attorney-Client Communications of Designated Federal Prisoners”, Federalist Society National Security White Papers, Dec. 3).
December 3 — Lending rules trip up litigation-finance firms. Class-action lawyers have repeatedly tripped up financial services firms by arguing in court that transactions characterized as cash advances (such as “rapid refunds” that tax-preparing companies issue before the actual IRS check arrives) are in reality loans, leaving companies liable if they have not made the full range of disclosures required by truth-in-lending law (see, for example, Apr. 5). So some might see a kind of poetic justice in the news from Ohio, where an appellate court has “ruled that two companies that advance money to personal injury plaintiffs on the understanding that they will be repaid only if the plaintiffs prevail, are making loans — not ‘contingent advances’ — and violated state usury and lender- registration laws.” Every so often, surprising as it may seem, the litigation community does wind up having to live by the same rules it prescribes for the rest of us. (Gary Young, “Ohio Court Rules Against Litigation-Loan Firm in Usury Case”, National Law Journal, Nov. 16) (see also letter to the editor, Oct. 22).
December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).
December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).
December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).
December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.
December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).
December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).
December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).
December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).
December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).
December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).
December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).
December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).
December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.
December 15-16 — Updates. Further developments in cases that were bound to develop further:
* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).
* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).
* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).
* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.
December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).
December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?
The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)
December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.
December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).
As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.
December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)
December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)
December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”
“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).
December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).
December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).
December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.
December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)
December 28, 2001-January 1, 2002 — Eggnog expense exacerbated. Many states artificially inflate the price of holiday cheer through measures designed to further the interests of wine and spirits wholesalers, such as laws making it virtually impossible for liquor manufacturers and importers to switch from one wholesaler to another. (Americans for Tax Reform, “Monopoly Protection Laws Target Wine and Spirits Industry”, Dec. 14).
December 28, 2001-January 1, 2002 — Law firm sued over fen-phen settlement practices. “A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised.” The suit was filed against Napoli, Kaiser, Bern & Associates on behalf of 5,600 fen-phen plaintiffs by Seattle’s Hagens & Berman. Among its allegations are that the Napoli firm resolved cases in a large batch settlement with AHP which left it with unsupervised discretion to distribute the proceeds among various clients, and that it employed a registered nurse and attorney “to tell clients why, in her ‘expert opinion,’ the settlement represented excellent compensation for their injuries. ‘Later, a charge for “expert witness fee” appeared on client closing documents,’ the complaint states. ‘Often the so-called expert fees were dated before she even came to the NKB.'” The defendants say they obtained reasonable settlements for the clients and expect to be vindicated. (Mark Hamblett, “New York Firm Accused of Intimidating Clients in Fen-Phen Litigation”, New York Law Journal, Dec. 13).
December 28, 2001-January 1, 2002 — “The Great Mouthpiece”. Don’t get too nostalgic about the good old days: long before the O.J. trial, back in the ‘teens and 1920s, there were the likes of notorious Manhattan attorney Bill Fallon. “Few Fallon clients spent a day in jail before trial and, if not acquitted, they usually enjoyed hung juries. …Fallon’ style was Runyonesque before Runyon invented it for himself. … so long as he endured in public memory, he was the archetype of the amoral criminal defense lawyer.” (William Bryk, “Old Smoke: Criminal Lawyer”, New York Press, Nov. (vol. 14, iss. 45))
December 28, 2001-January 1, 2002 — “UK women can demand to know men’s salaries”. The new law is supposed to promote “pay equity”, but officials acknowledge there may be a wee problem protecting male employees’ privacy and preventing fishing expeditions aimed at gratifying curiosity or spite rather than fingering equal pay violations. (Jo Revill, “UK women can demand to know men’s salaries”, ThisIsLondon.com, Dec. 4).
December 24-27 — Chestnuts-roasting menace averted. Citing clean-air concerns, the Berkeley, Calif. city council “has banned log-burning fireplaces in new homes and other buildings.” An environmental activist who led the drive for the ordinance is hoping in future to extend it so as to ban homeowners’ use of existing fireplaces as well. At least seven Bay Area jurisdictions, including San Jose and Palo Alto, as well as Contra Costa and San Mateo counties, have banned installation of new residential fireplaces, but Berkeley is the first to forbid new wood-fired restaurant ovens and grills in restaurants unless pollution-control equipment is added, a possible threat to the city’s thriving foodie culture of “foraged-mesquite fires cooking free-range chickens or vegan pizzas”. Famed Berkeley restaurateur Alice Waters, who “said her grill and oven did not work properly when she tried to filter the exhaust”, is among those “totally opposed” to the new law: “We’ve had a fundamental connection between fire and food since the beginning of time.” (Peter Y. Hong, “Cozy Domestic Symbol Takes Heat in Berkeley”, L.A. Times, Dec. 23) (see Feb. 28, 2001 and Dec. 27-29, 2002). (DURABLE LINK)
December 24-27 — Holidays in strict legal form. Three seasonal rituals — the office party, gift-giving, and New Year’s resolutions — might work better if reduced to legal contract form, suggests humorist Madeleine Begun Kane. From HumorMatters.com comes another lawyered-up “Night Before Christmas” parody: “At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter ‘the Vehicle’) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer.” Plus, from the same site: “Politically Correct Christmas Poem” and the much-circulated “Xmas office party memos“. From IndraNet, the also much-circulated “Twelve Days of Christmas for the Politically Correct“. Chadbourne & Parke attorney Lawrence Savell puts out “The Lawyer’s Holiday Humor Album“, with tunes like “Santa v. Acme Sleigh” and “It’s Gonna Be A Billable Christmas”; all we can tell you about is the titles since we haven’t heard the album. For more Christmas lawyer humor, see Dec. 23, 1999. (DURABLE LINK)
December 24-27 — Federal judge rules high school sports schedules unlawful. More Title IX from Outer Space: a federal judge in Kalamazoo, Mich. has ruled that the Michigan High School Athletic Association has been violating federal and state civil rights law and the Fourteenth Amendment’s equal protection clause by scheduling girls’ but not boys’ athletic seasons out of sync with their collegiate counterparts. (James Prichard, “Federal Judge Rules Against Michigan High School Athletic Group in Gender-Equity Lawsuit”, AP/Law.com, Dec. 18; extensive Grand Rapids Press/MichiganLive coverage). See Dave Reardon, “Spring hoops might not be federal case”, Honolulu Star-Bulletin, Dec. 13, 2000. (& letter to the editor, Feb. 28). More: Jul. 10, 2004. (DURABLE LINK)
December 24-27 — Liability for mistargeted bombing? Sovereign immunity, shmovereign immunity, says a Jones, Day attorney who is suing to make the U.S. government (and hence U.S. taxpayers) compensate the owner of a Sudanese pharmaceutical plant destroyed by an American bombing raid in August 1998 that many subsequent reports have suggested was mistargeted. While nothing would prevent the U.S. Congress from appropriating such compensation as a voluntary matter, Justice Department lawyers are unimpressed with attorney Stephen Brogan’s argument that the plant owner is entitled as a matter of law to compensation under the Constitution’s “takings” clause, saying that clause would not cover non-U.S. property owned by a non-U.S. citizen. Not to mention the wider policy issues: “There is something to be said for the government acting with fearlessness in these circumstances,” as George Washington University law professor Jonathan Siegel says. “The president should not have to worry about tort liability” when making tough military calls. (Otis Bilodeau, “When Bombs Miss the Mark”, Legal Times, Nov. 28). (DURABLE LINK)
December 21-23 — Under the Christmas tree. Toy soldiers? Think again if you’re in the child care business: “A daycare center in North Carolina seeking state certification for its preschool program found itself penalized because an inspector discovered green plastic army men on the premises, reports the Wilmington Morning Star. Laura Johnson said the presence of the nine little army guys at her Kids Gym Schoolhouse led to the loss of five points under the state-sanctioned Early Childhood Environmental Rating System. Evaluator Katie Haselden said schools may not have such displays of stereotyping or violence on the premises. The army men ‘reflect stereotyping and violence, therefore credit cannot be given,’ she wrote in her report.” (Scott Norvell, “Tongue Tied”, FoxNews.com, Nov. 26). At home, however, this may be the year that even good liberal parents break down and buy their son a G.I. Joe, if anecdotes from New York are any indication (John Tierney, “G.I. Stands Tall Again (12 Inches)”, New York Times, Dec. 11; and don’t miss Lisa Snell, “What the Schools Teach Children About Terrorism”, Dynamist.com (Virginia Postrel), Sept. 15 (scroll down if necessary to “Power Rangers vs. Eggshells”)). However, trial lawyers and their friends at the Consumer Product Safety Commission have been running a big campaign against that classic Christmas present of a rural boyhood, the Daisy BB gun(Andrew Ferguson, “When the Nanny State Becomes the Mommy State”, Bloomberg.com, Nov. 6; “You’ll Shoot Your Eye Out!” (editorial), Wall Street Journal, Nov. 30).
December 21-23 — Fleeing obstetrics, again. One of the many prices the state of Mississippi is paying for its reputation as a trial lawyer paradise: physicians are increasingly dropping obstetrics from their practices, faced with insurance rates of $40,000-$100,000 a year that would until recently have been more typical of big cities (“Costs Lead Rural Doctors to Drop Obstetrics”, AP/Washington Post, Nov. 23). Similar problems are arising in West Virginia: Rita Rubin, “You might feel a bit of a pinch, USA Today, Dec. 3. Frederick (Md.) Memorial Hospital is among institutions that have moved to a policy of not allowing families to bring cameras to the delivery room, and some upset moms “accuse hospital officials of trying to protect themselves against malpractice suits at the parents’ expense”. (Raymond McCaffrey, “Moms Say Hospital Photo Ban Makes Birth a Blurry Memory,” Washington Post, Dec. 11; see Oct. 18, 2000). And although trial lawyers keep insisting that medical liability coverage is a high-profit line for insurers, one of the largest providers of malpractice insurance, St. Paul Cos., just announced it was finally giving up and pulling out of the business, which would seem a reasonably sincere testimony to its frustration (“St Paul Cos To Exit Medical Malpractice Business”, Wall Street Journal, Dec. 12)(online subscribers only).
December 21-23 — Australia: anti-American tripped up by speech code. In a case currently on appeal, Australia’s Financial Times was found guilty of inciting racial hatred after one of its opinion columnists wrote that Palestinians as a factor in Mideast politics were “vicious thugs” and “cannot be trusted” (see July 11, 2000). Now, to the shock of some in Australian journalism, prominent broadcaster and journalist Phillip Adams has been made the subject of a private complaint for “racial vilification” of … Americans; he had published in The Australian one of those all-too-familiar screeds declaring that the United States is a country of “madness”, “the most violent nation on earth”, etc., etc. Writes commentator Tim Blair: “I can’t see a massive amount of difference here. Either Adams must be found guilty, or – my favored option – we throw this vilification garbage in the toilet and return to living like free men.” (Tim Blair weblog, scroll to near bottom of the page for Dec. 9; scroll to third Dec. 7 item (via Matt Welch); Pilita Clark, “Shock as columnist investigated for un-American activity”, Sydney Morning Herald, Dec. 7; Phillip Adams, “Look back in anger”, The Australian, Oct. 6) (see also Oct. 17-18, on the Sunera Thobani case in Canada). And the British government, in order to get its antiterrorism legislation past the House of Lords, “was forced to abandon the controversial attempt to make a new criminal offense of inciting religious hatred”. (“UK passes antiterror law”, CNN, Dec. 14)(see Oct. 19-21). They’re sometimes a more useful bunch than G&S gave them credit for being, those Lords.
November 10-12 — Election special: litigating our way into a constitutional crisis? It isn’t often that a New York Times editorial exactly captures our own reaction to public events, but we wouldn’t have changed a word in this morning’s. It expresses concern about the “Gore campaign’s rush to litigation” and the possibility that matters might escalate into “scorched-earth legal strategy” on both sides of the presidential contest: “it is worrying that Mr. Gore and a legal team led by Warren Christopher, the former secretary of state, would announce their support for a lawsuit while the mandatory recount is still going on and while seven days remain for the arrival of overseas absentee ballots. It is doubly worrying that some Gore associates are using the language of constitutional crisis and talking of efforts to block or cloud the vote of the Electoral College on Dec. 18 and of dragging out the legal battle into January….
“We take very seriously the fairness issues raised by the ballot confusion in Palm Beach County and understand the public frustration or even outrage attendant upon the possibility of having the popular will thwarted by procedural errors, especially when a presidential outcome hangs in the balance. The problem is that potential remedies, such as a new election in Palm Beach County, seem politically unsound and legally questionable. The sad reality is that ballot disputes and imperfections are a feature of every election. It will poison the political atmosphere if presidential elections, in particular, come to be seen as merely a starting point for litigation.” (“A Fateful Step Toward Court” (editorial), New York Times, Nov. 10) (reg). Also: “Senator Robert G. Torricelli, Democrat of New Jersey, warned against getting mired in the courts. ‘I want Al Gore to win the election,’ Mr. Torricelli told reporters, ‘but more than that, I want somebody to win this election. There is going to have to be a very compelling case for anybody to take this into a court of law. It’s a downward spiral. It may begin in Florida, but it can go to other states and ultimately the presidency of the United States should not be decided by a judge.'” (R.W. Apple Jr., “Gore Campaign Vows Court Fight Over Vote, With Florida’s Outcome Still Up in the Air”, New York Times, Nov. 10). (DURABLE LINK)
November 10-12 — Election special: Nader non grata. Many liberals are furious with Ralph Nader for apparently costing Al Gore the election, with the Times rounding up indignant quotes from union, feminist and environmentalist officials. “Senator Joseph R. Biden Jr. of Delaware, echoing the sentiments of several other Democrats on Capitol Hill, said: ‘Ralph Nader is not going to be welcome anywhere near the corridors. Nader cost us the election,’ … Several Democrats said today that they expected many longtime financial supporters of Mr. Nader to cut off their contributions to organizations with which he is affiliated” — though, frustratingly, the article says nothing about what kind of supporters these might be (trial lawyers? unions?) thus accommodating Nader’s longtime practice (see June 13, Andrew Tobias in Worth) of concealing his sources of financial support (James Dao, “Angry Democrats, Fearing Nader Cost Them Presidential Race, Threaten to Retaliate”, New York Times, Nov. 9 (reg)). At an election-night gathering at Bill and Hillary Clinton’s hotel room, according to Lloyd Grove of the Washington Post, publishing figure Harry Evans exclaimed “I want to kill Nader!”, to which Sen.-elect Hillary Clinton replied, “That’s not a bad idea!”, immediately followed by a collective cry of “That’s off the record!” — too late (Lloyd Grove, “The Reliable Source”, Washington Post, Nov. 9) “My only hope is that no matter who wins, he will name Ralph Nader the first U.S. ambassador to North Korea. That way Ralph can spend his days with another egomaniacal narcissist, Dear Leader Kim Jong Il, and get a real taste of what a country that actually follows Mr. Nader’s insane economic philosophy — high protectionism, economic autarky, anti-markets, anti-globalization, anti-multinationals — is like for the people who live there.” (Thomas L. Friedman, “Original Sin”, New York Times, Nov. 10) (DURABLE LINK)
November 10-12 — Obese soldiers class action. When kicking out servicepeople for gaining too much weight, the U.S. armed services have insisted that they return their enlistment bonuses. “Under a federal ruling handed down last week, they’ll be able to sue the Pentagon in a class-action lawsuit to recover damages.” (Justin Brown, “How far can military go in punishing obese soldiers?”, Christian Science Monitor, Nov. 9).
November 10-12 — Dubious death-penalty science. The Supreme Court in 1993 (Daubert v. Merrell Dow) instructed lower federal courts to curb the use of unreliable expert testimony in civil litigation, with highly beneficial results for the quality of justice. Oddly, the Court has failed to tighten the corresponding rules for capital criminal cases, although there is evidence that some expert testimony that sends prisoners to Death Row would flunk a Daubert test, notably testimony which purports to predict future dangerousness with a high degree of certainty. “The use of psychiatric testimony in capital cases has also been sharply criticized by Peter Huber, a fellow at the Manhattan Institute in New York and a former law clerk for Justice Sandra Day O’Connor whose influential book denouncing junk science is widely credited with sparking the legal movement to limit expert testimony.” (Henry Weinstein, “Death Penalty Debate — Can New Violence Be Predicted?” Los Angeles Times, Nov. 6). Also: some critics are questioning whether fingerprint identification, among the pillars of forensics for a century or more, is really 100 percent reliable as is commonly assumed (Simon Cole, “The Myth of Fingerprints”, Lingua Franca, Nov.).
November 10-12 — Mickey Kaus on constitutional activism. The Slate and Kausfiles.com columnist worries that Bush high court nominees would go too far in striking down Congressional legislation on federalism grounds, but expresses even more alarm at the implicit activist judicial philosophy of Vice President Gore, which recalls “my law school days, in the mid-1970s, when the rights-making machine of legalistic liberalism was still churning away. …When Gore babbles eagerly about how ‘the Constitution ought to be interpreted as a document that grows with … our country and our history’ — sounding like a guy who went to the first year of law school for a few months but didn’t stick around long enough to realize what a crock much of it was — I think back to the liberals-out-of-control paradigm of my youth.” Whole piece is worth a read (“Don’t Rush Me! (Part 8)”, Slate, Nov. 6) (Kausfiles.com).
November 10-12 — Did securities-law reform fail? Five years ago Congress overrode President Clinton’s veto and enacted legislation intended to deter unwarranted shareholder “strike suits” organized by professional class action lawyers. Since then the number of suits has gone up, however, and observers differ as to how much good the law may have done and whether lawyers are finding it easy to evade. (Tamara Loomis, “Securities Reform: What Went Wrong?”, New York Law Journal, Oct. 27; Peter Catapano, “Who Wants To Be a Fraud Litigant”, Wired News, Nov. 8).
November 9 — Lawyers descend on Florida. “Over the sunny horizon, a plague of lawyers is descending on Florida. They officially are ‘watching’ the presidential recount. But they are also scouring every comma and ‘whereas’ in the Florida code to see if any loophole can be found to invalidate Florida, or to block such an action.” “Soon after [Florida Secretary of State Katherine Harris] ordered the recount, lawyers for both candidates flocked to the state, led by two former secretaries of state — Warren Christopher for Gore and James A. Baker III for Bush.” Jesse Jackson said black leaders may sue, while a Bush campaign source told Insight that “[o]ur people down there are getting the clear impression that the Democrats are searching madly for anything they can litigate on.” (Nov. 8: “Recount continues in Florida”, AP/Northern Light; Rod Thomson, “The Florida Rules”, National Review Online; Jamie Dettmer, “Election Update: Charges of Cheating Abound”, Insight Magazine; Raju Chebium, “Election Day allegations could form basis for legal challenges, experts say”, CNN.com; Paul Singer, “Rev. Jackson hints legal challenge to Fla vote”, Virtual New York; “More Irregularities Alleged”, ABCNews.com.)
November 9 — More election results. Three Michigan Supreme Court justices assailed by trial lawyers and other critics “trounced their Democratic opponents by large margins” (see Nov. 7; David Shepardson, “GOP projected to win state Supreme Court”, Detroit News, Nov. 8). In Ohio, however, Justice Alice Robie Resnick easily held onto her seat despite outrage from organized business over her authorship of a decision invalidating liability limits in the state, and a challenger nearly succeeded in knocking off incumbent Justice Deborah Cook, who had voted to sustain the reforms (see Oct. 30; James Bradshaw, “High court unchanged despite negative TV ads”, Columbus Dispatch, Nov. 8). And in a House race in West Virginia, GOP insurgent Shelley Moore Capito pulled off an upset to defeat Jim Humphreys, a wealthy asbestos lawyer who had poured more than $6 million of his own money into his campaign. (see Oct. 23; Karin Fischer, “Capito scores upset”, Charleston Daily Mail, Nov. 8).
November 9 — Reshuffling blackjack decks not racketeering. A three-judge panel has ruled that Atlantic City, N.J. casinos did not violate the federal RICO (racketeering) law by adopting “countermeasures” against known and suspected practicers of card-counting at the blackjack tables. At the “heart of the lawsuit … was the players’ objection to the casinos’ practice of re-shuffling the decks ‘at will’ whenever a card-counter is spotted.” The plaintiffs included 60 casino patrons, most with card-counting skills, as well as companies that offer courses in the memory technique, which allows a customer to increase the chances of beating the house by deducing the distribution of cards remaining undealt. Federal judge Morton Greenberg ruled that the claims “are completely insubstantial and border on the frivolous” because the rules of the New Jersey Casino Control Commission specifically authorize casinos to reshuffle at will, because the players “can avoid any injury simply by walking away from the alleged wrongdoers, the casinos”, and because the loss of the chance to make money at a casino’s expense can hardly be characterized as “an injury to business or property”. (Shannon P. Duffy, “Federal Court Finds Players Have No RICO Claim Against Casinos, The Legal Intelligencer, Nov. 6).
November 8 — “Opposition to Indian mascots intensifies”. Legal pressure is intensifying on school systems, universities and professional sports clubs to drop mascots and team nicknames (“Warriors”, “Chieftains”, etc.) that refer to American Indians. In a case now on appeal, “[t]he U.S. Patent and Trademark Office ruled last year that [football’s Washington] Redskins have no right to trademark the name because it is disparaging to American Indians.” Activists are filing complaints seeking the cutoff of federal education funds to schools that decline to drop old team names. “Kevin Gover, who heads the Interior Department’s Bureau of Indian Affairs, applauds such an effort. ‘Any school putting forward a stereotyped image of any race is in violation of civil rights laws, and I think should lose federal funding,’ he said. ‘If the Justice Department won’t do it, lots of lawyers like me will do it for them.'” (Don Babwin, AP/FindLaw, Nov. 6). St. Petersburg Times columnist Robyn Blumner takes a dim view of using copyright law to enforce a regime of political correctness in cases like that of the Washington football club (“Government has no business in Redskins opinion”, July 23).
November 8 — Loser-pays activism. The New Century Project, a fledgling policy group chaired by retiring Rep. John Kasich (R-Ohio), lists “Legal Reform” among its four central issues and in particular states: “We support a so-called “loser pays” reform which would allow judges to order fee shifting in tort and contract cases. Such efforts may also include imposing penalties on attorneys, law firms, or individuals bringing frivolous lawsuits.” Its other three main issues: school choice, elimination of the federal estate tax, and opposition to Internet taxation.
November 8 — From the evergreen file: cancer alley a myth? “Everyone knows that cancer rates are sky-high along the Mississippi River between Baton Rouge and New Orleans.” Trial lawyers and the “environmental justice” movement say the area’s poor and black residents fall victim to cancer at high rates because of the large concentration of chemical refineries along the river. “The only problem is that what ‘everyone knows’ just isn’t true.” According to an article in the Journal of the Louisiana Medical Society, the incidence of most types of cancer in the alley does not differ from national incidence, and the few exceptions, such as high rates of lung cancer in New Orleans, are plausibly attributable to smoking and other familiar risks. (Michael Gough, “Did You Hear? Good News from Cancer Alley”, Cato Daily, October 15, 1997) (via Junk Science). The contrary view, which dismisses the incidence comparisons as inept or corrupt, is widely found around the Web (stored Google search), including Barbara Koepple, “Cancer Alley, Louisiana”, The Nation, Nov. 8, 1999. Also: there’s now a whole parody page (dhmo.org) devoted to warning against that insidious substance, dihydrogen monoxide (you might drown in it).
November 7 — Litigation reform: what a Democratic Congress would mean. What would happen to the chances for curbing excessive litigation should the Democratic Party retake Congress in today’s election? To begin with, key committee posts (as at Judiciary and Commerce) would fall to longtime trial lawyer allies like Sen. Ernest Hollings (D-S.C.), Sen. Edward Kennedy (D-Mass.), Sen. Patrick Leahy (D-Vt.), and Rep. John Conyers (D-Mich.). And then there’s Rep. Patrick Kennedy (D-R.I.), who serves as spokesman for his party as chair of the Democratic Congressional Campaign Committee. On October 10 the younger Kennedy was making an appearance on CNBC “Hardball” when host Chris Matthews brought up the topic of excessive trial lawyer sway within the Democratic Party. Kennedy began his answer by questioning the patriotism of those who presume to criticize the American litigation system (graciously suggesting we should “go someplace else and live” if we don’t appreciate it). When Matthews volunteered that he himself was “a little skeptical of the motives” of trial lawyers, Kennedy suggested that such a view was really tantamount to opposing the system of trial by jury. Finally, after Matthews persisted, saying that in his view “there’s probably too much litigation in the country and too many big settlements”, Kennedy simply dismissed the whole subject out of hand, saying his host must have “been reading the Republican propaganda”. The entire sequence must be read to be fully disbelieved, so we’ve posted it on a separate page. Also: don’t forget our special page on trial lawyers and politics.
November 7 — Michigan high court races. More coverage of the closely watched state supreme court races in which three respected conservatives appointed by Republican Gov. John Engler have been targeted by the state Democratic Party and its trial lawyer and union allies; partisans of both camps have run injudicious ads, with the Detroit News calling the latest broadside from the Democratic side “truly vicious” (Detroit News, Oct. 31; Nov. 1; Nov. 6; Detroit Free Press, Sept. 25; Oct. 21; Oct. 24; Oct. 27; Oct. 28 Markman, Taylor, Young). Earlier coverage on this site: Aug. 25, May 9, May 15, 2000; Aug. 6, 1999.
November 7 — Family law roundup. Headline says it all regarding bitter split between ex-spouses over a farm in Somerset, England: “Divorce battle ends with £840,000 bill” (Ananova.com, Oct. 26). Conflicts over the disposition of frequent flier miles in divorces and will contests are on the rise, reports the New York Times. A Dallas woman says she and her ex-husband “had agreed to split the miles in their divorce settlement, but that he used the bulk of them before the divorce was finalized. She said she was shocked when she called American Airlines days after her divorce and was told that there were only 543 miles left in her husband’s account, down from more than 60,000.” Her hubby’s lawyer says she should have asked the judge for a restraining order if she didn’t want him to use up the miles (Jane Wolfe, “A New Thorn in Divorces: Who Gets the Miles?”, New York Times, Oct. 29) (reg). And controversy is simmering over allegedly clubby relations between family law judges and lawyers in Marin County, Calif.: was it easier to win your divorce or custody case if you’d attended one of the judge’s big parties, or hired a member of the insider lawyers’ group that called itself FLEAs, for Family Law Elite Attorneys? (Matt Isaacs, “Odor! Odor in the court!”, San Francisco Weekly, Oct. 18).
November 7 — Update: judge turns down “Millionaire” ADA suit. A federal judge ruled last week that the Americans with Disabilities Act does not prohibit ABC and the producers of the TV show “Who Wants To Be a Millionaire?” from using a touch-tone phone system to pre-screen entrants, despite the hurdle that poses to deaf contestants (see March 24) (“Judge: ‘Millionaire’ qualifying round not covered by ADA”, AP/Boston Globe, Oct. 30). Update Jun. 21-23, 2002: appeals court reinstates suit.
November 6 — Coercive capitalism? “Nader is most famous for his attacks on corporations and capitalism. . . .He does not believe that individuals choose their economic relationships with these companies. Instead, he argues that they involve some type of force or compulsion. In short, he equates the coercive power of government with the economic power of the private sector.
“If you think he’s right, try two things. For a whole year, don’t send your money to the IRS, and don’t send your money to McDonald’s. Don’t pay your taxes and don’t buy a Big Mac. See which organization — the government or McDonald’s — comes after you with guns, threatening to put you in jail, seize your property, or even take your life, if you don’t give them your money.” (David Parker, “An American Dictatorship: Ralph Nader’s Vision for America”, Capitalism Magazine, August). See also Jay Whitehead, “Ralph Nader: Analog Anachronism”, ZDNet, Sept. 1.
November 6 — Beehive of legal activity: Utah tobacco fees. Utah is one of the smaller states, but the Tobacco Fee Arbitration Panel has shown its usual generosity and awarded the attorneys who represented it in the state-Medicaid litigation a whopping $64.85 million. Even this sum is a great deal less than some of the lawyers feel entitled to recover for working on behalf of the state; last year one of the law firms involved, Giauque, Crockett, Bendinger & Peterson, got into a fight with state attorney general Jan Graham when it filed a lien to claim 25 percent of the state’s settlement, or about $250 million. The Giauque Crockett website says that the arbitration award “will be a dollar for dollar offset or credit against the obligation of the state of Utah to pay the Firm under the Firm’s contingent fee contract.” South Carolina’s Ness, Motley is also sharing in the Utah payout, as in many other states’. (Reuters/CNN, “Utah attorneys awarded $64.85 million in tobacco fees”, Oct. 25; Judy Fahys, “Tobacco Tussle, Round II, Graham sues law firms in dispute over settlement, Salt Lake Tribune, Nov. 25, 1999).
November 6 — Good Humor man busted for ringing bell. In Arlington, Va., it’s against the law for a commercial vendor to ring a bell to attract notice, resulting in a recent wave of law enforcement activity targeting the venerable Good Humor ice cream man. “That’s crazy,” one mom says. “How would the kids know he was there if he didn’t ring his bell?” (Patricia Davis, “In Arlington, Ringing Up the Tickets”, Washington Post, Oct. 30).
November 6 — Welcome visitors. Overlawyered.com has recently been cited on the Eight Kinds of Ice weblog (November 5 entry) and LinkLog; won the “MadPick” site award bestowed by humor columnist Madeleine Begun Kane; figured several times as a source for the Bonehead of the Day award; been among Jack Lyne’s weekly Editor’s Choice Web Picks (week of Oct. 2) at Site Selection Online Insider, which serves commercial real estate execs; been called a “must-visit Web site” by Jacquelyn Horkan, editor of the “InBox” at Florida Business Insight (August 4) (Associated Industries of Florida); and gotten a mention in the online Law Society Journal of the Law Society of New South Wales, Australia (Patrick McAlister, “Outside View”, Sept.).
November 3-5 — Rick & Hillary spar over Indian land claims. GOP senatorial candidate Rick Lazio has been running radio ads in upstate New York criticizing the Clinton Administration’s support for Indian land claims that have asserted title to wide swaths of the western part of the state, mobilizing thousands of property owners to outraged protest (see Oct. 5 and Oct. 27, 1999; Feb. 1, 2000) The ads say his Democratic opponent, Hillary Clinton, “refuses to stand up for the rights of upstate New Yorkers” on the land issue. A spokeswoman for Mrs. Clinton says the First Lady supports the litigation in general, which has been backed and assisted by her husband’s Justice Department, but does not approve of the naming of individual homeowners as defendants.
Meanwhile, “[t]he U.S. Interior Department has proposed a new American Indian land claim case that could affect property owners on more than 100,000 acres of prime suburban and rural land in western New York,” this time on behalf of the Senecas, including large areas in suburban Buffalo. Jim Mazzarella, of Republican Gov. George Pataki’s Washington office, “called the potential suit ‘outrageous’ and ‘another attack on the homeowners of western New York.'” (John Machacek, “Indian land claim may hit area”, Rochester Democrat & Chronicle, Nov. 1). Upstate Citizens for Equality, an organization critical of Cayuga and other claims, maintains information on its website about the status of Indian claims in New York and elsewhere. Update Nov. 2-4, 2001: Bush Justice Department reverses position and urges judges to dismiss individual homeowners from the suit.
November 3-5 — Just had to donate. This year, as in the past, plaintiff’s lawyers are pouring money into the campaigns of judicial candidates considered friendly to their interests, and in Mississippi, as in other states, they prefer to put forward the notion that their spending is purely reactive, meant to offset the donations that their dastardly opponents are making in judicial contests (and by their opponents they tend to mean pretty much every donor to such campaigns other than themselves, with the possible exception of labor unions). However, that still doesn’t explain why they feel obliged to give their favored judicial candidates enough money to outspend their opponents two to one. Thus Supreme Court candidate Percy Lynchard, heavily backed by plaintiffs’ lawyers, has raised $446,000 in his bid to unseat incumbent Justice Kay Cobb, while Cobb has raised $171,000; and Frank Vollor, whom they are backing for another seat on the court, raised $402,000 as compared with $217,000 for his opponent, incumbent Justice Jim Smith. Lynchard’s “frenzy” of fund-raising included $83,000 in contributions on a single day, Oct. 17, “mostly from plaintiff lawyers”, and $276,690 for October as a whole. (Beverly Pettigrew Kraft, “Judicial gifts hit record amounts”, Jackson Clarion-Ledger, Nov. 1).
November 3-5 — Gets no kick from football verdict. Last month (see Oct. 13) a jury awarded $2 million to Heather Sue Mercer, who sued Duke University for sex bias after being cut from her walk-on spot as a kicker with the football team. Among those not thrilled by the jury’s action, according to last Sunday’s Atlanta Journal-Constitution, is kicker Tonya Butler of Middle Georgia College, whose dream is to become the first female given a football scholarship to a four-year school. “‘That’s ridiculous,’ Butler remembers thinking. ‘Not just the money, but the whole case. I thought it would be thrown out of court. I’m sorry, but she just got beat out by the other kickers. That happens.’
“‘I’m afraid the case has really hurt my chances. Now everyone has to worry if I’ll sue, too, if things don’t work out. I hope it hasn’t closed all the doors for me.
“I don’t play football to make a statement. I play because I love kicking and I’m good at it. I shouldn’t be penalized because of what someone else did.” She has been calling colleges trying to assure them she wouldn’t sue if things didn’t work out, but their interest has waned since the verdict. In 1997 Willamette University in Oregon drew national attention when it briefly employed Liz Heaston as a kicker, but Willamette coach Mark Speckman “said he would not dare call on Heaston now. He, like other coaches, has two million reasons why, after the Duke case. ‘A coach in my position can’t take the risk,’ Speckman said. ‘This is just going to freeze any possibility out. It isn’t worth it.'” Current interpretations of Title IX, the feminist athletics statute, do not entitle women to join men’s football teams but do allow them to sue for damages if they are accepted and then treated unequally. Former Duke coach Fred Goldsmith, who befriended Mercer and then saw the relationship deteriorate and give rise to the lawsuit, said, “I was a nice guy, and I got stabbed in the back.” (Guy Curtright, “Blow to the cause”, Atlanta Journal-Constitution, Oct. 29).
November 3-5 — Alarming byline. “MIKE CRAIG is an attorney and writer in Chicago. He has written for Online Investor and sued nearly everyone for all sorts of misbehavior.” — byline on an article in Green Magazine (“Listen to the Money Talk”, Oct. 27).
November 2 — Radiologists: sue them enough and they’ll go away. Although more women are getting the word about the life-saving benefits of mammography (X-ray screening for breast cancer), “doctors who read the X-rays seem to be fleeing the field at an alarming rate. Caught between rising litigation over allegedly missed tumors and low reimbursement for their services, a growing number of radiologists say their field just isn’t worth the stress any more,” writes Judy Foreman in the Boston Globe. On the legal front, failure to diagnose breast cancer is “‘the number-one allegation against all doctors, in Massachusetts and nationally,’ said Martha Byington, a loss-prevention specialist at the Risk Management Foundation, which insures Harvard doctors and hospitals.” Radiologists have replaced gynecologists as the medical professionals that lawyers most often go after in that variety of case, especially since “mammograms can be extremely difficult to read. Indeed, with hindsight — that is, after a diagnosis of breast cancer — radiologists say they can often look back at old mammograms and pick up tell-tale signs of cancer that, on first reading, did not raise a red flag.” Not surprisingly, high-profile jury verdicts and settlements have proliferated.
As the specialty has developed a reputation for being legally difficult, young doctors have shunned it. Meanwhile, “[t]he retirement rate of radiologists doubled from 1995 to 1997, from 400 to 800 a year, while the number of new radiologists specializing in mammograms dropped by 80 percent, according to a study by the American College of Radiology. . . . For women, radiologist burnout translates into a months-long wait for routine screening at many centers — when the mammograms are available at all.” With the availability of free and even paid mammograms plunging, more women are likely to go without exams, with deadly consequences. (Judy Foreman, “Stressed Out: Burned by Lawsuits and Low Pay, Radiologists Are Quitting, Making Women Wait Longer to Find Out If They Have Breast Cancer”, Boston Globe, Oct. 24).
November 2 — Pot tax bond. Kentucky investigators lacked enough evidence of criminality to convict or even arrest 23-year-old Charles Thomas Jr., who lived in a trailer in Breathitt County near where 517 marijuana plants were found growing on land he did not own. “Nevertheless, Thomas owes the state a little more than $1 million under a 1994 law that taxes [presumed] marijuana dealers $1,000 a plant and penalizes those who do not pay the tax before they are caught.” Moreover, the law “requires suspected dealers to post a bond equal to the amount owed before they can file a protest.” Since Thomas doesn’t have that kind of money, his lawyer says his right to protest the assessment in court might as well be a dead letter. (“$1 Million Pot Tax Bill Stirs Fight”, APBNews/FindLaw, Oct. 27).
November 2 — No K Street in Forbidden City. “During the 300 years of the Qing Dynasty, lobbying was an offense punishable by death. The emperor was considered the Son of Heaven, and for a mere mortal to have the audacity to suggest policy to him was unforgivable.” (Sam Loewenberg, “Navigating the Maze” (lobbying in present-day China), Legal Times, Sept. 19).
November 1 — Don’t meet with her alone. “Michael Land wants other male sole practitioners to learn from his sexual harassment disaster. Never meet a prospective female client alone, the Atlantic County, N.J., lawyer advises. Always have a secretary or paralegal present. . . . In 1996, a potential client complained to police that Land fondled her while they were alone. Police officers arrested him and handcuffed him to a pipe while they booked him.” A judge soon threw out the woman’s criminal complaint, and evidence came to light that she was a frequent filer of suits deemed frivolous, but customers whispered and Land’s business began to dry up. Four years later, in a most unusual turn of the tables, a jury not only denied her claim but ordered her to pay him $225,000 on his counterclaim of malicious prosecution. Vindication, yes, but at a price: “I have not seen a female client unescorted after-hours since this incident and probably never will again,” he told a local paper. (Henry Gottlieb, “New Jersey Jury Docks Client $225K for Saying Lawyer Groped Her”, New Jersey Law Journal, Sept. 6).
November 1 — Contingency fee reform. State ethics codes do not give inexperienced legal consumers enough protection from excessive lawyers’ fees, argues the University of Illinois’s Richard Painter, especially in the realm of contingency fees, where it is “difficult to discern much competition in a market that usually assigns the same risk premium (33%) to a plaintiff’s case, no matter how large the case is and no matter how likely the client is to win.” In this paper for the Civil Justice Memo series of the Manhattan Institute (with which this site’s editor is associated), Painter “reviews a number of the proposals that have been made so far and discusses the comparative strengths of a new proposal made by Jim Wootton, President of the U.S. Chamber of Commerce Institute for Legal Reform: a ‘New American Rule’ that would require a lawyer to set for each client at the beginning of a representation a limit of any amount (phrased in dollars per hour of legal services) on how high the contingent fee can go and then disclose to the client general information about the fees that the lawyer has charged to other clients.” (Richard W. Painter, “The New American Rule: A First Amendment to the Client’s Bill of Rights”, Manhattan Institute Civil Justice Report #1, March 2000). Columnist David A. Giacalone at PrairieLaw also endorses disclosure-based contingency-fee reforms (“Advocate This!: Pricey Contingency Fees“), as does presidential candidate George W. Bush (campaign website, “Civil Justice Reform” — see “Client’s Bill of Rights” item).
November 1 — “School Suspends Girl for Casting Spell”. In Broken Arrow, Oklahoma, the Union Intermediate School District is said to have suspended student Brandi Blackbear on suspicion of casting a spell. According to the American Civil Liberties Union, assistant principal Charlie Bushyhead called Blackbear to his office after a teacher fell unexplainedly ill, questioned her about her passing interest in Wicca, and summarily suspended her. “I, for one, would like to see the so-called evidence this school has that a 15-year-old girl made a grown man sick by casting a magic spell,” said the ACLU’s Joann Bell. However, the school attorney, Doug Mann, called the account into question, saying privacy laws protecting juvenile records prevented him and the district from commenting on the case: “It’s totally unfair that we are gagged by federal and state law and they can say anything they want,” he said. “If the parents will sign a release for what’s in the girl’s files, we will talk about the true facts.” (Ben Fenwick, Reuters/Excite, Oct. 30).
November 1 — 750,000 pages served on Overlawyered.com. Thanks for your support!
November 20 — Flow control. The Florida Supreme Court has a liberal and activist reputation, which is why many Gore supporters see it as their ace in the hole in the recount controversy (John Fund, “On the Bench for Gore?”, OpinionJournal.com (Wall Street Journal), Nov. 15; Robert Alt, “The Florida Supremes”, National Review Online, Nov. 16). “To scrounge for every last vote, Gore has flooded Fort Lauderdale with tough, seasoned Democrats, the sort who are used to keeping wafflers in line and to count and recount votes until they know exactly what it will take to outdo their opponents. Many of the hired hands speak with a Boston brogue,” reports the L.A. Times. A lawyer explains the routine to volunteers: “‘It’s very, very important that if you see any kind of mark — a scratch, a dent, a pinprick in Al Gore’s column — that you challenge.’ When someone then asked what they should do if they found a Bush ballot with an indent, the lawyer said: ‘Keep your lips sealed.'” (Elizabeth Mehren and Jeffrey Gettleman, “Seasoned Democratic Army Hits the Shores of Florida”, Los Angeles Times, Nov. 17). “[I]f you’re just counting existing ballots, there shouldn’t be any chads on the counting-room floor. But, whether by accident or design, the little fellers keep detaching themselves from the ballot, thereby creating more and more new votes.” (Mark Steyn, “Smooth man Gore starts to play rough”, Daily Telegraph (UK), Nov. 19; “Gore’s law: When you’re beaten to the punch, it’s the chads that count”, Nov. 17). See also Charles Krauthammer, “Not By Hand”, Washington Post, Nov. 17; Jurist special page on election 2000.
November 20 — “Judge fines himself for missing court”. “Hamilton Municipal Court Judge Paul Stansel believes he has no more right to skip court than the people who have to appear before him. Stansel found himself in contempt of court and fined himself $50 — half a month’s salary — after missing the Sept. 27 monthly court session because he was tending to his sick pony named Bubba and forgot it was court day, he said.” (Harry Franklin, Columbus Ledger-Enquirer, Nov. 7).
November 20 — How to succeed in business? Earlier this fall it was widely reported that Christian Curry received nothing from the settlement of his race and sexual orientation suit against Morgan Stanley Dean Witter, which had fired him after nude pictures of him were published in a sexually explicit magazine. See, for example, “Curry Drops Suit Against Morgan Stanley Dean Witter” (press release), Yahoo/Business Wire, Sept. 15 (quoting Curry: “I will receive no payment”); Dan Ackman, “L’Affaire Curry Ends In Settlement”, Forbes.com, Sept. 15 (“Curry got nothing, and said he was happy with that.”). However, the New York Post reported last month that Curry arrived at a press conference in a new red Ferrari to announce that he had just paid $2 million to buy a Harlem newspaper and “plans to start a modeling agency, a film and TV production company and a hedge fund.” According to the paper, “sources” tell it that the investment firm paid Curry $20 million on condition he keep quiet about the case. “The settlement was brokered in September, right before Morgan Stanley CEO Philip Purcell was to give his deposition.” Curry declined at the press event to comment on the status of his lawsuit; it is not clear how the earlier and more recent accounts can be reconciled with each other. (Evelyn Nussenbaum, “Curry Buys Newspaper, Has Big Plans”, New York Post, Oct. 20). See update, Nov. 23, 2003.
November 17-19 — Punch-outs, Florida style. Palm Beach tobacco law magnate Robert Montgomery is a frequent subject of commentaries in this space (see April 12, Aug. 8-9, 2000; Aug. 21, 1999; estimated tobacco fee $678 million), and somehow we knew he’d turn up as a player in the recount mess. Sure enough he’s acting as attorney for embattled county elections director Theresa LePore (Kathryn Sinicrope and Michele Gelormine, “Recount waiting game continues”, Palm Beach Daily News, Nov. 16). Montgomery, a major party donor, recently represented without charge the incumbent Democratic court clerk in Palm Beach against a public records lawsuit filed by Republican challenger Wanda Thayer; in that capacity he gave Thayer reason to feel really sorry she ever filed the action, putting her through a harsh deposition and menacing her with having to pay his $350-$500 /hour fee if she lost. Someone who represents the clerk of court free of charge against her opponent in a politically sensitive case is likely to stay a pretty popular guy around the courthouse, no? (Marc Caputo, “Attorneys carry clerk’s campaign”, Palm Beach Post, Sept. 26).
In the Broward County recount Republicans have noticed no fewer than 78 of the loose bits of paper known as “chads” lying on the floor of the recount facility and say the punchcard ballots are being over-handled in chaotic fashion by ad hoc election workers, some of them unknown to the official in charge. They’ve asked that the recount be halted until more secure procedures can be instituted, but a judge turned them down and a Democratic attorney ridicules their concerns (Sean Cavanagh, “Gore gets 13 more votes so far in Broward recount”, Fort Lauderdale Sun-Sentinel, Nov. 16; Marian Dozier, “Chad ‘fallout’ grows the more ballots are handled”, Nov. 15). “Q. If lawyers for Democrats and Republicans beat each other’s brains out for a few months in Florida, won’t that result in fewer lawyers? Who can argue with that? A. Like night crawlers, a complete new lawyer grows out of any piece of attorney sliced off in court. Their regenerative powers are frightening.” (Gary Dunford, “Night crawlers”, Canoe/Toronto Sun, Nov. 15).
November 17-19 — “U.S. Holocaust lawyer plans Austria train lawsuit”. Much-publicized New York attorney Edward Fagan is drumming up business among survivors of the Alpine tunnel calamity, which killed as many as 160. “The suits most likely would be filed in U.S. courts because they typically could award bigger damages than overseas courts”, even though the article cites no nexus whatsoever between the disaster and the United States as regards the great majority of victims, who were of Austrian or German nationality. Imagine how strange it would seem if a train full of Americans and Canadians crashed in Colorado and some lawyer from Austria flew in to propose that lawsuits be filed in his country. (Reuters/FindLaw, Nov. 14).
November 17-19 — “Tax collector found to owe $3,500 in delinquent taxes”. From Scranton, Pa., another entry for the do-as-we-say file: “I have no defense,” says Thomas Walsh, director of the county’s Tax Claim Bureau, of the city property tax bill on his home, which he’s left unpaid since 1991 and has now mounted to more than $3,500. “I just got behind.” (“Pay thyself”, AP/Fox News, Nov. 13).
November 17-19 — “Coca-Cola settles race suit”. The Atlanta-based soft-drink maker has agreed to pay $192.5 million to settle charges of race bias, “described by the plaintiffs as the largest ever in a race discrimination class action suit”. (CNNfn, Nov. 16) (see July 21, July 19).
November 16 — Palm Beach County “under control”. “There was evidence that the Gore campaign hoped to muscle up the forces at its disposal. An e-mail circulated to a trial lawyers organization sought at least 500 attorney volunteers to help out with recounts in selected counties.” (David Espo, “Bush Holds Narrow Lead in Fla.”, AP/Yahoo, Nov. 15). “The request was passed along on the Internet E-mail list of the National Association of Trial Lawyer Executives (NATLE) by the executive director of the group, Kathleen Wilson, suggesting they pass along the request to lawyers on the Internet E-mail lists they’re on.” The volunteer lawyers would be deployed in Volusia, Miami-Dade and Broward Counties, with the email describing the Gore forces as “comfortable that Palm Beach County is under control.” The organization NATLE “includes many executive directors and other officials with lawyer groups”. (“Gore Campaign Recruiting Lawyers”, AP/Washington Post, Nov. 14).
Judge-shopping? “Although most of the lawsuits filed to date have been in state court, one Gore supporter filed an action in federal court last week only to withdraw it the same day (apparently out of a concern that the judge assigned to the case, Reagan appointee Kenneth Ryskamp, would not look favorably upon it).” (Jay Lefkowitz, “It’s the Law, Stupid”, Weekly Standard, Nov. 20). Meanwhile, “[a] group with Republican links sued TV networks Tuesday and accused them of discouraging voters from going to the polls in the Florida Panhandle by erroneously projecting Al Gore would carry the state.” (“Group Sues Over Gore Projection”, AP/Washington Post, Nov. 14). “In the Stephen Sondheim song, when something bad happens in the circus, they send in the clowns. In America’s political circus, they send in the lawyers.” (Gavin Esler, “Don’t let the lawyers make a crisis out of America’s Political Drama”, The Independent (UK), Nov. 13) (cites our editor).
November 16 — Judge shopping, cont’d. U.S. International Trade Commission administrative law judge Sidney Harris has reprimanded Rambus Inc. for having abruptly withdrawn its patent violation case against Hyundai Electronics Industries Co. after it was assigned to him; the judge, who has a reputation as tough on patent-holders’ claims, concluded that the company did not want him to be the one to handle the case and had engaged in “blatant” judge shopping. The company denies the allegation. (Jack Robertson, “Rambus Slammed For ITC ‘Judge Shopping'”, Electronic Buyers News, Nov. 15; Dan Briody, “Litigation headaches send Rambus stock skidding”, RedHerring.com, Aug. 30).
November 16 — They call it distributive justice. Following the lead of numerous other overseas governments and other entities that have jumped on the tobacco-suit bandwagon in hopes of finding money, Saudi Arabia’s state-owned King Faisal Specialist Hospital says it is preparing litigation against international tobacco companies to recover the costs of treating smokers, to be filed in American courts and elsewhere. If successful, the litigation will presumably succeed in raising the price per pack paid by poverty-level smokers in Arkansas and West Virginia in order to ship the money off to that very deserving recipient, the government of Saudi Arabia. (“Saudi hospital to sue tobacco firms for $2.6 bn”, AP/Times of India, Nov. 8) (& see update, Dec. 10, 2001)
November 15 — Foreign press on election mess. “‘Got a problem? Get a lawyer’ has become a maxim of American life, whether you scald yourself with a McDonald’s coffee or lose a presidential election.” (Philip Delves Broughton, “Lawyers will be winners of contest born in Disneyworld”, Daily Telegraph (UK), Nov. 10). “The confusion over the election results has paved the way for a stealthy and rapid seizure of power in the US. The lawyers have truly taken over.” (Julian Borger, “Lawyers are back: US is on trial”, The Guardian (UK), Nov. 11). “We are not in Florida or Kansas anymore. We are in . . . Chad.” (Mark Steyn, “She held up the ballot and she saw the light”, National Post (Canada), Nov. 13).
November 15 — Beep and they’re out. DuPage County Associate Judge Edmund Bart “has taken extreme offense to Traffic Court visitors who allow cellular phones or pagers to ring when court is in session. He has dealt with them extremely — by throwing those visitors behind bars.” (“Time for Some Order from the Court” (editorial), Chicago Tribune, Nov. 11).
November 15 — “ATLA’s War Room”. Much feared by defendants, the 61 litigation groups of the Association of Trial Lawyers of America enable plaintiff’s lawyers to map out joint strategy and share in the “exchange of documents, briefs, depositions, expert testimony, and general plaintiffs’-side lore”. The groups are noted for “Kremlinesque secrecy”: “Group chairmen, for instance, are not supposed to identify themselves as such in public, and journalists can only get their names from ATLA by agreeing not to quote them as chairmen. … The association does not post the list of litigation groups on its public Web site.” However, that list includes (according to Alison Frankel of The American Lawyer): AIDS, automatic doors, bad faith insurance, benzene/leukemia, birth defects, breast cancer, casino gaming, chorionic villus sampling (CVS), computer vendor liability, firearms and ammunition, funeral services, herbicide and pesticide, inadequate security (and its subgroup, the Wal-Mart Task Force), interstate trucking, lead paint, liquor liability, nursing homes, Parlodel, pharmacy, Stadol, tabloid outrage, tap water burns, tires, truck underride, and vaccines. Recent additions include firefighter and EMS hearing loss, Allercare subgroup of herbicides and pesticides group, laser eye surgery malpractice, MTBE, Propulsid, and Rezulin. (Alison Frankel, “ATLA’s War Room”, The American Lawyer, Oct. 16).
November 14 — Columnist-fest. People writing about things other than the election mess:
* How long would Mark Twain’s Tom Sawyer last if he were growing up today? He’s the kind of boy who plays hooky from class, joins a gang and commits petty crime, enjoys violent literature (pirate stories), tortures the family cat and even smokes. “Doubtless he’d be in therapy three times a week and jacked up on Ritalin. Or — most likely — he’d be in jail.” (Alex Beam, “Tom Sawyer and the end of boyhood”, Boston Globe, Oct. 31).
* Don’t count on the black-reparations bandwagon to provide benefits over the long term to anyone but the lawyers and other middlemen in charge, argues Linda Chavez (“Johnnie Cochran plays his card”, TownHall, Nov. 8).
* The case for Paula Jones’s outraged modesty in that Arkansas hotel room is looking pretty thin now that she’s taken her clothes off for Penthouse, but what exactly did reformers think would happen once the law began to turn unsubstantiated sex stories into enormously lucrative potential claims? “Women like Jones have been lured into becoming the workplace equivalent of Third World terrorists strolling around the office with suitcase bombs.” (Sarah J. McCarthy, “The Victim in the Centerfold”, LewRockwell.com, Nov. 11).
November 14 — “Fla. DUI Teen Sues Police”. “A teen-age driver seriously injured in an accident is suing the city because a police officer failed to arrest him for drunken driving minutes before the crash.” Richard L. Garcia of Bradenton, Fla. alleges that officers told him to drive home rather than taking him into custody despite his intoxication, which makes it their fault that he got into a serious accident minutes later. (AP/Yahoo, Nov. 13).
November 14 — “Survey: Jurors Anti-Big Business”. “Potential jurors often mistrust corporations and think they must impose billions of dollars in punitive damages to send them a clear message, according to survey results released Friday.” The survey is set to appear in this week’s National Law Journal. (Reuters/CBS News, Nov. 10).
November 14 — “Internet Usage Records Accessible Under FOI Laws”. “In an opinion sure to heighten the tension between some parents and school systems over the Internet’s role in publicly financed education, a New Hampshire judge has decided that a parent is entitled to see a list of the Internet sites or addresses visited by computer users at local schools.” Unless overturned on appeal, the ruling will entitle parent James M. Knight of Exeter, N.H. to inspect the logs of general student and faculty Internet use, not just those of his own children. However, the log files will be redacted in an attempt to prevent the identification of individual user names and passwords. Knight, a proponent of filtering/blocking software, had made the request under the state open records law. (Carl S. Kaplan, “Ruling Says Parents Have Right to See List of Sites Students Visit”, New York Times, Nov. 10 (reg); Slashdot thread).
November 13 — Election hangs by a chad. Once underway in earnest, plenty of observers fear, litigation on the 2000 presidential vote will “only spawn more litigation and drag on and on, to the detriment of the political system.” (R.W. Apple Jr., “News Analysis: Experts Contend a Quick Resolution Benefits Nation and Candidates”, New York Times, Nov. 12 (reg)). With the filing of a federal court action by the Bush people to block a planned “hand recount” in Palm Beach County, the legal battling now officially involves the candidates themselves; earlier, the Gore people had been backing litigation filed in the name of Florida residents without actually filing on their own (David S. Broder and Peter Slevin, “Both Sides Increase Legal Wrangling As Florida Begins Slow Hand Count”, Washington Post, Nov. 12). “There is a well-known trick among statistical economists for biasing your data while looking honest. First, figure out which data points don’t agree with your theory. Then zealously clean up the offending data points while leaving the other data alone.” Such a bias would be introduced in the Florida vote by recounting pro-Gore counties like Palm Beach, Broward and Dade so as to validate more ballots by inferring voters’ intent, without doing the same for pro-Bush counties like Duval (Jacksonville). (Edward Glaeser, “Recount ‘Em All, or None at All”, Opinion Journal (Wall Street Journal), Nov. 11). “The leverage that the Gore camp has,” writes columnist Molly Ivins, “is an injunction to prevent certification of the Florida result until that’s settled [namely, its expected demand for a Palm Beach County revote if the pending “hand recount” doesn’t do the trick]. Without Florida, Gore wins the Electoral College.” Admittedly, however, “[a] system that managed to acquit O.J. Simpson cannot be counted upon to produce justice.” (“The right to seek justice is undeniable in Florida”, Fort Worth Star-Telegram, Nov. 11).
If you’re looking for truly ripe ballot irregularities, George Will suggests, look to the heartland: “Election Day saw Democrats briefly succeed in changing the rules during the game in Missouri: Their lawyers found a friendly court to order St. Louis polls to stay open three hours past the lawful 7 p.m. closing time. Fortunately, a higher court soon reimposed legality on the Democrats and ordered the polls closed at 7:45.” (“It All Depends on the Meaning of ‘Vote'”, New York Post, Nov. 12). A nice thing about those emergency public donation funds to hire teams of lawyers: there’s no limit on contributions and the parties will be really grateful (David Greising, “Al’s Now a Boy Named Sue, and It’s Not Helping”, Chicago Tribune, Nov. 10). Meanwhile, we note that a prominent Democratic campaign-law expert is denying that his party is “overlawyering” the Florida situation, while the New York Post‘s Rod Dreher uses another variant on the same term in discussing mistaken ballots: “Despite what some in this overlawyered culture seem to believe, the courts have no obligation to protect people from their own carelessness.” (Don Van Natta Jr. and Michael Moss, “Counting the Vote: The Nerve Center”, New York Times, Nov. 11, quoting Robert F. Bauer, no longer online; New York Post, Nov. 12).
November 13 — Vaccine compensation and its discontents. One of the more recently adopted no-fault compensation systems aimed at displacing personal injury litigation is the federal childhood vaccine compensation program, which since 1988 has paid out $315 million to some 1,445 claimants and turned away another 3,372 claimants on the grounds that they could not prove that the vaccines caused injury. The system has substantially reduced the number of lawsuits filed against makers of DPT (diphtheria, tetanus and pertussis (whooping cough)), which “dropped from 255 in 1986 to 4 in 1997”. However, the no-fault system itself partakes of some of the drawbacks of litigation, including delay and adversarialism. One thing it has succeeded in curbing, however, is jackpots for trial lawyers: “Lawyers representing claimants get paid whether a claim is successful or not, but they get closely monitored hourly rates — not the jackpots they occasionally win when they sue, say, tobacco or tire companies.” (Doug Donovan, “Needle damage”, Forbes, Sept. 4).
November 13 — Don’t give an inch. In Sunderland, England, merchant Steven Thoburn has become the first vendor to be prosecuted for sticking to English weights and measures despite an official mandate to convert to European metric alternatives. To coordinate with European Union rules, “British laws came into effect at the beginning of this year imposing fines of up to $8,000 and possible imprisonment on retailers if they refuse to adopt liters and meters.” (“Defiant Brit Vendor Taken To Court”, AP/FindLaw, Nov. 8).
November 30 — The right to be poisoned. Large numbers of urban apartments continue to have old lead-based interior paint on their walls, and you might think it makes obvious sense from a public health standpoint to take precautions to keep children who already show dangerous levels of lead in their blood from moving into such units. At least, you might think so if you weren’t among the “public interest” lawyers who’ve now successfully sued Northern Brokerage, a Baltimore landlord, over its policy of not letting lead-affected kids move into apartments where they might be exposed to more of the same. It’s a discrimination issue, you see: Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, said it’s “hugely discriminatory” to turn families away from such housing just because their kids already display high lead levels. In a settlement earlier this month, “Northern Brokerage agreed to no longer require testing for children under 6 and to pay a total of $13,000 in damages to the plaintiffs and their attorneys.” Of course, if the kids’ blood-lead levels keep rising after they move in, other lawyers might very well step forward to sue the same landlords for every last dime they possess. But that’s only fair, too, right? (John Biemer, “Landlord settles lawsuit for refusing to rent to lead-poisoned families”, AP/FindLaw, Nov. 16).
November 30 — Welcome Mother Jones readers. MoJoWire’s “Alternative Election News Coverage” summarized one of our commentaries about a Gore lawyer’s dimple flip-flop (see Nov. 24). “Not everyone is happy that it appears the next president will be chosen by what some have called a tournament of lawyers. America’s litigation explosion was itself a subtext of the campaign, critics point out. Mr. Bush has called for tort reform to limit the ability of class-action lawyers to win big judgments. Mr. Gore has adopted the traditional Democratic Party position of trial-lawyer defense.” (Peter Grier, Justin Brown and Francine Kiefer, “All Florida becomes a stage for lawyers”, Christian Science Monitor, Nov. 30 — quotes our editor). And we evidently spoke too soon when we praised a New York Times editorial on the Florida mess immediately after the election (see Nov. 10), since within days the paper had reversed its editorial line almost completely on the relevant issues (Elizabeth Arens, “Times falls back into line”, National Review Online, Nov. 28).
November 30 — Updates. Further developments in stories previously covered in this space:
* “Samuel Feldman, convicted in September for a two-year spree of bread and cookie destruction in a Yardley supermarket (see Oct. 6), was sentenced [Nov. 20] to 180 days’ probation and ordered to make $1,000 in restitution payment.” He also got a severe scolding from the judge (Oshrat Carmiel, “Bucks bread squeezer sentenced to probation”, Philadelphia Inquirer, Nov. 21).
* Falling upward in Washington state: “An assistant attorney general who lost one of the state’s largest civil cases and later shared blame for missing the deadline to appeal the case has been promoted to a new job in state government.” As we reported Sept. 13, state attorney general Christine Gregoire missed a deadline to appeal a $17.8 million verdict against the state, a goof that aroused widespread consternation in Evergreen State legal circles. Now assistant attorney general Loretta Lamb, whom an investigation saddled with some of the responsibility for the mix-up, has been appointed assistant vice president of Washington State University for personnel and business administration. (Eric Nalder, “Attorney in missed deadline case gets new job”, Seattle Times, Sept. 29).
* Although a Bridgeport jury last year gave Microsoft an almost complete victory in an antitrust suit filed by competitor Bristol Technologies (see Aug. 31, 1999), awarding only a token dollar, federal judge Janet Hall upped the award under a Connecticut trade statute to $1 million and Bristol is now asking for a new trial (Thomas Scheffey, “Connecticut Judge Socks Microsoft with $1 Million in Punitives”, Connecticut Law Tribune, Sept. 11; “What was the Microsoft Jury Thinking?”, Nov. 27).
November 29 — After an air crash, many Latin “survivors”. “Three of the 88 passengers and crew who died when Alaska Airlines Flight 261 crashed into the Pacific Ocean on Jan. 31 allegedly had something in common apart from their tragic deaths: They cheated on their partners, led secret lives and fathered secret illegitimate children, all of whom were growing up in Guatemala.” Or at least that’s the story being told by Coral Gables, Fla. lawyer Robert Parks, who’s filed wrongful-death suits against the airline, Boeing and other defendants on behalf of the alleged secret survivors. “The crash victims’ undisputed relatives and close friends say the stories have been fabricated in an effort to capitalize on the tragedy.” In one case, a 53-year-old San Francisco man who perished on the doomed flight is alleged to have recently fathered two Latin American children who deserved to collect for his decease, a story that ran into trouble when his outraged gay partner of twenty years, Dale Rettinger, 63, stepped forward to challenge it.
David Lietz, a Washington, D.C. lawyer hired by Rettinger to investigate the case, said: “We do this kind of work all the time and in the course of doing it, we’ve seen people who make their living lining up victims. It’s not uncommon to find people in Mexico or Central America who try to craft these stories and shop them around to lawyers,’ Lietz said. ‘It’s the aviation equivalent of ‘bus jumping,’ which is a bunch of people seeing a bus accident and running up to it so they can claim whiplash or something.” Many such claims come from Latin America, where “records are very bad and (false claimants) will swear under oath but say anything they want,” he added.
Families of two other victims also named as supposed secret fathers of Latin American children also reacted with indignation or incredulity. However, Parks, the Florida lawyer pressing the cases, says criticism is misplaced. “We wouldn’t have filed the lawsuits if we didn’t feel these people had claims. I don’t deal in coincidences … I’ve been involved in aviation litigation over 30 years, a lot in Central America and South America,” he said. “Sometimes in these areas, truth is stranger than fiction. … The process is going to sort this out. No one is trying to get something that isn’t there”. Parks is also preparing a claim on behalf of alleged secret offspring of yet a fourth Alaska Air crash victim, this time from a still unnamed Latin American country. (Scott Winokur, “Capitalizing On a Crash? Suits allege secret lives for some on fated Alaska Airlines flight”, San Francisco Chronicle, Nov. 26) (via Aero News Network)(and see April 10, 2001, Aug. 3, 2001) (DURABLE LINK)
November 29 — “Clinton readies avalanche of regulations” “The Clinton administration is striving mightily to pour forth regulations on the environment, labor, health care and other controversial topics before Jan. 20 brings a new occupant to the White House.” So-called midnight regulations are especially common in cases where a new party is coming in: “The Jimmy Carter administration became renowned for stuffing the Federal Register with 23,000 pages of regulations during the three months before Ronald Reagan took office in 1981.” The Mercatus Center at George Mason University has launched a website, RegRadar.com, to monitor the last-minute onslaught (Robert A. Rosenblatt and Elizabeth Shogren, L.A. Times/Chicago Tribune, Nov. 26).
November 29 — “Hush — good news on silicone”. More details on the release of that new study (see Oct. 23) exonerating breast implants of a once-feared link to cancer, which the National Cancer Institute commissioned at great expense but whose results it quietly buried: “NCI press representative Brian Vastag says he was ‘forbidden’ by his superiors from touting the impending release of this study the way he normally does with other public health research. … So Mr. Vastag, who had already announced he was leaving NCI, defied his bosses and e-mailed names in his media Rolodex. ‘It drives me crazy when tax-funded public health research doesn’t make it to the public,’ he said.” (John Meroney, Washington Times, Nov. 22).
November 28 — Highway responsibility. A Fort Lauderdale jury has awarded $7 million to Diana Mancuso, 43, who was badly hurt when her car was hit broadside by a drunk driver six years ago. The drunk driver, Shane Peter Leanna, who was 23 at the time, served nearly two years in prison. However, the ones being ordered to pay the bill are McFadden Leasing Inc., which owned the sport utility vehicle Leanna was driving, and Next Generation Inc., which leased it to him. (“Woman gets $7 million in DUI case”, AP/New York Times, Nov. 23). And last month the mother of late National Football League star Derrick Thomas went to court to blame various organizations for his death following a crash in which he had been speeding on an icy road without wearing a seat belt. The lawsuit names General Motors Corp. as a defendant as well as local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident and may now have reason to be sorry they got near him. (Cindy Lin, “Derrick Thomas (1967-2000)”, ChannelOne.com, Feb. 9; Kenny Morse, editorial, MrTraffic.com, Feb. 10; “Derrick Thomas’ mother sues GM”, Jefferson City News-Tribune, Oct. 11). Update Aug. 18, 2004: jury rejects suit against GM. (DURABLE LINK)
November 28 — “NCAA Can Be Sued Under ADA, Federal District Judge Rules”. “In a major defeat for the National Collegiate Athletic Association, a federal judge has ruled that it qualifies as a “place of public accommodation” under the Americans with Disabilities Act and can therefore be sued by a learning-disabled student who says its discriminatory rules barred him from getting an athletic scholarship.” (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Nov. 14).
November 28 — Federal power over mud puddles? The Supreme Court is expected to resolve this term whether the federal Clean Water Act applies to “isolated wetlands that have no connection to major rivers or drainage systems flowing from state to state.” Environmental groups favor wide federal authority over “prairie potholes” and the like, which they say are important to migratory waterfowl. A brief supporting property owners, however, counters: “Under the Corps’ [of Engineers] interpretation of the [Act], its regulatory authority stretches to virtually every body of water in the country — including seasonally wet areas in homeowners’ backyards — because virtually any water body is or could be used as a feeding or resting place by some of the 5 billion birds that migrate over the continental United States each year.” The brief also warns: “The Corps’ rationale would justify federal regulation not just of all waters but of virtually all human activity.” (Warren Richey, “Wetlands and federal power”, Christian Science Monitor, Oct. 31).
November 27 — Follow instructions, please. Well before Election Day, the Gore campaign was ready for a massive recount campaign based on a 1994 manual called The Recount Primer, whose tactical advice presciently foreshadows many recent developments (Ryan Lizza, “Overtime: How the Gore campaign came back from the dead”, The New Republic Online, Nov. 16).
“Note: If you make a mistake, return your ballot card and obtain another. AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. –Voting instructions, Palm Beach County, Florida”
“The capitalized words appeared on the voting guide clearly posted in every Florida polling station that used Votomatic machines and in leaflets mailed to many voters in Palm Beach. They are the only instructions on the flyer in bold capitals. … The [Gore] position, so far as I can glean, is that … [a] vote should be counted … even if the voter blithely ignores clear voting instructions” … A Gore victory through judicially imposed, loosely interpreted hand counts in South Florida will resonate across the country as the triumph of a liberalism that has replaced responsibility with victimhood, law with legalism, character with partisanship. Rather than challenging voters to a new civic responsibility, the Democrats are defining down democracy to include those who cannot even be held responsible for following a simple ballot instruction.” (Andrew Sullivan, “TRB from Washington: Bad Intent”, The New Republic Online, Nov. 22; see also commentaries on andrewsullivan.com, and Charles Krauthammer, “There is a good reason that casting a ballot is a precise act”, Dallas Morning News, Nov. 24). “[I]t is the voter’s duty to take reasonable care to record a vote. To correct that judgment after the fact is unfair.” (“Dimples aren’t votes” (editorial), Miami Herald, Nov. 24).
November 27 — Asbestos litigation destroying more companies. The lawsuits’ relentless logic is devouring more leading industrial companies. Armstrong World Industries, the nation’s pre-eminent manufacturer of flooring, failed to repay $50 million in commercial paper that came due Wednesday (Reuters/Yahoo, Nov. 22), and a Nov. 16 Bloomberg story said its parent, Armstrong Holdings Inc., may seek Chapter 11 bankruptcy protection. The company’s stock, which stood at $36 in January, on Friday closed at 1 3/16 (stock chart). In early October (see Oct. 6-9) Owens-Corning, the number one maker of insulation, filed for bankruptcy protection (asbestos product makers list, law firm of Patten, Wornom, Hatten & Diamonstein).
Many of these concerns’ involvement with asbestos was both remote in time and tangential to their main operations. Of Crown Cork & Seal, the large packaging concern that closed Friday at 4 5/8, down from 24 in January and 50 in 1997, Yahoo/Reuters reported as follows: “Its only ties to asbestos-related products stem from an acquisition more than 40 years ago of a company that had a subsidiary that made insulation products, said Andrew O’Conor, an analyst with Merrill Lynch. It sold the insulation business three months after acquiring it, he said. ‘They’re more of a peripheral player,’ O’Conor said. ‘It was a tiny thing.'” (stock chart; “Crown Cork jumps on reevaluation of asbestos claims”, Yahoo/Reuters, Nov. 20). For trial lawyers’ ingenuity in identifying new defendants to name in suits, see June 1 and “Thanks for the Memories“.
Each removal of another solvent defendant shifts more litigation pressure onto remaining defendants. Owens-Illinois, the prominent glass and packaging concern, closed Friday at 3 13/16, down from 25 in January and 48 in 1998 (stock chart). Federal-Mogul (brakes, auto parts) closed at 2, down from 24 in January and 70 in 1998 (stock chart). W.R. Grace, the giant chemicals manufacturer much in the news lately because of the contamination of its Montana vermiculite mining operations with naturally occurring asbestos, closed Friday at 2 1/2, down from 15 in January and more than 20 earlier. (stock chart). Investment analyst Jim Cramer wrote last month that Armstrong, Federal-Mogul, and Grace, all longtime mainstays of industrial portfolios, now find themselves “on a death march to zero … I am combing through this embattled trio looking for signs that they won’t meet Owens’ fate. I haven’t found any yet.” (James J. Cramer, “The Death of the Value Stalwarts”, TheStreet.com, Oct. 25). Of the billions sunk in the litigation, a very high percentage goes toward the process itself, or other purposes other than actual compensation of workers for injuries. Meanwhile, intensive advertising and recruitment campaigns by law firms continue to attract thousands of new asymptomatic claimants into the system, while asbestos plaintiff’s lawyers are numbered prominently among instigators of the “tobacco round” as well as among the most prominent financial supporters of the Democratic Party and the Al Gore campaign. (DURABLE LINK)
November 26 — Sunday election special: votes only lawyers can see. “He squinted and stared, but Bob Kerrey was blind to the party line.” The Nebraska senator was making the South Florida rounds to talk up the Democratic line on the virtues of hand recounts and patience, but when he squinted at a ballot allegedly sporting an actual “dimpled chad” of the sort his fellow Democrats want to count, Kerrey admitted he couldn’t see it. “‘I better get out of here before I get you guys in trouble,’ Kerrey reportedly joked to his party’s team. But senator, isn’t it a little scary to decide an election with votes that only lawyers can see?” (Brad Hahn, “Nebraska senator sees sights — but can’t see chads”, South Florida Sun-Sentinel, Nov. 25; Drudge Report transcript of Broward dimple-asserting). “On my local television station, the latest update was followed by the reassuringly familiar commercial for personal-injury lawyers Welch, Graham and Manby — ‘where winning is no accident’. That’s the spirit!” (Mark Steyn, “Even Al’s friends are sick of his dimples”, Sunday Telegraph (UK), Nov. 26).
On Saturday, the Broward County Election Canvassing Board conveniently decided to go looking for dimpled chads on 500 previously disqualified absentee ballots, even though on an absentee ballot the “voter can clearly see how he voted and whether the chad fell out, unlike the Votamatic machines used at polling places in Broward.” Did demonstrators, as Democrats claim, “intimidate[ ] the Miami-Dade canvassing board into canceling its planned recount [?]. Nonsense, say board members. ‘I was not intimidated,’ David Leahy told CNN. ‘My vote had nothing to do with the protests. It simply had to do with not enough time.'” (John Fund, “Gore’s Electoral ‘Lock Box'”, Opinion Journal (WSJ), Nov. 25).
“Vice President Gore’s effort to convince Florida election officials to count indented or ‘dimpled’ ballots as votes for him runs contrary to the practice in almost all jurisdictions that use the punch card system, with the notable exception of Texas, the home state of George W. Bush, his rival for the presidency. In the 38-year history of punch card voting, only a small number of communities have counted these ballots as valid, voting experts said. R. Doug Lewis, executive director of the Election Center, a nonpartisan group that trains and certifies election supervisors, said that to his knowledge, with the exception of Texas, ‘no election official has counted a dimpled chad as a vote. Instead they tend to turn the question over to a judge, and historically courts around the country have said dimpled chads aren’t clear enough for them,’ Lewis said, stressing that he is not referring to Florida.” (John Mintz, “Most states don’t count dimples”, Washington Post, Nov. 24). Despite the Florida Supreme Court’s wholesale rewrite of the state’s election law after the fact, “it is still possible that the will of the people will prevail. … Broward County has for 10 years refused to count ‘dimpled chad’ as a vote. Now, it has changed that rule. … It may become necessary for [the Florida legislature] to exercise its responsibility and ensure a fair outcome to the presidential election of 2000.” (“Elections: A grand larceny” (editorial), Florida Times-Union (Jacksonville), Nov. 24).
“Today, the courts — that is, the lawyers – run nearly every aspect of American life. … They tell us how much tobacco is appropriate. Who may buy and sell guns — and how. What level of care governments must provide the needy. They set taxes and school curricula. Now they mean to pick a president.” (“Government by lawyers” (editorial), New York Post, Nov. 24 — cites our editor). “Where has abandoning law and tradition left us? Courts have put the fate of the election in the hands of Democratic partisans reviewing pregnant chads only in Gore’s strongholds. … Is it any wonder that the rest of the world is laughing at us?” (“Comedy of errors of the lowest sort” (editorial), Chicago Sun-Times, Nov. 24).
November 24-26 — Gore lawyers mishandled Illinois precedent. Lawyers for Vice President Al Gore repeatedly cited, and the Florida Supreme Court obligingly quoted at length and with approval, an Illinois Supreme Court opinion from 1990 which directed election officials to consider voters’ intent, which the Gore team suggested provided a rationale for counting punchcard ballots with the now-fabled “dimpled chad”. But in fact “the Illinois court actually affirmed a trial judge’s order to exclude dented ballots,” and a Cook County attorney who provided the Gore effort with an affidavit to the contrary last week now concedes that his recollection was mistaken (Jan Crawford Greenburg and Dan Mihalopoulos, “Illinois case offers shaky precedent”, Chicago Tribune, Nov. 23). “Doesn’t [Gore attorney David] Boies now have a professional obligation to inform the courts and others of his error?,” asks Mickey Kaus (“Hit Parade”, Kausfiles.com)
The generally liberal Miami Herald, which endorsed Gore in the election, editorializes that the Florida high court “made hash of Florida’s election law” and agrees with Gov. George W. Bush’s charge that the court “has changed the rules after the election”. It cites “the court’s unseemly willingness to stand in for the Legislature and create a new election scheme … by deciding that the counts could continue until as late as Monday morning, the justices have substituted their own deadlines for those that have long existed in state law and that Secretary [of State Katherine] Harris was sworn to uphold.” (“A muddled ruling raises questions of fairness” (editorial), Miami Herald, Nov. 23). On the New York Times op-ed page, New Republic legal affairs correspondent Jeffrey Rosen calls the Florida court’s rewrite of state election law “a bold example of judicial activism” in which the court “vastly overplayed its hand” and which “has made the justices appear to be partisans rather than neutral arbiters”. Rosen says the ruling allows Republicans to “argue plausibly that activist Democratic judges changed the counting rules in the middle of the game, only after it was obvious that the Democratic candidate needed dimpled ballots to win”. (“Florida’s Justices Pushed Too Far”, Nov. 23).
November 24-26 — “Qwest ordered to pay AT&T $350 million”. A Travis County, Texas jury has voted $1.2 million in actual damages and $350 million in punitive damages against telecommunications carrier Qwest for negligently cutting an AT&T fiber-optic phone line on several occasions in 1997. “It’s not unique that a fiber line gets cut. It’s unique it gets to [a] jury and gets this far down the road,” an investment analyst told the Austin American-Statesman. “We tried to send a message,” said a juror, as usual. “The only way to do that was to make the stockholders feel it in the bottom line.” (AP/CNet, Nov. 15).
November 24-26 — “Company Is Told to Stay and Face New Union”. A Los Angeles federal judge, “acting on a union’s complaint, has … issued a preliminary injunction preventing Quadrtech, a small manufacturer of earrings and ear-piercing machines, from laying off 118 newly unionized workers and moving its manufacturing operations to Tijuana until labor complaints against it are resolved. … Lawyers at the National Labor Relations Board, which petitioned the court on behalf of the workers, said this was the first time an American company trying to keep out a union had been prevented from leaving the United States.” (Anthony DePalma, New York Times, Nov. 23).
November 22-23 — “Gore’s point man argued against dimples in 1996”. Attorney Dennis Newman of Boston is now the point man in charge of putting Al Gore in the White House by insisting that “dimples show the true intent of the voter. Voters caused those dimples. Dimples should count. Four years ago, in a similar election spat, Newman took a much different stand. Employing his best legal tactics on behalf of a Democrat holding a slight lead in a primary race for Congress, Newman scoffed at the idea of counting the tiny indentations as votes.” Back in that case, Newman endorsed the series of propositions now urged by Republicans about the tiny indentations: that they could have been inflicted by later handling, that they could represent hesitation marks (the kind coroners find on suicides — ed.), and so forth. (Joel Engelhardt, Palm Beach Post, Nov. 22). Although the press has widely echoed the assertion of Gore attorneys that federal courts stay out of state electoral disputes — even, purportedly, when the elections are for federal offices such as president — Alabama Attorney General Bill Pryor argues that there is squarely opposed precedent to the contrary in the Eleventh Circuit, which includes both Alabama and Florida. In Roe v. Alabama (1995), the Eleventh Circuit found a federal constitutional violation in state balloting irregularities that accompanied a very close race, including a court order which appeared to change the rules after the election as to which votes would count. Moreover, the federal court intervened in Roe even though the election was for Alabama state office, not federal office (“Attorney General Bill Pryor and Secretary of State Jim Bennett File Friend of the Court Brief in Presidential Election Dispute”, Office of the Alabama Attorney General, Nov. 20, links to PDF document). (DURABLE LINK)
November 22-23 — “Descent into the lawyerclysm”. Humorix, the Linux-oriented parody site, takes off from the Florida election mess to imagine the lawsuit-ridden dystopia of the not too distant future: “Nuclear weapons are scrapped and replaced by subpoenas. … While most forms of physical violence ceases, the ensuing legal violence is far, far worse — a fleet of lawyers can bring poverty and bankruptcy to billions of innocent civilians within a matter of hours. Stage 6. World economy collapses under the weight of overlawyering.” (Jon Splatz, Nov. 19).
November 22-23 — Don’t do it, Tillie! Tillie Tooter, 84, gained national attention in August when she survived for three days trapped in her wrecked car, which had gone over a Florida interstate highway abutment; she “survived by capturing rainwater in a steering wheel cover and divvying up a stick of gum, a cough drop and a mint.” Now a lawyer is representing her and has “put her rescuers on notice that she intends to sue them for not finding her sooner”. Jim Romenesko at Obscure Store has some advice for her: you’re an old lady, you really don’t want to spend your remaining days hanging around lawyers and courtrooms. (Jodie Needle, “Tillie Tooter to sue Lauderdale, FHP for not finding her sooner in wreck”, Fort Lauderdale Sun-Sentinel, Nov. 16).
November 22-23 — France OKs wrongful-birth suit. “A severely disabled French boy has won a landmark case against medical authorities for allowing him to be born rather than aborted.” Josette and Christian Perruche sued doctors for negligently failing to realize that Josette had contracted rubella (German measles) during her pregnancy; their son Nicolas was born deaf, part-blind and with mental disabilities as a result. “Would my son really have wanted to live if he’d known he had all these disabilities?” asked Christian. “That’s the question I’m posing.” (“Boy compensated for being born”, BBC, Nov. 17).
November 22-23 — “eBay suit wins class-action status”. San Diego Superior Court Judge Linda B. Quinn has granted class-action status to a suit against eBay that “alleges the largest Internet auction company is liable for facilitating the sale of fake sports memorabilia”. (“eBay suit wins class-action status”, Bloomberg News/CNet, Nov. 19) “If successful, the suit could undermine eBay’s business model,” the Industry Standard reported earlier this year (see July 13). “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Also earlier this year four New Jersey teens “were treated for vomiting and disorientation after taking a substance called dextromethorphan, or DXM”, which one of them had bought on the online flea market. (Mylene Mangalindan, “Is eBay Liable in Drug Sale?”, WSJ Interactive/ZDNet, May 31)(see letter, Jan. 16).
November 22-23 — Canada reins in expert witnesses. “The Supreme Court of Canada accelerated its campaign against doubtful expert witnesses [Nov. 9], ruling that ‘novel scientific evidence’ from a Quebec sexologist had no place in a criminal trial.” Like the U.S. Supreme Court in its landmark 1994 Daubert decision, the Canadian high court urges judges to take responsibility as “gatekeepers” to exclude dubious testimony. (Kirk Makin, “Top court reins in use of experts”, The Globe and Mail (Toronto), Nov. 10).
November 21 — The O.J. trial of politics. By early in the morning after the long election night, “the phones began ringing at the 16-lawyer West Palm Beach personal injury firm Lytal, Reiter, Clark, Fountain & Williams, which claims credit for 22 multimillion-dollar verdicts and settlements. Local Democratic staffers had used the firm’s conference room to make get-out-the-vote calls on Election Day, and the phones were still there.” (Peter Aronson, “Lawyers take center stage”, National Law Journal, Nov. 20). “This is the O.J. trial of politics,” the Boston Globe quotes GOP lawyer Tom Rath as saying, while the Wall Street Journal reports that clients in high-profile cases turn to attorney David Boies “as much to signal a declaration of war as anything else.” (Both quoted in Deborah Asbrand, “David Boies Rides Again”, Industry Standard/Law.com, Nov. 17). It’s a class action suit with the presidency rather than the coffers of the tobacco or gun industries as the target, argues the Wall Street Journal‘s editorial side (“Al Gore’s Class-Action”, Nov. 17). When Gore brings out the lawyers by the hundreds to help him, he’s bringing out his base (Rich Lowry, “Lawyers: The Gore Hard Core”, New York Post/National Review Online, Nov. 20).
November 21 — Burglar sues for compensation. In Australia, “[a] man who broke into a house and attacked the home owner when he was discovered has launched a civil action against his victim for compensation.” Shane Colburn says he is still suffering “physically and emotionally” from the aftermath of the 1997 incident, in which he scuffled with Peter Vucetic and Giavanna Grah and was attacked by the couple’s dogs. (“The thief who sued his victim”, Daily Telegraph (NSW, Australia), Nov. 17).
November 21 —Behind “Boston Public”. “[David E.] Kelley, an ex-lawyer [and creator of hit TV show Ally McBeal and the new Boston Public], has made this subject [overregulation] the obsession of every TV show he has written. Whenever teachers or administrators try to help or discipline students, they immediately butt up against their or their bosses’ anxiety about litigation. The worst, in Kelley’s book, are sexual harassment laws, which he started railing about in Ally McBeal long before Monica Lewinsky got down on her knees. But there are also digs at anti-discrimination laws and an episode about a degrading school board regulation that requires all teachers to submit to thumb printing since they work with children. . . . people who should be looked up to and supported are met instead by automatic suspicion.
“So what’s the parallel between Boston Public and the current crisis? That you can’t educate children, just as you can’t run a country, in an atmosphere of rancor and litigiousness, when the people who are supposed to be in charge are dismissed in a knee-jerk fashion as corrupt and illegitimate by the people they’re supposed to be governing.” (Judith Shulevitz, “Culturebox: The Ungovernable Boston Public”, Slate, Nov. 10; “Public-School Teachers, Those Ink-Stained Wretches”, Nov. 14 (more on teacher fingerprinting)).
November 21 — Reckless skier convicted. Nathan Hall has been convicted of criminally negligent homicide in the case arising from his fatal collision with another skier three years ago on the slopes at Vail, Colo. (see Sept. 25-26) (Steve Lipsher, “Skier verdict closes chapter”, Denver Post, Nov. 18; “Ski Racer Convicted in Homicide”, AP/FindLaw, Nov. 17).
July 31 — Clinton’s date with ATLA. Bill Clinton’s speaking engagement yesterday before trial lawyers at their convention draws this hard-hitting column by New York Post‘s Rod Dreher, who writes: “Though he has signed a few small tort-reform measures, the President has vetoed every major effort to rein in the berserk lawsuit culture, which is turning civil courts into casinos for trial lawyers and greedy plaintiffs.” Dreher’s column also quotes this site’s editor at length about how tobacco lawyers since their lucrative settlement have become “an institutional ATM for the Democratic Party”; on how Gov. George Bush pushed through legal reform in Texas, a state where they said it couldn’t be done; and on what’s likely to happen if voters don’t break the lawyers’ momentum at the polls this fall (Rod Dreher, “Greedy Dems Refuse to Curb Lawsuit Madness”, New York Post, Jul. 30). Best of all, Dreher refers to this site as “the must-bookmark www.overlawyered.com”.
July 31 — No diaries for Cheney. “A small anecdote about a large facet of his [Dick Cheney’s] personality. [At a White House dinner] in the summer of 1992 … President Bush’s sister turned to him and said she hoped he would someday write a book, and hoped he was keeping a diary. He sort of winced, and looked down. No, he said, ‘unfortunately you can’t keep diaries in a position like mine anymore.’ He explained that anything he wrote could be subpoenaed or become evidence in some potential legal action. ‘So you can’t keep and recount your thoughts anymore.’ We talked about what a loss this is for history. It concerned him. It was serious; so is he. Then everyone started talking politics again.” (Peggy Noonan, “The Un-Clinton”, Wall Street Journal, July 26, subscriber site).
July 31 — Nader cartoon of the year. By Henry Payne for the Detroit News, it depicts Ralph as the parrot on a pirate’s shoulder, and you can guess who’s the pirate (at News site — July 25) (via National Journal Convention Daily).
July 31 — Our most ominous export. Trial lawyers in the United States have been steadily internationalizing their activities, bringing the putative benefits of American-style product liability suits to faraway nations. Now it’s happening with litigation against gunmakers: attorney Elisa Barnes, who managed the Hamilton v. Accu-Tek case in Brooklyn, is assisting a Brazilian gun-control group in a suit against local firearms maker Taurus International over sales of its lawful product. (“Brazil’s biggest gun maker under fire from rights group”, AP/Dallas Morning News, July 27).
July 31 — Running City Hall? Stock up on lawyers. “Time was that most small cities in California were represented by one in-house attorney, who likely had a sole practice on the side. Today, laws such as the Americans With Disabilities Act, requirements such as environmental impact reports and intricate ballot initiatives make running a city too complicated for that kind of legal staffing.” (Matthew Leising, “Meyers Nave spins cities’ legal hassles into gold”, National Law Journal, August 9, 1999, not online).
July 28-30 — Clinton to speak Sunday to ATLA convention. Confirmed on ATLA’s website: President Bill Clinton is scheduled to address the annual convention of the Association of Trial Lawyers of America at Chicago’s Hyatt Regency on Sunday at 2:30 p.m., the first such appearance by a sitting president ever, and another confirmation that this administration is friendlier to the litigation lobby than any before it in American history. More than 3,000 trial lawyers are expected to attend.
July 28-30 — New subpage on Overlawyered.com: Trial lawyers and politics. Former California Assembly Speaker Willie Brown has called plaintiff’s lawyers “anchor tenants” of the Democratic Party, and they’re rather well connected in many Republican circles as well (as for their longtime role in backing Ralph Nader, currently running as a Green, don’t get us started). Is anyone keeping proper tabs of their activities in the political sphere? We’re not sure, but figure it can’t hurt to start a new subpage on that topic.
July 28-30 — Wall Street Journal “OpinionJournal.com” launches. Today the Wall Street Journal is scheduled to go live with its eagerly awaited OpinionJournal.com, which is expected to embody the crusading spirit of the paper’s editorial page. They tell us Overlawyered.com will be listed among OpinionJournal.com’s “favorite” sites, with a standing link.
July 28-30 — “How the ADA Handicaps Me”. “I graduated from a good law school but finding a job has been difficult, much more difficult, than I expected,” writes Julie Hofius, an Ohio attorney who uses a wheelchair. “Getting interviews has not been a problem. Getting second interviews or job offers has been. … The physical obstacles have been removed, but they have been replaced with a more daunting obstacle: the employer’s fear of lawsuits. … job-hunters with disabilities are viewed by employers as ‘lawsuits on wheels.'” (“Let’s get beyond victimhood of disabilities act”, Houston Chronicle, July 25, and Cato Daily Commentary, July 26). The tenth anniversary of the enactment of the Americans with Disabilities Act has occasioned a flood of commentary and reportage, an ample selection of which is found at Yahoo Full Coverage. Check out in particular Carolyn Lochhead, “Collecting on a Promise”, San Francisco Chronicle, July 26, and Aaron Brown, “What’s Changed? Assessing the Disabilities Act, 10 Years Later”, ABCNews.com, July 26 (sidebar, “Too Many Lawsuits?” by Betsy Stark, quotes this site’s editor).
July 28-30 — Smoking and responsibility: columnists weigh in. “I watched my father die from smoking … [he] would not have taken kindly to being portrayed as an innocent victim of the tobacco industry,” writes the New York Press‘s John Strausbaugh. “The popularity of the fairy tale in which Demon Philip Morris pins innocent victims to the ground and forces them to smoke cigarette after cigarette until they die is another example of the way Americans enjoy infantilizing themselves and shirking responsibility for their own lives.” (“Demoned Weed”, Jul. 22). Legendary Pittsburgh shortstop Honus Wagner, of baseball-card fame, “demanded that his card be taken off cigarette packs because smoking was bad, and habit-forming. That, my friends, was in 1910. Even back then we all knew cigarette smoking was bad. … When do we stop blaming other people?” (Steve Dunleavy, “Cig-Makers Paying Price for Smokers’ Free Choice”, New York Post, Jul. 16). $145 billion, the punitive damages figure assessed by a Florida jury earlier this month, amounts to “more than twice the gross domestic product of New Zealand. It is, in short, a ridiculous number, pulled out of thin air …Why not $145 trillion?” (Jacob Sullum, “The $145 Billion Message”, Creators’ Syndicate column, July 19). And even before the state settlement jacked up the price of cigarettes for the financial benefit of state governments and their lawyers, government was reaping a bigger profit through taxes from tobacco than were manufacturers: roughly 74 cents per pack, compared with 28 cents’ profit for Philip Morris, according to Sullum. “Some will protest that there is a moral distinction here. To be sure: While politicians and tobacco companies both take money from smokers, only the tobacco companies give them something in return.” (Jacob Sullum, New York Times, July 20, reprinted at Reason site).
July 28-30 — Lenzner: “I think what we do is practice law”. Profile of Terry Lenzner, much-feared Washington private investigator in the news recently for his firm’s attempts to buy trash from pro-Microsoft advocacy groups on behalf of client Oracle, and whose services are in brisk demand from law firms and Clinton Administration figures wishing to dig dirt on their opponents. Known for his operatives’ irregular methods of evidence-gathering — he recommends posing as journalists to worm information out of unwary prospects — Lenzner recently addressed a seminar at Harvard about his calling. “I think what we do is practice law, although I use a lot of nonlawyers, he told the attendees.” (Brian Blomquist, “Gumshoe’s reputation is all heel and no soul”, New York Post, Jul. 18).
July 26-27 — Losing your legislative battles? Just sue instead. Lawyers for Planned Parenthood in Seattle have filed a lawsuit against the Bartell drugstore chain, claiming it amounts to sex discrimination for the company’s employee health plan not to cover contraception. Many employers’ health plans curb costs by not covering procedures not deemed medically necessary, such as cosmetic surgery, contraception, in vitro fertilization, and elective weight reduction. Planned Parenthood had earlier sought legislation in Olympia, the state capital, to compel employer plans to cover contraception, as has been done in about a dozen states, but strong opposition defeated their efforts; running to court, however, dispenses with the tiresome need to muster legislative majorities. A Planned Parenthood official said Bartell was selected as the target for the test case “because the drugstore chain is generally considered to be a good employer and progressive company” — that’ll teach ’em. (Catherine Tarpley, “Bartell sued over contraceptives coverage”, Seattle Times, July 20; David A. Fahrenthold, “Woman Sues for Contraception Coverage”, Washington Post, July 22; Planned Parenthood of Western Washington advocacy site, covermypills.org).
July 26-27 — Update: Tourette’s bagger case. The Michigan Court of Appeals has upheld the right of the Farmer Jack supermarket chain to refuse to employ Karl Petzold, 22, as a bagger in its checkout lines. Petzold suffers from coprolalia, a symptom of Tourette’s Syndrome that causes him involuntarily to utter obscenities and racial slurs (see June 9). “We find it ridiculous to expect a business … to tolerate this type of language in the presence of its customers, even though we understand that because of plaintiff’s condition, his utterance of obscenities and racial epithets is involuntary,” the court wrote in a 3-0 decision reversing a trial court’s denial of summary judgment. Petzold’s attorney vowed an appeal to the Michigan Supreme Court. (“Court Rules on Tourette Suit”, AP/FindLaw, Jul. 21) (text of decision, Petzold v. Borman’s Inc.) (via Jim Twu’s FindLaw Legal Grounds).
July 26-27 — “It isn’t about the money”. An Atlanta jury has awarded former stripper Vanessa Steele Inman $2.4 million in her suit against the organizers of the 1997 Miss Nude World International pageant as well as the Pink Pony, the strip club at which the week-long event was held. Ms. Inman said organizers rigged the balloting to favor a rival contestant and “blackballed her from nightclubs around the country owned by the Pink Pony’s owner, Jack Galardi”, to retaliate for her refusal to do lap dances on a tour bus, let herself be “auctioned off” to drunken golfers, or allow her breasts to be employed in conjunction with whipped cream in a manner not really suitable for description on a family website. The jury awarded her $835,000 in compensatory damages, in part to make up for the impairment of her earnings in the exotic dance field, plus $1.6 million in punitive damages. “It isn’t even about the money,” she said. “Now people believe what I had to say.” (Jim Dyer, “Former stripper awarded $2.4 M against pageant organizers”, Atlanta Journal- Constitution, Jul. 25) (more on litigation by strippers: May 23, Jan. 28). Update Apr. 17, 2004: Georgia Court of Appeals overturns verdict.
July 26-27 — “Power company discriminates against unemployed”. In New Zealand, the Human Rights Commission is telling an electricity supplier to amend its “discriminatory” policies regarding prospective customers who might have trouble paying their bills. “A woman complained that her application to become a customer was rejected because she was unemployed, did not have a credit card and did not own her own home.” The company has already agreed to cease asking applicants whether they are employed, but the commissioners say it has been “indirectly discriminating against unemployed people by requiring its customers to have a credit card, own their own home and have an income greater than $10,000 a year.” (“Stuff” (Independent Newspapers Ltd.), Jul. 26).
July 26-27 — Couple ordered to give son Ritalin. A family court judge in Albany County, N.Y. has ordered Michael and Jill Carroll to resume giving their 7-year-old son Ritalin, the controversial psychiatric drug. The couple, who reside in the town of Berne, had taken their son Kyle off the medication, which is used to treat attention deficit/hyperactivity disorder; they feared the drug was harming his appetite and sleep. An official at the Berne-Knox-Westerlo School District proceeded to inform on them to the county Department of Social Services, which filed child abuse charges against the couple on charges of medical neglect. The charges, which might have led to the son’s removal from the home, were dropped when they agreed before the judge to put Kyle back on the drug; they will, however, be allowed to seek a second opinion on whether the boy should get Ritalin and return to court to argue for the right to discontinue the drug at some future date. (Rick Carlin, “Court Orders Couple To Give Son Drug”, Albany Times-Union, July 19 (fee-based archive — search on “Ritalin” or other key words to find story)) (update — see Aug. 29-30).
July 24-25 — Update: drunken bicyclist out of luck. A Louisiana appeals court has thrown out a trial court’s $95,485 award against city hall to a drunken bicyclist who was injured when he ran a stop sign and collided with a police car responding to a call (see Dec. 1). Plaintiff Jerry Lawrence’s lawyer explained the verdict at the time by saying, “Drunks have some rights, too”. (Angela Rozas, “No cash for drunken bicyclist”, New Orleans Times-Picayune, May 20). Police chief Nick Congemi said one reason Lawrence got as far as he did in his suit was that the department hadn’t issued him a ticket at the time for bicycling while intoxicated. “We learned a lesson, too. Because he was injured so badly, we decided not to give him any citations. … we’re going to change our policies on that. Here on out, we’re going to issue citations, even if they’re injured.” More proof of the inspirational things litigation can accomplish! (via “Backstage at News of the Weird”, May 29)
July 24-25 — “Going after corporations through jury box”. Christian Science Monitor takes a look at what comes next in mass torts after the Florida tobacco verdict, which Lawrence Fineran of the National Association of Manufacturers calls “really scary”. Quotes this site’s editor, too (Kris Axtman, July 24).
July 24-25 — Welcome Wall Street Journal readers. In its Friday editorial on the sensational developments in the Coke discrimination case, the Journal suggested people learn more by visiting this site (if you’re here to do that, see July 21-23 and July 19-20; click through from the latter to the big article on the case in the Fulton County Daily Report). Thanks in no small part to the Journal, last week (and Friday in particular) saw this site set new traffic records. (“The Practice”, July 21) (requires online subscription).
July 24-25 — “Poll: majority disapprove of tobacco fine.” Gallup asked 1,063 adults their opinion of a Florida jury’s $145 billion punitive verdict against tobacco companies. 59 percent “disapprove”, 37 percent “approve” and 4 percent had “no opinion.” Asked who was predominantly to blame for smokers’ illnesses, 59 percent said smokers themselves “mostly” or “completely” were and 26 percent said tobacco companies were (20 percent “mostly”, 6 percent “completely”). Another 14 percent blamed the two equally. Disapproval of the award increased among older age groups and with political conservatism; the results are consistent with a 1994 poll on tobacco liability. In December the public was asked whether it agreed with the U.S. government’s view that gun manufacturers could rightly be held financially responsible for the costs of shootings; it said no by a 67 to 28 percent margin. (Carol Rosenberg, Miami Herald, July 19)
July 24-25 — Florida verdict: more editorial reaction. “Given the industry’s history of evasion and equivocation about the health risks of smoking, it is tempting to welcome as a comeuppance a Florida jury’s $144.8 billion judgment against six tobacco companies. The temptation should be resisted. The judgment is a disgrace to the American legal system and an affront to democracy…. These issues should be confronted by the people’s elected representatives. They should not be hijacked by the judicial process under the guise of a tort case.” (“Smoke signal: An anti-tobacco verdict mocks law and democracy”, Pittsburgh Post-Gazette, July 21). “Ridiculous … outrageous … A ruling that completely ignores personal responsibility is a joke.” (Cincinnati Enquirer). “The biggest damages here may be to the reputation of the legal system.” (Washington Post). “Monstrous … Now that they have taken an unwise gamble on their health, the Florida plaintiffs portray themselves as victims of Big Tobacco. … outlandish” (San Diego Union-Tribune). “Falls somewhere between confiscation and robbery” (Indianapolis Star). A “fantasy verdict” (Cincinnati Post/Scripps Howard). “The bottom line is that courtrooms are not the proper forums for setting public policy, and personal responsibility should not be dismissed out of hand. ” (Tampa Tribune). “Yuck…. [the] tendency to run from personal accountability is one of the least attractive of modern human characteristics. A lot has also been said about the wrongness — yes, the fundamental wrongness — of a system that makes billionaires of attorneys based on their ability to minimize the responsibility of their clients when a deep-pockets defendant is in the dock.” (Omaha World-Herald). “You don’t have to love tobacco companies to recognize the wrong that’s been going on in Florida for the past six years…. [a lawsuit] ran amok.” (Louisville Courier-Journal). “Ambitious and politically motivated lawyers are usurping decision- and policymaking that in a democracy is appropriately left to the voters and their representatives. Tyranny of the tort may be putting it too strongly — at least for now. But who knows who will be next on the trial lawyers’ hit list?” (Chicago Sun-Times). “Justice is not served … ridiculous.” (Wisconsin State Journal (Madison)). “Absurdly excessive … provides a further reminder that the national “settlement” between Big Tobacco and the states aimed at curbing lawsuits over smoking hasn’t resolved much of anything.” (Memphis Commercial Appeal). “‘This was never about money,’ the plaintiffs’ attorney said immediately after the verdict. Whooooo, boy.” (Des Moines Register). Newspapers that approved of the verdict included the New York Times, USA Today, Dallas Morning News, San Francisco Chronicle, Milwaukee Journal Sentinel, Bergen County (N.J.) Record, Palm Beach Post, Spokane Spokesman-Review, Buffalo News, and Charleston (W.V.) Gazette.
July 21-23 — Principal, school officials sued over Columbine massacre. Three families were already suing the Jefferson County sheriff’s office, the killers’ parents and others, and now they’ve added Principal Frank DeAngelis and other school officials as defendants. After all, the more different people you sue, the more justice will get done, right? (“Columbine principal sued by victims of massacre”, CNN/Reuters, Jul. 19). Update Nov. 30-Dec. 2, 2001: judge dismisses most counts against school and its officials, parents having settled earlier.
July 21-23 — Washington Times on lawyers. Reporter Frank J. Murray’s series examining the legal profession has been running all week with installments on lawyer image, the boom in pay, lack of teeth in the lawyer-discipline process and more (July 17-21).
July 21-23 — Complaint: recreated slave ship not handicap accessible. A group of disabled New Haven, Ct. residents is charging that the publicly funded schooner Amistad, a traveling historical exhibit, is not accessible to wheelchairs as required by the Americans with Disabilities Act. The Amistad was the scene of an important slave revolt in 1839-1842 and its recreated version helps evoke the overcrowding and other inhumane conditions of the slave trade. (“Amistad Raises Concerns About Handicap Access”, AP/Hartford Courant (CtNow.com), July 18).
July 21-23 — Class-action lawyers to Coke clients: you’re fired. As we mentioned yesterday, there have been sensational new developments in the Coca-Cola Co. bias-suit saga, following an episode in which a plaintiff lingered on the line after a conference call and heard what his lawyers told each other when they thought they were among themselves (see July 19-20). One reader writes to say he found it “an interesting commentary on class action litigation. The plaintiff becomes dissatisfied with the way his attorneys are handling his law case. So the client fires the attorney, right? Wrong. The attorney fires the client and continues the case with other plaintiffs. What’s wrong with this picture?”
July 21-23 — When sued, be sure to respond. A “default judgment” is what a plaintiff can obtain when a defendant fails to show up in court and contest a suit, and it’s often very bad news indeed for the defendant, as in a case out of New Brunswick, N.J., where a judge has ordered Wal-Mart “to pay more than $2 million to a former cashier who said he was harassed and fired after a boss learned he was undergoing a male-to-female sex change.” Ricky Bourdouvales, 27, says his troubles began when he confided to a manager that he was in the middle of crossing genders, though when he was fired in January he was told it was because of discrepancies with his cash register count. The giant retailer says it will ask the judge to overturn the award, saying it was aware that a document had been filed in May but did not realize its nature. “We were totally unaware of the lawsuit, and we want to have the opportunity to defend ourselves,” said its spokesman. (“Judge Orders Wal-Mart to Pay Fired Transsexual $2 Million in Bias Case”. AP/FindLaw, July 18) (more on suits against Wal-Mart: July 7-9). Update Sept. 6-7: judge grants retrial.
June 20 — The judge chips in. From suburban Washington, a story that ends with not your usual kind of wealth redistribution: moved by the plight of a couple facing eviction for falling $250 behind on their rent, Fairfax, Va. judge Donald P. McDonough simply handed his own money to the landlord’s stunned attorney and said, “Consider it paid.” “Not something you see much,” said bailiff Erin Cox, who was present. “Not something you see ever.” Odder and odder: four attorneys on hand for other cases, seeing the judge’s example, pulled out their own checkbooks and offered donations to the couple. (Michael Leahy and Leef Smith, “A Beneficent Bench”, Washington Post, June 10).
June 20 — “New York City moves to slash Cendant fees.” “New York City [recently] submitted legal papers challenging as “astronomical” the $262 million fee request — set under a court auction procedure — that was submitted by the law firms that negotiated the record breaking $3.1 billion settlement in the Cendant case.” The class action firms of Bernstein Litowitz Berger & Grossman in New York and Barrack, Rodos & Bacine in Philadelphia had been named by the court to represent investors seeking to recoup losses suffered in 1998 when the parent company of the Avis and Ramada Inn franchises conceded that its books showed massive accounting irregularities. (Daniel Wise, New York Law Journal, June 1) (update Sept. 4: judge approves fee).
June 20 — “A Civil Action” and Hollywood views of lawyers. In Boston this spring, the Federalist Society convened a panel discussion on Hollywood’s portrayal of lawyers and litigation, specifically the movie “A Civil Action”(our take on it) as well as clips from several other films. Featured on the panel were several of the attorneys involved in Anderson v. W.R. Grace, the case highlighted in “A Civil Action”, including Jerome Facher of Hale and Dorr (Beatrice Foods), Kevin Conway (plaintiffs), and Michael Keating and Marc Temin of Foley, Hoag & Eliot (W.R. Grace). The moderator was Evan Slavitt of Gadsby Hannah LLP (1 hour, 50 minutes — NetRoadShow).
June 20 — “Litigation grows in ailing nursing home industry”. Lawyers say rising rates of court action are understandable since there’s so much neglect and abuse in long-term care (a spokeswoman from “the Coalition to Protect America’s Elders, a group funded by trial lawyers,” agrees) while administrator Marty Goetz at the River Garden Hebrew Home in Jacksonville says good and bad home operators alike are being “sued to death”. After making nursing home suits a big business in Florida, lawyers have fanned out to nearby states such as Alabama and Tennessee. (Julie Appleby, USA Today, June 19). Three long-term-care operators have filed for bankruptcy recently: Louisville-based Vencor, the largest such chain; Albuquerque-based Sun Healthcare Group, and Atlanta-based Mariner Post-Acute Network, the second-biggest operator with more than 400 homes nationwide. Medicare reimbursement cutbacks are generally cited as the main reason, but Mariner chairman Francis Cash said “explosive litigation costs” were also a factor.
SOURCES: Healthcare Management Advisors HMA Strategy Advisor, Jan. 28; “Nursing Home Files For Chapter 11”, Jan. 18; Debra Sparks, “Nursing Homes: On the Sick List”, Business Week, July 5, 1999; Lindsay Peterson, “Industry Tries Another Battle Tactic,”, Tampa Tribune, March 22, link now dead; Coalition to Protect America’s Elders (pro-liability); ProtectOurParents.com (pro-legal reform, Florida Health Care Association).
June 19 — Welcome CNNfn, Intellectual Capital, CEI readers. Reed Karaim’s advice article for workers thinking of suing their bosses mentions this site and quotes our editor; we like the piece, but who gave it that headline? (Reed Karaim, “Work issues? Go to court”, CNNfn/WomenConnect, June 16). Intellectual Capital bestows on us a mention/ quote/ link in an article on disabled access and web design, and IC‘s readers have joined in a discussion of the subject (K. Daniel Glover, “The Disability Divide”, June 15). And Max Schulz mentions this site in the Competitive Enterprise Institute’s latest Update (June).
June 19 — “‘Legislative Subpoenas’ Give Cities An Unfair Head-Start in Lawsuits”. “Should a city council be able to demand private books and records from a company it is considering suing simply to evaluate the city’s likelihood of succeeding in a lawsuit and how much it may be able to recover? The California Supreme Court is currently being urged to give carte blanche to any city, no matter how small, to demand financial and other information from its potential litigation opponents.” The asserted power “threatens every potentially unpopular business in the country.” (Daniel E. Troy (Wiley, Rein & Fielding and American Enterprise Institute), San Francisco Chronicle, June 13).
June 19 — Oh, to be in England. On ABC’s Politically Incorrect last Monday, host Bill Maher brought up the case (see June 12) of the deaf man who’s suing “Who Wants To Be a Millionaire?” because he can’t participate in its telephone screening process (“it seems like in this country you are not alive unless you are suing someone.”) Comedian Dennis Miller, star of HBO’s “Dennis Miller Live” said the case showed the need to make it easier to collect legal fees from those who file weak cases. Simon LeBon of Duran Duran: “That’s how it is in the U.K. If you’re wasting people’s time, you pay the cost, simple as that.” Miller: “Well, that makes sense. We have come over here … to get away from England because we found the laws repressive. I get over here and I find out their laws are better than ours.” (June 12 transcript; other show transcripts).
June 19 — Shoot-’em-ups: hand over your files. Per the Hollywood Reporter, federal investigators have asked the major studios “to turn over media and marketing plans for certain movies to determine whether the entertainment industry is peddling violent fare to young audiences,” citing sources “familiar with” the Federal Trade Commission probe of popular entertainment ordered by President Clinton after Columbine. “Sources said stacks of boxes of evidence” had been handed over to the federal agency, though with contents heavily redacted to remove proprietary data. The Commission is currently pursuing the probe under its Section 6 informal authority, under which it does not exercise formal subpoena power, but it could turn the proceedings into a probe under Section 5 authority, in which it would have such power. “While tobacco is federally regulated and movies, music and videogames are not, a veteran of the long court fights with the tobacco industry sees parallels between how the FTC probed cigarette marketing and how the FTC now seeks an education in entertainment marketing, especially to children.” (David Finnegan and Brooks Boliek, “Studios asked to show media (sic) their plans for violent films”, Hollywood Reporter/Norwalk (Ct.) Hour, May 8, not online).
Plus: the attorney general of Illinois has seen fit to conduct a “sting” operation on store owners’ sale of violent videogames to minors, though in general it’s not unlawful for them to sell minors those games. “Members of my staff also are researching alternative enforcement strategies if voluntary compliance is not forthcoming,” quoth the AG, Jim Ryan, whose website is emblazoned with the slogan, “For Children, For Families, For Illinois”. (David Hudson, “Illinois attorney general urges end to sales of violent video games to minors”, Freedom Forum, April 20). See also “No basis for liability” (editorial), Boston Herald, April 9 (expressing relief at court’s dismissal of Paducah lawsuit, see April 13); Damon Root, “The blame game”, Liberzine, April 11; Paul McMasters, “Target practice on the First Amendment”, Freedom Forum, Feb. 28).
June 16-18 — New subpage on Overlawyered.com: Overlawyered skies. Our newest subpage collects tidbits of every sort on what happens when law becomes airborne, including material on sport aviation, aerospace product liability, airline labor wrangles, and even UFO suits, along with of course crashes and their aftermath.
June 16-18 — No right to kick him out. Delaware real estate developer Louis J. Capano Jr. is suing the Wilmington Country Club after it expelled him for having made false statements to a grand jury. Last year, in a sensational case reported nationwide, a jury convicted Capano’s brother, former Wilmington attorney Thomas Capano, of murder in the 1996 disappearance and death of 30-year-old Anne Marie Fahey, who had been a secretary to the state’s governor. A judge later sentenced Thomas Capano to death. “During his brother’s trial, Louis Capano acknowledged that he lied to a federal grand jury in an effort to help his brother establish an alibi in connection with Fahey’s disappearance. He also admitted to helping dispose of some evidence connected to the slaying.” The country club subsequently voted out Louis Capano after learning of his admissions; its bylaws allow dismissal of members for conduct that is “disorderly or injurious to the club’s interest or reputation.” Last month he sued in the Court of Chancery seeking reinstatement and damages. (“Louis Capano Sues Wilmington Country Club for Reinstatement”, Delaware Law Weekly, May 11).
June 16-18 — Penalty for co.’s schedule inflexibility: 30 years’ front pay. “A federal jury in Pennsylvania awarded $1.5 million in a suit brought under the Americans with Disabilities Act by a woman who said her bosses at first accommodated her Crohn’s disease by letting her work from home on a flexible schedule but later reneged on that promise by insisting that she work specific days in the office.” Denise Davis, an insurance underwriter, said it was impossible for her to commit to being in the office any particular days because she never knew when her condition might flare up. “The eight-member jury awarded Davis the highest estimate of economic damages presented by the plaintiffs — $1.3 million — and $200,000 in compensatory damages. An economist testified at trial that Davis, who is currently 37, has already suffered losses of more than $40,000 in wages. And since no employer is likely to hire her while needing an accommodation, he said that a present-value estimate of her future lost wages up to age 67 is more than $1.2 million.” (Shannon P. Duffy, “Jury Awards Woman With Crohn’s Disease $1.5 Million in ADA Case”, The Legal Intelligencer (Philadelphia), June 1).
June 16-18 — Animated advocacy. Cross Circuit, a site decidedly in favor of the Second Amendment, carries a number of cartoon animations that may raise a smile, including an interactive game you can play (“Smith & Wesson Clinton Pacifier“) to get a feel for why so many firearms owners grow nervous when they hear about lawsuits intended to prevent the legal sale of any but “smart guns”. We also admit to having laughed at the London-nanny tale “Janet Poppins“, though we warn in advance that it is disrespectful to the presently serving Attorney General (requires Shockwave plug-in).
June 14-15 — The doctor strikes back. The courts make it next to impossible for a vindicated physician to turn the tables and sue the lawyer who filed a losing malpractice case, but Dr. John Guarnaschelli, a Louisville neurosurgeon, has managed to beat the odds. “Guarnaschelli charged that lawyer Fred Radolovich had sued him without any evidence that he was negligent, without consulting an expert, and without doing much of anything to determine whether he had a case. Radolovich later conceded in a deposition that the only doctor he consulted before filing the lawsuit [which was summarily dismissed] was one of his own clients — a family practitioner accused of fondling patients during gynecological exams. That doctor told Radolovich to go to a medical library instead….After a six-day trial, a Jefferson Circuit Court jury concluded on April 25 that Radolovich had maliciously prosecuted Guarnaschelli and ordered him to pay $72,000 in damages, including $60,000 in punitive damages.” Too many other good details to summarize here — don’t miss it (Andrew Wolfson, “Doctor strikes back at lawyer who sued him”, Louisville Courier-Journal, June 7; “Doctor sues lawyer for alleging malpractice”, AP/Lexington Herald-Leader, June 8).
June 14-15 — One gunmaker’s story. Freedom Arms is a small company in the town of Freedom, Wyoming, run by Bob Baker after being started by his father. It “makes collector guns, precise, modernized versions of the old western six-shooter that are sold to a small but multinational market.” “Freedom Arms customers must wait up to eight months for a handgun — far beyond the 24 to 72 hour waiting period debated by politicians — because the company only produces about 2,000 a year.” It has not, however, been spared the same litigation that has engulfed mass-market gun producers. In the much-discussed 1999 case of Hamilton v. Accu-Tek, it was one of 15 gunmakers a Brooklyn jury deemed negligent in their marketing practices, but not among those ordered to pay $500,000. “So far, Baker says he has spent more than $200,000 on legal bills and laid off 12 of his 35 employees to fight the lawsuits.” (“Gun Debate Hits Home for Opponents in Lawsuit”, AP/Salt Lake Tribune, April 20; Firearms Litigation Clearinghouse account of Hamilton v. Accu-Tek).
June 14-15 — “Trial lawyers give $500,000 as legislation heads to Senate floor”. With two major liability-curbing bills pending in the Senate, “trial lawyers in April contributed $508,000 to Democratic Senate campaigns,” reports AP. “The Houston law firm of Williams Bailey [a beneficiary of Texas tobacco fees] donated $250,000 of the total raised from trial lawyers in unregulated soft money during April by the Democratic Senatorial Campaign Committee.” A fund-raiser in Savannah during an Association of Trial Lawyers of America conference brought in $300,000: “Trial lawyers could chat with Democratic Sens. Tom Daschle of South Dakota, the Senate minority leader; John Edwards of North Carolina, a former trial lawyer himself; Charles Robb of Virginia and John D. Rockefeller IV of West Virginia.” Democratic Senatorial Campaign Committee spokesman David DiMartino “said there was no connection between the legislation and fund-raiser.” Trial lawyers have lobbied against both bills currently before the Senate: H.R. 2366 would limit punitive damages and the application of joint and several liability (paying an entire award when others were also responsible) for businesses with fewer than 25 employees, while H.R. 1875 would give defendants a right to have some class action lawsuits heard in federal rather than state court. Both bills are priorities of the U.S. Chamber of Commerce: “The trial lawyers have a lot of money, but the small-business community has a lot of votes,” said James Wootton, who directs the Chamber’s Institute for Legal Reform. (AP/FindLaw, June 2).
June 14-15 — The judge wasn’t asleep. A unanimous Second Circuit appeals panel has upheld a judge’s ruling that two lawyers and their clients should pay sanctions for the submission of dubious affidavits in an authorship dispute over the song “The Lion Sleeps Tonight“. In the lawsuit, four members of the 1950s musical group The Tokens said they had been fraudulently deprived of ownership rights for the 1961 hit (adapted from an earlier song on the Folkways label under the title “Wimoweh”, itself an adaptation of an earlier African song). The members testified in pretrial depositions that they first learned about the fraud in late 1992, but it developed that their 1996 lawsuit would therefore be barred by a three-year statute of limitations on this type of action. Attorneys Mitchell A. Stein and Stephen J. King then sought to present evidence that their clients had been mistaken in the depositions and had actually learned about the denial of authorship rights considerably later, which would salvage a chance to proceed. Judge Michael Mukasey of the federal court in Manhattan said that to credit the new version “would be to affect a level of naivete about human affairs that is not required even of judges,” and ordered Stein and King to pay $15,000, and their clients $7,680, to help “defray fees generated by their unreasonable conduct”. (Mark Hamblett, “Time-Barred Claim Leads to Sanction”, New York Law Journal, May 25) (versions of song, from Huga’s Pad) (Tokens fan site, Tom Simon).
June 13 — Can’t sue over affair with doctor. “A Grand Island woman who had sex with her gynecologist can’t sue him for negligence and emotional distress, the Nebraska Supreme Court said Friday.” Affirming a lower court opinion, the state high court “said the woman’s lawsuit failed partly because the relationship apparently was consensual.” The affair lasted for nearly six years, but the woman grew despondent after the doctor ended it. (Butch Mabin, “Court: Woman can’t sue doctor for negligence”, Lincoln Journal-Star, June 12).
June 13 — From the U.K.: watch your language. Stockport College in Manchester, England, has banned the use of more than forty “offensive” words and phrases, including “postman”, “chairman” and even “history” (sexist), “mad”, “manic”, “crazy” (demeaning to mentally impaired), “the deaf”, “the blind”, “slaving over a hot stove” (“minimizes the horror and oppression of the slave trade”), “normal family”, “ladies and gentlemen” (said to have “class implications”), The 15,000-student college says it “will make it a condition of service and admission that employees and students adhere to this policy”. (Martin Bentham, “College guide bans ‘lady’ and ‘history’ as offensive words”, Sunday Telegraph (London), June 11). And a public employment bureau in Staffordshire, England, recently told an employer that it could not place a recruitment advertisement that included the words “hardworking” and “enthusiastic”, which it deemed discriminatory. The bureau’s parent agency explained that in its opinion such terms, as well as terms like “reliable” and “smart”, are overly subjective and could foster discrimination against the disabled. However, the education and employment minister in the Blair government, David Blunkett, who is himself blind, ordered the policy reversed and the words permitted; his office issued a statement declaring that he “regards it as an insult to him personally to suggest that a disabled person cannot be reliable, hardworking and enthusiastic.” (Maurice Weaver, “Hardworking job seeker? Do not apply within”, Daily Telegraph (London), June 7; Andrew Mullins, “Over-enthusiastic jobcentre boss champions the cause of the lazy”, The Independent (London), June 7).
June 13 — Nader, controversial at last. As a presidential candidate scoring high enough poll numbers to affect the potential outcome in some close states, Ralph Nader seems on the verge of securing the thoroughgoing unpopularity in moderate liberal circles that has so long eluded him. Although the Associated Press still accepts his self-characterization as a “longtime advocate for the ‘little guy'”, the New Republic has been blasting away at the close ties Nader has formed with some not-so-little guys who share his antipathy to free trade, such as conservative textile magnate Roger Milliken: “Says Chip Berlet, an analyst at Political Research Associates who charts right-wing influence on lefty groups: ‘It’s a little strange — you come down to visit Nader and Milliken’s lobbyist picks you up.” (Ryan Lizza, “Silent Partner”, The New Republic, January 10; letters exchange between Joan Claybrook and Lizza, May 1, is not yet online). Still largely unaired in campaign coverage — but explored in pathbreaking articles by Forbes’s Peter Brimelow and Leslie Spencer a decade ago — are Nader’s much more longstanding ties to a far bigger set of big guys, the plaintiff’s trial bar, for which see links and quotes below.
SOURCES: On trade controversy, and general background: “Daily Notebook: Breaking the Silence” (third item), New Republic, May 22; John Judis, “Seeing Green”, May 29 (Nader “elevates the struggle with corporations into an apocalyptic conflict between good and evil” and turns business into a “bogeyman”); “Nader: Big Guys Invigorate Me”, AP/CBS News, undated, April (noting that Nader faces a handful of challengers for the Green Party nomination, including “Jello Biafra, former lead singer of the punk rock band the Dead Kennedys”); James Dao, “Nader Runs Again, This Time With Feeling”, New York Times, April 15 (reg) (critics charge “that despite his seemingly penurious way of living, he is actually quite wealthy, that he purposely spent almost nothing on his 1996 campaign to skirt federal election laws, which require candidates who spend more than $5,000 to file reports disclosing their assets”); Karen Croft, “Citizen Nader”, Salon, Jan. 26, 1999 (uncritical appreciation by former Nader employee); VoteNader.com (website for his candidacy).
On RN & trial lawyers, not online unless link given: Peter Brimelow and Leslie Spencer, “The plaintiff attorneys’ great honey rush”, Forbes, Oct. 16, 1989 (includes interview quotes from prominent trial lawyers: “‘We are what supports Nader. We all belong to his group. We contribute to him, and he fundraises through us,” says Fred Levin [Pensacola, Fla.] ([then-annual income from practice] $ 7.5 million). ‘I can get on the phone and raise $100,000 for Nader in one day,’ says Herb Hafif [Claremont, Calif.]. ‘We support him overtly, covertly, in every way possible,’ says Pat Maloney [San Antonio, Texas]. ‘He is our hero. We have supported him for decades. I don’t know what the dollar amounts would be, but I would think it would be very large, because we have the money and he has our unabridged affection. I would think we give him a huge percentage of what he raises. What monied groups could he turn to other than trial lawyers?'”); Peter Brimelow and Leslie Spencer, “Ralph Nader, Inc.”, Forbes, Sept. 17, 1990; Associated Press, Sept. 10, 1990 (quoting RN: “If they don’t retract I will take them to court”, an empty threat as it would seem); “Ralph Nader, pro and con”, Forbes, Oct. 29, 1990 (includes RN’s response); Leslie Spencer, “America’s third political party?”, Forbes, Oct. 24, 1994; Andrew Tobias, “Ralph Nader Is a Big Fat Idiot”, Worth, Oct. 1996; “Ralph Nader’s Dirty Little Secret”, New York Post (editorial), Mar. 19, 2000; Andrew Tobias, “Ralph Nader Really IS a Big Fat Idiot”, AndrewTobias.com, June 12, 2000.
June 12 — Rewarded with the bench. Probably no state official in the country has done more to organize mass litigation than Connecticut attorney general Richard Blumenthal, a key backer of gun, tobacco and Microsoft cases, among many others (see Dec. 2, March 31, Feb. 3, Feb. 16, April 11). Confirming (in case we didn’t already know) that marshaling such courtroom assaults is a good way to get ahead in American law, Blumenthal is now reported to be in line for a nomination by President Clinton to the powerful Second Circuit Court of Appeals, which handles cases from New York and Vermont as well as Connecticut. According to the Hartford Courant, compliant Senate Republicans are expected to confirm him quickly and without a fight. (Jon Lender and Michael Remez, “White House Eyes Blumenthal”, May 9; Michael Remez, “Blumenthal On Verge Of Court Nomination”, May 17; Michele Jacklin, “For The Last Time: Blumenthal Doesn’t Want To Be Governor”, May 17). Update Oct. 10: judgeship didn’t go through, now angling for Senate seat.
June 12 — Who wants to sue for a million?, part II. In March, four disabled Miami residents announced they were suing the hit game show “Who Wants To Be A Millionaire?”, saying the show hadn’t accommodated their efforts to become contestants, and “seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (see March 24-26) Now Peter F. Liberti Jr., who is deaf and a resident of Tonawanda, N.Y., has filed a similar complaint. (Dan Herbeck, “Wanted: a fair hearing”, Buffalo News, June 8).
June 12 — Bestiary of the bar. In Cincinnati, Common Pleas Judge Fred Cartolano recently complained from the bench “that there are too many lawyers, too many law schools and too many opportunities for dishonest behavior. ‘There are only so many fleas that can feed on a dog,’ the judge said. ‘We have lawyers coming out of the woodwork. There’s not enough business for all the lawyers out there.’ Judge Cartolano spoke before sentencing Kenneth Schachleiter to six months in jail for stealing about $91,000 from the estate of an elderly client.” (Dan Horn, “Judge decries lawyers as ‘fleas'”, Cincinnati Enquirer, April 13). Fullerton, Calif. attorney Linda K. Ross, who practices family and probate law, has filed a lawsuit against GTE Directories Sales Corp. for mistakenly listing her name and phone number in a yellow pages directory under the heading “Reptiles”. “She is subject to a great many joke and hostile phone calls, hissing sounds as she walks by and other forms of ridicule,” according to the lawsuit, although Ross does concede that her own mother “laughed for 10 minutes.” (Citizens Against Lawsuit Abuse Houston website, “Briefs”, citing May 1 issue, Liability & Insurance Week; Cathy Martindale, “Bulletin Board”, Amarillo, Tex. Globe-News, Jan. 17). A new legal referral website bills itself as “SharkTank.com — Attorneys Ready To Attack Your Case”. And New York Observer columnist Chris Byron has penned this lyrical description of what happened to a company whose business went from bad to worse trying to lend to borrowers with bad credit records: “class action lawyers have now descended on the company as if drawn by fish guts and other chum to a feeding frenzy of great whales”. (“Shoddy Contifinancial collapses by lending to risky deadbeats”, March 27).